How Domestic and Family Violence Is Considered Within Property Settlement Proceedings
Author: Mackenzie Wright
A party’s entitlements with respect to a property settlement are determined under the principles set out in the Family Law Act 1975 (Cth) (“the Act”). While the Family Courts retain broad discretionary powers guided by the specific facts of each case, their discretion must be exercised in accordance with the Act.
On 10 December 2024, the Australian Parliament passed the Family Law Amendment Act 2024, introducing significant reforms to how property settlements are determined. These changes commenced on 10 June 2025 and apply to all separating couples, whether their matter proceeds through the Courts or is resolved by negotiation.
The amendments affect several parts of the Act, including how the Courts approach property settlements. Notably, the Courts must now consider a broader range of factors when assessing a party’s future needs, with specific emphasis on the economic effects of domestic and family violence (“DFV”).
How Domestic and Family Violence Is Defined in Family Law
The Act defines “family violence” as violent, threatening, or other behaviour that coerces or controls a family member, or causes them to be fearful. Prior to the June 2025 amendments, the Act outlined a non-exhaustive list of behaviours that constituted family violence, including:
an assault;
a sexual assault or other sexually abusive behaviour;
stalking;
repeated derogatory taunts;
intentionally damaging or destroying property;
intentionally causing death or injury to an animal;
unreasonably denying the family member the financial autonomy that he or she would otherwise have had;
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;
preventing the family member from making or keeping connections with his or her family, friends or culture; or
unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
While financial abuse was previously recognised in limited form, the June 2025 amendments strengthen and expand the definition of family violence to explicitly recognise economic and financial abuse (at 4AB(2)(g)). The Act now includes a dedicated provision (s 4AB(2A)) which provides detailed examples of behaviour that may constitute economic or financial abuse, including:
Restricting, controlling or denying a person’s access to money, bank accounts, superannuation or assets;
Sabotaging employment or income-earning capacity, such as preventing a person from working, interfering with their workplace, or forcing them to resign;
Forcing a partner to incur debts or credit liabilities in their name;
Unreasonably withholding financial support that the other party or a child relies on for basic needs; and
Dowry-related abuse, including using coercion or threats to demand or influence dowry payments, or hiding/denying receipt of dowry contributions.
In this context, dowry refers to money, property or valuable items given or promised in connection with a marriage/relationship.
These amendments aim to recognise that abuse is not always physical and that financial control can significantly impact a person’s autonomy, economic security, and long-term wellbeing, which should be recognised in any property settlement.
The June 2025 amendments also introduced s 79(4)(ca) to the Family Law Act 1975, requiring the Court to consider any family violence committed by a party, including exposure of the other party to such violence, and the resulting impact on the other party’s ability to make contributions. This amendment recognises the key principles established in the landmark decision of Kennon v Kennon.
The Kennon Principle
In Kennon v Kennon [1997] FamCA 27, the Full Court held that where there is a course of violent conduct by one party towards the other during the relationship, and that conduct is shown to have had a significant adverse impact on the other party’s ability to make contributions, this is a relevant consideration for any trial judge to take into account (under s 79) when assessing the respective parties contributions.
The Kennon principle is generally applied in matters involving significant and sustained domestic violence. It recognises that a party who has been subjected to such violence may have had to make contributions that were more demanding or were carried out in considerably more challenging circumstances than they otherwise would have been.
To establish a Kennon argument, it must be proven on the balance of probabilities that:
One party engaged in violent conduct towards the other;
The conduct had a discernible or significant adverse impact on that party’s ability to make contributions, or made those contributions substantially more difficult; and
This adverse impact is a matter the Court is entitled to consider when assessing contributions.
The Court has been clear that an adjustment is not available solely because a party has been the subject of domestic violence. There must be evidence demonstrating that the violence had a substantial impact on that party’s capacity to contribute to the relationship, including financially, homemaking, or parenting contributions.
How These Changes Affect the Property Settlement Process
The Family Law Courts continue to apply the Five-Step Process when determining whether a property settlement is just and equitable. While the structure of this process is unchanged following the June 2025 amendments, the amendments have expanded the Court’s discretion. In particular, they now empower the Court to more clearly recognise and account for the economic impact of domestic and family violence (DFV) when assessing the parties’ circumstances and determining any adjustments.
Step 1: Is it just and equitable to make an order?
The Court must first determine whether it is appropriate to adjust/make Orders on the existing legal ownership of property. This threshold remains unchanged.
Step 2: Identification and valuation of the property pool
All assets, liabilities and superannuation (whether held jointly, individually, or with third parties) must be identified and valued.
Step 3: Assessment of contributions
The Court must assesses all of the contributions made by each party, including:
financial contributions;
non-financial contributions;
direct and non-direct contributions;
homemaking, parenting and care contributions; and
contributions to the improvement or maintenance of property.
The Court must now expressly consider whether DFV has affected a party’s ability to contribute. This includes circumstances where violence:
prevented a party from working or maintaining employment;
restricted a parties financial autonomy or involvement in financial decisions;
caused physical or psychological injury that reduced a parties capacity to contribute to the relationship (financially or non-financially);
resulted in wastage or dissipation of assets (including intentional or reckless financial losses); or/and
coerced a party into making certain financial decisions.
These factors expand upon the principles established in Kennon v Kennon.
Step 4: Assessment of future needs
The Court then considers the current and future circumstances of each party, including their:
ages and health;
financial resources and earning capacities;
employment prospects;
income disparity;
income-earning capacity; and
where the children will live and the care of the children (if applicable).
DFV must now be considered when assessing future needs. For example, the Court may consider whether a party:
requires therapy, medical treatment or rehabilitation due to DFV;
has reduced earning capacity caused by trauma or injury;
will need long-term financial assistance to re-establish themselves after leaving a violent relationship; and/or
has safety-related housing needs (e.g., secure accommodation, relocation costs).
Step 5: The overall justice and equity of the outcome
The Court must consider whether the proposed orders achieve a just and equitable outcome in all the circumstances. While the overarching test is unchanged, the Court is now able to consider a broader and more holistic consideration of the impact of DFV on the parties.
Important Limitations: What the Family Law Courts Cannot Do
Despite the expanded recognition of family violence, it is important to understand that the family law courts cannot:
prosecute or sentence a person for DFV as this remains within state and territory criminal courts;
award compensation for personal injury or trauma caused by violence; and/or
make, vary or enforce domestic violence protection orders as these are determined under state or territory legislation.
As every matter is assessed on a case by case basis, please contact a Pippa Colman Family Law Maroochydore solicitor for specific advice.
References:
https://www.fcfcoa.gov.au/news-and-media-centre/fla-changes/fla2024
https://www.ag.gov.au/families-and-marriage/publications/family-law-changes-june-2025-information-family-law-professionals
https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s4ab.html
https://www.legislation.gov.au/C2004A00275/2019-03-10/text
https://www.wolterskluwer.com/en-au/expert-insights/family-violence-in-property-settlements-kennon-claims
https://www.ag.gov.au/families-and-marriage/publications/family-law-changes-june-2025-information-family-law-professionals
https://www.ag.gov.au/sites/default/files/2025-01/factsheet-for-separating-couples-%28property%29-family-law-amendment-act-2024.PDF
https://www.ag.gov.au/families-and-marriage/publications/family-law-property-changes-10-june-2025-fact-sheet-separating-couples