This Week in Family Law

Ep 15: Defending the accused: Financial control in family law

• LEAP Family Law • Season 1 • Episode 15

Share episode

Use Left/Right to seek, Home/End to jump to start or end. Hold shift to jump forward or backward.

0:00 | 28:29

In this episode, we cover the Senate inquiry into domestic, family and sexual violence and suicide, the Children's Online Privacy Code consultation, and perfectionism in the legal profession.

In Law in Motion, we explore financial control and economic abuse as family violence, what it looks like in practice, and best practice tips for acting for the alleged perpetrator. In Case Note Corner, we discuss the 2025 case of Malunus & Malunus (No. 6).



Chapters:
0:00 - Introduction 
0:58  What's Up? - Updates in Family Law for this week 
6:20 - Law in Motion - Financial control as family violence 
19:07 - Case Note Corner - Malunus & Malunus (No. 6) [2025]




Disclaimer: This podcast is intended for general information and discussion purposes only. It does not constitute legal advice, and should not be relied on as such. The views expressed are general in nature and may not apply to your specific circumstances. You should seek independent legal advice before acting on any information discussed.



About the podcast:
This Week in Family Law is the go-to podcast for busy Australian family lawyers looking to stay updated without the overwhelm. Whether you’re a family lawyer in Australia, a practitioner working towards CPD, or simply interested in family law, this podcast delivers clear, practical insights in a bite-sized format. Subscribe to stay up to date with the latest developments in Australian family law. New episodes drop every Monday.



Topics covered in this episode:
- Domestic violence and suicide inquire 
- Children's Online Privacy Code 
- Perfectionism in the legal profession 
- Financial control and economic abuse as family violence 
- Four typologies of perpetrators of family violence
- Best practice tips for acting for the alleged perpetrator
- When to stop acting for a client - Malunus & Malunus (No. 6) [2025] case analysis 



Links:

Perfection is the enemy of progress
https://www.lawyersweekly.com.au/sme-law/44219-perfection-is-the-enemy-of-progress

FAMILY LAW ACT 1975 - SECT 4
https://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4.html#abuse

The evolving role of AI in legal judgment
https://www.tandfonline.com/doi/full/10.1080/17579961.2026.2633688

Better than a bot – instilling ethical judgement into the lawyers of the future in the age of AI
https://www.tandfonline.com/doi/full/10.1080/10383441.2025.2493493#abstract

Children's Online Privacy Code
https://www.oaic.gov.au/privacy/privacy-registers/privacy-codes/childrens-online-privacy-code 

Mounis & Melounis (No 6) [2025] FedCFamC1F 938

Carter & Wilson [2023] FedCFamC1A 9



Submit a question or provide feedback:
Email: familylawpodcast@leap.com.au
YouTube: https://www.youtube.com/@LEAPAu
TikTok: https://www.tiktok.com/@leap.family.law1 
Instagram: https://www.instagram.com/leapfamilylaw/

SPEAKER_01

Welcome to This Week in Family Law, the go-to podcast for busy Australian family lawyers who want to stay updated without the overwhelm. I'm Jenna Downey and my co-host today is Dina Palethorpe. Dina, how was your weekend?

SPEAKER_00

It was very good, thanks. I binged watch this show called The Mysterious Case of Natalia Grace. I won't say too much in case you want to watch it, but it's about this little orphan girl. She's six when she's adopted by this um couple in the States. And then things start going wrong very quickly. They think she's, you know, 15 years older than what she says she is. Um she has dwarfism, so it's not, you know, quite as clear how old she is. Um and I won't spoil anything else, but it's a crazy ride.

SPEAKER_01

It sounds like it would have been very interesting to watch. Let's get into this week's update. What's up, Dina?

