Children – Parental conflict and family violence not the same thing – Coercive control that amounts to family violence is an evaluative finding requiring forensic examination of relevant evidence – Trial judge erred by finding that the father’s litigious conduct amounted to coercive control – Litigant does not commit family violence by refusing to consent or submit to orders sought by the other parent
In Pickford [2024] FedCFamC1A 249 (20 December 2024) the Full Bench of the Full Court (McClelland DCJ, Aldridge, Austin, Carew & Williams JJ) heard an appeal from parenting orders made by Altobelli J in respect of 9 and 7 year old children.
Multiple interim orders were made during the litigation, the last of which provided for the children to live with the mother and spend time with the father for four nights per fortnight during school terms and parts of school holidays ([60]). The father sought equal time.
At first instance, the Court found that the father had engaged in family violence by coercive control of the mother and that the conflict between the parents meant that equal time was not in the children’s best interests. Final parenting orders were made for the mother to have sole decision-making responsibility and that the interim care arrangements continue as final orders ([63]). The father appealed, primarily challenging the Court’s findings as to family violence.
While the father had been charged with assault of the mother and also had a provisional domestic violence order made against him, both the charge and the application for a domestic violence order were dismissed by a State court ([96]).
All of the Full Bench allowed the appeal, but the Full Court’s reasons were divided. Austin & Williams JJ delivered joint reasons. Aldridge & Carew JJ delivered separate, joint reasons. McLelland DCJ delivered separate reasons but generally agreed with Aldridge & Carew JJ.
The primary disagreement between the joint judgments was interpreting the definition of family violence in s 4AB of the Act and the Court’s approach to findings of coercive control, the definition being:
“(1) For the purposes of this Act, 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.”
Austin & Williams JJ said (from [83]):
“Nobody sought to disturb the children’s residence with the mother. Nobody doubted the children should spend an extensive amount of time with the father … The dispute was therefore confined to the question of how much time the children should spend with the father during school terms …
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[86] For some reason … the parties then conducted a trial over 11 days at enormous expense and made contested allegations of family violence the centrepiece of the dispute. …
[87] Even if the parties did inadvisedly challenge one another about disputed allegations of historical family violence … given how the disputed allegations did not seem genuinely material to the outcome of the narrow parenting issue left to decide, one wonders why it was necessary for his Honour to appease the parties by engaging with their debate. It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome …
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[90] Implicitly, the mother’s case was posited on the basis that neither she nor the children were at any risk of harm from family violence committed by the father provided the children only spend four nights per fortnight with him in school terms, so it is entirely unclear how she could have conversely contended the children were at risk of such harm if they instead spend five, six or seven nights per fortnight with him in school terms …”
Their Honours said (from [78]):
“Nothing said within these reasons should be construed as the trivialisation of family violence, which is an undeniable blight on our society. …
[79] However, in litigation under Pt VII of the Act, untested allegations of family violence are not proven facts. No court can prophetically know whether such allegations made by one party against another are true or false and, if false, whether the falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Edinger & Duy [2023] FedCFamC1A 194 … ). The party alleging the fact bears the burden of proving it (Wallaby Grip Ltd v QBE Insurance (Australia) Ltd [2010] HCA 9 … ) and the standard of the burden is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). …
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[94] 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.
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[105] His Honour … fell into error by relying upon merely the mother’s perception of the father’s refusal as being an example of his exertion of control over her. Her feelings were irrelevant to the issue of ‘family violence’ if his conduct could not be objectively considered to be coercive or controlling…
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[107] … [T]he mother’s subjective experience was irrelevant to any finding made about ‘family violence’ taking the form of coercion or control … The primary judge erred by concluding otherwise and by finding the mother’s own perception of the father’s behaviour was relevant to the factual issue at various points in the reasons for judgment …
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[109] The definition [ed. in s 4AB] is exclusive, not inclusive. Notwithstanding the obvious breadth of the definition, it is disjunctive and admits of ‘violent, threatening or other behaviour’ amounting to ‘family violence’ in only one of two ways, being behaviour of that sort which:
(a) ‘coerces’ or ‘controls’ a family member – which is an objective concept focussing upon the characteristic nature of the perpetrator’s behaviour towards the victim; or
(b) causes the family member to be ‘fearful’ – which is a subjective concept instead focussing upon the victim’s reaction to the perpetrator’s behaviour.
