Family Violence as a Property Factor: Statutory Integration, Evidence and Outcomes

Introduction

The Family Law Amendment Act 2024 (Cth) (FLAA 2024) was passed by the Federal Government in December 2024. Included in the amendments, which came into effect on 10 June 2025, were the expansion of the definition of family violence in s 4AB of the Family Law Act 1975 (Cth) (FLA) to expressly include economic and financial abuse, and a new statutory basis for making an adjustment for the effect of family violence experienced by a party when assessing that party’s contributions or current and future circumstances in a property settlement.

At the time it was hoped that these adjustments would bring positive changes to the way family violence is dealt with in property proceedings, including greater awareness of the possibility for victim-survivors of family violence to seek an adjustment in property proceedings and clarity over how such adjustments could be made.

As stated in the Explanatory Memorandum to the FLAA 2024, the purpose of the amendments was to (at 5 [9]):

“… amend Parts VIII and VIIIAB of the Family Law Act to clearly signal that the family law courts will consider the economic effects of family violence in property and spousal maintenance proceedings under the Family Law Act. These amendments send a strong message to the community that property settlement outcomes should recognise the effect of family violence on individuals, and on the wealth and welfare of the family, where this is relevant. The amendments make clear to the family law courts, and parties negotiating outside of court, that the economic consequences of family violence can be considered when resolving the property and financial aspects of relationship breakdown.”

This paper covers the following topics:

1. Brief overview of the Kennon principle;
2. Summary of the 10 June 2025 amendments, including:
   1. The expanded definition of family violence in s 4AB;
   2. The new sections 79(4)(ca) and 79(5)(a);
3. Pickford & Pickford [2024] FedCFamC1A 249;
4. Recent cases;
5. Lessons from the recent cases, including evidentiary considerations;
6. Practical tips for practitioners.

The Kennon principle

In 1997, the Full Court of the Family Court of Australia (as it then was), decided the case of Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27. In Kennon, the Full Court (Fogarty, Baker and Lindenmayer JJ), established the contributions approach to family violence, under which the impact of family violence on the victim’s ability to make contributions is assessed. Whilst the principles changed over time, the original principles required:

• The impact of the family violence must have made the victim’s contributions “significantly more arduous than they ought to have been”;
• There must have been a “discernible impact” of the family violence upon the contributions;
• The conduct must have occurred over a significant duration of the relationship and not just at the time of the breakdown of the relationship.

If these matters were established, the effect of the family violence was taken into account in determining the victim’s property settlement entitlements under s 79.

The principles were expected to apply to a “relatively narrow band of cases”. The Full Court said:

“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.”

The impact of a Kennon adjustment was usually modest, but family violence was relevant in an increasing number of the matters which came before the court.

Family violence could be relevant to the assessment of the previous s 75(2) (now s 79(5)) factors, as well as s 79(4), and therefore might be relevant to both the assessment of contributions and current and future circumstances (formerly referred to as future needs). Although there have been concerns as to whether this meant that family violence might be double-counted, the Full Court of the Federal Circuit and Family of Australia (FCFCOA) said in Boulton & Boulton [2024] FedCFamC1A 132; (2024) FLC 94-202 (at [60]):

“There is no error in principle by taking into account findings of prior family violence in evidentiary past contributions and then considering its prospective impact in combination with other factors as relevant to findings as to future earning capacity”.

Following the usual approach taken by the court (Norbis v Norbis (1986) FLC 91-712; [1986] HCA 17), the adjustment for Kennon was usually bundled up with the global assessment for other contributions or s 75(2) factors (now s 79(5) considerations) so it was difficult to assess the impact of Kennon, save that it was usually assumed to be modest (say no more than 3-5%).

In Kennon, the Full Court was worried about opening the floodgates. In Martell & Martell [2023] FedCFamC1A 71, Justice Aldridge dismissed these concerns saying (at [22]):

“It has to be said, that their Honours terms “exceptional” and “narrow” lose much of their force if cases involving significant violence are to be the subject of the application of the principles. Such cases might have been regarded as exceptional at the time Kennon was decided but they cannot today be so regarded. Unfortunately the prevalence of family violence is wide and artificial barriers to its recognition, such as trying to limit its recognition in property cases to exceptional or narrow cases, has no basis in principle. As I shall endeavour to explain shortly, the focus of the majority’s reasoning was on the nature and quality of the contributions themselves which were not limited by such qualifying adjectives.”

However, His Honour also made it clear (at [24]) that the basic principle from Kennon remained – “the focus is not on the conduct per se, but on its effects on contributions.”

In Dajani & Dajani [2025] FedCFamcC1A 28; (2025) FLC 94-239 the Full Court of the FCFCOA (McClelland DCJ, Aldridge and Jarrett JJ) quoted Aldridge J in Martell with approval and said (at [37]):

“Pausing there, it can be seen the focus is on the contributions made by a party and the nature of them. The circumstances in which family violence could make that contribution more arduous and deserving of greater weight can easily be envisaged. The point is, however, the recognition of the true nature and extent of the contributions and not the punishment of the perpetrator.”

The Full Court then went on to discuss what was required to prove that the contributions were more arduous to be worthy of significantly greater weight. Their Honours said (at [42]):

“Returning to the case before this Court, it is important to note that express evidence that the contributions were made more arduous or worthy of significantly greater weight is not required. Such a finding can be inferred if the evidence permits such a course. (emphasis added)”

Their Honours confirmed (at [50]) the primary judge’s findings that:

1. The court was permitted to make inferences about the impact of the husband’s family violence in circumstances where the wife had not provided direct evidence in every respect, quoting from [167] of the primary judgment (at [58]):
   

   “While the wife did not provide direct evidence in every respect regarding the impact of the husband’s family violence on her contributions, the Court nonetheless can draw this inference and accepts the wife’s evidence and finds that her contributions, particularly as homemaker and parent, were rendered more arduous both during the marriage and post-separation as a result of family violence and the sexual offending against [the daughter] perpetrated by the husband.”

2. A single incident of family violence could be sufficient for the purposes of an adjustment. A course of conduct is not required (Scaletta & Scaletta [2024] FedCFamC1A 87 at [52]–[61]).

The 10 June 2025 amendments

The FLAA 2024 amended Pts VIII and VIIIAB of the FLA to address and better recognise the economic consequences of family violence by making family violence explicitly relevant.

The FLAA 2024 addresses family violence in the following ways, as set out in the Explanatory Memorandum (at pp 8-9):

“• accounting for family violence in the property decision-making framework, ensuring the economic impact of the family violence conduct on a party’s ability to make contributions to the relationship and on a party’s current and future considerations is considered, where relevant

• accounting for family violence in spousal maintenance proceedings, ensuring that when considering what order is proper for the provision of spousal maintenance, the family law courts can take into account the effect of family violence, where relevant

• amending the family violence definition to further identify forms of economic and financial abuse-related conduct, including dowry abuse

• providing that family violence is a relevant consideration when determining the ownership of a companion animal as part of property division

• extending the Less Adversarial Trial (LAT) procedures to property and financial matters where there are no children’s matters, providing the family law courts with additional powers to manage evidence, particularly where there may be family violence.”

Parliament’s intentions therefore seemed to be that:

• more parties be aware of their rights to seek an adjustment for family violence as the case law was inaccessible to many parties, particularly self-represented litigants; and
• adjustments made for the effects of family violence be greater than they previously were.

As a side issue, in the future, the disadvantage of a victim of family violence under a financial agreement may be even greater than it is under the current law as the entitlements they have given up may be greater. When lawyers are giving advice on financial agreements prior to a relationship or marriage, they need to ensure that they give this advice. It is also seems likely that Federal Parliament will seek to legislate to enable financial agreements to be set aside for family violence. Both parties need to be aware that if the financial agreement is held not to be binding or is set aside, that the effect of family violence is a factor which is relevant to the parties’ property entitlements.

Definition of family violence

Prior to 10 June 2025, the definition of family violence, as set out in s 4AB of the FLA was as follows (emphasis added):

1. “For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
2. Examples of behaviour that may constitute family violence include (but are not limited to):
   1. an assault; or
   2. a sexual assault or other sexually abusive behaviour; or
   3. stalking; or
   4. repeated derogatory taunts; or
   5. intentionally damaging or destroying property; or
   6. intentionally causing death or injury to an animal; or
   7. unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
   8. unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
   9. preventing the family member from making or keeping connections with his or her family, friends or culture; or
   10. unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
3. For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
4. Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
   1. overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
   2. seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
   3. comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
   4. cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
   5. being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”

Under the 10 June 2025 amendments, the former ss 4AB(2)(g) and (h), were replaced with the current s 4AB(2)(g) – “economic or financial abuse” – and a new s 4AB(2A). The amended s 4AB now reads (emphasis added):

“(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

1. an assault; or
2. a sexual assault or other sexually abusive behaviour; or
3. stalking; or
4. repeated derogatory taunts; or
5. intentionally damaging or destroying property; or
6. intentionally causing death or injury to an animal; or
7. economic or financial abuse; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

(2A) For the purposes of paragraph (2)(g), examples of behaviour that might constitute economic or financial abuse of a family member include (but are not limited to) the following:

1. unreasonably denying the family member the financial autonomy that the family member would otherwise have had, such as by:
   1. forcibly controlling the family member’s money or assets, including superannuation; or
   2. sabotaging the family member’s employment or income or potential employment or income; or
   3. forcing the family member to take on a financial or legal liability, or status; or
   4. forcibly or without the family member’s knowledge, accumulating debt in the family member’s name;
2. unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or the family member’s child (including at a time when the family member is entirely or predominantly dependent on the person for financial support);
3. coercing a family member (including by use of threats, physical abuse or emotional or psychological abuse):
   1. to give or seek money, assets or other items as dowry; or
   2. to do or agree to things in connection with a practice of dowry;
4. hiding or falsely denying things done or agreed to by the family member, including hiding or falsely denying the receipt of money, assets or other items, in connection with a practice of dowry.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

1. overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
2. seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
3. comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
4. cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
5. being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.”

Prior to the amendments coming into effect, it was predicted that this longer list of examples of economic and financial abuse would likely increase the number of such allegations raised by parties, but also provide greater clarity as to what may or may not be abuse. To date, there have not yet been sufficient cases published to clarify whether this prediction is correct and whether the increase in allegations affects outcomes. Anecdotally, family lawyers are dealing with many more allegations.

Sections 79(4)(ca) and 79(5)(a)

To fulfil the objective of codifying the principle in Kennon, Parliament inserted s 79(4)(ca) (for married couples) and s 90SM(4)(ca) (for de facto relationships). When considering the contributions each party made during and after the relationship, the court must comply with the statutory requirement to consider the effect of family violence, where relevant.

Section 79(4) now provides:

“For the purposes of subparagraph (3)(b)(i), the court is to take into account the following considerations, so far as they are relevant:

1. the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
2. the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
3. the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage any children of the marriage, including any contribution made in the capacity of homemaker of parent;

(ca) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c) …”

The wording of s 90SM(4) is materially the same.

It is important to emphasise that, as in Kennon, s 79(4)(ca) requires there to be a causal link between the family violence and the ability of the party to make contributions.

The FLAA 2024 inserted further provisions that require the court to take family violence into account in specific circumstances. The new ss 79(5)(a) and 90SM(5)(a) (for marriages and de facto relationships respectively) require the court to take into account the effect of any family violence on a party’s current and future circumstances.

