How to fight for custody with a Narcissist

If you are divorcing a narcissist, it will be the most difficult battle of your life, particularly if you have children.

A narcissist is focused on winning at all costs as this is what fuels their ego. Often their priority in gaining child custody is not the welfare of the child, but rather, their own gratification in causing you pain.

This article explores how you prove your ex is a narcissist and the impact of narcissistic abuse on court outcomes.

For the purposes of this article, we use the terms ‘Narcissistic Abuse’ and ‘Coercive Control’ interchangeably because the behaviour of a perpetrator of narcissistic abuse and/or coercive control is usually similar.

The phrase ‘coercive control’ and ‘coercive or controlling behaviour’ is the preferred term referenced in legislation and the case law.

Definition of narcissistic abuse / coercive control

The most common questions we get when we have a client who is in court with a narcissist ex-partner are:

1. How do you prove narcissistic abuse in court?
2. What is the impact of narcissistic abuse / coercive control on the outcome of my matter?

Before we can answer these questions, we first need to look at the definition of ‘family violence’ under section 4AB of the Family Law Act 1975 and whether ‘coercive control’ falls within that definition. The Act defines family violence as:

“..violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member)… or causes the family member to be fearful.” 

Whilst family violence is defined in the Act, ‘coerce and control’ is not.

Macquarie dictionary, the 7th edition, defines ‘coerce’ as: to restrain or constrain by force, law or authority; force or compel, as to do something and to compel by forcible action.

Macquarie dictionary similarly defines ‘control’ as to exercise restraint or direction over, to dominate, to command.

The examples given in section 4AB(2) of the Act provides a list of examples that may constitute family violence, including coercion by physical and non-physical means, including assault, sexually abusive behaviour, stalking, the withholding of financial support, preventing a family member from making or keeping connections with his or her family and unlawfully depriving the victim of their liberty.

Recent cases have also explored the definition of ‘coercive control’:

1. An expanded concept of the exercise of power to restrain another or to cause another to act, by force, domination or command: Illgen & Yike [2018] FamCA 17 at [123 – 125]
2. A course of conduct aimed at dominating and controlling another person, including a family member: Ramzi & Moussa [2022] FedCFamC2F 1473 at [145]
3. What is clear is that the determination of what constitutes behaviour hat coerces or controls must be considered in the context in which the conduct occurred: Carter & Wilson [2023] FedCFamC1A 9 at [15];
4. Intention on the part of the perpetrator is not a necessary component of family violence under s4AB of the act for good reason: Carter & Wilson [2023] FedCFamC1A 9 at [80]

The above definitions of coerce control were referred to and approved in the cases of Salvador & Salvador [2023] FedCFamC2F 1521 and Sylvan & Sylvan [2023] FedCFamC2F 1176.

Proving that your ex is a narcissist

Proving that your ex is a narcissist can be challenging due to the insidious nature of coercive control and the subtle patterns of behaviour that it involves.

Often one act of coercive control can seem harmless to a bystander.

It is only when one views the patterns of behaviour over time as a course of conduct throughout the relationship and beyond, aimed at coercing and controlling the victim, does it become clear that the behaviour constitutes family violence.

Evidence which will help you to prove narcissistic abuse / coercive control, is:

• Physical evidence – emails, text messages, recordings, social media posts showing the abuse;
• Diarised instances – keep detailed records of abusive behaviour;
• Witness accounts – statements from friends and family or professionals who have observed the abuse;
• Expert evidence – a psychological report evaluating the narcissist’s mental health.

Having the above evidence does not guarantee a court outcome, but it does establish a pattern of behaviour by the narcissist which will strengthen your case, and it may increase the prospects of you achieving your desired outcome.

Court tip: We recommend strongly against using the word ‘narcissist’ in your Affidavit or when speaking to child experts, as the Court frowns upon it. This is because using the terminology narcissist and narcissistic abuse suggests that you have, without qualification, diagnosed your ex-partner with a mental health illness. We suggest that you instead focus your Affidavit on identifying and describing with specificity, the patterns of behaviour of your narcissist ex-partner towards yourself and others, that constitutes coercive control, including the effects of the conduct and how it made you feel.

My ex is a Narcissist. How does this impact Court outcomes?

The impacts of a diagnosis that your ex-partner is a Narcissist or identification of a pattern of behaviour by the narcissist towards yourself, that constitutes coercive control / narcissistic abuse, are wide ranging, depending on the individual circumstances of your case.

On the extreme end, it could result in a finding by the Court that the risks to the victim outweigh the benefit of a relationship between the child and the narcissistic parent.

