Pickford & Pickford – Case Note

Coercive and controlling behaviour is becoming increasingly in the spotlight with new legislation being passed in various states criminalising such conduct.

Background

Recently the Full Federal Circuit and Family Court of Australia considered the definition of coercive and controlling violence from a Family Law perspective and analysed how the Court should manage and address allegations of this nature. Here, we look at the case of Pickford & Pickford [2024] FedCFamC1a 249.

The parties to these proceedings had been married for a period of 10 years and have two children who were 9 and 7 years old respectively. The Appeal was primarily concerned with the father’s challenge of final parenting Orders.

Central to the father’s appeal was the contention that the findings made by the primary Judge that the father had committed family violence against the mother were not legally or factually open on the evidence. In particular, the father argued that the primary judge erred by relying on the mother’s subjective experience and perception of the father’s alleged conduct, rather than on an objective assessment of whether the conduct could be regarded as coercive or controlling.

Trial at First Instance

The matter had a long history, and various Orders were made throughout the proceedings in relation to the children’s time with the father. At the time of the trial, the children were spending time with the father for four nights per fortnight, with additional time in school holidays. At the trial, the father sought that the children’s time with the father increase so that they were living between their parents on a 50/50 basis.

At first instance, Altobelli J rejected the father’s proposal for equal time. His Honour made Orders that the children continue to reside with the father four nights per fortnight, with additional time in the school holidays. The Court also made Orders conferring sole decision-making responsibility upon the mother.

The basis of that decision was a finding that the father’s conduct amounted to family violence by way of controlling and coercive behaviour and in making this finding, His Honour focused on the mother’s view of the conduct in question.

The Appeal

The main crux of the appeal was the father’s argument that Altobelli J had erred in relying on the mother’s subjective experience and perception of his behaviour in grounding the family violence finding, rather than an objective assessment of whether the behaviour amounted to coercive control.

The father’s appeal was upheld.

Importantly, the Court unanimously found that although intent on the part of the alleged perpetrator to exert influence and control and to dominate is relevant, it is not an essential ingredient of a finding of coercion or control.

The Court also found that, coercive and controlling behaviour will not be established based solely on the victim’s subjective perception of the conduct, stating “[t]hat the victim may subjectively feel coerced or controlled is not enough. The coercion or control must be an objective actuality.”

In the published decision, Aldridge, Carew JJ and McClelland DCJ endorsed an expansive view of the concept of ‘family violence’ that extends beyond a strict interpretation of the provisions. The majority held that the section which defines ‘family violence’ is both remedial and protective, and as such should not be read down by artificial limitations, citing the High Court decision Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) CLR 355.

Aldridge and Carew JJ reiterate that the definition of family violence is “necessarily broad”, and any interpretation that may create unnecessary hurdles for alleged victims should be avoided. Their Honours set out a useful guide to assist in determining allegations of coercive and controlling conduct: –

Identify the behaviour which the victim alleges is coercive or controlling;
Identify the full context of the behaviour, including any explanation that may be given by the perpetrator;
Identify the impact of the behaviour on the alleged victim, beyond mere assertion that the victim felt coerced and controlled;
Determine whether the behaviour actually occurred in fact; and
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.

Aldridge and Carew JJ went on to highlight that parental conflict is not the same as family violence, stating “[i]t must be recognised that, particularly in parenting matters, parents will often disagree. Matters may be seen as proper or as coercive or controlling depending on the circumstances. For example, a proposal that a child be seen by a particular doctor, that changeovers take place in a particular manner or that a certain person not be alone with the children are all capable of being seen as both reasonable and proper parenting proposals or may also be examples of coercive or controlling behaviour.”

What this means for you

The Pickford decision provides significant assistance to parties in navigating and defending allegations of family violence and coercive control. This decision reinforces that the definitions of these behaviours should be broad and protective, and founded upon an objective assessment of the relevant evidence.

If your matter has elements of coercive and controlling behaviour, a careful analysis of the evidence must be undertaken and the facts presented in a way to address the comments made by the Court to enable a proper finding to be made.