Understanding the Intersection between Coercive Control and Family Law

On 1 July 2024, new coercive control laws came into effect in New South Wales. The new laws recognise coercive control against an intimate partner as a domestic abuse offence.

On 1 July 2024, new coercive control laws came into effect in New South Wales. The new laws recognise coercive control against an intimate partner as a domestic abuse offence.

Coercive Control and Family Law

It will be interesting to see how the Federal Circuit and Family Court of Australia will navigate the overlap between the criminalisation of coercive control and the family law system. At this stage, it appears coercive control will likely be considered by the Court when it considers safety aspects in determining the best interests of the child in Parenting cases, and could be taken into account by the Court at the contributions stage of Property Division cases, although likely only in exceptional circumstances.

What is Coercive Control?

Generally, coercive control refers to an ongoing and repeated pattern of behaviour used to control, dominate or intimidate another person. The nature of the behaviour can be physical, verbal, sexual, emotional, psychological, financial, social and/or digital.

It can involve any behaviour which scares, hurts, isolates, humiliates, harasses, monitors, takes away the victim’s freedom or unreasonably controls the victim’s day-to-day activities. Such behaviours aim to undermine the victim’s autonomy and create a climate of fear and dependency.

Criminalisation of Coercive Control

From 1 July 2024 in New South Wales, it is a criminal offence to use abusive behaviour repeatedly and/or continuously towards a current or former partner with the intention to coerce and/or control them. The maximum penalty is seven (7) years’ imprisonment.

The law broadly defines “abusive behaviour” as behaviour including but not limited to:

  • behaviour that causes harm to a child if a person fails to comply with demands made of the person,
  • behaviour that causes harm to the person against whom the behaviour is directed, or another adult, if the person fails to comply with demands made of the person,
  • behaviour that is economically or financially abusive, for example:
    • withholding financial support necessary for meeting the reasonable living expenses of a person, or another person living with or dependent on the person, in circumstances in which the person is dependent on the financial support to meet the person’s living expenses,
    • preventing, or unreasonably restricting or regulating, a person seeking or keeping employment or having access to or control of the person’s income or financial assets, including financial assets held jointly with another person,
  • behaviour that shames, degrades or humiliates,
  • behaviour that directly or indirectly harasses a person, or monitors or tracks a person’s activities, communications or movements, whether by physically following the person, using technology or in another way,
  • behaviour that causes damage to or destruction of property,
  • behaviour that prevents the person from doing any of the following or otherwise isolates the person:
    • making or keeping connections with the person’s family, friends or culture,
    • participating in cultural or spiritual ceremonies or practice,
    • expressing the person’s cultural identity,
  • behaviour that causes injury or death to an animal, or otherwise makes use of an animal to threaten a person, and
  • behaviour that deprives a person of liberty, restricts a person’s liberty or otherwise unreasonably controls or regulates a person’s day-to-day activities, for example:
    • making unreasonable demands about how a person exercises the person’s personal, social or sexual autonomy and making threats of negative consequences for failing to comply with the demands,
    • denying a person access to basic necessities including food, clothing or sleep
    • withholding necessary medical or other care, support, aids, equipment or essential support services from a person or compelling the person to take medication or undertake medical procedures

The Impact of Criminalisation

By providing a unique avenue to prosecute perpetrators, the new laws recognise coercive control as insidious behaviours causing severe and long-lasting harm to victims and their families. The criminalisation of coercive control also reflects the New South Wales Government acknowledging the continuing shift in societal attitudes towards addressing domestic and family violence as a national crisis. Importantly, all other State and Territory Attorney-Generals have agreed to follow suit and criminalise coercive control.

The new laws will likely influence how the Federal Circuit and Family Court of Australia will determine Family Law cases involving coercive control.

Parenting Arrangements

In Parenting matters, the paramount consideration is the best interests of the child. When making Parenting Orders, the Court must determine the child’s best interests by considering, among other things:

  1. What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child,
  2. Any history of family violence, abuse or neglect involving the child or a person caring for the child, and
  3. Any family violence order that applies or has applied to the child or a member of the child’s family.

Following the criminalisation of coercive control, it is likely the Court will be more willing to recognise coercive control as a risk of harm to children and their families, and therefore accept that coercive control falls within the scope of the mandatory considerations in the determination of the child’s best interests. Similarly, it is expected the Local Courts will be more willing to make Apprehended Domestic Violence Orders based on coercive control.

Property Division

Property Division matters are determined by what is often referred to as a four (4) step process:

  1. What is the property pool available for division?
  2. What contributions has each person made to the property pool?
  3. Which person has the greater future needs?
  4. Determine whether the proposed division of property is just and equitable.

Family violence may be relevant to considering the parties’ contributions (step 2). The case of Kennon & Kennon established the principle that, when assessing contributions, the Court may consider “a course of violent conduct” perpetrated by one party towards the other which has had a significant negative impact on the victim’s contributions or has made the victim’s contributions significantly more difficult than it ought to have been.

Successful Kennon arguments have been few and far between and generally involve particularly egregious physical violence. Following the introduction of the new laws, the Court may be more willing to accept coercive control as a course of violent conduct and therefore consider the effect of coercive control on victims’ contributions and assess the contributions accordingly, which could result in property divisions in favour of victims.

However, the Court noted the Kennon principle, while not limited to domestic violence, should only apply in exceptional cases. Further, persons seeking to rely on coercive control to establish Kennon arguments face the burden of establishing the facts on the balance of probabilities, which is known to be difficult, even for less nuanced examples of family violence.

Support

Should you or someone you know be experiencing coercive control and need support, please visit the NSW Government webpage on Coercive Control for information on how to access support services.

Coercive control is just one example as to why it is important to engage an experienced Family Lawyer for your Family Law matter. A specialist Family Lawyer understands the nuances of the Family Law Act 1975 and importantly where they overlap with existing and new relevant laws. They bring their practical experience of helping hundreds of people separate together with their knowledge of the law to create a strategy that will achieve an outcome that will secure the best future for you and your family.

Specialist Family Lawyers for Sydney and Newcastle

Make a Smart Start

  • 90-minute appointment with a Specialist Family Lawyer
  • Get all your questions answered and understand applicable Family Law processes
  • Comprehensive on-the-spot legal advice tailored to your circumstances
  • Develop a plan to secure your best future
  • $350 Fixed Fee (incl GST)

Specialist Family Lawyers for Sydney and Newcastle

Make a Fresh Start. Contact Us Today

The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.