Coercive Control is a form of domestic violence that involves a pattern of behaviour over time aimed at dominating or controlling the victim, which has the cumulative effect of denying victims their autonomy and independence. Coercive control, also commonly referred to as narcissistic abuse, is at the core of domestic and family violence. It is a pattern of deliberate behaviours perpetrated by the narcissist against a victim to create a climate of fear, isolation, intimidation and humiliation. The pattern of behaviour commonly escalates over time, usually when the perpetrator loses control of the victim, after separation occurs.
Coercive control may encapsulate physical abuse, sexual abuse, psychological abuse or financial abuse. Often one act of coercive control might seem harmless to a bystander. This is the insidious nature of coercive control and narcissistic abuse. Only when one views the pattern of behaviour over time does it become clear to an onlooker that the person is a victim of coercive control. The common thread between the patterns of behaviour that constitutes coercive control is that the perpetrator seeks to control the victim.
Common examples of coercive control are where a victim is isolated from their friends and family, their activity is monitored and controlled, their access to finances is restricted and they are given restrictions on what they are allowed to wear, say, and do. Often intimidation, emotional and psychological abuse is used as a means to control and dominate the victim, whose sense of reality is tested, such that they often do not know they are being abused.
Coercive control is now a crime in Queensland with a maximum term of imprisonment of up to fourteen (14) years.
Definition of family violence & coercive control
Section 4AB of the Family Law Act 1975 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.”
The focus of the behaviour is on the effect of the behaviour on the victim, not the intention of the perpetrator.
Whilst family violence is defined in the Act, ‘coerce and control’ is not. This is despite the criminalisation of coercive control. See our article Coercive Control finally criminalised in Queensland for more information on what the criminal definition of Coercive Control is.
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’:
- 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]
- A course of conduct aimed at dominating and controlling another person, including a family member: Ramzi & Moussa [2022] FedCFamC2F 1473 at [145]
- 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];
- 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.
In the latest case of Pickford & Pickford, coercive behaviour and controlling behaviour was defined as follows:
Coercive Behaviour:
- a pattern of acts;
- such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
- the objective of these acts is to harm, punish, or frighten the victim.
Controlling Behavior:
- a pattern of acts;
- designed to make a person subordinate and/or dependent;
- achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their every day activities.
The majority in Pickford said:
- The focus is on what the behaviour is and its impact. It requires action and reaction (e.g. loss of confidence, question their sanity, become depressed etc)
- It is not necessary to prove an intention by the perpetrator to coerce or control. It is relevant but not determinative that one party perceives it to be controlling or coercive.
- Whether or not it is coercive and controlling depends on the form, intensity, context and the impact upon a person;
- There may be acts of family violence which neither coerce or control or cause someone to be fearful.
I want to seek a greater adjustment of the property pool because of coercive control
The new legislation mandating the court’s consideration of the impact of family violence on a party’s ability to make financial and non-financial contributions to the property pool, means that if you were exposed to family violence during your relationship and/or post separation, it is relevant in your property settlement. See our article Family Violence is relevant consideration in property settlements for more information on the amendments.
The amendments to the Family Law Act 1975 were intended to codify the case law set out in Kennon such that the court would make an adjustment of contributions on behalf of the victim in circumstances where there was a course of violent conduct by one party towards the other during the relationship which had a significant adverse impact upon the victim’s contributions or that it made their contributions more arduous.
This means that the Court is still required to consider whether or not the violent course of conduct by one party towards the other party made the other party’s contributions more arduous.
Just because family violence is a relevant consideration does not mean it will be relevant in all property settlement matters, when assessing a party’s contributions to the property pool and to the welfare of the family, and, the existence of family violence will not automatically entitle one party to an adjustment in their favour. Rather, the Court must assess the impact and effects of the family violence on the victim’s ability to contribute.
There does not need to be corroborative evidence of the domestic violence as the cases recognise that domestic violence usually occurs behind closed doors, but there does need to be a nexus between the conduct complained of and the victim’s capacity to make contributions.
This will necessarily require, in most cases, evidence by way of a report of a psychologist/psychiatrist as to the impact of the family violence on the victim and a causal connection between the family violence experienced and the victim’s mental health diagnoses.
