This article is one of very few that examines the role of Australian courts in responding to economic abuse.
Lockdowns in response to COVID-19 have resulted in a surge in domestic violence around the world. Closer to home, there has been a 130 per cent year-on-year increase in calls for assistance to the domestic violence crisis services in the Australian Capital Territory.
Radhika Chaudhri (LLM '14, BIntRel/LLB (Hons) '12), a PhD candidate at The Australian National University (ANU) College of Law and former solicitor at Canberra Community Law, knows how economic abuse compounds victimisation in domestic violence cases.
She recently authored the first empirical study examining a trend by Australian judges to consider domestic violence as “a series of acts of violence” that includes economic abuse, such as coercion of victims into contracts. According to an estimate generated from various reporting by domestic violence crisis service providers, 98 per cent of women who experience physical and sexual violence have also been subjected to economic abuse.
In this Q&A, Radhika discusses her article ‘Tackling financial abuse with the doctrine of undue influence’ recently published in the Australian Journal of Family Law.
Can you tell us more about your article and its connection to your PhD?
This article explores judicial responses to economic forms of domestic violence, specifically what happens when someone uses abusive tactics to make a partner enter into a contract. These contracts remain valid unless a court exercises discretion to set them aside.
This discretion can be exercised on the basis of undue influence, a doctrine that is triggered when two people are in a relationship where one person exercises such a degree of influence over the other that the latter’s judgement is substantially impaired. Undue influence can be proven by showing pressure was exerted at the time the contract was entered, or courts can rely on evidence that the whole relationship was unequal to presume undue influence.
A survey of recent Australian case law was conducted as part of my research and it revealed that courts often seek positive evidence that actual undue influence has occurred when the contract is signed, rather than presuming that a victim of domestic violence is subject to undue influence.
One explanation for this trend is that courts and lawyers often conceptualise domestic violence as sequential, identifiable, sufficiently serious acts, rather than as a relationship quality. Sociological discourses offer frameworks for structural and social factors influencing the distribution of power within relationships and controlling behaviours therein.
The paper argues that an approach integrating the sociological scholarship would allow courts to more skilfully recognise and respond to financial abuse.
This article is a part of my doctoral research, which is a wider study of how four equitable doctrines – duress, undue influence, unconscionable conduct and the Garcia doctrine – engage with economic abuse. My research combines doctrinal research with an empirical study of Australian cases over the past 10 years.
What motivated you to research this topic?
Domestic violence incorporates a wide range of behaviours, including economic abuse. Economic abuse is particularly insidious since a victim’s financial security and ability to leave abusive relationships is undermined because they have been financially compromised.
I was a community lawyer specialising in public housing law and social security law at Canberra Community Law. Many of my clients were women experiencing domestic violence, and it was in this advocacy role that I really came to appreciate how economic abuse compounds victimisation.
It puts women at risk of homelessness (and consequently loss of care of children), poor credit rating, bankruptcy, and even prosecution (for instance, if incorrect information has been provided to Centrelink). Domestic violence is the leading cause of homelessness for women in Australia, a problem compounded by economic abuse. My work as a community lawyer highlighted the importance of investigating the judicial response to economic abuse, specifically coerced debt. I am particularly keen to study the role of courts in addressing coerced debt.
Why is your article important?
This article is one of very few that examines the role of Australian courts in responding to economic abuse. It is the first to empirically illustrate a trend by judges to think about domestic violence as a series of acts of violence, rather than the current best practice view that domestic violence is a relationship typology that has a global rather than incident-specific impact. Exposing this trend is a valuable first step in shifting courts’ attitudes so that they can be more responsive in cases where domestic violence is occurring.
The recent lockdowns have put a strain on households and increased levels of isolation, both of which are known risk factors for domestic violence. In light of this, it is more important than ever to understand and critique judicial responses to economic abuse.
Find out more about Higher Degree Research (HDR) opportunities at ANU College of Law here.