Understanding Coercive Control
Coercive control refers to ongoing and repeated patterns of behaviour exhibited by one person on another, used to control, dominate or intimidate. The behaviour can be physical, verbal, sexual, psychological, spiritual and social. The behaviours of coercive control are, but not limited to, acts of assault, threats, humiliation and intimidation that are used to harm, punish, frighten and create a sense of dependency.
The Criminalisation of Coercive Control in New South Wales
From 1 July 2024, in New South Wales, it is a criminal offence to use abusive behaviour towards a current or former intimate partner with the intention to coerce or control them. The NSW Crimes Act 1990 was amended, as well as the Crimes (Domestic and Personal Violence) Act 2007 to provide for a new definition of domestic abuse. The maximum penalty that can be imposed if a person is found guilty of perpetrating coercive control is 7 years’ imprisonment. Whilst coercive control can happen in other types of relationships, the new legislation is being tested in current and former intimate partner relationships first.
By way of summary, there are six elements to the offence of coercive control, which
are:
- The perpetrator must be over the age of 18 years;
- The perpetrator and victim must either be in a current intimate relationship or have been in an intimate relationship in the past;
- The perpetrator must have undergone a course of conduct, meaning having engaged in repeated or continuous conduct;
- The perpetrator’s conduct must have consisted of violence, threats, intimidation, coercion or control against a person;
- The perpetrator must have intended the conduct to coerce or control the other person;
- A reasonable person ought to consider the conduct to cause fear that violence may be used against the other person, or adversely impact the capacity of the other person to engage in their ordinary day to day activities,
Implications for Family Law Matters
The new laws are likely to influence how the Federal Circuit and Family Court of Australia determine Family Law cases involving coercive control.
Parenting Matters
In parenting matters, the paramount consideration is the best interests of the children or children, and the Court must determine the children’s best interests by considering, amongst other things, the following:
- Appropriate arrangements to promote the safety of the child and each person
who has care of the child; - Any history of family violence, abuse or neglect involving the child or a person
caring for the child; - Any family violence order that applies or has applied to the child or a member
of the child’s family.
It is likely the Court will be willing to recognise coercive control as a risk of harm to children and their families, and be more accepting that coercive control falls within the scope of the considerations when determining what is in the child’s best interests.
Property Matters
When determining matters requiring a division of a couple’s property, family violence may be relevant when considering a party’s contributions. In the case of Kennon & Kennon, the Court established the principle that when assessing a party’s contributions the Court may consider a course of violent conduct, which has significantly impacted the victim’s ability to contribute or made the ability to contribute more difficult.
However, the principles in Kennon apply only to exceptional cases and there have been very few successful arguments since the case. Following the introduction of the new laws in NSW, it may be the case that the Court will be more willing to accept coercive control when assessing a victim’s contributions.