SPEAKER_00

Yeah, so I think in our last podcast together, which was episode 12, um, I referred to the inquiry into the link between domestic family and sexual violence and suicide. Um, so there was a hearing in Sydney, and the transcript of that has now been released, and there were some really interesting statistics that came out of that and some interesting comments that were made. So I thought it would be interesting to share it with you. Um, somewhere between 28 and 56% of completed female suicide cases actually involve domestic family and sexual violence. Family court proceedings were specifically identified as a suicide risk escalator. Um, the Wuringa Bayer, the Aboriginal Women's Legal Center, they gave evidence that threats of suicide are often used as a tool of coercive control, which I thought was really interesting. And there was a term during the hearing that was used that I couldn't stop thinking about sexually transmitted tax debts. So it was Professor Kayas Kuma from the UNSW Tax Clinic, and she used that term to describe perpetrators accumulating tax debts in their partner's name. And really interestingly, the clinic had had 17 clients referred to them directly from Lifeline. Um, you know, not from the legal aid office, but from a suicide hotline. So um it really just goes to show how much how linked these concepts are.

SPEAKER_01

I've certainly heard of a few examples where, um in practice, where there has been tax debt accrued and the other person didn't know about it.

SPEAKER_00

Yeah, and it can be such a big deal, like life-changing.

SPEAKER_01

Oh, huge amounts of money. Yeah. Yeah.

SPEAKER_00

So the next update I have is um about the Children's Online Privacy Code. I'm not sure if you've heard about this, but the Office of the Australian Information Commissioner has been tasked with putting together a children's online privacy code. Um so an exposure draft of the code has been released, and that consultation process is now open and it will be open until the 5th of June. So anyone that's interested in making a submission, now's the time. Um, or even if you're interested in looking at some of the submissions that have been made about it. Um, but in short, that code is intended to regulate what platforms can do with children's data, how they collect it, how they store it, how they delete it, and what settings they must apply by default. So really interesting when we're dealing with parenting matters, where we've got sort of children of an age who are, you know, going online and it's, you know, parents are wanting to know what they're doing.

SPEAKER_01

Yes, yeah. I feel like it's always a concern for parents, isn't it? Yes. And we can provide a link to that in the show notes.

SPEAKER_00

Yeah, yeah. Um, I guess so um one of the most important things coming out of it is that um, you know, platforms must have privacy protective settings switched on by default. Um, they can't um target ads at children because they have to collect their data to do that. So it's um some really important safety protections for children.

SPEAKER_01

Yes, yes. Um and I know from using uh like social media myself that that's certainly an issue even with adults. Yes. The targeted ads and information that get fed to us all the time.

SPEAKER_00

Yeah, it's pretty scary. And then my final update is um I was reading an article on Lawyers Weekly uh entitled Perfection is the enemy of progress. And this really sort of, I see myself in this article, but um a senior managing partner of Travis Schultz and Partners, Travis Schultz, um, argues that perfectionism in the legal profession has become a significant barrier to productivity, well-being, and progress. Um, he draws a distinction between simply having high standards for your work and toxic perfectionism. And I'm sure a lot of the people listening um probably see a bit of themselves in this. I know I do. And it's um, I remember, I think that last 10% when you're working on a piece of work is often the most expensive because you're spending the longest time in, you know, finalising it, perfecting it.

SPEAKER_01

I can certainly relate to it as well, and it can be exhausting, can't it? In an already uh quite complex job and the work and the drafting, the reading, there's a lot to it. So to have to that to to feel like you have to get to that level of perfectionism, it can be difficult. And as you were saying, I think a lot of other listeners would relate to, particularly if they are lawyers, because we are a certain personality type to and I think what he goes on to say is that we're prioritizing quality over productivity.

SPEAKER_00

And I mean that that there is a line that we have to draw at some points. Um, you know, I would find that I would still, in my head, I would spend that time doing the final review, looking for typos. I'd still miss things and then I would beat myself up about it. Yeah. And it's just, you know, it's this vicious cycle.

SPEAKER_01

Yeah, you just got to get it done to a level of satisfaction and be happy with that.