Section 79(5)(a) provides:

“For the purposes of subparagraph (3)(b)(ii), the court is to take into account the following considerations, so far as they are relevant:

(a) the effect of any family violence, to which one party has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection …”

Section 90SM(5)(a) is materially the same.

Companion animals

The new ss 79(6) and 90SM(6) establish companion animals (most commonly pets) as a special type of property, and limit the type of orders that the court can make in relation to a companion animal. For example, s 79(6) provides that the court may make one of the following three orders:

1. that only one party to the marriage, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or
2. that the companion animal be transferred to another person who has consented to the transfer; or
3. that the companion animal be sold.”

When considering whether to make an order regarding ownership of a companion animal, ss 79(7)(d) and 90SM(7)(d) require the court to consider, if relevant, “any family violence to which one party has subjected or exposed the other party.” Cruelty or abuse towards the animal (as opposed to the other party), is relevant under ss 79(7)(e) and 90SM(7)(e).

The relevance of family violence to proceedings involving companion animals is not covered in this paper.

Pickford

In Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230, a specially composed five judge bench of the Full Court of the FCFCOA (McClelland DCJ, Aldridge, Austin, Carew and Williams JJ) was asked to provide further guidance on the definition of family violence in s 4AB. Whilst the section has been amended since the case was handed down, including the expanded definition of economic or financial abuse, the Full Court’s findings remain good law.

Pickford was not a property settlement case, but the consideration of family violence was relevant in an appeal by the father against final parenting orders. The mother’s allegations of family violence featured heavily in the first instance decision. She argued that the father had committed family violence towards her, by way of coercive and controlling behaviour. The mother said that the father’s conduct during the financial proceedings, including not consenting to partial property settlements, contributed to the father’s coercive and controlling behaviour. The primary judge ordered that the mother have sole parental responsibility and for the children to live with the mother and spend substantial time with the father.

The father appealed on various grounds, including a challenge to the findings of family violence that were made against him. Ground 1 asserted that the primary judge had erred in concluding the perpetrator’s intention was not a necessary part of coercive and controlling behaviour. Grounds 2, 3, 4 and 5 challenged the primary judge’s findings that the father had engaged in coercive and controlling behaviour, including the allegations that the father’s conduct during the proceedings amounted to such behaviour.

All five justices upheld the appeal and unanimously agreed on the orders to be made. However, their Honours provided three separate judgments (McClelland DCJ; Aldridge and Carew JJ; and Austin and Williams JJ), each with slight differences in approach.

In relation to Ground 1, all five justices held that, for the purposes of s 4AB and the FLA, it is not necessary for the alleged victim to prove intention. For example, McClelland DCJ said (at [16]):

“To introduce the notion of intention into the definition of family violence, by reference to case law or otherwise, would be to introduce an unnecessary and unwarranted atextual constraint on the ability of a victim of family violence to establish that they and/or their children have been adversely impacted by coercive and controlling behaviour.”

Deputy Chief Justice McClelland was clear that although intention was not a necessary factor for a finding coercive or controlling behaviour, intention on the part of the perpetrator may still be relevant when determining whether a person had been a victim of family violence.

Deputy Chief Justice McClelland considered, in line with pre-existing authorities, that it was open to the primary judge to conclude that the father had engaged in coercive and controlling behaviour with respect to the surveillance of the mother and the family home. However, he considered that the primary judge had erred in the emphasis that the primary judge had placed on the mother’s perception of the father’s conduct. His Honour said (at [31]):

“Fundamentally, determining whether behaviour constitutes coercive or controlling conduct requires deeper evaluation than simply a party’s experience or perception – as relevant as that may be. In that context, I commend and respectfully adopt the following analysis provided by Gill J in Olivier & Olivier [2020] FamCA 639 where his Honour observed at [51]-[52]:

It should be accepted that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour is ambiguous and may bear an innocuous explanation, be sufficient to allow a characterisation or coercion or control.

By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact or disagreement or criticism does not automatically equate to family violence.” (Emphasis as per judgment)

Justices Austin and Williams concurred with McClelland DCJ.

Justices Aldridge and Carew largely agreed. They did, however, acknowledge that in cases of coercive and controlling behaviour, there can be some difficulty applying an objective test.

One further question arose in the appeal – whether s 4AB limited the definition of family violence to only two types of behaviour, that which coerces or controls or that which causes fear.

Whilst Austin and Williams JJ held that the definition was so limited, McClelland DCJ and Aldridge and Carew JJ took a more expansive approach. Their Honours noted the remedial and protective nature of s 4AB and declined to read the provision down.

Justices Aldridge and Carew (with whom Austin and Williams JJ concurred) set out the following approach that ought to be taken when determining whether a person has or has not engaged in coercive and controlling behaviour (at [48]-[49]):

“When determining an allegation that a person had engaged in behaviour that coerces or controls a family member, a trial judge will undertake a forensic examination of all relevant evidence to:

1. identify the behaviour about which the complaint is made;
2. identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator; …”

Recent cases

The following are set out in reverse hierarchy and reverse date order. A summary of the key takeaways from each of the cases follows.

Jenson & Lockridge (No 2)

Jenson & Lockridge (No 2) [2026] FedCFamC1A 44 appears to be the only relevant reported appeal case so far. The wife appealed final property orders made in Division 2 of the FCFCOA. Under the final orders, the wife retained the property, including superannuation, that she held in her name. This equated to approximately 20% of the available property pool. The wife had made several allegations of family violence perpetrated against her by the husband. The primary judge found that the wife had not established that the alleged family violence had occurred.

The wife was self-represented in the appeal. It was apparent to the court that she had relied on generative artificial intelligence (AI) to assist her in drafting her court material, including her Amended Notice of Appeal, Summary of Argument and the content of her oral submissions.

The wife argued that the primary judge had failed to determine her Kennon claim. She argued that unchallenged evidence of the family violence had been put before the court, and further, that the primary judge’s reasons were silent as to whether family violence had occurred, and whether it had the “requisite ‘discernible impact’” (at [62]).

Justice Campton dismissed the ground (at [63]) as “inconceivable” and “preposterous”. First and foremost, the wife had incorrectly referred to Kennon instead of s 79(4)(ca) and/or 79(5)(a). As his Honour had pointed out earlier with respect to the wife’s self-represented status and AI use (at [17]):

“While allowance is made for the appellant being without legal representation, she is bound by the same principles and obligations as any other litigant, in that the appeal is confined to the metes and bounds of the subject matters of her amended grounds of appeal as contained in her Summary of Argument.”

Moreover, the reasons of the primary judge had addressed whether the husband had perpetrated family violence towards the wife at paragraphs [67] to [81]). His Honour noted (at [64]):

“The reasons record[ed] the appellant’s allegations of family violence occasioned by the respondent, the primary judge’s careful evaluation of the evidence, and the cogent reasoning rejecting her evidence, or finding it not persuasive, or finding it to be contrary to the weight of the evidence … The appellant failed to establish the allegations of family violence occasioned by the respondent.”

Despite being given the opportunity to do so during the appeal hearing, the wife was unable to articulate if, and why, the primary judge had erred in failing to make findings of family violence. As Justice Campton noted (at [65]):

“Instead … she read her AI assisted repetitive oral submissions as to family violence, referencing her trial affidavit and other material that in her view ought to have led to a different conclusion, while ignoring the balance of the evidence adduced by the respondent and the ICL and her own oral evidence in cross-examination.”

Although Justice Campton was not required to engage in in-depth reasoning as to whether the primary judge had erred in either finding that family violence had occurred, or in determining whether an adjustment should be made under s 79(4)(ca) and/or s 79(5)(a), there are three key takeaways.

The first is that claims for adjustments for the effect of family violence should be made under s 79(4) or s 79(5), and not under Kennon or the related case law. It may be that the principles determined in these cases will be incorporated into the decision making, but it cannot be assumed that it will be.

The second is the implicit confirmation from the Full Court, (at [62]) that an adjustment may be made under both ss 79(4)(ca) and 79(5)(a), if appropriate in the circumstances of a particular case. This is consistent with the case law before the FLAA 2024.

The third is that practitioners ought to be aware of the challenges of AI, including the possibility of “hallucinations”. In general, AI use by either party poses a variety of problems for family law practitioners, including unreliability of evidence and misstatements of the law. There is the potential for AI to be particularly problematic when a victim of family violence is cross-examined. It is often obvious that AI has been used and this may cast doubt on whether the evidence is that of the victim. Also, the AI tool used may misunderstand the legal requirements to establish that family violence occurred or that an adjustment is warranted. Furthermore, as discussed in the English case below, R v FGD, there is a risk that the use of AI may be similar to coaching a witness, which could put all the evidence into question. Another example of a recent mis-use of AI resulted in several rape convictions being reviewed in the United Kingdom. A detective was suspended for allegedly preparing evidence by giving biased prompts to an AI Chatbot (“Rape convictions under review after UK police used AI for paperwork”, Australian Financial Review, 1 June 2026, Robert Wright).

R v FGD [2026] EWCA Crim 918

This is not an Australian family law case, but an English criminal law case. The principles are relevant to the use of AI by witnesses, particularly where abuse and family violence are alleged.

Lady Justice May DBE, Mr Justice Griffiths and His Honour Judge Picton heard a prosecution appeal against the Recorder’s ruling, part way through a rape trial, staying proceedings as an abuse. During the course of the trial, C, the complainant and only witness, was required to produce her mobile phone for examination (at [5]-[6]):

“The download revealed two documents which contained a summary record of what C had recalled of events on the night in question, followed by a series of questions in the form of a cross-examination of C’s account, together with suggested answers. In short, it appeared to be a documentary record of witness-coaching. C was asked who they had been communicating with, to which C responded: “I had put stuff into AI to help me prepare myself for the court”. Although the defence did not accept that the documented questions and answers were generated by AI, as opposed to being contained in a communication from a real person, this appeal has proceeded on the basis that the documents were generated by AI in response to prompts from C. We do not know the nature of those prompts. … A flavour of the personal nature and tone of the AI engagement with C comes from the introductory section, which reads:

“Before we go through this I want to check in with you again. This section – this specific night – is the heart of the case and going through it in this level of detail is genuinely hard. Please make sure someone is with you or available to you today.

What I am going to do first is pull together everything you’ve shared about that night into one clear picture, so that you can see how strong and consistent your account actually is. Then I’ll go through every question a defence lawyer might ask with suggested answers.”

There then follows several pages of text containing the promised summary, together with 24 highly pertinent questions and suggested answers, gathered under such headings such as “On what happened that night”, “On Consent and Capacity”, “On Physical Evidence” and “On Your Behaviour After”.”

Although the court held that the Recorder erred in concluding that the Respondent could not have a fair trial, the court understood why the Recorder fell into error. Counsel for both sides should have examined ways of dealing with any potential prejudice. The court concluded (at [23]):

“We began this judgment by indicating that it raised issues about the use of AI. More and more people are using AI for all manner of things: to answer everyday questions, to apply for jobs or prepare for interviews, to do research in many areas, including the law. The coaching of witnesses in their evidence, by any means, is not permitted. All witnesses, whether for the prosecution or defence, should be firmly discouraged from resorting to the use of AI to prepare for giving evidence. Doing so could run the risk of unfairness up to the point, in an extreme case, where the court may have to consider excluding evidence. Moreover, for complainants in cases involving allegations of sexual misconduct, their use of AI may open up further lines of enquiry, exposing their online activity to an unwelcome, wider-ranging and potentially more intrusive investigation and examination for the purposes of disclosure, than would otherwise have been required. Using AI may also put their personal information into the public domain, in open AI, in a way that they may never have anticipated. Complainants’ phones are not routinely subject to wholesale examination; there has to be a good reason – a reasonable line of enquiry – and thereafter a proportionate search… . We were nevertheless left with some concern at the broad and intrusive scope of the order, although we acknowledge that the download produced highly relevant documents bearing on the reliability of C’s answers in cross-examination.”

