Understanding Coercive Control within Family Law

Co-authored by Grace Jolly

KEY TAKE OUTS:

• The term “coercive control” has now been dealt with by the Full Court with regard to family law matters.
• The leading case Pickford & Pickford [2024] has set out a structured approach in evaluating allegations of coercive control and family violence.
• The judgement highlights the importance of looking to all of the circumstances of the case when making an evaluation on coercive control.

The term “coercive control” is often associated with Criminal Law, and is described as a pattern of controlling behaviours, threats and intimidation aimed at dominating and isolating a victim. It is a form of domestic, family and sexual abuse that involves a pattern of abuse to control another person.

In recent years however, this concept has increasingly been recognised in a Family Law context and its impact on individuals going through custody, divorce and separation proceedings. The reality is, that coercive control can often occur during family breakdowns, where one party uses psychological manipulation, emotional abuse and/or threats to maintain their power.

Case: Pickford & Pickford

This issue has now been considered in the Full Court in Pickford & Pickford [2024] FamCFed C1A 249, whereby the court offers valuable insight about parenting disputes where coercive and controlling behaviour is alleged. The court held that parental conflict and family violence cannot be classified as the same thing, and it must be ensured that allegations of coercive control are undertaken with an examination of all relevant evidence.

The facts surrounding this case were complex and included allegations of family violence, with coercive control being central to the mother’s case. At the initial trial, the judge rejected the father’s request for equal time and an increase in the amount of time he spent with the children and found that the father had perpetrated family violence against the mother through coercive and controlling behaviour.

However, on appeal to the Full Court, this initial decision as overturned. The Full Court’s decision to overturn this, highlights the need for careful and objective analysis of behaviour within the context of each relationship. Three of the five judges, undertook an expansive view of ‘family violence’ to extend it beyond the strict interpretation in previous courts. The majority of the Full Court concluded that the intentions of the alleged perpetrator of family violence is highly relevant when considering whether a party has been subjected to coercive control, but noted it is not a determinative factor of such a finding.

The court found that the primary judge had erred in finding that the father had engaged in coercive control over the mother, and as such refused to consent to the orders submitted on her behalf.

There was a distinction made between conflict and coercive control, whereby it was argued that coercive control often involves complex and subtle behaviours that create an impossible dynamic for the other parent. Thus, the court highlighted the importance of having a focus on behaviour and its impact rather than subjective feelings or isolated actions. In doing this, parental conflict alone, without any evidence of control, should not be treated as coercive behaviour. Emphasis was placed on the idea that coercive control can be subtle, and a simple conflict or perception of control is not enough. Thus, a party seeking to rely on coercive control must demonstrate it through the behaviours impact and context of the particular case.

Determining Coercive Control in a Family Setting

When determining an allegation that a person has engaged in coercive or controlling behaviour, the Full Court set out a five-step approach for evaluating the allegation:

1. Identify the behaviour about which complaint is made;
2. Identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;
3. Identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);
4. Make all relevant factual findings; and
5. Explain why the behaviour in question is or is not family violence that coerces or controls the family member and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.

Thus, this case sets precedence for how to identify coercive behaviour in family law proceedings. Such a finding is an evaluative one, having regard to all the circumstances and all the evidence before the court.

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ABOUT LUISA GAETANI:

Luisa is a distinguished Partner and Accredited Family Law Specialist at Coutts who proudly leads our esteemed Family Law team. Luisa started University in 2010 and commenced as a Paralegal and since her admission in 2014, Luisa has dedicated her practice exclusively to Family & Criminal Law, showcasing a deep commitment to providing comprehensive legal support.

Her unique blend of sensitivity and practicality sets Luisa apart, allowing her to forge a strong rapport and cultivate trust with her clients.