This may be because the Narcissist presents as an ongoing risk of physical/emotional harm to the victim parent or because the narcissistic parent is only capable of a surface level relationship with the child and/or is likely to use the relationship between them and the child to further abuse the victim.

At the very least, a finding of a pattern of behaviour of coercive control / narcissistic abuse, is likely to result in the Court making protective orders to mitigate the risk of harm to a victim or the child of a narcissistic parent.

In our experience a Court is more likely to determine that no time between a child and the Narcissist parent is in the child’s best interests, where the narcissist parent:

• Continues to perpetuate family violence including coercive control, to the victim parent and/or children, following separation and during legal proceedings;
• Fails to comply with DVO’s, parole conditions and court orders and has no regard for authority;
• Has no accountability for his/her actions, places blame on others for their behaviour and minimises the impact of their behaviour on others;
• Has no insight into the impact of his/her previous actions on the children’s wellbeing;
• Continues to behave in a way that shows no insight or in a manner which shows deliberate disregard for the wellbeing of the victim parent and the children;
• Is unable to put the needs of the children before his/her own needs;
• Continues to express anger towards the victim parent and blames the victim parent for his/her behaviour;
• Uses the children to spy on the victim parent;
• Discusses adult matters with the children and emotionally manipulates the children;
• Uses the litigation process to perpetrate further family violence towards the victim parent.

The common theme of the behaviours identified above is:

1. The need for the perpetrator to coerce and control is greater than his ability to comply with authority. This is dangerous because if someone is unwilling to comply with the restraints put upon them by the police or the legal system, it means that safety can’t be increased by using those means in terms of protecting the victims;
2. There is a lack of insight on behalf of the perpetrator in relation to his perpetration of family violence and the impact of his conduct on the victim and the children. A failure by the perpetrator to take responsibility for his perpetration of family violence and demonstrating limited insight into the impact of his behaviour on the victim raises concerns about his genuine motivation to change in order to protect the child and the victim from the risks associated with contact with the perpetrator.

 

Case example

Heijman & D’Onofrio

An example of a case where a member of our team successfully argued that a no time order was in the best interests of the child is Heijman & D’Onofrio [2024] FedCFamC1F 551.

In this case we acted for the Mother. The child was 4 years old at the time of the Trial.

Our client sought orders initially for sole decision-making responsibility, and that she be permitted to relocate back to New Zealand. Initially, she proposed to facilitate supervised visits on no more than 12 occasions per year. By the conclusion of the trial, she sought orders consistent with the Independent Children’s Lawyer, that the child spend no time with the Father unless otherwise agreed. The Father sought orders that the parties have joint decision making for long-term issues, and that the child remains in Australia and spends time with both parents.

The background was as follows:

• The parties commenced their relationship in 2019;
• The child was born in 2020;
• The parties relocated several times throughout the relationship;
• The Mother was exposed to coercive control and physical abuse by the Father during the relationship, resulting in her leaving the relationship and staying at a friend’s home in late 2021;
• The Father consumed marijuana each night throughout the relationship, took sleeping tablets each night and drank excessively, regularly, from 2021 onwards;
• In or around the separation date, the police applied for a temporary protection order against the Father due to family violence by him;
• In or around this same time, in December 2021 the Mother left Australia and travelled with the child X to New Zealand, her country of origin, without knowledge/consent of the Father;
• In mid-2022, the Mother is served with an application for return of child under the Hague Convention;
• In early 2023, the Mother returned with the child to Australia after an order was made in the Family Court of New Zealand requiring her to do so;
• Pursuant to New Zealand Orders, the Mother facilitated video calls between the Father and child, many of which the Father misses;
• The Mother was diagnosed with PTSD arising from family violence during the relationship;
• The Mother filed an application for parenting orders in Australia seeking sole parental responsibility and that she be permitted to relocate back to New Zealand.
• Interim orders were made for the Father to spend supervised time with the child at a contact centre each fortnight.

