Insights and inspiration
"Loading" for Violence
06 January 2015
(Judge) "Did you assault your wife all throughout the 35 year relationship?"
(Judge) "What does 'not really' mean? What are you trying to convey by that? What, that you did it once or twice, that you did it every second year?"
"Well it wasn't - it wasn't - wasn't every second day or anything like that".
(Judge) "Give me an impression or a picture of the frequency?"
"Well it wasn't a frequent thing. It was just that on some days when she would come home cranky and she would say things to me that I didn't like so once I started this she just kept on going with more and more. So, you know, I...."
(Judge) "Gave her a bit of a whack, is that right?"
"Not all the time, no."
This was some of the evidence in a case decided in August last year.
The rest of the medical evidence was serious and harrowing. It is almost 15 years ago that the Family Court determined that even though fault was not a relevant consideration in adjusting property interests after divorce, family violence was relevant in this way: "Where there is a course of violent conduct by one party towards the other....which is demonstrated to have had a significant adverse impact on that party's contribution to the marriage, or put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a judge is entitled to take into account in assessing the parties' respective contributions." The effect would be on the victim's financial contributions, on their contributions as homemaker, and also contributions as a parent.
In this case, across a 35 year relationship, the trial judge found that the wife was the primary homemaker and parent, the husband the far more significant earner including by way of an inheritance, but notwithstanding the violence the trial judge assessed contributions in the proportion of 60% to the husband and 40% to the wife. He did not pick out a percentage attributable to the violence. He referred to the "holistic determination" of the orders.
In a more recent case, a different court, applying the same principles, gave an extra "loading" for the victim of the violence at 7%.
It is understandable that a judge may wish to avoid picking out a percentage attributable to violence, but equally understandable that the victim of the violence might consider such an approach does not give the victim any recognition of what he or she had to go through. Both approaches have something to recommend them, but perhaps from the point of view of the victim it would be handy to have such recognition even though it must be arbitrary and to some extent even demeaning to have it quantified.
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