SPEAKER_00

Yeah.

SPEAKER_01

Thank you, Dina. And that's what's up for this week. For Laura in Motion this week, Dina is going to help lawyers understand family violence and in particular financial control and economic abuse.

SPEAKER_00

Dina. Yeah, thanks, Jenna. Um, so it really is a hidden form of family violence and one that can act as a powerful barrier to leaving a relationship and establishing long-term independence. Uh, so as we all know, the Family Law Act was amended in 2025 to expressly recognize financial and economic abuse as a form of family violence. And the changes now mean that it's relevant at the property settlement stage, even if we don't have parenting proceedings on foot. So, nearly a year on from those amendments commencing in June 2025, I think it's a useful moment to take a look at what economic abuse looks like in real terms. Um, because it's likely that we're still, as a profession, under-recognizing it, partly because we don't always recognize the full gamut of what those behaviours look like, and partly because it's quite difficult to plead. It's very subjective.

SPEAKER_01

And even though we've come a long way in terms of our understanding of family violence, you're right, in like people probably don't appreciate all the nuances that do make up what could exist as family violence.

SPEAKER_00

Yeah, yeah. Um, and as I said, it's very subjective, um, you know. And so that's why I wanted to take a look at this topic and then look at the harder task of what best practice looks like when you're actually acting for the alleged perpetrator of the family violence. So, as we all know, in 2025 the definition of family violence was expanded. Um, economic abuse is now expressly framed as a form of family violence, whereas it used to live inside the broader financial autonomy example. Um, so I think it's easy to talk about these high-minded principles, you know, forcibly controlling money, but we need to look at what this looks like actually in practice. So it might be a case where one party has full control over the family finances, they control the joint account, and they simply transfer a stipend to the other party. Or it might be the case where one party sabotages the other party trying to earn an income, whether this is, you know, pressuring them to stop working or making it practically difficult for them to not work, like refusing to pay for childcare, for example. Or the case of when there are coerced loans or debts. One party, whether with the knowledge or without the knowledge of the other party, takes out loans and tax debts in that party's name. Um, or the case where there is the creation of loans post-separation. You know, there are these loans that the one party didn't realise existed, and um, you know, you're in the midst of family law proceedings and they get put on the balance sheet. So um I think it's important to sort of try to pick out this behavior. Um the hard question is when you're new to a matter, how do you spot it? You have to ask the questions directly. Who controls the money in the relationship? Have you ever had to ask for permission to spend money? Um, do you know what you own and what you owe? Um, try to pull the documents early. Get your client's financial disclosure as early as possible. But also be mindful of the language. If one party's saying, he gives me or she lets me do this or I'm not allowed to do this, those are red flags. Um last year, Fiona Kirkbit and Joplin Higgins did a webinar for us about family violence and specifically looking at when you're acting for the perpetrator of the family violence. Joplin recognized four typologies of a perpetrator of family violence. So it might be that they're entitled-based, someone who thinks that they should be the one making the decisions about the money. This might be because of how they were raised, because they're the high income earner, or simply because they see themselves as the smarter person in the relationship. The harm in this case comes from the years of making small decisions adding up. And it's not from just any one incident. You then have the survival-based perpetrator, someone whose own background, childhood, um, and earlier abusive relationship or formative trauma has left them feeling that controlling money is the only way to feel safe. They can be defensive, quick to read questions as an attack. You then have the situational perpetrator, someone whose behavior came out of a specific bad period, you know, a business failing, a death in the family. Um, they're probably the easiest to work with and the most amenable to change. And then the final one, the statistic sadistic-based perpetrator. They're the highest risk of the four. Um, and their behavior includes conduct that deliberately wants to hurt the other person or taking enjoyment in the other person's distress. Behavior change programs that don't typically tend to make any difference with those perpetrators. So I think it it sounds basic to say, but dis disclosure is such an important thing in these matters. Um you, as a solicitor, your role, from day one, run it cleanly. The duty of full and frank disclosure is um, you know, it's not optional anymore. Um there have been changes to the act to sort of refocus um parties on that. Um, don't drip feed financial disclosure. Tactical late disclosure reads as concealment, um, and the courts really become more attuned to that. It can also expose your firm to cost orders or professional conduct complaints and damage your credibility in the profession. Also, document your advice. Um, you know, if you're ever unsure, um get advice from counsel. I remember um negotiating a binding financial agreement, and my client did not want to um disclose some assets that she had. Um, and so I ultimately ended up ceasing to act on that file, but we had talked about getting advice from senior counsel in that matter. So it's scary because it can happen.

