Statistics generated by the Family Court show that the majority of contested parenting proceedings include at least one allegation of family violence being perpetrated against either one of the parents and/or one of the children.
When determining parenting orders for a child the court is required to determine what is in the child’s best interest. The matters that the court considers to determine what is in the child’s best interest are contained in Section 60CC of the Family Law Act. Crucially subsection 2(a) and (2A) provide an obligation on the court to consider any history of family violence involving the child or person caring for the child and requires the court to consider what arrangements to promote the safety of the child or person caring for the child (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm).
Therefore, whether family violence has occurred tends to be a crucial fact-finding exercise in contested family law proceedings, where there is an allegation that family violence poses a risk to the children.
Definition of family violence
Family violence is broadly defined in Section 4AB of the Family Law Act as follows:
Family violence means violent, threatening or other behaviour by a person that coercive or controls a member of the person’s family (the family member) or causes the family member to be fearful.
The Section also helpfully includes examples of such family violence which can include assault, taunts, damaging property, or denying a family member financial autonomy, amongst other things.
Issues can arise with coercive and controlling violence as it can be difficult to observe as it often includes non-physical behaviours tailored uniquely to the victim to scare, isolate, and control them.
Pickford & Pickford
Recently the Full Federal Circuit and Family Court of Australia considered the definition of coercive and controlling violence in detail in the case of Pickford and Pickford [2024] FedCFamC1a 249.
This was a parenting matter concerning a 9 and 7-year-old. At the first hearing, the father had sought that the children spend equal time with him and the mother, but the court ultimately made orders that the mother have sole responsibility for the children, the children live with the mother and spend time with the father 4 nights per fortnight. A large part of the court’s decision was that the primary judge found that the father engaged in family violence by coercive control of the mother and that the conflict between the parents meant that equal time was not in the children’s best interest. The father appealed this judgment.
Ultimately, the appeal was allowed and all of the five justices agreed that it was not open on the evidence to find that the father had perpetrated coercive and controlling violence.
In the joint judgment of Austin and Williams JJ they said:
“the evidence of parental conflict in this case was abundant but is important to observe that parental conflict and family violence are not one and the same thing. Parents can be in conflict without one perpetrating family violence upon the other. Mere disagreement between the parties, even if voluble, is not necessarily family violence.:
Their Honours looked at Section 4AB and said the following:
The definition can be broken up in one of two ways:
- Coercive or controls a family member – which is a subjective concept focusing upon the characteristic nature of the perpetrator’s behaviour towards the victim or;
- Causes the family member to be fearful – which is a subjective concept instead focusing upon the victim’s reaction to the perpetrator’s behaviour”
In relation to the first form of family violence their Honours said that this “entails coercion or control, essentially captures one family’s domination of the other family member. That the victim may subjectively feel coerced or controlled is not enough. The coercion or control must be an objective actuality”.
In relation to the second form their Honours said “It captures the victim to be fearful and thereby shifts attention to subject effect to the perpetrator’s behaviour upon the victim and away from the objective characterisation of the perpetrator’s conduct. … Provided the perpetrator’s violence, threatening or other behaviour does cause the victim to be fearful the statutory definition family violence is fulfilled”… the damage is done even if the victim does have a low threshold of tolerance”
Noting that the mother’s allegations of family violence largely related to the father’s refusal to agree to partial property settlement, the courts said “One litigant does not commit family violence against another litigant just by refusing to consent or submit to the orders forged to the opponent applies”
Justices Aldridge and Carew largely agreed with the above but disagreed that the definition of family violence should only be limited to two types of behaviour. Their Honours then offered some assistance to litigants as to how the court could determine such an allegation:
- Identify the behaviour by which the complaint is made.
- Identify the full context of the behaviour including an explanation that may be given by the alleged perpetrator.
- Identify the impact of the behaviour and the alleged victim (mer assertion by the alleged victim that they feel coerced or controlled is insufficient).
- Make a relevant factual findings.
- Explain why the behaviour in question is or not family violence that coerces or controls the family 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.
Their Honors also stated, “the definition of family violence is necessarily broad in the interpretation that may be preserved, or actually, greater unnecessary hurdles to an alleged victim proving an allegation of family violence should be avoided”.
Finally, Deputy Chief Justice McClelland agrees with Justices Aldridge and Carew.
Coercive and controlling violence is a common allegation made during proceedings and legal advice is essential whether you are making that allegation or defending such an allegation. If you are in the midst of a family law matter involving allegations of family violence, please contact Baker Love Lawyers on (02) 4944 3322 to make an appointment with our Accredited Specialist in Family Law, Hayden Carr.
