Mother accuses father of financial coercion in proceedings for parenting orders - which case won?

Which case won?

15 Jun | Which Case Won

by Karina Sultana, Tamworth

The Facts

A man and woman married in mid-2002 and subsequently had two children, one in 2002 and the other in 2010.

The mother and father experienced difficulties throughout the course of their marriage.

After they split for the first time in 2004, the mother and the older child moved to Thailand.

The couple later reconciled and began living together again in Australia in June 2006.

They separated again in February 2012 and the father commenced proceedings in the Family Court for parenting orders.

In responding to the proceedings, the mother alleged that the father had subjected her to financial coercion.

casea

The case for the mother

My children’s father used money to exert power and control over me.
I didn’t work during most of our marriage, and when I did, he retained the income and told me that it was his job to take care of the finances.
After a family holiday to Europe and Thailand in late 2011, he returned to Australia, while I stayed on longer in Thailand with the children. He left us there without funds and I had to obtain money from my family to meet my own needs and those of my children.
Just before we separated for good in 2012, he took my purse and removed and destroyed my bank card. I tried to grab my purse from him, but he pushed me and I fell, hurting myself. I screamed at him then that I could not remain living with him any longer because I feared for my safety. Then I left our marriage for good.
After we separated, he failed to pay child support.

caseb

The case for the father

I have never used money to exert power and control over my children’s mother.
She says that I did not allow her access to our funds, but she always had access to our joint bank account by using the bank card that I had provided for her.
During our first separation between June 2004 and October 2006, when she took our child to live in Thailand, I transferred $10,943 to her bank account to support them.
In October 2011, just a couple of months before our European holiday, she showed me her savings account, with a balance of about $6,000.
I acknowledge that I grabbed her handbag, but I did not push her and I did not take her bank card from her. Rather, as she was screaming at me, she took her bank card out of her purse, threw it at me and said she didn’t want my money anymore.
I didn’t pay child support because I couldn’t afford it, but I have since paid the arrears. My children’s mother was never without money after separation, since by then she had around $9,000 saved.

So, which case won?

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Case A Case B

Case B won. You were right!

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a44%

b56%

Expert commentary on the court's decision

Karina SultanaLawyer

“This case demonstrates that if a party to a family law proceeding alleges they were subject to financial coercion, they must ensure there is substantial evidence to support the allegation. Without such evidence, it can be difficult for a court to make orders in respect of the alleged family violence.”

Court finds in favour of father

In Fagan & Fagan [2014] FamCA 1108  the Family Court of Australia (now known as the Federal Circuit and Family Court of Australia), found that the father, Mr Fagan, did not financially coerce the mother, Ms Fagan.

The court found the mother’s evidence to be “most unreliable” and concluded that there was “very little evidence” of financial coercion.

The court accepted that the mother had access to a credit card to access the parties’ funds, which she was permitted to use.

The court also accepted the father’s evidence that the mother had thrown her bank card at him and said that she did not want his money anymore.

The court also referred to the fact that the mother, by her own admission, had $9,000 in savings at the time of separation.

Allegation of financial coercion part of broader proceedings for parenting orders

The mother’s allegation of financial coercion was made in proceedings for the making of parenting orders.

In determining the parenting orders, the court applied section 60CC of the Commonwealth Family Law Act 1975 (“the Act”).

Section 60CC requires the court to consider certain matters when determining what is in the best interests of the child. The primary considerations under this section are the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC also sets out a list of additional considerations, including for example, the practical difficulties or expense of a child spending time with a particular parent.

Reviewing the evidence, including attempts by Ms Fagan to manipulate her older child emotionally, the court concluded that Ms Fagan had “a serious incapacity to properly and adequately parent these children”.

Balancing this and other evidence with the matters set out in section 60CC, the court made orders that Mr Fagan have sole parental responsibility and that the children live with him.

Definition of “family violence” amended in June 2012

On 7 June 2012, the Act was amended over concerns that it was being interpreted in a way that favoured men’s claims for increased time with their children over protecting women and children from harm.

Amongst other changes, the definition of “family violence”, referenced in section 60CC, was amended.

Prior to 7 June 2012, when the proceedings in Fagan & Fagan commenced, “family violence” was defined as conduct that causes a family member to reasonably fear for his or her personal safety or wellbeing.

In June 2012, the definition of “family violence” was expanded to incorporate notions of coercion and control. It is now defined under section 4AB as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family… or causes the family member to be fearful”. (For more information please see Domestic coercive control could soon be criminal in Australia.)

Subsection 4AB(2) then spells out the sorts of behaviour that may constitute “family violence”, including section 4AB(2)(g), which refers to “unreasonably denying the family member the financial autonomy that he or she would otherwise have had”.

Financial coercion is also recognised as a crime in Australia, other than in NSW.

New South Wales is the only state that does not recognise financial abuse as a form of domestic violence. However, the state is moving towards introducing new laws to prohibit this kind of abuse.

Importance of backing up financial coercion allegations with evidence

This case demonstrates that if a party to a family law proceeding alleges they were subject to financial coercion, they must ensure there is substantial evidence to support the allegation.

Without such evidence, it can be difficult for a court to make orders in respect of the alleged family violence.

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Mother accuses father of financial coercion in proceedings for parenting orders – which case won?

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Allegation of financial coercion part of broader proceedings for parenting orders

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Mother accuses father of financial coercion in proceedings for parenting orders – which case won?

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So, which case won?

Case B won. You were right!

Expert commentary on the court's decision

Court finds in favour of father

Allegation of financial coercion part of broader proceedings for parenting orders

Definition of “family violence” amended in June 2012

Importance of backing up financial coercion allegations with evidence

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