SPEAKER_01

Yeah, I've I have an example as well of a client who they didn't want to disclose certain information. And when you know about it as their lawyer as well, you've got to advise them to disclose that information.

SPEAKER_00

It puts you in such a difficult position.

SPEAKER_01

It does, yeah.

SPEAKER_00

Um and I guess uh another thing as a solicitor that you need to be doing is you need to make sure that your client understands the post-um-June 2025 landscape and that they're aware that um the act now expressly recognises economic abuse as a form of family violence, um, and that this can have a flow-on effect then in terms of a property settlement. The other thing is don't become part of the problem. Um, the legal process itself can become a vehicle for ongoing um financial abuse. And part 11b of the act gives the court tools to intervene in those cases. The court can dismiss proceedings if it thinks they have no merit, that to continue them would cause harm to a party or a child. Interestingly, about that point, um, the court can go on to find that there is merit in the case and still go on to make that order that the harm would outweigh the benefit of the continuation of the proceedings, and that the proceedings have been brought as an abuse of process or for a wrongful purpose. So watch out for these types of applications, repeat interim applications on urgent issues, time to coincide with the other party's financial vulnerability, for example, just before a mortgage payment or after they've depleted their savings, applications to vary or set aside financial orders based on alleged financial changes that aren't supported by the evidence, repeated disclosure requests that goes beyond what the case needs, subpoenas to the other party's employer or business clients, repeat child support variation applications, and drawing out responses to applications for things like urgent spousal maintenance. So all of these vehicles are a way for the continuation of that family violence.

SPEAKER_01

Yeah, so it's for the lawyers to call out that type of behaviour, draw it to the court's attention if they're not aware and hope something that that hope that it's addressed.

SPEAKER_00

And it's important to have those hard conversations with your client, you know, um, test them. Is that application really necessary? Is there something else we can do? Um, you know, we have professional boundaries that we have to sort of abide by that are really important, you know, things like, you know, don't continue to uh don't engage in denigration of the other side. I remember being a very junior lawyer, and um I had a client, well, I was assisting a senior lawyer with a client, I was just um executing an affidavit with the client. Um, and the client started going on about the solicitor on the other side, calling her things like she's a pig, she's a dog. And you know, I'm sitting there and I'm like, oh, I don't know what to do. Um and I think it's important that we train our junior staff so that they know how to deal with those situations, uh, how to put an end to that behaviour, because that's not acceptable. You're not the client's therapist, you're there to give them legal advice.

SPEAKER_01

And perhaps it is referring them to a therapist, for instance, so then they can if they come to you then for advice, they are probably in a better headspace to receive that advice and they're not going to want to do certain things that are is you know perpetrating a type of violence or abuse.

SPEAKER_00

Yeah, they they can ventilate those feelings in a more appropriate venue than your office. Yes. Yes. Um yeah, and I guess as I said before, don't be afraid to have those hard conversations with the client, whether it's about the merit of their case or whether it's recommending they attend, you know, a behaviour change program. Also, another really important thing is don't write the unnecessary correspondence. If a letter or email does not directly assist your client's case theory, don't send it. Volume is not advocacy. Um, and tactical correspondence, you know, that is designed to pressure, harass, or bear down the other side rather than advance the real issues in the matter. Um, that's the kind of conduct that increasingly attracts cost orders and disciplinary attention. So I think there are some red lines of when you should stop acting. And there are four categories of conduct that should sort of trigger your consideration of whether you can continue to act for this client. Firstly, if they give you instructions to mislead the court or another practitioner, I feel like that's a one-strike offense. As soon as you do that, I can't continue acting for you. It's a really serious one.

