Allegations of Coercive Control in Parenting Proceedings: The Federal Circuit and Family Court’s decision in Pickford & Pickford [2024] FedCFamC1A 249

The Family Law Act defines family violence as behaviour by a person that “coerces or controls a member of the person’s family” or “causes the family member to be fearful.”

In May 2024, the Act was amended to promote and strengthen protections against family violence in Parenting proceedings.

Pursuant to these amendments, a finding by the Court of family violence is expressly relevant in determining what arrangements are in the best interests of the child. The Court must have regard under the Act to “the need to ensure protection from family violence” and consider whether proposed Parenting arrangements “expose a person to an unacceptable risk of family violence.”

The 2024 case Pickford & Pickford provides guidance on how a Court uses these amendments and determines allegations of coercive control.

Facts

This case is an appeal by a Father in relation to Parenting Orders. The primary judge ordered that the Mother have sole parental responsibility for the parties’ two children and that they live with her, spending four nights per fortnight and half of all school holidays with the Father. The basis for these Orders was findings of family violence and coercive control by the Father against the Mother.

Appeal

On appeal, the Father argued that the findings by the primary judge of family violence were not supported by law or by fact. In particular, the Father appealed the findings that the Father had engaged in coercive and controlling conduct on the basis of the Mother’s “experience and perception” of the alleged conduct, rather than an objective evaluation of whether the conduct could “reasonably be regarded as coercive or controlling.”

Decision

Family violence should be given an “expansive” definition and should be determined by analysing “a pattern or a series of acts, the impact of which will usually be both intersecting and cumulative, rather than incident specific.”

However, the existence of coercive or controlling behaviour cannot be found simply on the basis of the victim’s perception of the conduct, but rather requires a deeper evaluation of the form, intensity, context and impact of the conduct, considering the “totality of the evidence.” It is not necessary to prove that the perpetrator intended the behaviour to be coercive or controlling. The Father’s appeal was successful.

Aldridge and Carew JJ set out a useful guide to assist in determining allegations of coercive and controlling conduct. The steps the Court takes in evaluating allegations of coercive or controlling conduct are:

1. Identify the behaviour which the victim alleges is coercive or controlling;
2. Identify the full context of the behaviour, including any explanation that may be given by the perpetrator;
3. Identify the impact of the behaviour on the alleged victim, beyond mere assertion that the victim felt coerced and controlled;
4. Determine whether the behaviour actually occurred in fact; and
5. Explain why the behaviour in question is or is not family violence as a matter of law and the weight to be given to the allegations in determining a child’s best interests.

Seek an expert family lawyer

Coercive control is a complex and devastating form of abuse that can have long-lasting impacts on victims and their children. The importance of seeking professional help is paramount if you suspect you or someone you know is experiencing coercive control. If you think you are a victim of this abuse, consult our expert team of family lawyers.

 

Written by Fiona Kennedy and Piper Frederickson