Fernand & Fernand (No 2)

In Fernand & Fernand (No 2) [2026] FedCFamC1F 227 the parties were in a de facto relationship for almost 20 years. There was a substantial property pool available for division. The one child of the relationship was an adult. Both parties alleged the other had perpetrated family violence.

The wife said that the husband’s conduct in relation to one of the parties’ properties, 1 S Street, and their self-managed superannuation fund (SMSF) amounted to economic or financial abuse. During the relationship and after the separation, the wife was responsible for accounting and bookwork for the parties. Judge Howard held (at [136]):

“I also accept that on occasions the husband has been less than cooperative. This has made the wife’s tasks more burdensome and arduous. The husband has been uncooperative in respect of 1 S Street. …”

The wife alleged that the husband made repeated derogatory taunts towards her throughout the relationship, including yelling at her and belittling her, and required her to account for her time.

Conversely, the husband said that it was the wife who committed family violence, as a result of her conduct in relation to a pension payable to the husband via the SMSF.

Regarding the contributions arguments, Justice Howard usefully summarised s 90SM(4)(ca) as requiring the court, when assessing contributions (at [141]):

“… to consider the effect of any family violence to which one party has subjected or exposed the other part on the other’s ability to make financial and/or non-financial contributions to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship. The section also requires the Court to consider the effect of any family violence on the ability of a party to make a contribution in respect of the welfare of the family.”

His Honour then took a two-step approach to determining whether an adjustment in favour of either party should be made under s 90SM(4)(ca) with respect to each allegation of family violence.

The first step was to determine whether the parties had successfully established that the other party had perpetrated family violence. In relation to the alleged family violence perpetrated by the husband, his Honour found that the husband’s conduct in relation to the SMSF and 1 S Street did not amount to economic or financial abuse. Whilst the conduct was “rude, obnoxious, unhelpful, uncooperative, short-sighted and petty” (at [145]), and certainly made the wife’s ability to contribute more arduous, it fell short of amounting to family violence. The conduct was taken into account in the assessment of contributions, but not under s 90SM(4)(ca). Conversely, his Honour found that the husband’s repeated derogatory taunts and his unreasonable requirement for the wife to explain her use of time did amount to family violence.

His Honour rejected the husband’s argument that the wife had perpetrated family violence. Whilst the wife had disagreed with the husband, and thereby denied, that he should receive a pension paid out of the parties’ SMSF, this did not amount to unreasonably denying the husband financial autonomy. Justice Howard found that the husband had sufficient cash and cash equivalents for him “to survive” post-separation.

The second step was to determine, once family violence had been established, if that family violence had an effect on victim’s ability to make contributions. In respect to the husband’s derogatory conduct, Justice Howard was satisfied that it had the requisite impact on the wife, however his Honour did not provide great detail on why this was the case.

After referring to s 90SM(4)(ca), s 4AB and Pickford, His Honour concluded at [146].

“The husband’s derogatory taunts directed at the wife – including goading and belittling the wife and yelling at the wife – as well as unreasonably requiring the wife to account for the use of her time does come within the definition of family violence – in particular section 4AB(2)(d). That sort of conduct by the husband would have made the wife’s contributions more arduous and burdensome. That sort of conduct causes stress, worry and upset to a person. These are matters that will be taken into account when the Court is assessing contributions”.

Ultimately, the parties’ contributions were assessed as equal. Alongside the family violence, Justice Howard also considered the fact that whilst the husband had made a substantial initial contribution, the wife had made significant financial and non-financial contributions throughout the relationship, including managing the parties’ assets, bookkeeping, accounting, taxation, financial obligations and financial interests. No clear percentage was given for the s 90SM(4)(ca) adjustment.

His Honour declined to take into account family violence under s 90SM(5)(a).

Janvier & Domes (No 4)

In Janvier & Domes (No 4) [2026] FedCFamC1F 220 the parties married in China in 2010. Their only child was born in China. The wife subsequently relocated to Australia for her studies, with the husband and child following. The parties settled in Hobart. In August 2020, the parties separated and in July 2022, the mother and the child relocated to Melbourne. Parenting and property proceedings were commenced by the husband in June 2023. He was self-represented and, as in Jenson & Lockridge, it was apparent that he had relied heavily on AI to assist him, and again, it was arguably counter-productive for him.

Justice Williams summarised the general state of the proceedings as one “permeated by a deep suspicion and mistrust between the parties” (at [5]). Both parties alleged that the other had perpetrated family violence against the other and there was a history of cross-IVO applications, which had been resolved by mutual undertakings. However, only the husband argued that the family violence warranted an adjustment under s 79(4)(ca) and/or s 79(5)(a).

The husband said that the wife had engaged in economic abuse. Examples which the husband said amounted to economic abuse included that the wife had taken advantage of his poor English skills to control their bank accounts, that she concealed assets and that the wife’s lodgement of a caveat had “severely obstructed his financial planning”. The husband also alleged that, post-separation, the wife left him responsible for a number of the parties’ liabilities, including mortgage repayments for a property that the wife’s family resided in and corporate debt. He also made various allegations that the wife engaged in verbal abuse and coercive conduct. The wife denied this conduct.

Some difficulties arose during the trial regarding the husband’s ability to challenge the wife’s evidence. As a result of the competing family violence allegations, orders were made under s 102NA prohibiting both parties from cross-examining the other. Despite this, the husband did not take any steps to seek representation for the purposes of cross-examining the wife. Her Honour was not persuaded by the husband’s view that he did not think the prohibition applied to him because he considered himself the victim. Ultimately, the husband was allowed to provide a list of questions that he wished the wife to be asked, and the wife’s own counsel put them to her.

Her Honour did not accept the husband’s allegations that the wife had perpetrated family violence, and therefore did not make an adjustment under s 79(4)(ca) or s 79(5)(a) as sought by the husband. This was because (at [264]):

“… the wife denied the claims, many of his claims are broad, lacking particulars and where examples are provided, do not constitute family violence. Examples are the legal negotiations between the parties and some text messages. Many of the particular examples occurred just prior to or after separation and could not possibly have impact on the husband’s ability to make contributions or impact on his current or future circumstances and whether or not the examples constitute family violence must be considered in the context in which the actual conduct occurred.”

Her Honour further said (at [267]):

“I am not satisfied the conduct the husband complains of constitutes economic or financial abuse as referred to in s 4AB(2) and s 4AB(2A) of the Act. It is rather an attempt by the husband to recast historical and longstanding arrangements between the parties to obtain a perceived advantage in the financial litigation. Even if I did so find, there is no evidentiary foundation to ground the apparent nexus between the wife’s conduct and the ability of the husband to make the relevant contributions. The husband’s case is his contributions far outweighed those of the wife (emphasis added).”

Justice Williams also made it clear that any argument made by the husband with respect to s 79(5)(a) would not succeed, even if he had proved family violence. Her Honour said (at [282]):

“He also claims to have PTSD and chronic illness resulting from the marriage and litigation stress. There was no objective expert evidence of any mental issues of the husband and certainly none to provide his future employment prospects or capacity are limited.”

In other words, the husband had failed to provide evidence which supported both his claim that he had mental health issues, caused, at least in part, by the wife’s conduct, and that the mental health issues impacted on the other factors listed in s 79(5).

Tordis & Manrey (No 2)

In Tordis & Manrey (No 2) [2026] FedCFamC1F 205, the parties were in a de facto relationship for approximately 20 years. They separated in 2022. They had two children. The husband had been imprisoned twice since the parties commenced their relationship:

• 2015-16 for fraud, alongside possession of a gun;
• 2023-24 for breach of a domestic violence order that had been made for the protection of the wife post-separation.

The husband barely participated in the proceedings. He had not filed an affidavit since 2022, not provided any disclosure since 2023, and did not appear at the final hearing. The matter proceeded on an undefended basis.

The wife alleged in her affidavit that the husband had perpetrated serious family violence, including physical assaults and coercive and controlling conduct, against her during the relationship and post-separation. She gave evidence of having involuntarily urinated during at least one assault. She also gave evidence that the husband’s violence had left her with long-term physical injuries and adverse health consequences, including arthritis and tendonitis. Justice Howard accepted that the husband had perpetrated the serious family violence as set out in the wife’s affidavit.

The wife argued that contributions should be assessed as 100% in her favour. She relied on the family violence perpetrated by the husband, alongside other factors: she was the sole contributor during the periods the husband was imprisoned (including when their second child was born), she ran the parties’ business while the husband was imprisoned, and she otherwise worked for the parties’ business and received no salary.

His Honour declined to assess contributions as 100% in favour of the wife, and instead assessed them as 70%/30% in her favour. Whilst Justice Howard did not give a precise percentage by which the contributions were adjusted as a result of the family violence, it was clear that the family violence was a key factor in his Honour’s assessment of contributions. For example, his Honour said (at [28]):

“I have had close regard to the difficulty of contributions made by the wife because there was family violence…”

His Honour said further (at [29]):

“Family violence is one of the important matters for the Court to consider in all of the factors listed in s 90SM(4). I have taken all of those factors into account even if I have not referred to them individually or separate.”

With respect to s 90SM(5), Justice Howard held that an adjustment of 30% should be made in favour of the wife. The result was that, in effect, she received 100% of the known property pool. Whilst it was only dealt with briefly, his Honour took the family violence perpetrated by the husband against the wife into account under s 90SM(5)(a). As his Honour pointed out, the family violence resulted in clear, ongoing, health issues for the wife. Other relevant factors included the fact that the wife was solely responsible for the parties’ two children, and, perhaps most importantly, the husband’s failure to participate in proceedings, including lack of disclosure, meant that the court was unable to assess his financial position and his current and future circumstances.

Ericsson & Rogers (No 2)

In Ericsson & Rogers (No 2) [2026] FedCFamC1F 180, the parties were in a de facto relationship for approximately 17 years, with a brief period of separation in 2012-13. They separated on a final basis in March 2024. In July 2025, a financial agreement between the parties was declared not binding, and the matter proceeded to a final trial to determine the parties’ property entitlements under s 90SM. The wife argued that the final division of assets should be 35%/65% in favour of the husband, consisting of an assessment of contributions as 25%/75%, with a 10% adjustment in the wife’s favour for current and future circumstances. The husband argued that the assets should be divided 6.5%/93.5% in his favour. This consisted of an assessment of contributions as 3%/97% in his favour, with an approximately 3.5% adjustment in favour of the wife for her current and future circumstances. It was agreed that the net asset pool was $7,228,062. The parties held no joint property, with 97% held in the husband’s name.

The wife argued that an adjustment should be made under s 90SM(4)(ca) as a result of family violence perpetrated by the husband, including physical violence (particularly when the husband was drinking) and coercive and controlling conduct. Justice Harper declined to make an adjustment. His Honour held that the wife only gave a few specific examples of the husband’s violent conduct, and he was not persuaded that they were sufficient to make a finding of family violence.

In relation to the allegations of coercive and controlling conduct, the wife had said that the husband had denied her financial autonomy and prevented her from undertaking paid work in order to travel with him. However, the wife conceded under cross-examination that the husband supported her when she expressed a desire to work, including paying for courses and supporting her idea to open a shop in Australia when they were not travelling. It was also apparent from the evidence that, despite the wife’s claims that the husband’s desire to travel resulted in her being unable to find full time or part time employment, the parties’ travel to the USA for 2 to 6 months each year between 2008 and 2019 provided opportunities for the wife to spend time with her family and friends, and allowed her to find part-time employment during those periods, had she wanted it.