SPEAKER_01

Yeah, agreed.

SPEAKER_00

Um if they if there is a persistent refusal to give full and frank disclosure, you know, I think this is different from you know a single oversight of, you know, missing giving something. But if there's a pattern of strategic non-disclosure, you can't overlook that. Um important in those cases to give it written advice so that you can always rely on that when you come to terminate the retainer. Um, if there's continued contact, intimidation or financial pressure on the other party in breach of orders or undertakings. Um, a single breach may be brought back into compliance with advice. But if there's a pattern or if a first breach involves intimidation, financial pressure, or fresh family violence, it's important to stop acting in those circumstances. Um, and finally, if there's an insistence on running unmeritorious applications for tactical reasons after you've given them written advice not to.

SPEAKER_02

Yeah.

SPEAKER_01

They're important things to remember as well. I feel like when we do a lot of legal education, it is often how to deal with clients who come in and they're the victims of violence and trying to help them through the process. But when you have the perpetrator of violence, there's probably not enough education for lawyers to help them manage and deal with those clients, see the red flags, call out the behaviour. So I feel like what you've shared is really important. For Case Known Corner this week, we're keeping to the theme of family violence. And Dean is going to talk to us about the case of Malunus number six, which is a 2025 decision.

SPEAKER_00

Yeah, this I thought was a really interesting case because it's one of the first developed first-incident treatment of the new economic abuse provisions inserted by the 2024 amendments. And there's a substantial discussion on what it actually means to coerce or control under section 4AB. So the case involved both parenting and financial proceedings. There were two children, uh, they were aged five and three at the time proceedings were commenced, and they were 11 and 8 at the time of the final hearing, or the second final hearing before Altebelli J.

SPEAKER_01

That's a very long period of time.

SPEAKER_00

I won't go into the whole history of the matter. Um, but so at the final hearing before Altebelli J, and as I said, that was the second final hearing of the matter. Um, the mother sought orders for sole parental responsibility of the children, leave to relocate to a different city, um, for the children to spend time with the father each alternate weekend from Friday to Sunday. Um, and she actually sought a vexatious proceedings order under section 102 QB2, um, prohibiting the father from filing further contraventions without leave of the court. The father, for his part, sought effectively the continuation of the status quo. That was for mum to remain living in the same city and for equal time and equal shared parental responsibility. So the discussion of family violence and in particular coercive and controlling behaviour is the heart of the judgment. As we all know, after the 2024 amendments, part seven of the act now operates with a focus on the safety of children and their carers rather than the protection from harm. Section 4AB1 defines family violence as violent, threatening, or other behaviour that coerces or controls a member of the person's family or causes them to be fearful. And that now expressly includes economic or financial abuse, as we just spoke about. On the point of economic abuse, the final property orders were made, the first set of property orders were made in May 2022, and they required the father who was living in the former matrimonial home to facilitate the sale of the property at the earliest possible time and to keep the property in good condition pending the sale. He did not. He delayed the sale by about 21 months. He carried out works that actually decreased the value of the home, including pulling out a spiral staircase, removing doors, and taking out parts of the second kitchen, saying he was simply addressing non compliance issues.

SPEAKER_01

Oh my goodness. I was going to ask how someone decreases the value so significantly. But that's how you do it.

