9. Domestic violence and property adjustment

Updates and background for this project (Digest)

• Introduction
• Experiences of domestic violence
• The Family Court’s approach to domestic violence
• The approach in New South Wales
• Recognising violence as relevant to property proceedings
• Ways of taking account of domestic violence in property proceedings

INTRODUCTION

9.1 In Chapter 7, the Commission discussed the criteria which the Courts should apply when deciding what is just and equitable in the division of property under Part 3 of the Property (Relationships) Act 1984 (“the PRA”). In this Chapter, we consider what should be the impact of evidence of domestic violence on the property adjustment process. Specifically, we ask whether the incidence, or threat, of domestic violence should be an express legislative factor that the Court must take into account when making an order under s 20 of the PRA. We examine the ways the Courts currently take account of evidence of domestic violence in the adjustment process, and in what ways they should take account of such evidence, if at all. This is an issue that has attracted some attention, and controversy, in the context of Family Court disputes between spouses. It has been discussed, though to a lesser extent, in the context of property disputes between de facto couples in New South Wales.

9.2 Given the State’s referral of powers to the Commonwealth,¹ the main issues for the Commission to consider are:

• the incidence and nature of domestic violence in same sex and close personal relationships;
• whether, as a matter of policy, the law should recognise as relevant to the adjustment of interests in property, evidence of domestic violence in such relationships; and
• in what ways the law should take account of such evidence, with special consideration of the advantages in maintaining uniformity with the Family Court’s treatment of evidence of domestic violence in this setting, balanced with arguments against adopting that approach.

9.3 Until recently, problems of domestic violence in the gay and lesbian community were met with “an unhealthy silence”.² While domestic violence has received increasing attention over the last few decades as a serious social problem, most of that attention has focused on violence in heterosexual relationships, predominantly violence by men against women. Yet there is now growing and more vocal concern expressed about the incidence of domestic violence in the homosexual community, with a call for more research and provision of services to meet the particular needs of victims of violence in same sex relationships.³

9.4 There is little empirical research on the incidence of domestic violence in same sex relationships in Australia. However, there are estimates that the rate of domestic violence in gay and lesbian relationships is comparable to that in same sex relationships. At the least, the incidence of domestic violence is significant enough to be described as a major issue facing the homosexual community.⁴ Yet it continues to be a problem that is largely unacknowledged, or downplayed. A number of reasons have been suggested for this.⁵ For example, there are said to be certain myths surrounding same sex relationships, which serve to keep the problem of violence hidden, myths such as that violence cannot occur between two apparent equals (two men, two women), that lesbians do not engage in violent abuse because women are not violent, that men cannot be victims of domestic violence, or that violence is just a normal part of how some same sex relationships work. Moreover, in order to raise public awareness of domestic violence in same sex relationships, not only must the homophobia expressed by some sections of the general public be overcome, but the gay and lesbian community must also be prepared to acknowledge domestic violence openly as a problem. This is something that many may be reluctant to do, for fear of attracting further discrimination and stigma upon their community, and threats to community cohesion.

9.5 As in opposite sex relationships, domestic violence in same sex relationships is described as being essentially about power and control, and can manifest itself not just through physical assaults, but also through sexual, psychological, emotional and economic abuse.⁶ As in opposite sex relationships, victims of abuse in same sex relationships may feel embarrassed or ashamed to tell others about the abuse, may feel isolated, may blame themselves for the abuse or may try to trivialise it and blame external factors such as alcohol or stress. In addition, special and unique problems face victims of same sex domestic violence. For example, they may fear reporting the abuse for fear of “coming out” to their family. They may feel that, by reporting the abuse, they are betraying their community, which is already marginalised and stigmatised. They may fear hostile and homophobic responses from the police and service-providers if they seek help, or that they will be subjecting their partner to a homophobic criminal justice system. These factors may all contribute to silencing victims of same sex domestic violence and preventing them from seeking help.