Allegations that the husband was financially controlling were dismissed by Justice Harper. Although the vast majority of the parties’ assets were held by the husband, the wife had access to a debit card connected to one of his bank accounts, with no limit on spending. The wife agreed that the husband had not prevented her spending, although she did say that she felt constrained because she did not have a bank account of her own and because she did not have access to the husband’s accounts. His Honour was critical of the wife’s re-framing of the husband’s generosity saying (at [100]):

“… These contentions are unpersuasive. It was undisputed that the husband funded the parties’ lifestyle during the relationship. He bestowed financial largesse upon the wife in circumstances where she chose not to work. In summary, the wife purports to invent largesse and financial support into a form of coercive control. The wife presented as an articulate person, who on her own case had many years of commercial experience, with some success, and agency in her own life. Her argument amounted to contending she was a victim, not a beneficiary, of the husband’s largesse.”

No adjustment was made under s 90SM(4)(ca) nor under s 90SM(5)(a).

Sauter & Holt (No 2)

In Sauter & Holt (No 2) [2026] FedCFamC1F 153, the parties commenced cohabitation in 2014, married in 2016 and separated in 2022. There were two children of the marriage, born in 2018 and 2020. The wife commenced proceedings in January 2023.

It was accepted that the findings of a Magistrate following a contested domestic violence hearing were binding in the FCFCOA proceedings, and a transcript of the Magistrate’s reasoning was tendered by consent. Amongst other things, the Magistrate found that the husband had committed financial abuse post-separation by:

• Withdrawing $122,000 from a joint bank account over two occasions in 2023;
• Withdrawing $341,000 from a different joint bank account in 2023; and
• Failing to pay the wife spousal maintenance, in breach of an order of the FCFCOA.

The Magistrate found that the husband had committed physical family violence during the relationship. In particular, on three occasions the husband had choked the wife, with one incident occurring in front of the parties’ children. Further instances of family violence included a phone call in January 2023 in which the husband threatened the wife’s financial security and subjected her to emotional abuse, “direct abuse” and attempted manipulation. The Magistrate considered that the purpose of that phone call was to bully or coerce the wife into a financial settlement less advantageous than she would have otherwise accepted.

As it was uncontroversial that family violence had occurred, the only issues with respect to family violence before Justice Carew were whether such family violence had:

• Impacted the wife’s ability to make contributions (under s 79(4)(ca)); and/or
• Warranted an adjustment for current and future circumstances (under s 79(5)(a)).

With respect to contributions, the husband conceded that an adjustment could be made in the wife’s favour as a result of the family violence perpetrated by him. Although the wife had not made specific submissions as to how the family violence impacted upon her ability to make contributions, Justice Carew considered that the circumstances permitted making an inference that the wife had been adversely impacted. Her Honour said (at [149]):

“Given the serious nature of the family violence perpetrated by the husband against the wife during the marriage, and the concession made by the husband’s counsel of its relevance when assessing contributions, it seems to me that an inference can be drawn that the family violence had an adverse effect on the mother’s ability to make contributions. One such effect was that after one of the choking incidents the mother moved to Brisbane with the children. The wife’s ability to make contributions, other than as a parent, would thereby have been adversely affected.”

The wife further submitted that an adjustment should be made under s 79(5)(a). It was conceded by the husband that such an adjustment was open to her Honour due to the financial abuse perpetrated by him post-separation, including the failure to pay spousal maintenance as ordered by the court. Overall, an adjustment of 12.5% was made under s 79(5). It was unclear what weight the family violence was given.

Dilay & Shahrukh (No 2)

In Dilay & Shahrukh (No 2) [2026] FedCFamC1F 25, the parties commenced a de facto relationship in 2009. They separated in 2019. The wife said that they reconciled in August 2021, before finally separating in October 2021. There were two children aged 7 and 4 at the time of trial. The children lived with the wife and consent orders provided for them to spend time with the husband.

The wife alleged that the husband had perpetrated serious family violence throughout the relationship and post-separation. The various conduct said to amount to family violence included:

• Threats to kill the wife;
• Persistent contraventions of final and interim intervention orders, and bail conditions;
• Numerous physical assaults of the wife between August 2021 and April 2022;
• Withholding X in May 2022, resulting in a recovery order being made;
• Attending the wife’s home and causing property damage in January 2023;
• Taking possession of X in March 2024 and May 2024 (including using a fake parenting plan).

The wife reported the husband’s conduct to the police and obtained intervention orders. At the time of trial, the husband had been charged and convicted for both the conduct and for breaching the orders. At times, the wife took refuge in a women’s shelter. The children had not spent time with the husband since March 2024 as a result of the alleged ongoing family violence.

The wife sought orders which, in effect, gave her 100% of the parties’ net property pool of approximately $281,000.

The husband was self-represented for all but the final day of the trial, having discharged the lawyers appointed for him under s 102NA a week prior to trial. As a result, he could not cross-examine the wife. Justice McGuire instead asked the wife questions to clarify certain aspects of her evidence.

Justice McGuire ultimately accepted the wife’s evidence with respect to family violence. His Honour was particularly critical of the husband’s evidence and presentation. He said (at [73]):

“The respondent was vocal, combative and argumentative in his evidence in both written and oral form. He was frequently unresponsive and argumentative in the witness box. Much of his evidence I find to be unconvincing when in response and when challenged. He did not adduce evidence or corroboration when such might reasonably have been available. His denials of family violence were unpersuasive and sit uncomfortably with the highly particularised evidence of the applicant corroborated by frequent successful applications for family violence orders and successful prosecutions for breaches of those orders together with other factors such as the applicant and children being required to take safe housing in a women’s refuge for a period of nine months when the applicant otherwise had her own home available to her.”

With respect to the wife’s argument that the family violence impacted on her ability to make contributions, Justice McGuire found that this was “easily satisfied”. His Honour said (at [85]-[86]):

“I am easily satisfied that the applicant’s contributions have been made more arduous and onerous by way of the respondent’s conduct and the perpetration of family violence. The applicant’s affidavit is replete with a highly particularised history of violence of various types. They are in a large part unchallenged given the inability of the respondent to cross-examine. Nevertheless, there is a corroborative and empirical evidence to support the applicant’s assertions. There are numerous family violence orders made in her favour. There is evidence of breach of those orders. There is evidence of breach of orders of this Court and notably by the failure of the respondent to comply with an order to hand Motor Vehicle 1 to the applicant. There is evidence of the applicant taking refuge in a safe house at a women’s shelter for a period of some nine months.

I am satisfied that the family violence perpetrated on her has impacted on the applicant’s ability to care and support the children. The violence has been coercive and controlling. The violence has been physical. The violence has been of a financial type.”

His Honour found that an adjustment should also be made under s 90SM(5)(a), stating (at [102]):

“The applicant’s trial affidavit is comprehensive and highly particularised in respect of allegations of family violence perpetrated by the respondent. I have set out my findings of family violence above. Relevant to the s 90SM(5) considerations I am satisfied that the applicant was the victim of concerted, consistent and various types of family violence at the hands of the respondent and that this impact remains in respect of her current and future circumstances not least being her sole care of the children and their financial support. I note that she continues to receive psychological assistance. I find that there should be a significant adjustment to the applicant on account of the s 90SM(5) considerations.”

Adin & Olivija (No 2)

In Adin & Olivija (No 2) [2025] FedCFamC1F 875, the wife alleged that the husband had perpetrated family violence against her throughout the relationship, including two incidents of physical violence. The husband denied all allegations of family violence. An apprehended domestic violence order had been in place for 6 months, after the husband had consented to the order for that period.

As the parties had agreed on the final day of trial that contributions should be assessed as equal, Justice Altobelli was only required to determine whether any adjustments should be made under s 79(5). The wife submitted that she was experiencing ongoing mental health issues, caused mainly by the husband’s family violence, and therefore an adjustment should be made under s 79(5)(a).

Justice Altobelli first considered whether the alleged family violence had been established by the wife. His Honour found that it was more likely than not that one incident had occurred. His Honour was assisted in making this finding by an email from the wife’s sister to the police several years later. The other allegations of family violence were not accepted by Justice Altobelli. Whilst the husband failed to cross-examine the wife on any of the allegations, Justice Altobelli was clear that an unchallenged allegation of family violence will not automatically be accepted by the court.

His Honour then turned to consider whether an adjustment should be made under s 79(5)(a). Despite finding that family violence had been perpetrated by the husband, his Honour did not make an adjustment under s 79(5)(a) saying (at [103]):

“Given the wording of s 79(5)(a) of the Act, the Court must be satisfied that the family violence has had some “effect” on the “current and future circumstances of the other party”. This includes an examination of how the family violence interacts with any of the other considerations within s 79(5). The Court has insufficient evidence to conclude that the 21 June 2014 incident has had any “effect” on the wife which would impact her current and future circumstances. She has no chronic illnesses relating to the conduct, has no psychological impairment from the trauma of the incident proven to the satisfaction of this Court, and has otherwise moved forwards with her life in a manner that obscures any direct link between the family violence and her current or future state of being. (emphasis added).”

Key to his Honour’s findings was the fact that it was agreed that the wife was traumatised from a terrorist attack. She had not sufficiently established that the husband’s conduct had contributed to her mental health issues.

Helmo & August

In Helmo & August [2025] FedCFamC1F 811 the parties were in a de facto relationship for approximately 8 years. The husband commenced property and parenting proceedings. Due to a lack of resources the property proceedings were transferred to Division 1. The wife sought an adjustment under s 79(5)(a). Justice Christie declined to make this, summarising her reasoning as (at [55]):

“The wife’s affidavit contains assertions of family violence as against the husband. A small number of incidents of physical violence in the period 2020-2022 are included in the wife’s affidavit, expressed in a very general manner. The husband’s affidavit says that the wife threatened to make false allegations against him regarding family violence. In circumstances where no allegation was put to the husband (and no submissions were made on behalf of the wife), I am unable to make any finding that s 90SM(5)(a) has application to the facts of this case.”

Arwen & Arwen

In Arwen & Arwen [2025] FedCFamC1F 765, the parties commenced cohabitation in 2004, married in 2011 and separated in February 2023, after the mother announced she was in a new relationship with Ms K. There were two children of the relationship, aged 11 and 9 at the time of trial. Proceedings were commenced for parenting and property matters. The wife had been diagnosed with ADHD, depression, anxiety, complex PTSD and mysophobia (fear of germs). Since separation, the wife had made numerous, and consistent, reports of family violence perpetrated by the husband.

Shortly after separation, the wife attended a police station on 3 occasions to obtain an IVO against the husband, but the police refused on every occasion. She then made her own IVO application, alleging that the husband had perpetrated family violence in the form of stalking and emotional violence. An IVO was made on an interim basis in mid-February 2023. In late February 2023, the wife reported the husband to the police for a breach of the IVO. The husband had requested that the children’s bank accounts be modified to a “to sign” requirement. The police took no action.

In March 2023, the interim IVO was modified so that the husband could have contact with the children. In May 2023, the husband alleged that the wife spat at his car during changeover. In late 2023, the husband terminated the wife’s employment in the parties’ joint business, alleging that she had misappropriated funds. In September 2023, the husband alleged that the wife spat her drink in his face at a local music venue.