In terms of the adjustment in successful cases, in practice we have seen adjustments of between 4% and 10% to the victim, as a consequence of family violence they were exposed to, that made their contributions more arduous.
We await with bated breath as to how the codification of these principles’ changes (if at all) the way the Courts determine property settlement cases where there has been family violence which has made a party’s contributions harder.
The Kennon principles was recently considered in the following cases, which may be guidance for how the Court considers future cases where an argument is made that the victim was exposed to family violence such that her contributions were made more arduous:
Case Study: Gillard & Gillard & Anor [2016] FamCA 841
In the recent decision of Gillard & Gillard & Anor, the Family Court was required to determine an application for property settlement wherein Ms Gillard argued that she was entitled to a greater share in the property pool because her contributions were made significantly more arduous due to family violence.
In this case, Mr Gillard (66) sought a 50/50 division of the assets and Ms Gillard (64) sought a 70/30 division of the assets.
Both the children gave evidence of Mr Gillard’s violent history towards them and towards their mother. Ms Gillard’s treating psychiatrist also gave evidence that her exposure to domestic violence by Mr Gillard had been the primary cause for her depression and anxiety. The court found that Ms Gillard’s contributions as homemaker and parent were made significantly more arduous by reason of the family violence perpetrated on her by Mr Gillard and the resultant physical and psychological effects on her.
An adjustment was made on account of this of 7.5% in Ms Gillard’s favour.
Case Study: Friar & Friar and Anor [2014] FamCA 689
In another recent case of Friar & Friar and Anor, the family court found evidence that there were violent assaults while Ms Friar was heavily pregnant with the parties’ children, threats to Ms Friar with both a knife and a gun, multiple allegations of rape, the wife was forced to strip naked in public under threat of violence to her extended family and was dragged by the hair and her hair was ripped out. Justice Murphy determined that the overall contributions were 60%/40% in Ms Friar’s favour as her contributions as homemaker and parent were made significantly more arduous by reason of her exposure to serious family violence and the impact of that violence upon her.
Case Study: Farina & Lofts and Anor [2019] FamCA 27 – Impact of violence may be inferred if no express evidence
In Farina & Lofts, the Husband sought an interim ruling as to whether the Wife’s evidence taken at its highest was sufficient to meet the requirements of the Kennon case so as to result in an additional adjustment to the Wife.
The court took the opportunity to outline the principles of Kennon and the evidence required to establish that the Kennon principles apply.
The Court said that Kennon requires evidence regarding the following matters:
- A course of conduct falling within the definition of family violence in s4 of the Family Law Act (incidence)
- The impact of the family violence on the victim’s capacity to make contributions (effect); and
- How that impact can be quantified (quantification) (however the court in Keating has subsequently raised doubt about the quantification requirement)
The court held that even if there is no express evidence of how the conduct impacted on the victim’s ability to make his/her contributions, the impact may be inferred if the evidence clearly supports it, but it must be a significant adverse/discernible impact on the victim’s contributions.
The allegations by the Wife were wide ranging including physical abuse (black eye, dragging hair), verbal abuse, financial abuse and psychological abuse and that the behaviour ‘made it harder to contribute’. The husband argued that this evidence was insufficient.
The Husband conceded that the conduct had some impact on the wife’s contributions e.g. making her feel anxious/fearful and unable to go to her place of employment and that she resigned from her cooking duties, but argued that the evidence failed to demonstrate a discernible/significant adverse impact on her contributions.
The Husband distinguished the following cases where the Kennon principles applied:
- In Baranski & Baranski & Anor the perpetrator’s conduct resulted in the couple’s children not spending time with the perpetrator causing an obvious increase in the parenting contributions made by the victim such that it could be inferred.
- In Gillard & Gillard & Anor there was evidence from a psychologist establishing the impact on the victim.
- In Ismail & Elfar there was evidence of the victim suffering nightmares and experiencing difficulty coping such that she had not been able to carry out all the things she would have liked to have done because of violence.