9.6 Domestic violence also arises in other domestic relationships, such as in carer relationships where a person, often an older person, is abused by the person who cares for him or her (whether that be a partner, child, other family member, or friend). As with domestic violence in same sex relationships, abuse of the elderly by carers is described as a largely hidden problem, while at the same time becoming increasingly significant.⁷ As in other situations of domestic violence, “elder abuse” can comprise physical or sexual assaults, as well as psychological or financial abuse, and neglect. Abuse of carers by those being cared for has also been identified as a problem in New South Wales.⁸

9.7 It is clear that domestic violence is a problem that is not confined to heterosexual relationships. In discussing the distribution of property upon the breakdown of same sex and other domestic relationships, it is important to keep in mind that a number of those relationships will have been affected in some way by violence. That violence is even more likely than in heterosexual relationships to have been kept hidden, and unreported. When discussing what role evidence of domestic violence should play in property proceedings in New South Wales, it should be acknowledged that this is an issue that is relevant to a fair number of such proceedings, and one that deserves some consideration.

THE FAMILY COURT’S APPROACH TO DOMESTIC VIOLENCE

9.8 To a significant extent, New South Wales has followed the approach taken by the Family Court towards evidence of domestic violence in property proceedings. However, as the Commission discusses below, that approach has not gone uncriticised, nor without proposals for reform.

9.9 Under the Family Law Act 1975 (“the FLA”), domestic violence may be relevant to property proceedings in two ways. First, when assessing the parties’ contributions, the Court may take into account, in favour of the spouse who has been subjected to the violence, evidence that, as a result of the violence, the party’s contributions have been made more arduous than they otherwise would have been.⁹ Secondly, in considering the s 75(2) factors, the Court would have regard to any disability resulting from the violence.

9.10 As to the first aspect, taking the violence into account in relation to the assessment of contributions, in the leading case of Kennon the Full Court rejected the idea that the violence should be taken into account as a “negative contribution” by the violent party. Instead, it focused on the impact of the violence on the contributions of the non-violent party. The Full Court’s decision not to treat violence as a “negative contribution” probably reflects the lack of any explicit legislative reference to parties’ conduct, and the FLA’s departure from fault-based grounds of divorce. Indeed, in treating violence as a factor that could enhance the contributions of the non-violent spouse, the Full Court departed from a line of authorities strongly suggesting that notions of misconduct were generally irrelevant in the determination of financial matters under the FLA.¹⁰

9.11 As to the second aspect, the s 75(2) factors include the health of the parties, and their earning capacity. Where a party’s health or earning capacity has been diminished because of domestic violence, the resulting disadvantage will be taken into account in the application of the s 75(2) factors. In this aspect, it is the consequence of the violence, rather than the violence as such, that is relevant.

9.12 Nevertheless, the origins of the disability in the domestic violence may have some relevance in relation to s 75(2) matters. In some circumstances, such as a health problem unrelated to the marriage and arising after the parties have separated, the Court might be inclined to give little or no weight to the disability, on the ground that it is not appropriate to use property proceedings to adjust for factors unrelated to the marriage relationship. Where a disability has been caused by domestic violence, this argument would clearly be unavailable.

THE APPROACH IN NEW SOUTH WALES

9.13 New South Wales has largely followed the approach of the Family Court in taking account of domestic violence to adjust property interests between de facto partners and others in domestic relationships, to the extent that the particular legislative framework set up by the PRA allows. A number of cases involving domestic violence between de facto partners in New South Wales have adopted the Family Court’s approach of enhancing the homemaker contributions of the victim to make a property adjustment in the victim’s favour. However, the Supreme Court has also appeared more inclined than the Family Court, at least in some recent cases, to adopt some form of a “negative contributions” approach in making property adjustments. That is, the Supreme Court has held that, to the extent that the perpetrator of violence makes a claim for homemaker contributions, an adjustment can be made against him on the basis that the quality of those contributions was diminished.¹¹ It is open to question whether these cases demonstrate a greater willingness of the Supreme Court to focus not only on the contributions of the victim, but also the perpetrator, than the Family Court has shown. Subsequent cases have, however, followed the approach in Kennon, by focusing only on the homemaker contributions of the victim, and the potential to enhance those contributions because of the perpetrator’s violent conduct.¹²

9.14 The Supreme Court has warned against embracing too readily the decisions of the Family Court in relation to the adjustment of property interests based on consideration of parties’ present and future needs, given the differences in the State and federal legislation in this respect.¹³ Consequently, the approach of the Family Court, which allows it to take account of the impact of domestic violence on the victim’s present and future financial circumstances, is not presently open for the State Courts to follow. However, in light of the Commission’s recommendation to amend s 20 to allow the Court to take into account a wide range of factors equivalent to those the Family Court is able to consider under s 79,¹⁴ we will also need to consider what impact this will, and should, have on the relevance of domestic violence to property disputes at the State level.

