Karina Sultana
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.
Expert commentary on the court's decision
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.