In November 2023, psychiatric reports of the parties were released. The wife was noted to have CPTSD and certain features indicating alcohol abuse in remission. The husband was noted not to have any psychiatric illness.

In late December 2023, the wife attempted to report the husband to the police for breaching the interim IVO for a second time. The husband had attempted to provide the wife with a replacement vehicle at changeover, pursuant to a FCFCOA order for him to do so. The police again took no action. Nine days after she reported the husband to the police, the wife called 000, requesting a welfare check on the children and husband, as the husband had not facilitated a phone call. Another welfare check was requested in January 2024.

In February 2024, the husband consented to a final IVO without admission. In March 2024, the wife reported the husband to the police again for breaching the IVO. The wife argued that the husband’s insistence that changeover occur at a police station amounted to coercive and controlling conduct. By the end of 2024, the wife was prohibited from attending the children’s school. Two incidents occurred in December 2024, in which the wife and her partner attended the office of an agent of the Suburb N property, prompting the agent to call the police, and she attended the Suburb N property despite an injunction against her doing so. At some stage in 2024, the wife told the Department of Families, Fairness and Housing (DFFH) that she believed she would be murdered by the husband.

Justice McGuire first considered whether family violence had occurred regarding the concurrent parenting proceedings. His Honour commented as to the wife’s presentation to the court (at [118]):

“The wife gave her evidence with a sense of superiority to both counsel for the husband and the husband himself. Perhaps oddly for such a confident and assertive personality, the wife also saw herself as a victim of what she sees as a broad definition of domestic violence and also of social systems being unwilling to acknowledge or address her many complaints.”

His Honour then referred to the Family Report Writer’s observations of the parties, including that the wife had a “slightly narcissistic quality to her interactions with authority”. At [189], his Honour noted that the wife’s allegations of family violence were ultimately “vague and unparticularised”.

In determining the property proceedings, His Honour declined to make an adjustment for family violence under s 79(4)(ca), holding (at [192]):

“… where s 79(4)(ca) requires a nexus of alleged violence to contributions and where the party making an assertion of fact, in this case the wife, carries an onus to prove that fact on the balance of probabilities, I am not persuaded that family violence issues weigh heavily in this matter in respect of contributions. I find the wife’s allegations mostly general and/or innocuous and where she has emphasised such matters more as a cause celebre rather than specifically as to issues of contributions under s 79 of the Act. Certainly her evidence does not go so far, or anywhere near, proving any impact on her ability to make contributions.”

His Honour declined to make an adjustment under s 79(5)(a) due to the wife’s failure to establish any ongoing impact of family violence on her current and future circumstances.

Stubbs & Stubbs (No 3)

In Stubbs & Stubbs (No 3) [2025] FedCFamC1F 534 the parties were in a relationship for approximately nine years. There were three children. When the parties separated, the father moved to Sydney. The children remained in the mother’s care in the former matrimonial home in Melbourne.

Whilst no specific submissions were made with respect to s 79(4)(ca), the mother alleged that the father had perpetrated family violence towards her. In her evidence in chief, the mother alleged the father had berated her, verbally abused her and called her names. This was inconsistent with the mother’s early concessions to the child court expert that the father had never physically harmed her, had never threatened to harm her or the children, had not yelled at her and did not call her names. The father denied all allegations of family violence. The mother’s assertions that the father was abusive and controlling were ultimately not pursued.

Ultimately, when assessing the parties’ contributions, Justice Austin did not take into account any of the alleged family violence under s 79(4). He was not persuaded that the evidence supported the conclusion that family violence had been perpetrated and said (at [95]):

“… the provisions of s 79(4)(ca) of the Act require a causal connection between the alleged family violence and the “ability” of the alleged victim to make financial and non-financial contributions. Even if the mother’s evidence of family violence by the father was accepted, there is no evidence it affected her “ability” to render valuable contributions. On the contrary she was at pains to emphasise, in both her evidence and submissions, the extent to which her overall contributions were far greater than the father’s. She deposed she made “significant” contributions “despite” being the subject of such family violence.” (Emphasis added).

This case highlights two key aspects that practitioners should keep in mind when seeking to rely on s 79(4)(ca). Firstly, (and as was the case under Kennon) mere allegations of family violence will not be sufficient – the court will usually require that the person making the allegations is reliable and credible. Secondly, family violence alone will not satisfy s 79(4)(ca). There must be a causal connection between the family violence and the victim’s inability to contribute or lack of contributions or the nature or quality of the contributions.

Justice Austin held that an adjustment of 12% should be made in the mother’s favour for current and future circumstances (s 79(5)). The rejected allegations of family violence were not taken into account. An overall just and equitable division was held to be 77%/23% in the mother’s favour.

Bourreau & Ivers (No 2)

Handed down on 23 June 2025, Bourreau & Ivers (No 2) [2025] FedCFamC1F 417 was one of the first cases in which the new family violence provisions were applied in property proceedings. The parties began a relationship in 1999, commenced living together in 2001, married in 2004 and separated on a final basis in 2022. There were five children of the relationship.

Property and parenting proceedings were heard together. Justice Austin accepted the parties’ arguments that there was only one substantial asset – the former matrimonial home. The father had been injured in 2008. The compensation he received was used to purchase the home which was in his name.

The mother argued that the father had committed family violence towards her during the course of the relationship and, therefore, an adjustment ought to be made under s 79(4)(ca). Justice Austin relied upon earlier findings made during the parenting aspect of the proceedings that the father had committed physical violence towards the mother, as well as threatening and coercive behaviour. Justice Austin considered it likely that the father had choked the mother, hit her and pulled her hair.

Although the father denied that he had perpetrated any family violence, his Honour preferred the mother’s evidence over that of the father. The mother had, on at least one occasion, called the police for help. That she had later withdrawn her request for help was not relevant. The mother’s allegations were also corroborated by the parties’ elder children, who had reported seeing their father hit their mother and said that they had attempted to step in to protect their mother.

The effect of the family violence upon the mother’s ability to make contributions was considered holistically and in conjunction with all other relevant s 79(4) matters. Taking care to recognise the impact family violence can have on a party’s ability to contribute, his Honour summarised the findings with respect to s 79(4) as (at [104]):

“Once appreciated that a substantial portion of the compensation was to replace income not otherwise earned by the father for about nine years during the parties’ relationship, his financial contribution of at least that portion of the compensation does not outweigh the mother’s non-financial contributions as homemaker and parent, which should be afforded substantial and not merely token recognition (Malett v Malett [sic] [1984] HCA 21; (1984) 156 CLR 605 at 609, 623, 636 and 646). That is especially so when, inferentially, it is likely that the father’s family violence affected the mother’s ability to provide homemaking and parenting contributions (s 79(4)(ca)) (emphasis added).”

Justice Austin did not take into account the effect of family violence on the mother’s current and future circumstances under s 79(5)(a) and neither party sought that it should be. Both parties agreed that the fact that the mother would have primary care of the five children warranted an adjustment.

The husband appealed both the parenting and property orders and was partially successful in a stay application with respect to the property matter (Bourreau & Ivers (No 3) [2025] FedCFamC1F 583), but his appeal appears to have been discontinued.

Barker & Avery

In Barker & Avery [2026] FedCFamC2F 287, the parties were in a relationship for approximately 11 years, although only married for three years. There were two children of the relationship. From separation in March 2021 to 2023, the parties had a positive and co-operative coparenting relationship. In late 2023, however, an IVO was taken out by the police against the father, listing the mother and the children as protected persons. Supervised time commenced for a short period in 2024, but ceased after the children reported feeling unsafe in the father’s care.

It was agreed that the father had longstanding mental health issues, including alcohol and substance abuse. He admitted that he was using methamphetamines at the time of the final hearing. The mother alleged that the father had perpetrated serious family violence against her and the children. The father denied all allegations of family violence. The maternal grandmother (who lived with the parties at times) provided evidence that during the parties’ relationship, the father was prone to erratic and aggressive behaviour whilst under the influence of alcohol. This included banging his fists on the kitchen bench and shouting at the maternal grandmother, mother and the children.

The mother alleged that the father perpetrated family violence against her post-separation. Judge A Humphreys accepted the mother’s evidence in relation to an incident in August 2023 and held that it amounted to family violence. Upon being told by the mother that he could not pick the children up from school, as he had already done so twice that week, the father became enraged and screamed at the mother. Both parties then attended the school. The father parked in a spot that was not a designated car park and walked to the school office. He was yelling aggressively on the phone. He then hung up and asked the school staff “where is she”. The mother stepped out, and he yelled at her “fuck you, you can take them.” He then left the school. The principal called the police, and later sent an email to the police largely corroborating the mother’s version of events. The maternal grandmother gave evidence that following the incident, the father called her and said he was “going to put a bullet in [the mother’s] head” and he was “going to put [the mother] in a ditch”.

Other examples of family violence given by the mother and accepted by Her Honour included:

• An incident in 2014, during which the father yelled and screamed at the mother during a local football match to the extent that she locked herself in the car. The father followed her and continued screaming at her while she was in the car, including over the phone.
• In January 2023, the father threatened to put the mother’s boyfriend in hospital.
• In August 2023, the father allowed the mother into his house to use the bathroom. He then yelled at the mother, telling her not to look around, and demanded she leave. The children were present.

The father alleged to the family report writer and in his oral evidence that the mother perpetrated family violence towards him, whilst she was suffering from postnatal depression. The mother’s conduct included yelling, punching, slapping and spitting at him and, on one occasion, putting a hole in a wall. When asked about this by the family report writer, the mother agreed that she had done so but that this occurred while she was trying to escape from the father. Her Honour did not make findings as the father was seeking for the children to continue living in the mother’s care.

The mother sought an adjustment under s 79(4)(ca). Despite Her Honour accepting that the father had perpetrated the alleged family violence, she declined to make an adjustment, saying (at [227]):

“Aside from the incident described by the mother in 2014, the mother did not give evidence particularising the family violence she experienced during the parties’ relationship. She deposed only to a small number of incidents of family violence from 2023, after separation, consisting of verbal abuse, intimidation and threats. The mother did not adduce evidence in support of her claim that family violence perpetrated by the father affected her capacity to make contributions. Her counsel did not address me in respect of this in closing submissions (emphasis added).”

Her Honour expanded further on the requirement for a nexus between family violence and the adverse effect on the victim-survivor’s ability to make contributions, including the ability to infer such an adverse effect, saying (at [228]):

“The Full Court confirmed in Benson & Drury [[2020] FamCAFC 303; (2020) FLC 93-998] that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the partes but there must be sufficient evidence to enable the court to reasonably draw the inference from the primary facts. There is insufficient evidence before me to enable me to reasonably draw an inference the mother’s capacity to make contributions was affected by the family violence she was subjected to by the father.”

Her Honour declined to make an adjustment under s 79(5)(a) in favour of the mother, stating (at [238]):

“On the evidence before me, I am not persuaded the mother’s current and future circumstances are effected by the family violence she had been subjected to by the father to the extent required to be given weight pursuant to s 79(5)(a). She did not for example assert that the family violence she has been subjected to had impacted her earning capacity and she did not adduce evidence of significant costs of therapeutic family violence support.”

Grove & Brassard

In Grove & Brassard [2026] FedCFamC2F 238, the applicant, Ms Grove, and the first respondent, Mr Brassard were in a de facto relationship for approximately 6 years. There was one child of the relationship. Mr Brassard’s subsequent partner, Ms Moreton, was the second respondent. The proceedings related to parenting arrangements, property adjustment between Mr Brassard and Ms Grove and property adjustment between Mr Brassard and Ms Moreton.