RECOGNISING VIOLENCE AS RELEVANT TO PROPERTY PROCEEDINGS

9.15 In considering what reforms, if any, should be made to the law in New South Wales relating to evidence of domestic violence in property proceedings, the first and fundamental question is whether evidence of domestic violence should be considered relevant at all in the process of adjusting property interests between de facto partners and others in a close personal relationship. The following is an overview of the main arguments for and against. Discussion of this issue has focused predominantly on the FLA and the Family Court. However, the approach under the PRA is sufficiently similar for the discussion to be relevant to formulating an appropriate legislative policy in New South Wales.

Arguments against recognising domestic violence

9.16 Arguments against recognising evidence of domestic violence as relevant to property proceedings are generally justified on the basis of a reluctance to return to a fault-based approach to dealing with the breakdown of relationships, and consequent distribution of property, and on a fear of “opening the floodgates”.

• The Family Court’s treatment of domestic violence in relation to property proceedings has been criticised for opening the way to a “punitive approach” towards property distribution. Such an approach, it has been said, is not the function of the FLA.¹⁵ There is concern to ensure that the Family Court does not return to notions of fault in its proceedings, notions that were specifically rejected with the introduction of the FLA in 1975.¹⁶ It has been argued that it is not the role of the Family Court to punish a violent partner through the distribution of property, although the Court can concern itself with compensating the victim of the violence for the consequences of such violence.¹⁷ The PRA was, to a large extent, modelled on the FLA, and consequently mirrors the no fault approach which forms the basis of the federal legislation.¹⁸
• There is concern that, by taking into account evidence of domestic violence as relevant to the adjustment of property interests, the Courts may open the way for a range of conduct to come under scrutiny in property proceedings. There may be conduct that does not fall within the terms “domestic violence,” or “family violence”, however those terms might be defined, but which might nevertheless have an impact on a party’s contributions to the welfare of the family, and which logically should also be taken into account. Indeed, the Family Court has already foreshadowed this possibility, although without any clear guidance as to what sorts of conduct should be considered.¹⁹ It has been questioned whether it is really desirable to allow potentially for the minutiae of a relationship to be brought before the Courts for the purposes of property proceedings, or whether issues of domestic violence are more appropriately dealt with through criminal and civil actions.²⁰

9.17 There are several arguments that are typically made for allowing victims of domestic violence an increased share in property, upon the breakdown of a relationship with a violent partner. These arguments tend to be based either on a broader social policy of enhancing the disadvantaged position of victims of domestic violence, or on the grounds of consistency and fairness in light of the approach taken (by the Family Court) towards financial misconduct in the adjustment of property interests.

9.18 As a matter of social policy, the following arguments have been made (generally in the context of Family Court proceedings, typically involving women who have been the victims of their husbands’ violence): ²¹

• Recognising domestic violence as relevant to property proceedings is in line with society’s increasing awareness of, and intolerance for, violence in the home, and its damaging effects on its victims.
• Victims (usually women) of domestic violence frequently face grave financial circumstances once they separate from their violent partner. They are reported to be frequently reliant on social security as their main source of income, and are less likely to be in paid employment than those who separate from non-violent partners.²² To recognise these disadvantages by granting them an increased share is to provide them with some opportunity of establishing a life for themselves (dependent, of course, on the value of the property that is being divided).
• At least in Family Court proceedings, it has been reported that women who have been the victims of spousal violence fare worse in the division of property than women who report no physical abuse. The law should recognise this apparent disadvantage in property settlement and take steps to overcome it.
• Taking account of domestic violence in the adjustment of property interests provides a means of compensating the victim of the violence for the abuse. While there may be other legal avenues of redress, through a civil action or claim for criminal injuries compensation, victims of violence may be reluctant to pursue these avenues, for reasons such as the emotional and financial costs. In many ways, it may be easier for victims to pursue some form of compensation through an existing dispute over property, arising from a relationship from which their injuries have arisen in the first place.
• In response to the “floodgates” argument, there are good reasons why domestic violence should be singled out for special treatment above and beyond other forms of “blameworthy” conduct. Given that acts of domestic violence also constitute criminal offences, and given society’s increasing intolerance of domestic violence and initiatives to reduce its incidence, it is appropriate to recognise the impact of domestic violence in property adjustment proceedings.

