The case of Gadhavi & Gadhavi [2023] FedCFamC1A 117 (21 July 2023) is a recent Full Court decision of the Federal Circuit and Family Court of Australia which talks about family violence, how it can comprise additional contribution by the victim to the property pool.
It also outlines how difficult this can be to measure. It provides a current, authoritative summary of the law in this area, keys aspects of which we see as being:
1. Family Violence perpetrated by one upon the other during the relationship can comprise greater “contribution” to the property pool by the victim.
2. The reasoning is that coping with violence makes even more arduous for the victim, their contributions towards finances including property renovations, domestic chores, family and homemaking contributions.
3. Each case will depend on the strength of evidence about the alleged violence. In this case it was undisputed that the husband had engaged in “coercive and controlling conduct towards the wife and the parties’ children which included several incidents involving actual physical violence” and that a state-based domestic violence order had been made and later amended. Trial judges have a wide discretion on how to assess the impact of family violence on contributions generally.
4. The Full Court said that “It is inappropriate for a trial judge to adopt an ‘accounting’ or ‘scoring’ approach to each separate contribution” because this does not answer “the significant problem of how to convert the qualitative factors” set out in Family Law Act into figures. The Full Court reiterated the need to “make an holistic assessment of those contributions as part of the totality of the myriads of contributions made by each party.”
5. Appellate Courts have a tough task to work out whether the exercise of discretion by a trial judge was in error. However, the Appellate Court still has to decide whether the “leap from words to figures is so great…to result in a conclusion that [was] outside the reasonable ambit of discretion.”
6. Because the trial judge allowed an additional contribution by the wife equivalent to 20%, or $4,846,055 of the pool for the impact upon her of the undisputed family violence but did not expand on how she came to this result, there was no evidence to validate her reasoning. It was held to be “outside the reasonable ambit of discretion” and the appeal succeeded.
If you have suffered prolonged emotional and physical family violence during a long relationship, CLO Lawyers can advise you about your prospects of an increased portion of the pool coming to you as a result.
Of course, it will depend on the evidence, the length of the relationship, the size of the pool and other things forming a “holistic” assessment. At very least, if the evidence is like the Gadhavi case, some adjustment is likely to be appropriate.