- In Whelan & Whelan there was evidence the wife could not work for a period and that she had suffered depression. The trial judge also referred to the direct evidence of the ‘practical’ impact of the perpetrator’s conduct on the victim.
The interim ruling of the Court was ultimately that the evidence relied upon by the Wife was insufficient so as to establish either the impact of the conduct on the Wife’s capacity to make contributions or the quantification of that impact on her contributions whether by way of direct evidence or inference.
Case Study: Keating & Keating [2019] FamCAFC 46: No corroborative evidence of violence required or quantification of the impact of the violence
In Keating & Keating, the wife’s evidence included that the husband broke her nose, broke her wrist, beat her until she passed out whilst overseas and that she suffered serious bruising and broken ribs.
The Trial judge did not give any weight to the wife’s evidence that the husband had undermined her parenting, the effect that his violence and abuse had on her mental health and the three DVO’s made for her protection. The trial judge also dismissed most of the incidents of domestic violence except the incident whereby he broke her wrist, because the evidence was uncorroborated.
The wife appealed.
On appeal, the Full court held that the trial judge misdirected himself by failing to focus on the discernible impact of the husband’s violence on the wife’s capacity to make contributions, focusing instead on there being no evidence allowing quantification of the impact.
The Full Court in making their decision to grant the appeal, set out the following principles in relation to Kennon arguments:
- Corroborative evidence is not required for domestic violence to be accepted and taken into account. Domestic violence often takes place in circumstances where there are no witnesses other than the parties to the marriage and the children. Therefore, they could not accept that the court could not make a positive finding that violence occurred without corroborative evidence from a third party or a document or an admission.
- Evidence does not need to be provided so that the effect of the domestic violence on the victim could be quantified. The reference to quantification of the impact on the victim was according to the majority simply confirming that there does need to be evidence to show that as a result of the domestic violence, there was a discernible impact on the ability of the victim to contribute (in other words, a nexus between the conduct and the ability to contribute), although that evidence does not need to quantify that impact.
Austin J in dissent held that the veracity of the allegations must be tested and evaluated and the victim must do more than allege that they were a victim of their partner’s violence.
The majority in this case made clear that the focus in Kennon cases should be on the discernible impact of the family violence on the victim rather than the lack of evidence allowing ‘quantification’ of that impact.
The case made clear that evidence of significant family violence, its impact on the victim, and their ability to make contributions, constitutes sufficient evidence to successfully run a Kennon argument.
Gadhavi & Gadhavi [2022] FedCFamC1F 999:
In Gadhavi & Gadhavi, the Husband perpetrated significant and systemic family violence against the Wife including coercion and control and denigration which the eldest child of the marriage was subject to and both children of the marriage witnessed. The husband pushed the wife’s head against a wall on one occasion, gave her a swollen lip on another occasion, threw her out of the home on at least two occasions, locked her in the garage on another occasion, chased her around the home on one occasion, and injured her fingers and knees on other occasions.
The Husband perpetrated ongoing, persistent acts of physical violence against the wife and the eldest child (adult at time of the Hearing), Mr B, engaged in derogatory and taunting behaviour to the wife and Mr B, used threatening language including threats to take Mr B to the police, yelled and screamed frequently, threw objects such as the television remote at the wife and Mr B, and on one occasion intentionally deleted Mr B’s videos of a television show which caused him significant distress. He pulled a knife on the wife, locked her out of the house and called her derogatory names like ‘pig’, ‘smelly’, ‘dirty dog’ and ‘bitch’. The husband posted a barrage of social media posts post separation tagging her, which embarrassed and humiliated the wife, forcing her to talk to her employer about the difficulties at home and how it was impacting upon her. This violence had a profound effect on the wife and both the adult children Mr B and Ms X and neither of the children had any relationship with the husband at the time of the hearing. The husband’s violent behaviour escalated after the Wife was granted an ADVO and he was removed from the family home. He was then charged criminally.
The evidence was clear that the Wife was significantly impacted upon in the carrying out of her role as parent, homemaker and in her paid employment, and protecting the children from the Husband’s behaviour.
The Wife more than once observed bruises on Mr B’s torso from fights between him and the Husband, one of which occurred when the Husband kicked him on the stairs.