It was accepted by the parties that Mr Brassard was a heavy drinker. During the trial, Mr Brassard conceded that he was consuming up to three cartons of full-strength beer per week.

Judge Betts accepted Ms Grove’s evidence that the father became physically aggressive towards her during arguments, and on some occasions he yelled at her, slammed doors and punched walls.

Mr Brassard alleged that Ms Grove had perpetrated family violence towards him. Judge Betts accepted that Ms Groves attended the Suburb M property unannounced, forced her way inside, confronted Mr Brassard and accused him of having drugs. She also physically damaged the property, including breaking a coffee table. Ms Groves’ conduct amounted to family violence.

Ms Moreton also alleged that Mr Brassard perpetrated family violence against her, and her son from a former relationship. She reported his behaviour to the police, resulting in an ADVO and various criminal charges. At the time of the hearing, he was on bail. On one occasion he slammed his hand into her breast, resulting in a large, black bruise. Whilst there were some inconsistencies between Ms Moreton’s evidence in the proceedings and in her report to the police, Judge Betts held that the photographs she tendered were sufficient to allow him to accept Ms Moreton’s evidence as to the extent of the breast injury. It was also accepted that Mr Brassard, on multiple occasions in late 2024 and 2025, verbally abused, harassed and threatened Ms Moreton, and that he continued to perpetrate family violence against Ms Moreton following separation in connection with the sale of the Suburb D property.

Despite accepting that Mr Brassard and Ms Grove had perpetrated family violence towards each other, no adjustment was made under s 90SM(4)(ca) as it did not impact on each party’s ability to make contributions.

Similarly, no adjustment was made under s 90SM(5)(a) in relation to Ms Grove and Mr Moreton. An adjustment of 2% was made under s 90SM(4)(ca) in Ms Moreton’s favour as a result of the family violence perpetrated by Mr Brassard. His Honour summarised his reasons for this as (at [196]):

“From mid to late 2024 onwards, Mr Brassard subjected Ms Moreton to family violence which the Court considers did adversely impact her capacity to make homemaking contributions; his conduct made them more arduous. His post-separation family violence and aggressive conduct towards her when she attended the Suburb D home also made it more arduous for her to make her cleaning and ‘styling’ contributions. (To the extent that Mr Brassard alleges that Ms Moreton assaulted him, no particulars are given and no adjustment could be made in his favour on the evidence).”

However, no adjustment was made under s 90SM(5)(a) in favour of Ms Moreton. Judge Betts acknowledged that Ms Moreton suffered from PTSD and ADHD, and that Ms Moreton’s PTSD arose from historical family violence perpetrated against her by a former partner. His Honour acknowledged that Mr Brassard’s conduct had impacted on Ms Moreton, but ultimately concluded that in circumstances where the relationship was brief and Mr Moreton was already suffering from PTSD, there was insufficient evidence to warrant an adjustment.

Griffiths & Shaw (No 2)

In Griffiths & Shaw (No 2) [2026] FedCFamC2F 151, the parties were in a de facto relationship for just under six years and separated in February 2023. Both parties had adult children from previous marriages and were approaching retirement age.

The wife alleged that throughout the relationship, and after separation, the husband acted towards her in a coercive and/or controlling manner.

The husband also alleged that the wife had perpetrated family violence towards him. However, in circumstances where he was not seeking an adjustment under s 90SM(4)(ca) or s 90SM(5)(a), Judge Turnbull declined to make any findings of family violence.

Ultimately, his Honour declined to make an adjustment under s 90SM(4)(ca) as sought by the wife. His Honour placed some emphasis on the fact that the wife had not immediately raised the allegations of family violence in her court material (at [109]):

“Under cross-examination, the Wife conceded that she first deposed to allegations of family violence in her July Affidavit, notwithstanding years of litigation. She explained that the later reporting occurred because filing her affidavit was the first opportunity to raise the allegations, but I find that difficult to accept. Her family violence allegations should have been raised in correspondence and perhaps in her Financial Questionnaire, which would have then allowed them to be addressed in the Husband’s July Affidavit. This is a factor, among others, that I must consider when determining whether the Wife has established to the requisite standard of proof, that the alleged behaviour amounted to a form of family violence that impacted her contributions during the relationship.”

His Honour also relied on the fact that, during cross-examination, the wife made a number of significant concessions with respect to the husband’s conduct. These included that:

• Although she had hoped to keep the Suburb L property, she ultimately did agree to its sale;
• She had the login details to various bank accounts of the parties, including an ANZ account held by the husband into which the proceeds of sale of the Suburb L property were deposited into, although chose not to use them;
• When she requested money, the husband transfer that money to her;
• She had changed the locks to the Town D property during the time it was in her control post-separation (noting that she had control of the property prior to the husband).

His Honour did not accept that the husband paying joint bills from joint funds could be characterised as controlling behaviour. The wife alleged that the husband had earlier expressed a keenness to marry. His Honour held that a mere “waning in desire to marry” was not family violence. He pointed to the abolition of actions for “breach of promise” in 1976.

Judge Turnbull characterised the parties’ relationship as one that had deteriorated significantly post-separation. His Honour acknowledged the lack of trust and mutual disrespect towards each other as a result of the breakdown but could not find that it amounted to family violence as alleged.

As there were no findings of family violence, no adjustments could be made under either s 90SM(4)(ca) or 90SM(5)(a). Even if those findings had been made, his Honour expressed doubts as to whether the sufficient nexus between the family violence and the impact of the wife’s ability to contribute and/or her current and future circumstances had been established. The wife stated that the husband’s conduct had seriously impacted her mental health and gave evidence of having attended two psychologists. Only one psychologist was called to give evidence and large parts of her affidavit were deemed inadmissible.

His Honour said (at [149]):

“Neither Ms W nor Ms B’s evidence supports a finding that the Husband’s alleged violent behaviour is the cause of the Wife’s mental health deterioration. If I had been satisfied that the Wife had been the victim of family violence, I may have been able to infer that her contributions were made arduously and that her poor mental health was, at least in part, a product of her victimisation. I am prevented from making such inference because of my findings in relation to the alleged family violence.”

Beckett & Wicks (No 2)

In Beckett & Wicks (No 2) [2026] FedCFamC2F 90, the parties were in a de facto relationship for 21 years. There were two children of the relationship, aged 10 and 8 at the time of trial. The mother alleged that the father had subjected herself and the children to family violence during the relationship and post separation.

The alleged family violence included:

• Verbal abuse
• Denigration
• Threats of physical violence
• Physical violence
• Threats to prevent the children from seeing her, including inducing in the mother a fear that the father would abduct the children (both before and after separation)
• Systems abuse.

In September 2024, the mother applied for an IVO and was granted an interim IVO shortly after. A final IVO was later made. The father was charged with breaching the IVO, after he approached the children on two occasions as they were walking home from school with the mother.

The mother provided detailed evidence of alleged incidents of family violence in her affidavits. An incident in August 2024 had led to the parties’ separation. At the time, the parties and children (who ordinarily resided in Victoria) had been travelling around Queensland in a caravan on holiday. The parties had an argument in a caravan park. The mother alleged that following the argument, the father forced her to sleep outside, and the next day drove away with the children, leaving her stranded. The mother returned to Victoria, and the father continued travelling with the children.

In September 2024, the mother travelled to Queensland to visit the children. She gave evidence in her affidavit of fleeing in the middle of the night with the children and returning to Victoria. Following separation, the father sent the mother a series of harassing emails and text messages, which included threats to take the children. The mother produced many of these emails and texts messages to the court.

The father was self-represented and did not fully participate in the proceedings. The only document he filed was a Notice of Address for Service; however, he attended all court events from March 2025 and engaged with the process of obtaining a report from the Court Child Expert. Leave was granted to the mother to proceed with her parenting and property applications on an undefended basis. The father was not permitted to cross-examine the mother due to s 102NA. Despite being aware of the prohibition, he did not engage a lawyer. The ICL did not seek to cross-examine the mother.

The father denied all allegations of family violence. Judge A Humphreys summarised his overall position as (at [8]):

“By way of submission, the father asserts the mother has “stolen” the children, that her evidence is “all lies”, that all the information she has put before the court is “false and misleading” and that she is “the perpetrator pretending to be the victim”. These allegations were made by the father by way of submission. He did not file any evidence on affidavit or seek to tender any documents in support of these allegations.”

Her Honour largely accepted the mother’s evidence that the father had perpetrated family violence towards her, both during the relationship and following separation. A summary of the conduct is at [57]-[60], including a finding that the father engaged in systems abuse. However, Her Honour held that she was unable to make findings regarding certain alleged incidents of family violence due to either a lack of evidence or a lack of consistent evidence. For example, her Honour said (at [64]):

“… The mother gave very detailed evidence on affidavit about what she said the father said to her on both occasions, providing quotes of what was said, but did not explain how she was able to do so – for example, she did not say she had taken notes at the time or from recordings. She did not adduce any notes or recordings. It is well settled that a party does not require his or her evidence to be corroborated before evidence of family violence can be accepted. However, in the absence of corroboration by evidence that appears may have been available to the other, inconsistencies with other evidence cause me to question the reliability of her evidence in relation to these allegations including [inconsistent material in the s 67ZBD responses from Victoria Police and DFFH, and the mother’s application for an intervention order]”

Despite the fact that extensive findings of family violence had been made, it was conceded by the mother’s counsel during the trial that there was insufficient evidence before the court to allow a finding that the family violence had adversely affected the mother’s ability to contribute. No submissions were made in relation to an adjustment under s 90SM(5)(a).

Tedesco & Tedesco (No 2)

In Tedesco & Tedesco (No 2) [2026] FedCFamC2F the parties were married for 30 years. There were three adult children of the relationship. The wife alleged that the husband had perpetrated significant family violence against her throughout the relationship and following separation. The alleged family violence included that the husband:

• Hit, slapped, strangled and pulled the wife by her hair on multiple occasions;
• Punched a hole in the door of their former residence;
• Knocked her phone out of the wife’s hand while she was filming him;
• Called the wife, and the parties’ daughters, whores on multiple occasions;
• Hit the parties’ son on multiple occasions;
• Monitored the wife, including placing a recording device in the couch, a tracker on her car and keeping notes of addresses visited by the wife and phone numbers she called; and
• On an occasion, had caused the wife to be so fearful that she involuntarily urinated.

Judge Champion found that throughout the relationship and after separation, the husband “had subjected the Wife to sustained, recurrent family violence of a significant grade” (at [21]). His Honour was assisted in making these finding by having regard to both:

• The husband’s conduct and credibility, including the fact that the husband, in the gallery of the court, held up a “L” sign with his fingers at the wife (indicating that she was a loser); and
• Evidence produced by the wife, including a video recording of the husband verbally abusing the wife and physically slamming the parties’ son’s head into a garage wall.

His Honour found the wife to be a largely credible witness. In particular, he accepted her explanation that she did not go to the police prior to separation in order to protect her family.

In response to the husband’s claims that it was the wife, and not himself, who was the perpetrator of family violence, Judge Champion said (at [209]):

“It is also apparent on the video that the Wife is upset and angry. The Wife calls the Husband a “dumb cunt”, a “wife basher”, that his “dick hasn’t worked for years” and that if he did not leave the property, that “one of us will be dead” by the end of the evening. The Wife’s anger is entirely consistent with her being a victim of family violence.”

