Kennon principle rejected: Federal Magistrates Court

In a recent Federal Magistrates Court case, Federal Magistrate Brewster has rejected the application of the Kennon principles. His Honour, in a case called Palmer and Palmer, found that the statement by the majority of the judges in Kennon was obiter dicta, not ratio decidendi, and was therefore not binding upon him. He further critically analysed the effect of Kennon. Finally, he discounted the contributions of the husband for paying for his step-child, when the husband’s violence impacted on the step-child.

Kennon was a 1997 decision of the Full Court of the Family Court. The decision was by Justice Fogarty, Baker and Lindenmayer. In the seminal judgment by Justices Fogarty and Lindenmayer, their Honours considered when violence could be relevant in a property settlement matter. In broad terms, they found that in some cases violence could be taken into account on a property settlement.

The Full Court of the Family Court is the appellate court in most family law matters. Decisions of that court are binding on trial judges in the Family Court and the Federal Magistrates Court.

Legal doctrine holds that the essential reasoning of a higher court, the Latin being “ratio decidendi”, is binding on the lower court. Other statements by the court, in Latin called “obiter dicta”, are not.

Federal Magistrate Brewster stated:

71. Ms Haughton who appeared for the wife submitted that I should make an adjustment in favour of the wife based on the principles set out in Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757. Kennon was a case where the husband had been violent to the wife throughout the course of the marriage. The Full Court stated that, if by reason of a course of violent conduct perpetrated by one party to a marriage on another the victim’s contributions were made more arduous, a contribution based adjustment could be made in favour of the victim.
72. As I have indicated the wife maintains that the husband was violent towards her during the course of the marriage. She says that the husband’s conduct towards her was not confined to physical attacks. In paragraph 43 of her affidavit filed 15 March 2010 she says as follows:
    • I say that I have endured daily verbal assault from [Mr Palmer]. [Mr Palmer] would often complain about how the vertical blinds were turned in our house. Almost every day he would come home and re-arrange them in a way he felt they should be. He would then say to me “how stupid are you, you can’t even get the blinds right.” It was rare that a day would pass during our marriage that [Mr Palmer] would not call me an offensive name such as “boof-head”, “fucking stupid bitch”, “dumb”, “idiot”, “fat cow tick”, “pig” or swear at me, raise his voice in anger at me or say to me “you have not achieved what I expected of you” and/or “you failed to follow through”. [Mr Palmer] would often say “I wish I had married a more educated woman. Unless you earn at least one hundred thousand dollars a year you do not deserve a seat at the table of life.”
73. I have always doubted that what I will call the “Kennon” principle is good law. In one case I discussed my reservations as to this issue and declined to extend the principle to apply to only verbal violence. The husband appealed on other issues but unfortunately the wife did not cross appeal my refusal to make an adjustment in her favour by reason of the Kennon principle. If she had I would not have the problem I now face. In other cases I have not had to confront the issue as the degree of violence involved did not bring the principle into play. I believe however that in this case I must do so.
74. It might be thought that my opinion as to the Kennon principle is academic by reason of the doctrine of stare decisis. As I have indicated Kennon was a decision of the Full Court. However I am not bound by everything that the Full Court might say. I am only bound to apply ratio of the Court. In Kennon the analysis of the Full Court was obita dicta. This is because the trial judge found that the wife’s contributions were not made more arduous by reason of the husband’s violence. In the end result therefore no adjustment was made in her favour by reason of the Kennon principle. However there is dicta and there is dicta. One might, depending on the circumstances, have little hesitation in declining to follow dicta of the Full Court which is in the nature of a “throwaway line”. The discussion in Kennon however was reasoned and detailed. And, if all the judges who have sat on the Full Court over its history were to attend to a dinner with a seating plan based on eminence, the judges who comprised the Court in that case, Fogarty, Lindenmayer and Baker JJ, would be allocated places well above the salt. I appreciate therefore that refusing to follow such a Full Court authority is not a matter to be enterprised lightly or unadvisedly. I appreciate that others might properly and reasonably consider that, when it comes to a reasoned and unanimous decision of the Full Court, dicta or otherwise, a court in the position the Federal Magistrates Court occupies in the judicial hierarchy should follow it. This would appear to be the view taken by Altobelli FM in the decision I refer to in paragraph 99. However, with considerable reservations, that is not a course I propose to take.