• Violence has an obvious and important impact on a party’s contributions to the welfare of the family. It will often make a victim’s role, whether as child carer, homemaker, or in maintaining a position in the paid workforce, more onerous. In a system of law that recognises parties’ contributions as factors relevant to adjusting property interests, at both the State and federal levels, it would be irrational to ignore the impact of violence on contributions.²³
• In response to the argument that the Courts should not return to a fault-based approach, it could be said that other forms of blameworthy conduct are taken into account as factors relevant to the adjustment of property interests. For example, the Family Court has been prepared to recognise a spouse’s alcoholism, or recklessness and negligence, where they have resulted in the dissipation of funds, as factors to be considered in making an adjustment of property interests against that spouse.²⁴ Recognition of blameworthy conduct in this way differs from an approach that focuses on fault as a ground for granting dissolution of a marriage, which was essentially what the reforms of the FLA were rejecting. While the link between these types of blameworthy conduct and property loss may be considered more direct or obvious, it has been argued that the Courts should follow the same approach to violent conduct, which can be shown to have financial consequences, and make the perpetrator of the violence accountable for financial consequences unreasonably incurred.²⁵
• At the State level, a strong argument in favour of recognising evidence of domestic violence as relevant to property proceedings is the fact that this is consistent with what appears to be a fairly well-established and accepted approach at the federal level. While the FLA makes no express provision to this effect, there is now an established body of case law at the federal level recognising the relevance of evidence of domestic violence to the adjustment of property interests, as well as moves towards entrenching this approach in the federal legislation in some way.²⁶ If New South Wales were to refuse to recognise evidence of domestic violence in property proceedings, it would mean that a very select proportion of the population, namely lesbian and gay de facto partners and those living in close personal relationships, would be treated differently from the rest of the population.

9.20 The Commission received six submissions dealing expressly with the relevance of domestic violence to property proceedings.²⁷ Of these, two submissions took the general view that evidence of domestic violence should be considered relevant to the process of adjusting interests in property,²⁸ whereas one submission specifically stated that consideration of such evidence should be limited to situations where the violence has affected the property held by the parties at the end of the relationship, or has affected their ongoing economic capacity or future needs.²⁹ One submission considered that compensation for domestic violence should be granted independently of proceedings under the PRA.³⁰

The Commission’s view

9.21 The Commission agrees with the majority of submissions that evidence of domestic violence should be taken into account in some way in the property adjustment process for de facto and close personal relationships. To do so does not return the law to a fault-based mentality for dealing with the breakdown of relationships: its relevance does not relate to questioning the basis on which the relationship breaks down, but rather serves to recognize the impact such violence often has on the financial realities of the victims of such violence. This approach is consistent with current government strategies at both the State and federal levels to assist victims of domestic violence, and reflects society’s growing awareness of and intolerance towards domestic violence. Importantly, to consider evidence of violence as irrelevant to property adjustment proceedings involving same sex and close personal relationships would be to deprive people in these relationships of the rights and protections offered to their heterosexual counterparts. Such an approach would be discriminatory and unfair.

WAYS OF TAKING ACCOUNT OF DOMESTIC VIOLENCE IN PROPERTY PROCEEDINGS

9.22 In paragraphs 9.8-9.14, the Commission outlined the approaches of the Family Court, and the New South Wales Supreme Court, towards evidence of domestic violence in adjusting property interests. Arguably, the Supreme Court has demonstrated a greater willingness than the Family Court to take account of domestic violence also as a negative contribution on the part of the perpetrator of the violence, in order to make a property adjustment against him (or her). However, with no provision in the State legislation for the Courts to take account of present and future financial needs, the Supreme Court is more limited than the Family Court in its approach, and cannot currently make an adjustment in favour of the victim of violence to take account of the impact of domestic violence on that party’s present and future financial needs.

Criticisms of the current approach

9.23 The approach of the Family Court has come under criticism on several grounds, and there have been some recent initiatives to reform the way in which the Court considers evidence of domestic violence in property proceedings. Given that the Family Court’s approach is mirrored, to a large extent, in the approach of the State Supreme Court, it is helpful to examine these criticisms in some detail, before considering proposals for reform.

Criticisms of the positive contributions approach

9.24 The following principal criticisms have been made of the Family Court’s “positive contributions” approach in adjusting property interests to recognise a history of domestic violence.