At the Final Hearing, the Court made findings in relation to family violence and coercive control, as follows:

• The Father would tell the Mother not to go to fitness classes in ‘our time’.
• The Father said to the Mother that her female friends were either ‘hitting on him’ or ‘rolling their eyes’ and calling her ‘crazy’ or ‘high maintenance’ behind her back. He said they were not her real friends.
• That a bar across from where she lived was full of swingers and if she wanted to be a swinger, she should go but if she wanted to be with him she should not go to that bar.
• That he became angry at her for staying for a drink with her workmates after an event.
• The Father told the Mother about a job offer from his father for him and the Mother and that they could live in his parent’s house in Sydney. This resulted in the Mother agreeing to move to Sydney, and quitting her job.
• In late 2019, the Father hid the Mother’s bikini bottoms before she went overseas with a friend as they were ‘too cheeky’ and he did not want men looking at her ‘ass’. He told her not to drink alcohol or do a surfing lesson in case men were looking at her. Whilst overseas, he called the Mother regularly to check she was not drinking or wearing ‘g-string bikinis’ which he suggested she owned.
• Whilst travelling to Sydney, the parties stopped at a pub at which time he said to the Mother that ‘men are looking at you’, ‘why the fuck are you dressed like that’ and ‘you are asking for it’. He suggested that she ‘could be kidnapped and taken out in the desert and no one would find you.’  He said ‘you can use the bathroom but we can’t get anything to eat or drink because men are looking at you.’ They did not eat or drink and got back in the car and left.
• The parties never made it to Sydney and stayed in Town H as the Father said that his parents and his business were having marital difficulties.
• While stopped in that town, the Mother attended a class at a local health club with a friend. She was given a lift to the health club by her friend. Afterwards, the Father sent her text messages insinuating that the Mother had been involved in something she should not have been with her friend.
• The Father arrived home intoxicated that evening slurring his words, he put his hands on her shoulders and forcefully shoved her down onto a chair. When she tried to stand up he pushed her forcefully back down at least 6 times. He yelled at her saying people he knows ‘saw you flaunting yourself in your [active wear].’ He taunted her, calling her a ‘sneering idiot’ and a ‘retard’ and accused her of flirting with guys at the health club and he said ‘you just want everyone looking at you, fucking cunt.’ The Mother tried to walk into different rooms to get away from him but he followed her each time continuing to yell at her about going to the health club. She couldn’t find her mobile and laptop. The Father said he had thrown them over the fence. She looked for them but could not find them in the dark whilst the Father followed her and continued to yell at her. She took possession of his mobile phone and locked herself in the bathroom whilst he yelled at her to ‘get the fuck out.’ The Mother was scared of the Father and called the Father’s mother asking for help and she offered to call the police and asked to speak to the Father. The Mother did not want to open the door, but eventually did so as no help arrived and the battery was running low. When she gave it back the Father followed her around the house yelling at her saying she should not have called his family. When she went into the bedroom she screamed for help at which time the Father put his hands over her mouth and nose such that she could not breath. She tried to pull his hands off her mouth and was panicked and lightheaded. When he stopped he appeared upset and told her ‘i’m going to kill myself’ and ‘you will never forgive me.’ The Father then got an object and started making self-harming motions. She took the object from him and he went and obtained another object from another room. The following morning the Father said he had taken ‘pills’ that night.
• The Mother learned she was pregnant with child X shortly after that incident.
• The parties then moved to Suburb L, and the Mother spent $10,000 on the move as the Father said all his money was tied up and promised to pay her back. The Father insisted that the rent and bills were put in the Mother’s name, even though she was unemployed. He said she was blacklisted from rentals so it had to be in her name. The Father paid money for rent for her but he often did so late.
• The parties would argue regularly with the Father depriving the mother of sleep by following her around the house and making nasty comments to her to intimidate her.
• When the Mother would sleep on the floor of X’s bedroom the Father would tell her to ‘get the fuck out of X’s bedroom.’
• The Father told her when she wanted to go to the gym that she just wanted to look at men.
• The Father told her he did not like it when she talked to her friends about her pregnancy or the parties relationship. He told her that he did not want her seeing a counsellor anymore because it hurt him that she confided in people other than him.
• The parties agreed in 2020, prior to X’s birth, that they would move back to New Zealand and so the Mother arranged the move and mid-wife to manage X’s impending birth. The Father then changed his mind despite the Mother having already given notice to quit their rental agreement.
