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With effect from 10 June 2025, family law now expressly recognises the economic effects of family violence in property settlements, write Hayley Dodson and Conrad Liveris.
For practitioners, the task is to connect the conduct to its effect and the relevant statutory consideration. A detailed account of violence and an earnings calculation need an explanation of how they assist the assessment of contributions or current and future circumstances.
Reforms to Part VIII of the Family Law Act 1975 (Cth) bring family violence into the assessment of contributions and current and future circumstances, respectively, and spousal maintenance. Section 79(4)(ca) addresses the effect on a party’s ability to contribute. It does not expressly mention contributions made more arduous by violence, the familiar basis of many Kennon arguments.
In the case of litigants who maintained their employment, parenting and household responsibilities notwithstanding that they were subjected to family violence, instructions should address how those contributions were affected. Practitioners should distinguish reduced ability from increased difficulty and explain the basis on which the evidence is relevant, recognising that interpretation of the provision continues to develop.
Section 79(5)(a) assesses forward-looking matters. Where violence has impacted income-earning capacity, how and to what extent has it done so? What constraints remain? What would enable recovery? These questions can inform settlement, even where a complete alternative career cannot be established.
Our fictional family violence case study illustrates the distinction: Brooke has bookkeeping qualifications, interrupted employment and unfinished accounting studies. Establishing interference with her studies does not, by itself, establish that she would have graduated, secured accounting work and progressed to a particular salary. Each additional proposition needs support.
A narrower comparison can quantify an interruption. Suppose a husband is coercively controlling, including preventing a wife from accessing childcare services, thereby limiting her capacity to work.
If this childcare interference prevented one otherwise feasible bookkeeping day each week for 26 weeks, at an assumed annual full-time salary of $72,800, spread over five equally paid working days, the interruption represents $7,280 in wages. Employer superannuation at 12 per cent adds $874. This prices the specified interruption, without assuming permanent disadvantage.
It may be that the evidence is not sufficient to enable the court to be satisfied that, because of the family violence, the wife did not conclude her accounting studies and then work as an accountant. That would not preclude her, however, from claiming the impact the financial control had on her ability to secure childcare to enable her to work. Cross-examination can test each premise and identify which conclusions remain available when an assumption is rejected.
Instructions should therefore identify the facts that could change the opinion.
A roster and usable childcare arrangement test feasible hours. Employer evidence tests access to the proposed role. These records support particular economic premises. They are not prerequisites to proving violence, and their absence may itself reflect coercion or isolation.
Past interruption and continuing disadvantage also require separate attention. Returning to work may restore hours before experience or seniority. Retraining may improve future earnings while reducing income during study. Even when earnings converge, missed superannuation contributions can leave a growing retirement gap. Contributions already included in remuneration must not be counted again.
For maintenance, an earnings forecast also needs translation into present disposable income, reasonable needs and payer capacity, with preserved superannuation kept separate from available cash.
Before commissioning extensive modelling, identify the question the evidence must answer and whether its answer could materially affect negotiations or orders. A focused assessment of sustainable hours, training costs or a transition period may be sufficient for the issue in dispute.
Property proceedings divide available resources in a manner that is deemed to be just and equitable, on consideration and all relevant factors; they do not provide a general damages remedy for violence. An earnings difference does not convert mechanically into a property percentage.
For settlement purposes, ask the single expert to compare feasible housing, care or training arrangements and explain their effects on earnings, costs and timing. The resulting schedules can show an immediate shortfall, the resources needed during study and when earnings might improve, giving negotiations a concrete basis.
Hayley Dodson is a barrister at John Toohey Chambers, and Conrad Liveris is the chief economist of Black Swan Economics & Advisory. This piece is based on work they presented at the National Family Law Conference in Hobart last week.