9.25 The first criticism relates to the Family Court’s apparent dismissal of any notion of reducing or negating the contribution made by the perpetrator to the welfare of the family. In this respect, the approach of the New South Wales Supreme Court could be considered by some as more progressive than that of the Family Court, in so far as it appears more inclined to recognise domestic violence as a negative contribution on the part of the perpetrator. The Family Court’s focus on the victim’s, rather than the perpetrator’s, contribution, is considered problematic for several reasons:

• It is artificial to refuse to recognise the often significantly detrimental impact of domestic violence on a family’s welfare, and the fact that by behaving violently, the perpetrator reduces the value of his or her contributions.
• Refusal to examine the quality of the perpetrator’s contributions is inconsistent with the approach taken in cases involving financial misconduct on the part of one spouse, or his or her wilful destruction of property. As noted in paragraph 9.19, in those types of cases, the Court may take account of the “guilty” party’s responsibility for the inexcusable loss of property in making an adjustment against him or her.
• By placing the emphasis on the victim’s, rather than the perpetrator’s, contributions, the Court is requiring the victim to prove not only the violence that is alleged, but also the impact that it had on her or his own contributions. The perpetrator is not required to prove that domestic violence did not impact adversely on his or her own contributions. Moreover, the victim will have trouble relying on the “positive contributions” approach if she or he is not the primary homemaker in the marriage.

Criticisms of the present and future financial needs approach

9.27 Criticism has also been made of the way in which the Family Court considers the impact of domestic violence on a party’s present and future financial needs when adjusting property interests.³³ Such criticism is not relevant to the current approach of the State Supreme Court under the PRA. However, it becomes important to consider in the context of recommendations to amend the PRA to allow examination of parties’ present and future financial needs in the property adjustment process.

9.28 The Family Court takes account of domestic violence to the extent that it has an impact on a party’s present and future financial circumstances.³⁴ While the Court is prepared to consider the financial consequences of violence as relevant to the adjustment process, it has been criticised for its refusal to take account also of the perpetrator’s responsibility for those consequences as part of the adjustment process. The Court’s reluctance to make an adjustment in recognition of the perpetrator’s responsibility arises from its concern not to reintroduce fault as a basis for its proceedings.³⁵ As the Commission noted in paragraph 9.19 above, this reluctance has been criticised for its apparent inconsistency with the Court’s willingness to take account of a party’s financial misconduct in making an adjustment against him or her.

Proposals to reform the current approach

9.29 Several proposals have been made to reform the way in which the Family Court considers evidence of domestic violence when making adjustments to property. The Family Law Council³⁶ has put forward a proposal for express legislative provision requiring the Court to consider the effects of any family violence on the contributions of the parties. Such a provision would build on the existing approach of the Family Court: the Court would not only take account of the effect of violence in enhancing the contributions made by the victim, but also as a negative contribution by the perpetrator towards the welfare of the family.

9.30 Another suggestion is to introduce into the FLA a new statutory tort, allowing the Family Court to order compensation in cases of serious physical or psychological harm, except to the extent that it has already been taken into account. Damages could be paid for pain and suffering, and assessed either according to common law principles, or according to a prescribed scale. One advantage of this proposal is said to be that it would allow the one court, a specialist court, to determine both property proceedings and damages proceedings. This would be both efficient and economical, because evidence of the financial situations of the parties would be brought before just the one court at the one time.³⁷ The Family Law Council ultimately rejected this proposal for reform on the basis that it would be less accessible as a form of remedy for many victims of violence, particularly those on lower incomes, with disabilities, or from a non-English speaking background, because any cause of action is likely to be expensive and complex to pursue.

Responses to DP 44

9.31 In DP 44, the Commission raised several questions about the way in which domestic violence should be taken into account in property adjustment proceedings.³⁸ Specifically, the Commission sought submissions on whether domestic violence should be taken into account as a factor affecting the parties’ contributions, and, if so, whether the impact on those contributions needed to be proven, or whether its impact on the parties’ contributions could be implied upon proof that there was violence in the relationship. Alternatively, the Commission suggested that the impact of domestic violence on the abused party’s future needs be an express factor for the Court to consider. Lastly, the Commission sought submissions on whether there should be a statutory right to compensation for domestic violence, a claim for which could be brought at the same time as a property adjustment claim.

