In this video, family law partner Justine Woods talks about domestic violence, coercive behaviour and parental obligations. Using the example of a recent case, Justine explains what happened, how the judge ruled, and the potential implications for your family law matter.
Hello, hello, everyone. I’m Justine Woods, the family law partner at Cooper Grace Ward. And what I thought I’d talk about today is the zeitgeist of family law matters.
Carter and Wilson case
Now, I know I have discussed in other videos that fashion is a real part of family law. Now, there are some very important societal trends, and thankfully there’s been change. So, that preamble is all about a case of Carter and Wilson that we’re going to talk about today. And that’s where there was a finding of domestic violence made against one parent then subsequently the other parent withheld the children on the grounds that the children were exposed to risk in the care of the first parent. The trial judge found that the parent who withheld the children and sought that their time with the other parent be supervised, that that in itself was domestic violence as defined by the Family Law Act in Section 4AB (1) to include coercive and controlling behaviour. Now, I cannot tell you how often I hear people complain of that, and sometimes their stories are so chilling and clearly there’s been a pattern of coercive and controlling behaviour as recognised by both state legislation and by the federal Family Law Act. But I also hear it a lot, and I’m going to be very frank here from people who, towards the end of a difficult relationship, the other person questions their spending. They may or may not have a job. They may not have a source of income of their own. But effectively the concern raised is that the other person is querying what they have spent and won’t allow them unfettered access to money. Now I have then the difficult task of asking a lot of intrusive questions and trying to find out more about what’s been going on. Because in the absence of more, in my view, that’s not necessarily coercive or controlling behaviour and nor on appeal in this case of Carter and Wilson, did the appeal court find that a parent who withholds children, alleging risk to them in the care of the other parent, that that necessarily meets the definition of family violence.
Cases tested in terms of context
Now, the appeal judge was at great pains to remind people that every allegation, no matter how serious, has to be tested in terms of context. So, the context of one parent’s withholding of children in those circumstances may have been family violence, but was not in that context. In the same way, and this is much more light hearted. I have people saying to me all the time, my spouse is a narcissist, my spouse has a personality disorder, they’re sociopaths, they’re psychopaths, and they invariably try to give me their printouts from Google or a self help book that they’ve read. I don’t discourage any of that. But unless you are a psychiatrist yourself and even then, if you’re a psychiatrist trying to diagnose your own spouse, it’s not a very helpful narrative. If there has been a diagnosis and we’re dealing with a significant mental health issue and you might have one yourself, half of Australia does. It’s not disentitling conduct. But I don’t find it at all helpful to a narrative, particularly when children are involved for one parent to be. And look, sometimes it’s just that the other parent won’t agree with them or is inclined to be a little bit selfish. That is not clinical narcissism, and it is not helpful for people to be applying those labels to others in the same way that Carter and Wilson, in that case, it was a judge, an eminent judge, who characterised certain behaviours in a fashion that wasn’t really borne out by the evidence or the context of the evidence. So, they’re just some basic things to think about, because what you need to be able to get through your family law matter is a sensible framework about how to think about your obligations as a parent, your obligations as a former spouse, your obligations even to the court and to move your matter forward in a sensible fashion without too much distraction about what you might hear and what’s a current fashion about how to describe other people or their behavior. Now, these are complex issues, and context, as we know, is incredibly important.
So, if you’d like to discuss them, you’re most welcome to contact us. Thank you.