The adult child X wrote a letter to the Husband after leaving to study overseas describing how scared she was of the Husband. She was frightened that he demanded she come to the property if she wanted his consent to travel overseas. The behaviour described in the letter is coercive, controlling, threatening and intimidating, and was consistent with the Wife and Mr B’s narrative of their experiences of the husband during the marriage and post separation.
After cross examination, the Husband’s barrister maintained that whilst his behaviour was not justifiable, it was understandable in light of the circumstances including losing his marriage, his children, being excluded from the home and defending criminal law proceedings.
The court made clear there was no justification for the Husband’s behaviour, which peaked and ebbed throughout the marriage and following separation. The Court referred to this as walking on eggshells which on its own has an adverse impact upon a person’s functioning. The Court referred to Britt & Britt and Benson & Drury, cases which have made clear that there does not need to be direct evidence that the violence made the victim’s contributions more arduous, rather, the court can infer a nexus between the family violence and the victim’s contributions from appropriate evidence (e.g. the lay evidence of the parties). There does not have to be evidence from a professional expert therefore, attesting to this.
The court found that despite a superior initial financial contribution by the Husband at commencement of the relationship, the Wife’s contributions as income earner, parent and homemaker, both during the relationship and post separation, were significantly more arduous, such that the Wife should on a contributions-based entitlement receive 60%.
Future needs were assessed in favour of the Husband at 5% in his favour, resulting in an overall division of 55% to the Wife and 45% to the Husband.
Burnell & Rockford [2024] FedCFamC2F 468: Coercive control resulted in 4% adjustment
In Burnell & Rockford, the Husband engaged in coercive controlling behaivour prior to and following separation and continuing until the trial including but not limited to:
- intimidating, harassing, verbally abusive and threatening behaviour during the relationship;
- objecting to a CSA assessment and thereafter requiring her to provide food whenever he spent time with the children;
- Communications with the wife which were frequently bullying, harassing, coercive and controlling;
- Writing to the Wife’s friend threatening defamation proceedings because she helped the wife.
- accusing the wife’s solicitor of professional misconduct and conflict of interest and reporting her to the NSW law society to try and prevent her from continuing to act.
- commencing defamation proceedings against the Wife’s solicitor and on the same day making a formal offer to settle the property proceedings with the wife;
The Court found that the Wife was subjected to extensive coercive & controlling behaviour at the time of separation and up until the trial, which caused her to be anxious and fearful and made her financial and non-financial contributions over 2.5 years significantly more arduous than they otherwise would have been. The Court made a 4% adjustment to the Wife of the property pool on account of this.
Take home message regarding coercive control and property settlement
Unfortunately, family violence and in particular, coercive control, is prevalent in many if not most matters before the family law courts. It is prevalent in almost all of the clients we support.
In our experience, perpetrators of coercive control escalate their coercive and controlling behaviours post separation, in order to intimidate the victim into submitting to their demands.
Usually, the children are used as a pawn and a 50/50 or primary care order is sought by the perpetrator whether or not that time arrangements is practical.
The perpetrator will usually intimidate and harass support networks of the wife, or try and turn them against her.
Sometimes they will try and manipulate the victim into believing that their lawyer is incompetent, a waste of money, and they are ‘better off’ sorting it all out on their own.
In our experience, the escalation of behaviour by the perpetrator post separation ends up having a significant impact on the victim’s ability to work, to care for their children and to function from day to day.
If you are a victim of family violence and coercive control, you may be entitled to a higher division of the assets.
Before you come and see us, if you are not already, make sure you have booked in to obtain support from a counsellor/psychologist.
This will be the first thing we tell you, not only to support your ongoing mental health whilst going through this difficult process, but because a report from your mental health practitioner about your mental health diagnosis, and the connection between the conduct complained of and your diagnosis, will be pivotal to assist you in any case where you seek an adjustment because your contributions were made harder due to family violence.
For more information regarding your rights and remedies in a property settlement, where you have been the victim of family violence and coercive control, contact us to book an appointment with one of our experienced family lawyers to discuss your specific circumstances.