75. The first thing to note is that the Kennon principle is anchored in the area of contributions. It is not based on section 75(2)(o).
76. The difficulty I have with the Kennon principle as a part of the contribution based division can be illustrated by reference to an anecdote recounted by the great American judge and jurist Oliver Wendell Holmes in his article The Path of the Law (10 Harv, LR Rev. 457 (1897)). In this story a legally unqualified Justice of the Peace in a rural area is hearing a claim for damages brought by a farmer against his neighbour. The farmer lent a churn to the neighbour who returned it in a damaged state. The Justice of the Peace dismissed the claim. He explained that he had searched all the authorities and whilst he could find cases where a neighbour who returned a damaged plough, or a cart, or any number of farm implements was found liable in damages he could find no case where damages were awarded for a broken churn.
77. The point of this story is that the law is not comprised of a “wilderness of single instances” and legal analysis should involve a much greater level of abstraction than was applied in this case. The question the Justice of the Peace should have asked himself, when being urged to break new ground and extend the liability of a gratuitous bailee to churns, was whether there is any jurisprudential basis for treating a damaged churn differently to a damaged plough. The answer of course is that there is not.
78. I return to the Kennon principle. Is that principle confined to instances of domestic violence if the violence makes the victim’s contributions more arduous? Or is it an example of a wider principle and akin to a minor premise in a syllogism? If there is a wider principle it would seem to me that it is to the effect that contributions are not necessarily to be measured in absolute terms but may be weighted by reference to the arduousness involved in making those contributions.
79. I shall now turn to a hypothetical example. Suppose we had a marriage where the wife was a white collar worker and the husband a coal miner and that each earned the same amount. For the purposes of this example I will assume that the husband worked in the type of mine, and was at the coalface doing the type of work, described by George Orwell in The Road to Wigan Pier. Is he to be given a contribution based adjustment in his favour by reason of the arduousness involved in his financial contributions?
80. The first thing to note is that I am unaware of any authority for the proposition that a person in a position of the husband in my hypothetical case could have a contribution based adjustment made in his favour. I raised this with the wife’s counsel who was unable to point me to any such case. I am unaware of any authority, apart from Kennon, and the cases which follow it, for the proposition that contributions are not necessarily to be measured in absolute terms but may be weighted according to the degree of arduousness involved in making those contributions.
81. Secondly there is no indication in the Act that contributions are to be weighted in this way.
82. I conclude therefore that there is no legal principle which would justify giving my coal miner husband a contribution based adjustment in his favour. The question now arises whether this hypothetical case involves a churn and Kennon a plough or whether there is a properly based jurisprudential distinction to be drawn between Kennon and my hypothetical case.
83. It seems to me that there are three bases on which I could distinguish my hypothetical coal miner case from Kennon. The first concerns the nature of the arduousness involved in each case. The arduousness in Kennon was not of the same nature as the arduousness in the coal miner’s case. In the coal miner’s case it was that the husband’s contributions were made in dirty uncomfortable, oppressive cramped and dangerous conditions and involved arduous physical labour. In the Kennon type case the arduousness is of a more subtle nature. It involves the contributions of the wife being made in circumstances where she would be always fearful and apprehensive. It might involve taking extra steps or precautions in the way that she performs her homemaking or parenting tasks. As example is found in this case. The wife describes in her affidavit an occasion where the husband was watching television while she prepared an evening meal. She says that the husband became angry because of the noise she was making in doing so and reacted violently.
84. This appears to me to be the most cogent reason for distinguishing the coal miner’s case from Kennon. The term “arduous” can have two meanings. The first is something that is difficult or requiring great exertion. The second can mean hard to endure, full of hardships, such as an arduous voyage. The life of a victim of domestic violence may be arduous in the second sense but not the first. However I am still unable to find any sound jurisprudential reason for making this distinction. And in any event my coal miner’s case fits both definitions of arduousness in that his work involved great exertion and also working in oppressive conditions. I cannot find any jurisprudential basis for distinguishing between the nature of the arduousness. To my way of thinking one is a plough and the other is a churn.