[110] … [H]aving found the parties’ unresolved disagreement over the children’s prospective attendance at private schools and the manner of payment of the associated fees did not amount to violent, threatening or other behaviour by the father that ‘coerced or controlled’ the mother, her subjective feelings became irrelevant to the objective issue of the occurrence of family violence in that form. She certainly did not allege being ‘fearful’ on account of such disagreement with the father, which meant she eschewed the second limb of family violence. … [H]er feelings could not be relevant to the separate anterior factual question about the characterisation of the father’s behaviour as being either coercive or controlling.
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[121] 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. It is impossible to conceive otherwise and, by doing so, the primary judge fell into legal error. Parties are entitled to exert their legal rights and to expect such rights will be adjudicated according to law, regardless of the timidity of the opposing litigant. Undoubtedly, litigation is sometimes apt to be used by one litigant to strategically harass another, which is why Pt XIB of the Act was recently enacted to enable the Court to make orders dismissing, and injunctions prohibiting, unmeritorious, harmful or vexatious proceedings. But this case was far removed from that situation and it was not open to the primary judge to find the contrary. The father did not bring the parenting cause under Pt VII of the Act. The mother did. Nor did he bring the interlocutory litigation funding applications. She did. He was entitled to respond to the litigation instigated by the mother other than by his immediate and complete capitulation.”
Aldridge & Carew JJ said that they “largely agree with the reasons of Austin and Williams JJ, save in relation to their Honours’ interpretation of the definition of family violence which seeks to limit family violence to only two types of behaviour, namely, that which coerces or controls and that which causes fear” ([41]).
Their Honours said (from [46]):
“In fulfilling the onus of proving an allegation of family violence that involves behaviour that coerces or controls, it is not necessary to prove the alleged perpetrator intended the behaviour to be so. That does not mean that intention is irrelevant, but it is not dispositive. …
[47] The focus of the fact finding process is on the behaviour and the impact of the behaviour. It is the behaviour that coerces or controls. It requires action and reaction. A single act is unlikely to be coercive or controlling but it may be. Behaviour that coerces or controls may be innocuous, subtle, capable of different interpretations, complex, undermining, etc. Such behaviour may create impossible expectations for the other family member. It may be transactional and involve punishments for perceived failures. The impact of the behaviour can be insidious. …
[48] When determining an allegation that a person has engaged in behaviour that coerces or controls a family member, a trial judge will undertake a forensic examination of all relevant evidence 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 and if the alleged behaviour does not entail a course or pattern of conduct, explain how the behaviour can nevertheless be characterised as behaviour that coerces or controls, if so found.
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[50] The definition of family violence is necessarily broad and any interpretation that may be perceived to, or actually, create unnecessary hurdles to an alleged victim proving an allegation of family violence should be avoided.
[51] Whilst the key feature of coercion or control is that a person is induced (many other words are also apt here) to do as the other wishes, the statutory focus is simply on behaviour that coerces or controls and not the intention of the perpetrator.
[52] So understood, the finding that there is coercive or controlling behaviour is an evaluative one, having regard to all of the circumstances and all of the evidence before the court. Whilst patterns of behaviour may be particularly illuminative, they are not essential. Importantly, for present purposes, the trial judge does not need to spend time and trouble searching for an inference that there is an intention to coerce or control. It is sufficient simply to apply the words of the statute without embellishment and assess whether there is behaviour that coerces or controls.”
McClelland DCJ said (from [2]):
“I … agree with each of their Honours’ respective judgments that, in considering whether a party has been the subject of coercive or controlling behaviour, the intention of the alleged perpetrator will very often be a decisive factor but that it is not an essential element to the making of such a finding.
[3] I otherwise agree with the judgment of Aldridge and Carew JJ in so far as their Honours take a more expansive view of the concept of family violence and, in particular that the interpretation of the definition of family violence should not be limited to only two types of behaviour, namely, that which coerces or controls and that which causes fear.
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[36] In their thoughtful judgment, Aldridge and Carew JJ have set out a useful guide to assist trial judges to undertake what can be the complex task of evaluating allegations of coercive and controlling conduct. I respectfully commend that guide as being of potential benefit to trial judges.”
The appeal was allowed and parenting orders discharged. The matter was remitted for re-hearing.