This finding that the wife’s anger was consistent with her being a victim of family violence was significant. It is frequently difficult for the courts to untangle the allegations where both parties allege family violence against the other. There is, however, usually one primary perpetrator.

Having found that serious family violence was committed, his Honour proceeded to make an inference, based on the wife’s evidence, that the family violence had an impact on the wife’s ability to make contributions, and that the wife was therefore entitled to an adjustment under s 79(4)(ca). His Honour relied on Benson & Drury [2020] FamCAFC 303 and Martell to make the inference.

No adjustment was made under s 79(5)(a). Whilst his Honour confirmed (at [222]) that an adjustment may be made under both s 79(4)(ca) and s 79(5)(a), the wife had not provided any evidence that the family violence affected her current and future circumstances.

Burrell & Lawry

In Burrell & Lawry [2025] FedCFamC2F 1646 the parties were married for approximately 26 years. Both parties were in their 60s and had health issues, although the husband’s health issues were significantly more serious.

The wife alleged that the family violence occurred in the forms of financial control, intimidation of the wife via physical punishment of the children and sexual violence during the marriage. Examples of the conduct the wife alleged amounted to family violence included:

• Husband sulking and excessively punishing (physically) the parties’ four children if the wife rejected his sexual advances;
• Touching and removing the wife’s clothes while she was asleep, including on some occasions also having sex with the wife while she was still asleep;
• Attempting to continue having sex after the wife had asked him to stop;
• Belittling the wife, including by discussing the parties’ sexual activity with the men’s group of their local church;
• On one occasion after the wife said no to sexual activity with the husband, he physically assaulted her to the point that she fell out of bed and was left bruised the next day; and
• Excessive physical disciplining of the children, including on one occasion hitting their then 8-year-old daughter with a rod 15 times.

The husband broadly conceded that he had perpetrated family violence, although not the allegations of sexual violence. However, the wife’s evidence was not challenged in cross-examination. The husband accepted that he had physically disciplined the children, although said the wife had too.

Judge McGowan found that the husband had subjected the wife to verbal abuse, belittling comments and controlling behaviour. No specific finding was made in respect of the alleged sexual violence.

The wife argued that an adjustment should be made under s 79(4)(ca). She gave evidence that the husband’s conduct had worn her down, made her feel degraded and, in effect, made her powerless to act against his will. Her Honour was inclined to make an adjustment, noting that the husband’s conduct would have made the wife’s homemaking and parenting contributions more arduous, including in circumstances where the children were also exposed to the effects of the family violence. Her Honour’s finding was supported by written apology letters to the wife from the husband, in which he accepted that he had made life more difficult for the wife.

The wife submitted that an adjustment should also be made under s 79(5)(a), on the basis that she was suffering from mental health conditions caused, at least in part, by the husband’s family violence. Additionally, the wife said that the husband’s family violence had made aspects of her employment more challenging. She provided a report from her treating professional, which was unchallenged, and identified that the wife was suffering from symptoms consistent with PTSD and generalised anxiety disorder. The report contained a recommendation that the wife attend fortnightly counselling sessions for six months, with further treatment to be reviewed. The report did not, however, indicate the likely cost of the treatment, nor was this evidence put before the court. The judgment was largely silent on the wife’s claims that the husband’s conduct affected her current role.

Ultimately, the failure by the wife to provide evidence of the financial impact of her ongoing mental health issues meant that her Honour declined to make an adjustment under s 79(5)(a).

Key takeaways and evidentiary considerations

Approach

Broadly speaking, it appears that the court has adopted a standard approach to determining whether an adjustment should be made under s 79(4)(ca)/s 90SM(4)(ca) and/or s 79(5)(a)/s 90SM(5)(a).

Firstly, the party arguing for the relevant adjustment must satisfy the court that they were subjected to family violence by the other party. Once the court has accepted that family violence was perpetrated, the party arguing for the adjustment must establish:

• For s 79(4)(ca)/s 90SM(4)(ca) – a connection, or “nexus”, between the family violence and the party’s ability to make contributions, detailing the nature of the impact; and/or
• For s 79(5)(a)/s 90SM(5)(a) – that the family violence has had an effect on the victim survivor’s current and future circumstances, and the nature and extent of that impact.

This approach is substantially consistent with the approach taken under Kennon.

Seeking an adjustment under both s 79(4)(ca) and s 79(5)(a)

Prior to the amendments coming into effect, there was some concern that it was impermissible to allow an adjustment under both s 79(4)(ca) and s 79(5)(a) (or s 90SM(4)(ca) and s 90SM(5)(a)) as it could possibly lead to “double counting” the effect of the family violence on the parties’ financial status. It is clear, however, that this is not the view the court has taken and a party may seek an adjustment under both s 79(4)(ca) and s 79(5)(a), as was previously available under Kennon. For example, in Jenson & Lockridge (No 2), Justice Campton (sitting as the Full Court), said (at [62]):

“The appellant’s Summary of Argument asserted that unchallenged evidence was adduced of “family violence and its impact”, raising a “live Kennon issue” (citing Kennon v Kennon (1997) FLC 92-757, as opposed to being a factor to be considered pursuant to s 79(4)(ca) and/or s 79(5)(a) of the Act).” (emphasis added)

An adjustment was granted under both sections in Tordis & Marney (No 2), Dilay & Shahrukh (No 2) and Tedesco & Tedesco (No 2).

However, it is also clear that parties are often unsuccessful in seeking an adjustment under both sections. This difficulty appears to stem from the somewhat high evidentiary burden required to satisfy s 79(5)(a).

Proving family violence

The first hurdle for a party seeking an adjustment under either s 79(4)(ca) or s 79(5)(a) is to satisfy the court that they were a victim of family violence. The cases are consistent with the pre-amendment manner of proving family violence. A party is more likely to be successful in establishing family violence if the alleged conduct is particularised. For example, in Dilay & Sharukh Justice McGuire was assisted by the wife’s affidavit which included “a highly particularised history of family violence” (at [73]). Conversely, in Helmo & August, Justice Christie declined to make findings of family violence in circumstances where the allegations were expressed “in a very general manner” (at [55]). Similarly, in Janvier & Domes (No 4), Justice Williams declined to make findings of family violence which were “broad” and “lacking particulars” (at [264]). In Arwen & Arwen, allegations of family violence were dismissed due to the allegations being “vague and unparticularised” (at [189]).

Care should be taken to particularise all alleged incidents of family violence that are sought to be relied upon. In Barker & Avery, the mother particularised one incident of family violence perpetrated by the husband in 2014, and a few incidents after the relationship. While her Honour accepted that these incidents amount to family violence, the mother’s broader claims that the father had subjected her to ongoing family violence during the relationship were not supported as only one incident was particularised. However, a failure to particularise every single incident of alleged family violence does not necessarily preclude a finding of sustained family violence. In Tedesco & Tedesco (No 2), Judge Champion found that the wife had been subjected to sustained and recurrent family violence over a 30-year relationship although not every alleged incident was particularised. The difference between Barker & Avery and Tedesco was that in Tedesco the wife had particularised a number of incidents, across the span of the relationship.

To ensure that incidents are properly particularised, information such as the date and time of the alleged incident, what occurred, and whether a third-party was present should be included. If evidence of what was said by the parties is included in an affidavit, Judge A Humphreys’ comments at [64] in Beckett & Wicks (No 2) indicate (consistent with the proper approach to giving evidence) that care should be taken to explain why and/or how the person deposing the affidavit is aware of what was said. In that case the mother provided quotes of what was said by the father. However, no recordings, contemporaneous notes or other form of explanation was offered as to how the mother could recall exactly what the father said. Her Honour found that the alleged incidents of family violence were not open on the facts.

Although not necessary for a finding of family violence, as stated by Judge A Humphreys in Beckett at [64], evidence which corroborates the allegations can be particularly useful. Such evidence can include recordings, text messages or other correspondence between parties, reports of family violence made to a third party (including the police or DFFH), evidence of third-party witnesses, and contemporaneous pictures of injuries caused by the perpetrator. In Sauter & Holt (No 2) findings of a magistrate following a contested domestic violence order were sufficient. In Adin & Olvija (No 2) a domestic violence order consented to by the husband was, however, not binding on the FCFCOA.

Practitioners should take care to consider the timing of when allegations of family violence are raised in proceedings, including prior to proceedings being commenced. In Griffiths & Shaw (No 2), Judge Turnbull was critical of the fact that the wife did not raise allegations of family violence until some years after the proceedings had been initiated (see [109]). This is not to say that allegations can only be raised at the commencement of proceedings, especially given that it is not uncommon for some victim-survivors to either not immediately realise/disclose family violence. Rather, as was hinted at by Judge Turnbull, if allegations are not raised at the commencement of proceedings, it will be prudent to provide an explanation as to why the allegations were raised at that particular time.

Economic and financial abuse

There has been limited discussion by the courts, so far, in relation to the expanded definition of economic and financial abuse in the context of property proceedings. What is clear, however, is that it is not enough to merely establish that the party alleging economic and/or financial abuse did not have access to the parties’ bank accounts. Similarly, it is not sufficient that one party had control of the parties’ finances. For example, in Ericsson & Rogers (No 2), it was accepted that the vast majority of the parties’ assets (97%) were held in the husband’s sole name. However, economic and financial abuse was not made out in circumstances where the wife had access to a no-limit credit card linked to the husband’s bank accounts. There was no evidence that the husband had ever tried to deny her accessing money and the court was critical of the wife for re-framing the husband’s generosity as financial control. That the wife felt restrained because she did not have a bank account of her own was not enough to amount to family violence.

Removal of joint funds post-separation may amount to economic and financial abuse, although whether or not the court is prepared to make this finding depends on the circumstances. For example, in Sauter & Holt (No 2) it was accepted that the husband’s withdrawal of $463,000 across three separate transactions amounted to financial abuse, and so did the husband’s failure to pay spousal maintenance in breach of an FCFCOA order. Whilst the judgment did not discuss why these amounted to family violence in much detail (as a result of the parties’ accepting the findings of a Magistrate in a contested domestic violence proceeding), it might reasonably be inferred that the order for spousal maintenance meant that the wife had access to limited financial resources, thus allowing the withdrawals from joint funds by the husband to amount to family violence. That the overall financial circumstances of the party should be considered when determining whether conduct amounts to financial or economic abuse is supported by Fernand & Fernand (No 2), in which Justice Howard declined to conclude that preventing the husband from accessing his pension was family violence as he had access to sufficient other financial resources to “survive”.

Section 79(4)(ca) nexus requirement and evidentiary considerations

As under Kennon, a party seeking an adjustment under s 79(4)(ca) or s 90SM(4)(ca) must establish a nexus between the family violence and the victim-survivor’s ability to make contributions. In other words, has the family violence affected the party’s ability to make contributions?

A question arises over the extent to which the family violence must affect the victim-survivor’s ability to make contributions. In some cases, (e.g: Stubbs (No 3)) the fact that the victim-survivor made ongoing and substantial contributions, despite experiencing family violence, has been held to be a reason to decline to make an adjustment. In other words, the fact that the victim-survivor was able to continue making such substantial contributions suggests that the family violence did not affect the ability to make contributions to the extent required to warrant an adjustment. When the nexus requirement is approached in this way, the focus appears to be on the objective quality of the contributions. Whether an adjustment is warranted is determined in light of the other contributions.