85. The second basis is that the arduousness involved in a Kennon type case is arduousness caused by the other party whereas the arduousness in my coal miner’s case is a simple fact associated with his employment. Again I cannot see any proper jurisprudential basis which would justify treating these in a different way.
86. The third basis is that the contributions in question in the hypothetical case were financial contributions and those in Kennon non financial contributions. I can see no logical difference.
87. It seems to me that one could only justify a Kennon adjustment if the fact that the husband’s violent conduct having made the wife’s non financial contributions more onerous her contributions are to be treated as having some special feature about them.
88. The concept of “special” or “outstanding” contributions is no stranger to section 79 jurisprudence. In some cases in the past courts have made a contribution based adjustment in favour of an entrepreneurial husband whose skills have brought great wealth to the family. These have been referred to as “big money cases.” In JEL and DDF [2000] FamCA 1353; (2001) FLC 93-075 at paragraph 128 the Full Court in dicta posited the possibility that non financial contributions could in some circumstances be in this category. The Court in that case at paragraph 136 also referred to Kennon as an example of contributions being given additional weight by reason of being special contributions However it is fair to say that, insofar as financial contributions are concerned, the tide appears to be running out in this respect and that the era of special contributions may well be at an end. This process appears to have been started by the House of Lords in White v White [2000] UKHL 54; [2001] 1 All ER 1. The speeches of the Law Lords in that case were discussed and endorsed by the Full Court of the Family Court of Australia in Figgins and Figgins [2002] FamCA 688; (2002) FLC 93-122. Encouraged by this case the English Court of Appeal in Lambert v Lambert [2002] EWCA Civ 1685 effectively put an end, in England at any rate, to the concept of special financial contributions. I think it likely that this case will be followed next time a big money case comes before the Full Court. In any event given what fell from the Full Court in Figgins I do not believe that I am required to follow the earlier cases and even if I were I am not required to expand the ratio in those cases, which concerned special financial contributions, to non financial contributions impacted upon by violence by reason of the dicta in JEL and DFF. What is sauce for the goose is sauce for the gander and if special financial contributions do not lead to an adjustment in favour of a husband then special non-financial contributions resulting from a husband’s violent behaviour making a wife’s non financial contributions more onerous should not lead to a contribution based adjustment in favour of the wife.[1]
89. A question might also be asked how special is special? At what point does a high income earning husband’s financial contributions cancel out the battered wife’s special contributions. If the big money cases are any guide he would have to have made a fortune of some millions to have his contributions classified as special. This however does not appear to be the position of the trial judge in the case of S and S which I discuss in paragraphs 97 and 98 but I will not dilate on this further. The problems Kennon raises, to my mind at any rate, should by now I trust be apparent.
90. An interesting illustration of where the Kennon principle can lead is found in the decision of Coleman J in Cuneo & Cuneo and Cuneo [2006] FamCA 158. In that case his Honour made a Kennon adjustment by reason of the husband’s violent conduct but tempered the extent of the adjustment by reason of the fact that the husband’s violent propensities were a consequence of a war related psychological condition. In a discussion at paragraphs 259 to 267 his Honour described the conduct of the husband as “involuntary” or “largely involuntary” and “external to and beyond (his) control.” His Honour does not appear to be using the term “voluntary” in the sense that it is used in criminal law and his approach seems to me to open up issues of free will verses determinism that I am not qualified to discuss. The case also illustrates the plough verses churn aspects of the Kennon principle. As an example in some cases (a short marriage with no children is a typical example) the parties’ financial contributions will be a decisive factor. So in a case where the wife’s having a steady job as compared to the husband’s erratic employment history resulted in her making greater financial contributions she would expect an adjustment in her favour. Suppose the husband’s inability to hold down a job was a result of his irascible temperament and inability to fit into the workplace. I would have thought that this would be considered irrelevant. But suppose the husband’s temperament was a result of a war related psychological condition (or a brain injury or a difficult upbringing). Is this to be taken into account? Not in my experience.
91. Is the Kennon principle confined to case of domestic violence or does it extend to other forms of conduct? At page 84,294 in their joint judgment Fogarty and Lindenmayer JJ said
    • In the above formulation we have referred only to domestic violence……..but its application is not limited to this.
