Question
of the week Question of the week

Curious. Interesting. Informative.

12 January 2018

Correcting inequity

Family Law
Federal

Asked

Family Law - Running a Kennon argument

In property proceedings what is meant by 'running a Kennon argument'?

Answered

Thanks for the question.

A Kennon argument is essentially an argument that family violence perpetrated by one party has made the contributions of the other party (usually the wife) more 'arduous' and that family violence has had a 'significant adverse impact' on that party’s contributions. It specifically relates to contributions made under s 79(4)(c).

We address Kennon in 101 Family Law Answers and say:

Kennon and Kennon [1997] FamCA 27 (10 June 1997) was the first decision of the Full Court where violence was considered relevant to proceedings under s 79:

The actions in question are variously referred to in discussions as 'conduct', 'misconduct', or 'fault'. Those terms seem to be used interchangeably. As a matter of convenience, we will use the term 'conduct'. …

Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of 'negative contributions' which is sometimes referred to in this discussion.

In the above formulation, we have referred only to domestic violence, for the reasons which we indicated earlier, but its application is not limited to that. 

We think the earlier cases may have overlooked the distinction which more recent cases have emphasised. However, if it is thought now to be artificial to distinguish those longstanding authorities in that way, it appears to us, having regard to the reconsideration which has been given to this matter over recent times, that it may now be appropriate for this court to treat those authorities as no longer binding and to be subject to the qualifications and distinguishing feature referred to in the recent decisions of this court.

However, it is important to consider the 'floodgates' argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this court to fault and misconduct in property matters a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost. 

However, in our view, s 79 should encompass the exceptional cases which we described above. It would not be appropriate to exclude them as a matter of policy because of this risk. It is a matter of commonsense for the lawyers involved and, where that may not be sufficient, it is a matter for a firm hand by the court at an early stage when a case appears to raise those issues. 

It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect and of necessity it does not encompass (as in Ferguson) conduct related to the breakdown of the marriage (basically because it would not have had a sufficient duration for this impact to be relevant to contributions). Similarly, in Killick v Killick (1996) 21 Fam LR 331 at 341, in proceedings under the Property (Relationships) Act 1984 (NSW), the Court of Appeal rejected the argument for the male partner that incidents of infidelity during the relationship by the female partner should be taken into account as diminishing her contribution as homemaker or parent.

Regards

Mentor