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The Kennon ‘factor’: Issues of indeterminacy and floodgates

Easteal, P., Warden, C. and Young, L. (2014) The Kennon ‘factor’: Issues of indeterminacy and floodgates. Australian Journal of Family Law, 28 (1). pp. 1-28.

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The Family Law Act 1975 (Cth) provides no guidance on the way the courts should treat family violence when determining property disputes. Did the introduction of the Kennon ‘factor’ fill this void? This article reports on the application and interpretation of Kennon along with the outcomes in 57 first instance judgments of the Federal Magistrates Court, the Family Court of Australia and the Family Court of Western Australia between 2006 and 2012. We found that only 42% of applications for a Kennon adjustment were successful with a mean adjustment of 7.3% in those cases where the court identified the relevant percentage adjustment. There was an apparent jurisdictional variation in success rate with judicial officers in the ACT making relatively fewer Kennon adjustments. In examining the judicial application of Kennon we highlight the diversity in interpretation of specific phrases which form the cornerstone of the Kennon principle. We also identify examples of lawyers not raising the Kennon principle when it may have been appropriate, not identifying the impact of violence on contributions, and not seeking a percentage adjustment as high as the judicial officer might have considered. Our conclusion is that the Kennon factor is being under-utilised and inconsistently applied, and that there is considerable confusion as to its proper application. We argue the preferred solution is legislative reform which addresses directly, and in detail, the issue of the relevance of family violence to the alteration of property interests. In the meantime we suggest that, at the very least, further education concerning both the impacts of family violence and the application of the Kennon principle is required within the relevant professional communities.

Item Type: Journal Article
Murdoch Affiliation(s): School of Law
Publisher: LexisNexis
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