9.32 One submission took the view that domestic violence should be a matter that is taken into account when assessing both a party’s future needs, and his or her financial and non-financial contributions.³⁹ It was submitted that, as a matter of policy, once domestic violence had been proven, it should be inferred that it will have had an impact on a party’s contributions, and on his or her future needs. The degree of impact would change according to the degree of violence suffered. Another submission considered that domestic violence should be a listed element to take into account in property adjustment proceedings, but had no decided view on whether it was more appropriate to do so by way of a factor affecting contribution or as a future needs factor.⁴⁰ One submission was in favour of domestic violence being taken into account where it affected the property which parties have at the end of a relationship, or affected their ongoing economic capacity or future needs, but did not favour the introduction of a new statutory right to compensation.⁴¹ One submission focused specifically on the question of whether there should be a statutory right to compensation, and did not support the introduction of such a right limited specifically to domestic violence.⁴² Another submission stated simply that compensation for domestic violence should be independent of the PRA and should be assessed before the assets are divided.⁴³

The Commission’s view

9.33 The Commission can see great merit in the recommendation of the Family Law Council to enshrine in legislation a requirement that the Court to consider the effects of domestic violence on not only the contributions of the victim, but also those of the perpetrator. While Kennon goes some way towards taking violence into account, it is inadequate in its approach because it fails to acknowledge the negative impact of the violent party in terms of contributions to both the household’s financial assets and welfare. A scheme that adjusts financial interests between domestic partners should recognize the impact of one partner’s violence on the family, in so far as it detracts from that partner’s contributions, as well as enhancing the other partner’s contributions and potentially increasing his or her present and future needs. Such an approach would also address possible uncertainty in the current law, which may require the victim to prove the effects of violence on her contributions. If legislation expressly required the Court to take account of any negative effect of violence on the perpetrator’s contributions, the burden of having to establish the effects of violence is removed to a large extent from the victim.

9.34 Having said that, the Commission is faced with a dilemma. At least for the present time, the law as it applies to married couples, at the federal level, is as reflected in Kennon. There is no indication that the federal government will implement in legislation the recommendation of the Family Law Council, at least not in the immediate future. Once the Commonwealth takes up the States’ reference of powers, the principles articulated in Kennon will, presumedly, apply to married couples and opposite sex de facto couples. If the Commission were to recommend reform of the PRA to reflect the Family Law Council’s position, then we would be envisaging a different law applying to same sex couples, and people in close personal relationships. That difference would not stem from any inherent difference in the incidence or experience of domestic violence in those relationships, but from a difference in our vision of what is the appropriate legal response to violent relationships. The question then is whether we favour uniformity over good law.

9.35 Having pointed out what we consider to be the shortcomings of Kennon, we nevertheless do not consider it suitable to make any recommendation for legislative change to adopt the Family Law Council’s approach. Ultimately, we consider that, in this situation, it is more important to maintain uniformity with the Commonwealth. It is of course possible that the case law following Kennon will develop on its own to provide a more sophisticated response in terms of financial adjustment, although for the moment the principles arising from Kennon appear to be fairly well entrenched. However, we cannot justify recommending a different approach for one section of the State’s population. We do urge the Commonwealth to give further consideration to adopting the recommendation of the Family Law Council, and New South Wales could then follow suit.

9.36 While we ultimately conclude that we cannot justify recommending reform to the law in this area, nevertheless we consider that we can make recommendations for the practical handling of cases involving domestic violence in the State Courts. For example, the development and implementation of a domestic violence strategy for the Courts, similar to that of the Family

Court, would provide the courts with guidance and a protocol for practical problems that can arise when dealing with disputes between domestic partners where there is a history of violence. This matter relates more to issues of dispute resolution, and as such is dealt with in Chapter 13 of this Report.

1. See Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); see para 1.33.

2. See “Domestic violence: analysis of domestic violence in lesbian communities” (March 2000) 7 Domestic Violence Action and Resources 4.

3. See, for example, V McQuarrie, “When love turns bad” (Feb 1995) 141 Outrage 38; D Bagshaw and D Chung, “Gender politics and research: male and female violence in intimate relationships” 2000 (8) Women Against Violence 4 at 11-12; L Vickers, “The second closet: domestic violence in lesbian and gay relationships: a Western Australian perspective” (1996) 3(4) Murdoch University Electronic Journal of Law; C Renzetti, Violent Betrayal – Partner Abuse in Lesbian Relationships (Sage Publications, Newbury Park, 1992); K O’Sullivan, “The violent betrayal” (February 1995) Campaign 35; P Jablow, “Note: victims of abuse and discrimination: protecting battered homosexuals under domestic violence legislation” (1999-2000) 28 Hofstra Law Review 1095; G Mason, “Boundaries of sexuality: lesbian experience and feminist discourse on violence against women” (1997) 7 Australasian Gay and Lesbian Law Journal 41. In October 1994, a conference, Violence in Lesbian and Gay Relationships, was held in Sydney, which brought together service providers, the police, and gay and lesbian activists, to discuss the complexities of gay and lesbian domestic violence: see K O’Sullivan, “The violent betrayal” (February 1995) Campaign 35 at 39.