92. When considering this comment it might be useful to bear in mind the English case of Le Brogue v Le Brogue [1964] 3 All ER 464. In that case the wife petitioned for divorce on the ground of cruelty. It will be recalled that under the Australian Matrimonial Causes Act 1959 cruelty was a ground for divorce and this reflected the English law. The conduct of the husband relied upon by the wife was that he was extremely taciturn or non confrontational and, whenever she wanted to “pick a bone” with him, he would simply shrug his shoulders and walk away. She became so frustrated by this conduct that she developed an ulcer. At first instance the trial judge granted a decree on the basis of cruelty. This was reversed by the Court of Appeal but the technical issue of whether such conduct can be classified as “cruelty” within the meaning of the then legislation is irrelevant to the present discussion. Suffice to say that it was the conduct of the husband that caused the wife to develop an ulcer and this may well have made her performance of her domestic duties more arduous. I daresay no one would contend in a similar case today that a husband should have his share of the property pool reduced by his unwillingness to engage in arguments with his wife. But the case may be relevant when contemplating the implications involved in expanding the Kennon principle to arduousness caused by conduct of the other party other than violence. But to confine it to physical violence raises the plough and churn problem.
93. It would seem to me to make more sense, if violence is to brought into account in the contribution based division, to reduce the weight to be given to the contributions of the perpetrator rather than to increase the weight to be given to the victim’s contributions.[∗] In a hypothetical case where both parties earned comparable incomes and there was a violent husband it does not seem to me to be unreasonable to make a contribution based division in favour of the wife on the basis that the positive contributions made by the husband to the welfare of the family were cancelled out by the negative contribution to the welfare of the family caused by his violence. The wife would have an adjustment made in her favour because she made equal financial contributions and greater non financial contributions. But this would involve reviving the concept of negative contributions which has been disapproved by the Full Court.
94. It needs to be noted however that such an approach would have a practical impact in only a limited number of cases. In the present case for all practical purposes the husband was the sole breadwinner. I would not have made a contribution based adjustment in favour of the wife even if he did nothing around the house and the wife had therefore made all the non financial contributions. To do so would be to quantatively compare financial and non financial contributions. This is impossible, or at least undesirable. The difficulties that would be caused by taking such an approach are easily illustrated. In this case the husband’s income is about $130,000 a year. Suppose I made a contribution based adjustment in favour of the wife on the basis of the husband having made no non financial contribution. This would be because I considered that her role as the sole homemaker and parent to be more significant that the husband’s role as sole breadwinner. But what would I do in an identical case where the husband’s income was $230,000 a year? There is a way in which financial and non financial contributions can be measured and compared but I suspect that in this case it would not be to the advantage of the wife. It was done, in my time in practice, to quantify a Griffith v Kerkemeyer[*] claim. It was to look at the rates organisations such as Dial-An-Angel charge for their services.
95. In summary for the reasons that I have explained I am not bound by the dicta of the Court in Kennon and for the reasons I have given I decline to follow it. I believe that contributions are to be measured in absolute terms and not weighted by considerations of arduousness, whether caused by domestic violence or otherwise.
96. Before I leave this aspect of the case there are two matters I should address.
97. The first is that Kennon has been the subject of a subsequent decision of the Full Court in S & S [2003] FamCA 905. At paragraph 40 the Court said that “There is no doubt that domestic violence may be a relevant factor in assessing contribution.”
98. At first glance this emphatic statement might seem to put the issue beyond doubt. It made me pause to think. However it needs to be looked at in context. In that case the trial judge made a Kennon based adjustment in favour of the wife (although in the result this was cancelled out by post separation contributions by the husband. An illustration of the problems I have referred to earlier). The husband appealed. He did not contend that Kennon was bad law but contended that the evidence was insufficient to bring that principle into operation. The Full Court agreed and allowed the appeal. It can be seen therefore that the passage I have quoted is dicta, and moreover dicta concerning an issue not argued before the Court. Whilst I would not put it in the “throwaway line” category it is clearly a statement which is not binding on me.
