Family violence and property settlements: what Franc & Franc tells us about proving it

A recent Full Court decision gives some of the clearest guidance yet on how family violence should be dealt with in property proceedings. It also carries a sobering lesson about evidence. The appeal was largely unsuccessful, but the reasons are essential reading for anyone running or considering a s 79(4)(ca) argument.

The background

The parties were together for about 21 years and had three children. The wife was the primary carer and homemaker. The husband worked in the family property development group, which was the source of most of the wealth. The primary judge assessed contributions at 62% to the husband and 38% to the wife, then made a 10% adjustment in the wife’s favour under s 79(5), for a final division of 52/48.

The wife alleged extensive family violence, including verbal abuse, financial abuse and physical violence, and said it made her contributions as homemaker and parent more difficult. The primary judge was not persuaded that family violence had affected her ability to contribute.

On appeal, the wife succeeded only on a conceded ground: a “double counting” error in the final orders, where adjustments totalling more than $600,000 were deducted from her share of the sale proceeds after already being reflected on the balance sheet. The challenges to the family violence and contributions findings failed.

What s 79(4)(ca) requires

The Court confirmed that s 79(4)(ca) codifies the principle in Kennon & Kennon. It adopted the question from Martell & Martell: did the conduct have a discernible effect on the other party’s contributions, such that it should be recognised in assessing contributions?

The party relying on it carries the onus, on the balance of probabilities, of establishing both:

1. that family violence occurred, and

2. that it had a discernible adverse impact on their ability to contribute.

Coercive control must be understood in context

The Full Court emphasised that coercive control must be understood in context, rather than as a collection of isolated incidents. Referring to Ahluwalia v Ahluwalia [2026] SCC 16, the Court recognised that intimate partner violence frequently involves conduct designed to dominate a relationship through coercion and control.

It expressly endorsed the approach in F v M [2021] EWFC 4, subsequently adopted in Re H-N [2021] EWCA Civ 448, that patterns of coercive and controlling behaviour must be assessed cumulatively. The Court also referred to Olivier & Olivier [2020] FamCA 639, recognising that conduct which appears innocuous in isolation may constitute coercion or control when considered in its proper context.

This sits alongside the broad definition of family violence in s 4AB, which extends well beyond physical assault to behaviour that coerces or controls a family member, or causes them to be fearful.

The preferable approach

Applying Pickford & Pickford [2024] FedCFamC1A 249, the Full Court concluded that the preferable approach was to:

1. determine whether family violence occurred;

2. examine its nature, extent and context; and

3. determine whether it had a discernible impact on contributions under s 79(4)(ca).

The primary judge’s approach, which did not follow this sequence, was described as “not the preferable course”. However, departing from the preferable approach did not in itself establish appealable error.

The Court also rejected the argument that this structure would overburden trial judges, likening it to the “floodgates” concern rejected in Kennon. It said courts should not create artificial barriers to recognising family violence, and pointed to modern case management tools for focusing a hearing on the allegations that are genuinely in contest.

Why the wife still lost on this ground

This is the critical part for practitioners. The Court accepted that where family violence allegations are squarely in issue and of substance, a judge should make specific findings. But it added a qualification: the allegations must be adequately particularised so that they can support an affirmative finding on the evidence.

The allegations the primary judge did not specifically address were largely general. They included heavy drinking and abusive language over a period of years, a volatile temper, yelling and towering over the wife, and screaming at the children and wife “every day” in one year. The Court noted these lacked specific dates and details. It said they might be relevant context to a pattern of coercive or controlling conduct, but the collective impact of that conduct was not articulated at trial.

Two further points stand out:

• At trial, senior counsel’s closing submissions focused on financial control. The primary judge dealt with that allegation comprehensively and rejected it, and the Court found that rejection was reasonably open.

• There was no properly articulated argument about how a pattern of conduct had adversely affected the wife’s contributions.

So although an explanation for rejecting the broader allegations would have been desirable, the Court was not satisfied the outcome would have differed. The ground was dismissed.

Contributions: a global assessment, not a calculator

On the challenge to the 62/38 contributions finding, the Court applied the House v The King standard and held the assessment was well within the available range. The wife’s contributions were all squarely before the primary judge. These included her years working in the family business, her far greater parenting and homemaker role (which the primary judge found freed the husband to pursue wealth creation), and her share of renovation work. They were weighed against the husband’s greater initial contributions, his role in the family business, and his funding and servicing of the main property.

The Court also reiterated that a judge who engaged in a mathematical exercise of valuing each contribution would fall into error. Contributions are assessed in a broad, evaluative way.

Practical takeaways

1. Particularise early and specifically. Dates, places, what was said and done, who was present, and what followed. General statements that a party was “angry” or “abusive” are unlikely to support a finding.

2. Plead and argue the pattern. If the case is coercive control, the evidence and submissions need to identify the behaviours, place them in context, and explain how they operate together. Don’t leave the cumulative picture for the judge to assemble.

3. Connect the conduct to contributions. The statutory question is the effect on the ability to contribute. Be explicit about how the conduct made parenting, homemaking or earning more difficult.

4. Be clear about which allegations matter. Narrowing the case to the allegations that are substantial and genuinely in contest supports better findings, and the Court pointed to case management as a way of achieving this.

5. Know your onus. The party relying on s 79(4)(ca) must prove both the violence and its discernible impact.

The bottom line

Franc & Franc is encouraging in its recognition of how broadly family violence is defined and how it should be analysed. It also makes clear that findings depend on evidence which is specific, structured and tied to contributions. If you have been affected by family violence and are heading into a property settlement, early and careful preparation of that evidence is critical.