4. See L Vickers, “The second closet: domestic violence in lesbian and gay relationships: a Western Australian perspective” (1996) 3(4) Murdoch University Electronic Journal of Law at para 17-22; V McQuarrie, “When love turns bad” (Feb 1995) 141 Outrage 38; D Bagshaw and D Chung, “Gender politics and research: male and female violence in intimate relationships” (July 2000) Women Against Violence 4 at 11-12.

5. See, for example, L Vickers, “The second closet: domestic violence in lesbian and gay relationships: a Western Australian perspective” (1996) 3(4) Murdoch University Electronic Journal of Law at para 17-22; V McQuarrie, “When love turns bad” (Feb 1995) 141 Outrage 38.

6. See L Vickers, “The second closet: domestic violence in lesbian and gay relationships: a Western Australian perspective” (1996) 3 Murdoch University Electronic Journal of Law at para 9-10; D Bagshaw and D Chung, “Gender politics and research: male and female violence in intimate relationships” (2000) 8 Women Against Violence at 12.

7. See, for example, P Livermore, R Bunt, and K Biscan, “Elder abuse among clients and carers referred to the Central Coast ACAT: a descriptive analysis” (2001) 20(1) Australasian Journal on Ageing 41; NSW Advisory Committee on Abuse of Older People in Their Homes, Abuse of older people: the way forward (Final Report, Ageing and Disability Department, 1997); NSW Task Force on Abuse of Older People, Abuse of older people in their homes: final report and recommendations (Office on Ageing, 1993).

8. P Livermore, R Bunt, and K Biscan, “Elder abuse among clients and carers referred to the Central Coast ACAT: a descriptive analysis” (2001) 20(1) Australasian Journal on Ageing 41; S Cahill and M Shapiro, “’I think he may have hit me once’: aggression towards caregivers in dementia care” (1993) 12(4) Australian Journal on Ageing 10.

9. In the Marriage of Kennon (1997) 22 Fam LR 1.

10. See, for example, In the Marriage of Soblusky (1976) 12 ALR 699; In the Marriage of Ferguson (1978) 34 FLR 342; In the Marriage of Fisher (1990) 12 Fam LR 806, referred to in the joint judgment of Fogarty and Lindenmayer JJ in Kennon at 21-22.

11. See Jackson v Jackson [1999] NSWSC 229 (upheld on appeal in Jackson v Jackson [2000] NSWCA 303); Ledwos v Angilley [2001] NSWSC 618.

12. See Hughes v Egger [2005] NSWSC 18, followed in Brzezowski v Seewoo [2005] NSWSC 505. In Hughes v Egger, Justice White did not expressly reject the argument that the Court could take account of violent conduct by reducing the perpetrator’s contributions, but instead noted that it was not an argument pursued by the parties in the case: see para 150.

13. See Thompson-Grandou v Grandou [2002] NSWSC 1013; Rose v Richards [2004] NSWSC 315 at para 34-39.

14. See Chapter 7, Recommendation 27.

15. See P Nygh, “Family violence and matrimonial property settlement” (1999) 13 Australian Journal of Family Law 10 at 32.

16. See In the Marriage of Soblusky (1976) 12 ALR 699, cited in Kennon at 21 (Fogarty and Lindenmayer JJ).

17. See P Nygh, “Family violence and matrimonial property settlement” (1999) 13 Australian Journal of Family Law 10 at 16.

18. See para 1.4-1.8 and DP 44 at para 5.3 - 5.9, for a summary of the background to the introduction of the PRA.

19. See In the Marriage of Kennon (1997) 22 Fam LR 1 at 24.

20. See Australia, Family Law Council, Submission on the discussion paper: property and family law: options for change (July 1999) at para 11.27-11.28.