SPEAKER_00

Yeah. Well, the court inferred he was actually trying to buy. The home cheaply for himself. He had actually engaged a buyer's agent to do that for him. Then after settlement, he refused to release the sale proceeds. So that that meant the wife could then not discharge her litigation loan that she had. And ultimately, in that time that she wasn't able to pay that off, interest of about $219,000 accrued on that loan. Wow. Yeah, correct. That's just that's the interest alone. The interest alone. Yeah. So the court found that this was economic abuse, you know, under section 4AB2G and the new section 4AB2 Capital A. So that was denying the mother her financial autonomy, forcibly controlling her assets, and forcing her to take on additional liability. The coercive and controlling conduct ran sort of parallel to the economic abuse. A few of the standout examples of this husband's behaviour. He resisted using the application Our Family Wizard from a period of about 2021 until 2024. When he did then eventually sort of concede using it, his agreement was made conditional upon the mother responding to things that he wanted her to respond to. But in doing so, he also went on to blame her for the entirety of their communication issues, and he continued to characterize her behavior as harassment. He also filed multiple contravention applications, all of which were unsuccessful. The mother had to appear in person on at least nine occasions because she couldn't afford legal representation. The court found that this was a weaponization of litigation. There was also a concert that coincided with one of the birthdays of the children that the child wanted to attend. The mother had bought tickets and arranged accommodation. When she came to collect the child, the father called the police, and that resulted in the child being interviewed. The father had claimed during the final hearing that the child did not want to go to the concert, but the court found that that was not the case and characterized this behaviour as a weaponization of the police. I mean, pretty serious behaviour. Yeah. Not the only time he did something like that. On a separate occasion, the mother had politely requested to take the other child to a dance concert. The father engaged in 13 days of communication warfare, manipulating the mother, trying to extract a concession regarding the summer holidays. His honour found that this conduct was designed to control the mother's behaviour by attrition and demonstrated a complete inability of the father to participate in child-focused co-parenting. He also repeatedly copied the mother's solicitors who only acted in relation to financial matters into the parenting matters or into correspondence about parenting matters, despite explicit and repeated requests not to do so. So on this point, Altabelli J found that this was conduct that was sought to coerce the mother by humiliating and embarrassing her in front of her lawyers and by isolating her from support. Yeah. Finally, he also set up an email address mimicking the trademark of the mother's lawyers, and he used it for years. Henderson J described the conduct as scandalous during the course of the proceedings, and yet he continued to do it. So there are a few key takeaways from this matter. Parental conflict is not by itself family violence. I think that's a really important distinction. Two parents can be in genuine conflict without one being the perpetrator. But family violence is structurally different. That involves the exercise of power by one person over the other. And Section 4AB is wide and not to be read down. Second, coerces and controls are different but related topics. So Altabelli J endorsed the comments of Bennett J. in Carter and Wilson and said that it's an error to lump them together in a single label because that risks excluding conduct which is one but not the other. And importantly, intention is not required. A perpetrator may be oblivious or even believe they're acting protectively when they're actually engaging in a family violence. And I think most importantly for us as solicitors is the framing point. You know, Altabelli in that case found that the allegations had been pleaded with real particularity. Every piece of conduct was set out with specifics, dates, communications, who said what. That's the important thing when you're running these cases to make sure that the behaviour is properly framed as family violence.

SPEAKER_01

Yeah, which would then help the court to be able to make decisions. And in this case, because it went over such a long period of time, there was probably a lot of examples that could be provided.

SPEAKER_00

Yeah. Well, ultimately, um the mother was successful in her application. Um she was permitted to relocate, and so that the children were living primarily with her and see spending time with the father each alternate weekend. Um and, you know, I think importantly, this case is the new benchmark for how a first instance judge is expected to apply the post-2024 family violence framework.

SPEAKER_01

Thank you, Dina. That's really interesting and obviously a very severe case, but it does give some very good examples that lawyers can take away to be able to help understand the definition of family violence in other matters. We've loved being in your ears this week. Don't forget to like, subscribe, and share this episode. If you have any questions or feedback, please reach out to us by email, or you can also reach us on YouTube, Instagram, or TikTok. Stay tuned for next week's episode. New episode drops every Monday.