By Aleisha Draper – Special Counsel
What is Coercive Control
Coercive control is considered by the Federal Circuit and Family Court of Australia (Court) as a serious form of family violence and increasingly, the Court is asked to determine parenting disputes where allegations of coercive control have been made by one or both of the parties involved in litigation.
Section 4AB of the Family Law Act 1975 (Cth) (Act) defines ‘family violence’ 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.”
Coercive control is characterised by a pattern of behaviour designed to dominate, isolate, or intimidate a partner or family member. Due to the insidious nature of coercive and controlling behaviour, it can be difficult to recognise and even more difficult to substantiate in evidence before the Court.
Coercive control captures non‑physical behaviours such as:
- Monitoring movements or communications
- Financial control
- Emotional manipulation
- Gaslighting
- Threats or intimidation
- Restricting access to support networks
In both New South Wales and Queensland, coercive control is a criminal office, carrying significant criminal penalties of up to 7 and 14 years’ imprisonment respectively.
In May 2024, amendments to the Act were made to place greater emphasis on safety and protection against family violence in parenting matters before the Court. The amendments require the Court to directly engage with the question of whether the proposed parenting arrangements expose a child or parent, or both to an unacceptable risk of family violence.
Case Study: Pickford & Pickford (2024) FedCFamC1A 249
The Pickford appeal concerns complex parenting proceedings involving family violence allegations, including allegations of coercive control.
Background of the Case
The parties had two children and were involved in protracted litigation about parenting arrangements. At first instance, the trial judge found that the father had engaged in coercive control and family violence. This finding influenced the parenting orders that were made by the Court.
The father had sought orders for the children’s time with him to increase to an equal time arrangement. Ultimately, the Court made orders for the mother to have sole decision-making responsibility for the children and for the children to live with the mother and spend four nights per fortnight with the father. The trial judge concluded that an increase in the children’s time with the father by “even one more night” would place the children at unacceptable risk.
The father appealed the trial judge’s decision on the basis that the trial judge’s findings were not supported by the evidence and were contrary to law. He argued that the trial judge had placed undue weight on the mother’s subjective experience of his conduct, rather than his intention, and that an objective assessment was required to determine whether his behaviour amounted to coercive and controlling conduct.
What the Full Court Decided
The Full Court allowed the father’s appeal and held that the trial judge erred in finding that the father’s behaviour amounted to coercive control, delivering a judgment which found:
- Proof of intention on the part of the perpetrator is not necessary to establish coercive or controlling behaviour under the Act, and that a person may engage in such behaviour even if they are not aware of its impact. However, coercive or controlling behaviour cannot be established based on the subjective feelings of the victim alone.
- The definition of family violence under the Act is broad and expansive.
The Full Court helpfully identified the forensic exercise that must be undertaken by the Court when assessing allegations of coercive control:
- Identify the behaviour about which the complaint is made,
- Identify the full context of the behaviour, including any explanation that may be given by the perpetrator,
- Identify the impact of the behaviour on the alleged victim. The Full Court found that mere assertion by the alleged victim that he or she felt coerced or controlled was insufficient.
- Make all relevant factual findings.
- Explain why the behaviour in question is, or is not, family violence as a matter of law (including how the behaviour can be characterised as coercive or controlling where the alleged behaviour does not amount to a course or pattern of conduct).
Only after a consideration of the above matters will the Court be able to determine what weight is to be given to the behaviour and the impact of those findings on the orders that are sought by the parties. The Court must consider the totality of the evidence before it.
The significance of this decision
The decision in Pickford and Pickford has redefined the assessment of coercive control in parenting disputes and provides greater protections for victims of family violence by taking a victim centred approach in the assessment of coercive control.
The intersection between family violence and parenting disputes is complex. It is important to seek expert legal advice specifically tailored to your needs. If you would like advice about navigating parenting disputes that involve allegations of family violence, please contact us on (03) 8672 5222 to arrange an appointment with one of our experienced family lawyers.