21. See Australia, Family Law Council, Violence and the Family Law Act: financial remedies (Discussion Paper, August 1998) at para 2.4; Australia, Family Law Council, Submission on the Discussion Paper, Property and Family Law: options for change at para 11.5-11.8; Australia, Family Law Council, Letter of advice: violence and property proceedings (Part 2) (14 August 2001) at para 22-25; J Behrens, “Domestic violence and property adjustment: a critique of ‘no fault’ discourse” (1993) 7 Australian Journal of Family Law 9 at 20-24; W Parker, “Family violence and matrimonial property” (May 1999) New Zealand Law Journal151 at 153; G Sheehan and B Smyth, “Spousal violence and post-separation financial outcomes” (2000) 14(2) Australian Journal of Family Law 102.

22. See G Sheehan and B Smyth, Spousal violence and post-separation financial outcomes (Australian Institute of Family Studies, commissioned by the Office of the Status of Women, 1999), which discloses the findings of a national survey of 398 Australian divorced men and women who separated after January 1988. The study is discussed in G Sheehan and B Smyth, “Spousal violence and post-separation financial outcomes”(2000) 14(2) Australian Journal of Family Law 102, and in Australia, Family Law Council, Submission on the Discussion Paper, Property and Family Law: options for change (1999) at para 11.5-11.6.

23. See Australia, Family Law Council, Submission on the Discussion Paper, Property and family law: Options for change (1999) at para 11.27.

24. See, for example, In the Marriage of Antmann (1980) FLC 90-908; In the Marriage of Benson (1984) FLC 91-584; In the Marriage of Kowaliw (1989) FLC 91-092; In the Marriage of Browne and Green (1999) FLC 92-873. See S Middleton, “Family Court property proceedings: rethinking the approach to the ‘financial consequences’ of domestic violence” (2002) 5 (3) University of New South Wales Law Journal 704 at 712-713. It should be noted that these Family Court decisions have relied on s 75(2)(o) of the Family Law Act 1975 (Cth), which allows the Court to take account of any fact or circumstance which the justice of the case requires to be taken into account, in making orders for maintenance, and/or property adjustment (by virtue of s 79(4)(e)). There is no provision of similar breadth in the PRA as it currently stands.

25. S Middleton, “Family Court property proceedings: rethinking the approach to the ‘financial consequences’ of domestic violence” (2002) 5 (3) University of New South Wales Law Journal 704 at 714.

26. See para 9.29 below.

27. See Lesbian and Gay Solidarity, Submission at 3; Equity Division of the Supreme Court of NSW, Submission at para 41-44; Women’s Legal Resources Centre, Submission at 14-17; Gay and Lesbian Rights Lobby Inc, Interim submission at 4; Law Society of NSW, Submission at 5; A de Costa, Submission at 10-11.

28. See Gay and Lesbian Rights Lobby Inc, Interim submission at 4; Women’s Legal Resources Centre, Submission at 15.

29. See Equity Division of the Supreme Court of NSW, Submission at para 41.

30. See Lesbian and Gay Solidarity, Submission at 3.

31. See In the Marriage of Kennon at 24 (Fogarty and Lindenmayer JJ).

32. See In Marriage of Q (2003) 32 Fam LR 375 (Federal Magistrates Court of Australia, Brewster FM) at 381-383; Australia, Family Law Council, Letter of advice: violence and property proceedings (Part 2) (14 August 2001) at para 16.

33. See S Middleton, “Family Court property proceedings: rethinking the approach to the ‘financial consequences’ of domestic violence” (2002) 25(3) University of New South Wales Law Journal 704.

34. See FLA s 79(4)(e), in combination with s 75(2).

35. See Hack (1980) FLC ¶90-886; Fisher (1990) FLC ¶92-127.

36. See Australia, Family Law Council, Letter of advice: violence and property proceedings: Part 2 (14 August 2001) at para 26-35, 44. To date, the Council’s recommendations have not been adopted in legislation.

37. See Australia, Family Law Council, Submission on the government’s discussion paper: property and family law: options for change (1999) at para 11.12.

38. See DP 44 Issue 14.

39. See Women’s Legal Resources Centre, Submission at 15.

40. See Gay and Lesbian Rights Lobby Inc, Interim submission at 4.

41. See Equity Division of the Supreme Court of NSW, Submission at para 41-43.

42. See Law Society of NSW, Submission at 5.

43. Lesbian and Gay Solidarity, Submission at 3.