THE RELATIONSHIP BETWEEN PARENTAL CONFLICT AND FAMILY VIOLENCE: Can refusing to settle a family law dispute be a form of coercive control?
The short answer is no. Perhaps not so shockingly, family violence has a commonplace in family law proceedings. Statistically, allegations of family violence arise in the vast majority of litigated parenting and property matters.
Specifically, the Federal Circuit and Family Court of Australia 2024 Annual Report confirms that 83% of parenting proceedings last year involved allegations that a party had experienced family violence. A further 77% of matters involved allegations that a child had experienced or witnessed family violence.
While many allegations of family violence arising in litigated family law matters are based in fact, many are based on a flawed understanding of the definition of family violence. It is the difficult and tedious task of the Court to hear the evidence and make a finding as to whether family violence has occurred and/or is at risk of occurring.
This was recently the task of the Full Court in the Appellate Division of the Federal Circuit and Family Court of Australia in the matter of Pickford & Pickford [2024] FedCFamC1A 249 (hereinafter referred to as “Pickford”)
1. Pickford (Pseudonym)
In the matter of Pickford the Full Bench of the Court heard the appeal of a Father against final Orders made for the Mother to have sole decision making and primary care of the Children, with the Father to spend time with the Children four nights per fortnight. The primary ground for the Father’s appeal was that the trial judge erred in their finding that he committed family violence.
In Pickford, it was the mother’s case that the Father had engaged in behaviour which coerced and controlled her by reason of the Father’s refusal to agree to arrangements for the Children’s attendance at private schools or the payment of fees.
The Father’s Appeal was ultimately allowed by the Full Court who found that the trial judge erred in making a finding that the Father’s litigious conduct amounted to coercive control as a form of family violence.
2. Family violence and family law proceedings
The role of coercive control and family violence in parenting and property proceedings is summarised as follows: –
a. In parenting proceedings, the Court is required to make an order based on the best interest of the Children. A relevant consideration of the Court in determining what is in the best interest of the Children is what arrangements would promote the safety of the Children and each person who has care of the Children, including safety from being subjected to, or exposed to family violence.
b. In property proceedings, the legislative amendments to the Family Law Act 1975 (Cth) coming into effect in June of this year will require a Court in making an Order as to the adjustment to property to consider the effect of any family violence, to which one party has subjected or exposed the other party, on the ability of a party to the marriage to make financial, non-financial and homemaker/parenting contributions.
Accordingly, a positive or negative finding of family violence is a relevant consideration of the Court in making an order in both parenting and property proceedings and will likely significantly impact the Order made.
3. The definition of coercive control
In determining the appeal, the Full Court in Pickford considered the definition of family violence as set out in section 4AB of the Family Law Act 1975 (Cth), which provides that family violence:
means 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.
Their Honours, Austin & Williams JJ considered that the qualification of conduct which “coerces” or “controls” a family member is an objective task based on the characterisation of the perpetrator’s behaviour towards the victim. It is therefore not enough that the victim may subjectively feel coerced or controlled.
This, Their Honours considered, was distinct from the qualification of conduct which causes a family member to be “fearful”, which their honours considered required a subjective qualification based on the perception of the victim.
As articulated by Their Honours in Pickford, when determining an allegation of coercive control, it is the task of the Court to undertake a forensic examination of all relevant evidence in order to:
a. identify the behaviour about which complaint is made;
b. identify the full context of the behaviour including any explanation that may be given by the alleged perpetrator;
c. identify the impact of the behaviour on the alleged victim (mere assertion by the alleged victim that they feel coerced or controlled is insufficient);
d. make all relevant factual findings; and
e. explain why the behaviour in question is or is not family violence that coerces or controls the family member.
4. The difference between parental conflict and family violence
In Pickford, their Honours Austin & Williams JJ in their joint judgement at [95] considered that:
The evidence of parental conflict in this case was abundant, but it is important to observe how 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 parties, even if voluble, is not necessarily family violence.
In other words, in this case, the existence of parental conflict by reason of the father not agreeing to arrangements for the Children did not constitute coercive control as a form of family violence within the meaning of the Family Law Act 1975 (Cth).
Importantly, their honours considered that “…one litigant does not commit family violence against another litigant just by refusing to consent or submit to the orders for which the opponent applies.”
5. Why is Pickford important?
The decision in Pickford will likely have an impact on both parenting and property family law proceedings moving forward. Pickford provides some clarification and perhaps some reassurance about what conduct may not amount to coercive control. A proper understanding of Pickford should assist litigants in framing their case before the Federal Circuit and Family Court of Australia, and hopefully reduce the frequency of misplaced allegations of family violence.
If you need assistance with any of the above, please don’t hesitate to give our office a call on 07 5526 0167 to speak with one of our highly qualified and experienced family lawyers or email [email protected].