In other cases, a slightly different approach has been taken. The court considered whether a party’s ability to make contributions was made “more arduous and burdensome” (Fernand at [146]) or “difficult” (Tordis & Marney (No 2) at [28]) as a result of the family violence. This approach is consistent with the pre-amendment Kennon and Martell line of authority. Examples of this approach include Fernand and Tordis & Marney (No 2). Under such an approach, it is not inconsistent to find that a victim-survivor both made significant contributions despite experiencing family violence and that an adjustment under s 79(4)(ca) is warranted. The focus is not on whether contributions were made, but rather whether it was harder for the party to make those contributions. If this is the approach, particularly where the victim-survivor made more contributions than the perpetrator, it is good practice for the party making the argument to be clear to the court that the family violence made it more difficult for the victim-survivor to contribute.

It is possible that there are two distinct approaches taken, or it may be the same approach with a different focus. The law is not yet certain.

Inference of effect

Under the Kennon approach, it was permissible for the court to infer from the evidence that the family violence must have had an impact upon the victim-survivor’s ability to make contributions. It has been held in a number of first instance judgments that this approach is still permissible under the new statutory provisions (see, for example: Sauter & Holt (No 2) at [149] and Bourreau & Ivers). In Tedesco & Tedesco (No 2), Judge Champion explicitly referred to the pre-amendment cases of Benson & Drury [2020] FamCAFC 303 and Martell as authorities supporting such an inference. Typically, the family violence must be of a serious nature to warrant such an inference being drawn. Examples of circumstances where the inference was drawn include:

1. The mother leaving the former marital home with the children, and relocating to another city, to escape serious family violence, including multiple choking incidents (Sauter & Holt (No 2)). Justice Christie considered that, by being forced to relocate, the wife was unable to make contributions other than as a parent.
2. The husband perpetrated prolonged and serious family violence against the wife across a 30-year marriage, including but not limited to, calling her derogatory names, tracking her location, physically assaulting the wife, threatening to physically assault her (including on one occasion causing her to involuntarily urinate out of fear) and perpetrating family violence against the parties’ children (Tedesco & Tedesco (No 2)).

Section 79(5)(a) evidentiary considerations

The cases discussed in this paper indicate that parties have had difficulty gaining an adjustment under s 79(5)(a). This largely appears to be due to the evidence required in support of such an adjustment. In general, the party needs to put evidence before the court supporting a finding that the family violence had an impact on one of the other s 79(5) factors and be specific about which factor. Generalised claims are not sufficient. Unlike s 79(4)(ca), it does not appear that it is permissible for the court to infer, based on the evidence before it, that the family violence suffered by the victim-survivor had an impact on their current and future circumstances.

Impact on mental health

A common argument from parties is that an adjustment is warranted under s 79(5)(a) because of the ongoing effect of such violence on a victim-survivor’s mental health. This is perhaps not surprising, given the potential for family violence to cause ongoing psychological impairment in a victim-survivor. There are a number of key takeaways that can be taken from the cases discussed above.

First and foremost, there must be evidence of a mental health condition. In Janvier & Domes, Justice Williams was clear (albeit in obiter), that the husband’s failure to provide evidence that he had been diagnosed with PTSD and other mental conditions meant that there was no adjustment under s 79(5)(a).

Secondly, it is not sufficient to merely establish that the victim-survivor is suffering from a mental health condition. Instead, the party must also persuade the court that the mental health condition was caused by the family violence. In Adin & Olivija (No 2), it was accepted by the parties that the wife suffered from various mental health conditions and that the wife had been subjected to at least one incident of family violence during the relationship. A problem arose however, in that prior to the relationship, the wife had witnessed a terrorist attack that left her traumatised. There was no evidence before the court that the family violence perpetrated by the husband had either caused new mental health conditions, or had exacerbated the wife’s pre-existing conditions. Justice Altobelli declined to make an adjustment. Similarly, in Grove & Brassard it was accepted that Ms Moreton, had PTSD and ADHD. It was accepted that Mr Brassard, had perpetrated family violence against Ms Moreton, and that this had some impact on her. However, in circumstances where Ms Moreton’s PTSD existed as a result of family violence perpetrated by a former partner, Judge Betts found that an adjustment was not warranted under s 79(5)(a).

Finally, there are some cases that suggest, in order for an adjustment to be made under s 79(5)(a), the party seeking the adjustment must provide evidence of the financial impact of their mental health condition. For example, in Burell & Lawry, an unchallenged report from one of the wife’s treating professionals was provided to the court, stating that the wife showed symptoms consistent with PTSD and generalised anxiety disorder. The report included a recommendation that the wife continue attending fortnightly counselling sessions for 6 months, with treatment to be reviewed. However, the report did not include any information on the costs associated with the treatment. Judge McGowan therefore declined to make an adjustment in the wife’s favour.

Impact on physical health

In Tordis & Manrey, the wife received an adjustment under s 79(5)(a). The physical injuries caused by the husband had left the wife with ongoing health problems, including arthritis and tendonitis. It was unclear, however, whether evidence was put before the court quantifying the ongoing economic impact of the wife’s physical health conditions. Importantly, the husband did not appear at the final hearing and the matter had proceeded on an undefended basis.

Use of AI

The cases show that particular care must be taken if considering using AI. As demonstrated in Jenson & Lockridge, there is the possibility for AI to fail to recognise the new statutory pathway. Similarly, there is the potential for the AI to overemphasise the effect of the new statutory pathway, leading clients to form mistaken conclusions about the interaction between family violence and property settlements.

Perhaps more importantly for practitioners, however, is the risk that using AI will raise a suspicion that family violence allegations have been exaggerated or untrue or to amount to witness coaching (see R v FGD). Given the prevalence of AI, practitioners should take care to caution their clients and potential witnesses not only of the risks that inputting their evidence into AI tools may amount a waiver of privilege (if it is an open AI source), or a breach of the restriction on publication under s 114Q FLA, but also that they may be jeopardising their ability to give evidence.

Status of pre-amendment case law

In general, it appears that the courts have treated s 79(4)(ca) and 79(5)(a) as a codification of the Kennon principle. Much of the case law developed in relation to the Kennon principle appears to remain good law although it cannot be assumed that it will all be. An example was Judge Champion in Tedesco relying on Benson & Drury and Martell as authorities permitting his Honour to draw an inference with respect to s 79(4)(ca).

There is one clear exception to this. As noted by the Full Court in Jenson & Lockridge (No 2), it is no longer permissible to rely on Kennon as the authority for seeking an adjustment under s 79 due to family violence. Reference to s 79(4)(ca) and/or s 79(5)(a) must be made. In other words, s 79(4)(ca) and s 79(5)(a) have replaced the Kennon principle, rather than being in addition.

Quantifying the adjustment amount

Typically, the cases do not attribute a percentage or dollar figure amount to an adjustment made under s 79(4)(ca) or s 79(5)(a) (for example 5% or $100,000). Whilst this lack of clarity can make it difficult for practitioners to advise their client on the cost-benefit analysis of seeking an adjustment under s 79(4)(ca) or s 79(5)(a), it is consistent with the overall historical approach of the court that any assessment of contributions and/or current and future considerations ought to be considered holistically. There is also some difficulty in quantifying, either via a percentage or dollar amount, the impact of family violence on contributions, and current and future considerations (albeit perhaps less so with the latter in certain circumstances). It may therefore not be impermissible for the court to indicate a percentage adjustment amount although this limitation is not in s 79. However, in Grove & Brassard, an adjustment of 2% was specifically made under s 90SM(4)(ca).

It is conceivable that certain current and future circumstances may be quantifiable in a dollar or percentage amount. For example, if a victim-survivor requires surgery to repair an injury caused by the family violence, and if evidence can be given of the expected cost of that surgery, there is nothing in the FLA expressly prohibiting such an adjustment. It might also be able to be made by way of a lump sum maintenance order, which might be a safer option.

Practical tips

Whilst the legislative changes are relatively recent and there is very little case law, some practical tips follow:

1. The facts associated with the family violence need to be set out to enable or persuade the court to make findings that family violence occurred. To the extent that the applicant can remember, set out:
   1. What happened?
   2. When did it happen? If there is no way to establish the date, are there circumstances from which the approximate date can be inferred? Was it around a memorable date such as a birthday or Christmas? Was it before a particular child was at school?
   3. Where did it happen?
   4. Were any children present? If so, what did they hear and how did they react?
   5. Were any other people present? If so, will they provide an affidavit?
2. Use the words in s 4AB where possible.
3. Is there any documentary evidence, such as:
   1. Medical reports e.g. Burell & Lawry (although be aware that mere evidence of a condition without evidence of the associated treatment costs may be insufficient for the purposes of s 79(5)(a));
   2. Police reports e.g. Grove & Brassard, Beckett & Wicks and Barker & Avery;
   3. Contemporaneous diary notes, text messages, emails;
   4. Photographs e.g. Kolar & Kermit [2019] FCCA 817; Grove & Brassard;
   5. Intervention orders e.g. Beckett & Wicks.
4. Draw links between the family violence and the effect of family violence. Be clear as to whether there was an effect of family violence on:
   1. Contributions – be specific as to which contributions and whether the impact was on:
      1. the nature of the contributions;
      2. the quality of the contributions;
      3. whether the contributions could be made at all.
   2. Current and future considerations – be specific as to which considerations. If there is a financial impact then provide evidence of the medical or other costs, the loss of earning capacity, etc.
   3. Both, and again, be specific.
5. Annexe intervention orders, applications for intervention orders and records of convictions for breaches of intervention orders. The FCFCOA will still need to make its own findings, but these will assist.
6. Stick to the rules of evidence. The court needs facts. Avoiding hearsay and opinions and ensuring the subject matter is relevant to the issues in dispute will assist with brevity and to persuade the court that there was family violence.
7. Be wary of the use of AI. If your client has used it to provide instructions, then you should obtain verbal instructions and use those words rather than the words created by AI. Warn your client of the risk of using AI to provide instructions and as evidence.
8. Don’t generalise. This is the “never say never” rule or “never say always”. For example, don’t say “The Father always hit me when he was drunk”. This may be easily disproven.
9. Options for dealing with the 10 page affidavit limit in the Division 2 of the Federal Circuit and Family Court of Australia (rr 2.01 and 2.02 of the Federal Circuit and Family Court of Australia (Family Law) (Division 2) Rules 2021):
   1. Concentrate on the most severe and most recent events;
   2. Reference that due to the 10 page limit, the history of family violence is incomplete (if it is);
   3. Use a table to summarise lengthy history.
   4. Remove unnecessary words. Where possible, use 2 or 3 words rather than long phrases.
   5. Seek the leave of the court to either:
      1. Rely upon an affidavit which is more than 10 pages; or
      2. File a further affidavit.
10. Although the court can infer the effect of family violence in some cases, it is far better to put that evidence.
11. If acting for the party alleged to have committed family violence, the family violence may be held to have occurred if the evidence is not challenged. The evidence of a causal link with contributions must also be challenged for the claim to be defeated.

Conclusion

The amendments brought about by the FLAA 2024 are still relatively new, and only time will tell whether they will have the impact intended by Federal Parliament. In the meantime, the early case law suggests that parties seeking an adjustment under s 79(4)(ca) and/or s 79(5)(a) should take care to particularise, in detail, any alleged family violence and to make explicit the effect that the family violence is said to have had on the victim-survivor’s contributions and/or current and future circumstances.

Thank you to Emma Jelavic, paralegal at Forte Family Lawyers, for assistance with this paper.

© Copyright – Jacqueline Campbell of Forte Family Lawyers and Wolters Kluwer/CCH. This paper uses some material written for publication in Wolters Kluwer/CCH Australian Family Law and Practice. The material is used with the kind permission of Wolters Kluwer/CCH.