• The Father would take her mobile phone regularly throughout the relationship and would read her text messages without her permission. He went through her facebook friends list and made her delete any men that he did not approve of. He became angry at messages from a male personal trainer. He made the applicant delete his contact details.
• After X’s birth the Father and his mother told her not to take the medication her doctor had prescribed for pain and infection. The Father told her he was not happy about her seeing a male doctor and insisted she change to a female doctor, which the Mother did.
• When the Mother wanted to take X to visit a friend the Father told her ‘you can fuck off but you’re not taking my son’. Because of breastfeeding, she could not go. She ultimately cancelled her catch up with her friend.
• The Mother withdrew X from a baby group because the Father said she was overstimulating X and ‘you would rather hang out with your mum groups than me.’
• The parties moved again in 2021 and the Mother started working at that time. The Father would say things to the Mother whilst she was breastfeeding X such as ‘who hit on your today?’ and ‘you think your shit don’t stink.’
• When the Mother took X to a swimming lesson the Father told her that they could not go back as the pool was full of ‘creeps’ and whilst she could flaunt herself in a bikini if she wished to, she could not take ‘his son’ to do it. The Father insisted they go shopping for a one piece swim suit for the Mother which he needed to approve and he said she could only take X swimming if she was wearing this suit. The Father subsequently signed X up for a private swimming school attended mostly by mothers, and so he did not care what swimsuit she wore to this swimming school.
• When the Mother organised for X to do activities the Father told her to stop dragging X around and said words to the effect of ‘why can’t you just stay home.’
• In late 2021, the Father whilst intoxicated called her ‘an unfit mother’ and that he would get a lawyer and take X away from her. He followed her around the house and she locked herself in the bathroom. The Father was able to open the door with a butter knife. She used her phone to record some of what he was saying, but he saw her and she stopped.
• The Mother’s sister sent her a news article about Mr O, who had committed crimes in New Zealand, which the Mother asked the Father about.  The Father said it was his cousin who committed suicide when in fact it was the Father and that was his birth name and the news story related to him.
• On one occasion she saw the Father behind a door looking through her phone. When he noticed her there, he pushed the bedroom door closed and jammed her forearm between the door frame and the door whilst she was trying to reach for her phone. He continued to push the door on her arm until she yelled at him to stop.
• When the Mother was unpacking boxes in late 2021, she found a drivers licence and other identification under different names but with the Father’s picture. When she confronted the Father about her findings he said to her these were fake ID’s from when he was involved with illicit drugs in New Zealand. The Father originally denied having a connection with Mr D but the Court made findings that this was one of his aliases.
• After the mother purchased a bicycle for herself, he slashed her tyres.
• The Father criticised the Mother for putting on makeup for an interview for a part time position where she could take X with her. When she was offered the position he openly denigrated her.
• Thereafter, the Mother sent a text to her male supervisor at her new job about her working with children check, the Father saw her and said to her ‘how did you get that job so fast’, ‘are you fucking him’ and ‘come on who are you sleeping with.’
• That night the Father taunted her and followed her around whilst drinking. He woke up their child at least 5 times by yelling at the Mother whilst she moved from room to room to get away from him. At one point he yelled out from the kitchen ‘you have done this to yourself’. She was scared as the tone was different so she ran into the kitchen to see the Father leaning against the kitchen bench with a knife on the bench next to him. She asked the Father what he was doing. She picked up the knife, washed it and put it back in the knife block and checked that all the knives were away. She went to settle X. She then went back to kitchen and one of the knives was no longer in the knife block. The Father was outside. The Mother went outside and asked him where the knife was but she did not get a sensible answer. She went back into the room and closed the door and heard the Father yelling at her and he then opened the door.  She sent a text to a friend who said she would call the police. She did not leave the room as the Father had told her to do because she was scared that he would going to kill her and X. When the police eventually arrived they helped her collect her belongings and those of X and left the property. A few days later a Temporary protection order was granted by local police.
• The police strongly recommended that the Mother leave Australia and go to New Zealand as he thought the Father was violent and unpredictable. She did so.
• When the Mother returned to New Zealand with X she spoke to the New Zealand police and found out about the Father’s aliases as well as an outstanding arrest warrant in relation to property charges against him. It was not clear at trial whether there was still a warrant for the Father’s arrest in New Zealand.
• After Hague convention proceedings were commenced by the Father, the Mother returned to Australia with X in mid 2022.