99. The second is the decision of Altobelli FM in Kozovska and Kozovski [2009] FMCAfam 1014. In that case his Honour made a contribution based adjustment in favour of the wife under the Kennon principle. I am fortified in rejecting that principle by some comments made by his Honour in the course of his judgment. At paragraph 77 he said as follows:
    • Assessing the extent that the more arduous contribution should be reflected in the property settlement is difficult, and rather arbitrary. Counsel for the wife submitted it should be 10%. I accept this figure as being appropriate under the circumstances of this case, but, quite frankly, if I had been asked to assess contribution at a higher figure, I would have. My real concern, however, is as to the artificiality of a “Kennon” type adjustment, whatever the percentage is. Having regard to the nature of the violence suffered by the wife during a long marriage it is clear that neither 10% or any other figure could possibly be characterised as compensatory because no amount should compensate her for what she experienced at the hands of the husband. On a property pool of about $1,300,000, 10% is $130,000, an amount which almost offends one’s sense of justice and equity having regard to the findings I have made. Clearly the adjustment that the Full Court contemplated in its decision in Kennon was not meant to be compensatory, but more in the nature of perhaps symbolic recognition of the extraordinary efforts of one’s spouse in persisting with contributions in the face of enormous and unjustified adversity. One cannot help but think that much greater thought needs to be given to the very rationale of a Kennon type adjustment, and whether there might be a better, more transparent, and fairer method for dealing with issues of conduct in the course of financial matters in the Family Law Courts.
100. I respectfully agree with all that his Honour has said. Further, in my opinion if domestic violence is to be taken into account in the section 79 exercise it is for the legislature, not the judiciary, to take the lead. To import issues of domestic violence into the section 79 issue is in reality an exercise in public policy.
101. Ms Haughton urged me to make a contribution based adjustment in favour of the wife by reason of her care of the child [Y]. [Y] has cerebral palsy and there is no doubt that this put, and still puts, significant burdens on the wife in travelling to medical appointments and otherwise managing her care.
102. I was not referred to any authority bearing on this issue and, insofar as contributions before separation are concerned, I am unaware of any that directly deal with the issue. The Full Court in JEL and DFF [2000] FamCA 1353; (2001) FLC 93-075 in dicta indicated that the care of a handicapped child could be a “special contribution” but whether or not that case is still good law after Figgins is open to question. Further I note the comments by Thorpe LJ in Lambert (which, as I have indicated, may have applied the coup de grace to JEL and DFF) where at paragraph 45 he said:
     • Examples cited of the mother who cares for a handicapped child seemed to me both theoretical and distasteful. Such sacrifice and achievements are the product of love and commitment and are not to be counted in cash.
103. In the result I decline to make a contribution based adjustment on this basis with respect to the period of cohabitation. Apart from Thorpe LJ’s comments the problem with doing so is that it involves comparing the husband’s greater financial contributions with the wife’s non financial contributions. I have already discussed the problems with this. And it raises other problems. Is a parent who has had the care of six children to have a greater adjustment made in her favour than a parent caring for three children?
104. An issue arises as to whether an adjustment should be made by reason of the presence in the parties’ household of the wife’s child [Z]. [Z] lived with the parties for a significant period during the relationship. The husband effectively contributed to his support as only a modest amount of child support, about $15 a week, was received from [Z]’s father. He also performed the role of stepfather.
105. The Full Court in Robb and Robb [1994] FamCA 136; (1995) FLC 92-555 held that a step-parent’s financial contributions to a child of the other party and non-financial contributions as a step-parent in relation to that child can be taken into account in the contribution based division. When I raised the matter with Ms Haughton she pointed out to me that the Court made it clear that any such adjustment is not made under section 79(4)(a), (b) or (c) but under section 75(2)(o). I confess that I had not previously appreciated this. That section permits the Court to take into account “any other fact or circumstance that the justice of the case requires”. By reason of its general nature paragraph (o) gives me a wide discretion. In this case I decline to exercise it in favour of the husband. Both the wife and [Z] have alleged that [Z] was exposed to violence on the part of and suffered mistreatment at the hands of the husband. I accept that evidence. I believe that the justice of the case requires me to take this into account. I decline to make an adjustment in favour of the husband by reason of the presence of [Z] in the household.