Findings in relation to the Father

• The Family report writer identified, and the Court agreed that the Father has personality issues consistent with high narcissistic, borderline and antisocial personality traits. These traits will spillover to virtually every aspect of life and be impervious to change.
• The risk imposed to X by the Father’s personality traits were both physical and emotional harm. The physical harm could be in the form of abuse such as that previously perpetrated by the Father to the Mother during their relationship including when he assaulted her multiple times and on one occasion she was in fear for her life. The emotional risk was that he would convey to X his poor attitude of the Mother.
• The risk of harm to the Mother was also both physical and psychological, as evidenced by the fact that her experienced led to her being diagnosed with PTSD.
• The Father displayed no insight into his behaviour or the effects of his conduct upon the Mother or X. He took no responsibility for his actions. Until his counsel’s final submissions, the Father argued for orders that were plainly not in X’s’ best interests.

Findings in relation to the Mother 

• The Mother was genuinely fearful of the Father;
• The Mother’s wellbeing would be significantly compromised if the Father were to find out where the Mother lived or if he moved to New Zealand.
• X spending supervised time with the Father would also create risks for the Mother’s emotional wellbeing which would impact upon her ability to provide care for X.
• Despite the Mother’s genuine fear of the Father, she managed to encourage and facilitate supervised time between the child and the Father. The court considered that the relationship that the child has with the Father would not be possible if the Mother had not been supportive of the relationship.
• The Mother does not pose any risk to the child’s emotional or psychological wellbeing because she was not acting to deprive the child of a relationship with the Father or instilling a negative view of the Father on the child.

What Orders are in the Best Interests of the Child

The court made orders that are in the child’s best interests in accordance with the factors set out in Section 60CC of the Family Law Act. A significant issue that the court looked at in this case, was what arrangements would promote the safety of the child, and any person who cared for the child.

The court said that, “The concept of safety cannot be understood except in the context of a nominated risk posed, its gravity, likelihood, and anything which may ameliorate it”.

The court balanced the safety considerations of each proposal. This included the psychological harm that the child may be exposed to if they were deprived of a parental relationship with the Father, and the harm posed by the Father (both physical and emotional) to X. The court considered that there was a high likelihood that X would be exposed to emotional harm if time with the Father was unsupervised. This was due to:

• The history of family violence perpetrated by him against the applicant;
• The nature of his personality traits as opined by the family report writer;
• The unlikelihood of any change in them; and
• His lack of both remorse and insight.

The court then considered the risks to the Mother of any supervised time orders. The Mother is genuinely afraid of the Father and what he might do if he finds out where she lives or moves to in New Zealand. The Father gave evidence that he will move to New Zealand if the Mother was permitted to move there with the child. The Court concluded that the Father’s proposed orders have the real potential to expose the Mother to family violence from him.

There was no evidence that the Mother would be a risk to X, and the Court was impressed that she had managed to encourage and facilitate a relationship between X and the Father in the circumstances. The Court was satisfied that the Mother could provide for the needs of the child, but that her ability to do so could be impaired if the child spend time with the Father supervised or unsupervised.

The Court was not satisfied that the Father could provide for the child’s emotional and psychological needs due to his personality traits identified, his behaviour toward the Mother, and his lack of insight and remorse.

X has a strong relationship with the Father, but at this stage, the Court was not satisfied the relationship was safe. The benefit to the relationship with the Father was outweighed by the detriments of that relationship. In determining whether the Mother could relocate, the Court considered that if the relocation was allowed, the child would have an additional benefit of a closer relationship with family in New Zealand.

Conclusion

The Court made orders that X would spend no time with the Father, supervised or unsupervised time, unless agreed with the parents. This was decided for two reasons:

1. While the lack of relationship may be a source of psychological harm for X, the impact on the Mother of continued time between them would likely impact her such that it will impair her ability to provide care as his primary carer; and
2. If circumstances change, and the Mother believes it is in the child’s best interests that he spends time with the Father, the Court comfortably can conclude that she will facilitate that time. This means that the door is still open for a relationship between the child and the Father in the future should the risks be able to be ameliorated.

Both parties had agreed by the end of the hearing that the Mother should have sole decision-making responsibility for the child.

Are you a narcissistic abuse victim? Seek Help!

Many victims of these toxic relationships attend counselling with their narcissistic partner. The narcissist puts on their mask, manipulates the session, and the victim becomes re-victimised all over again.

Courtney’s legal team of narcissistic abuse specialists, advocate on behalf of victims of narcissistic abuse who have separated from the narcissist to free themselves from the narcissist’s grip. At Barton Family Lawyers, we make sure our clients can negotiate with the narcissist on an equal playing field, free from coercion and control and without being re-victimised by the process. Our priority is to ensure that our clients achieve a resolution of all issues quickly and at the least possible financial and emotional cost.

If you are separating or thinking of separating, contact Barton Family Lawyers on 3465 9332 to book a reduced rate initial consultation with one of our experienced Brisbane Family Lawyers who have special expertise and experience dealing with narcissistic abuse.

If you are struggling following separation to free yourself from the grips of your abuser and to take your power back, please reach out to someone you love and trust and ask for help. Your mental health is priority. You can’t be a good parent to your children until you look after yourself first.

If you want more information in relation to Narcissistic Abuse & Communicating with a Narcissist, click the link to our videos below:

This article was written by Rachel Elaurant & Courtney Barton.