New coercive control laws in New South Wales are changing how domestic violence is handled in both criminal and family law. These laws aim to protect victims and hold offenders accountable, however, their full impact is yet to be seen. In this article, Lawyer Avalon Carnall explains how these changes affect parenting and property disputes, offering key insights for those navigating family law matters.
Coercive Control – New Criminal Offence In NSW
From 1 July 2024, coercive control became a criminal offence in NSW when a person uses “abusive behaviour” towards a current or former intimate partner with the intention to coerce or control them: see s 54D of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of 7 years imprisonment.
The criminal offence captures repeated (and/or continuous) patterns of physical or non-physical abuse used to hurt, scare, intimidate, threaten or control someone. Some of the alleged behaviour must have occurred in NSW but it can also have occurred in other jurisdictions. The law only applies to abusive behaviour that occurs after 1 July 2024. However, the police may use evidence of coercive behaviour prior to this date to aid in proving a pattern of behaviour.
See the Crimes Legislation Amendment (Coercive Control) Act 2022.
Does The New Offence Only Apply to Intimate Partner Relationships?
We know that coercive control can happen in other types of relationships. However, the NSW government has advised that the new legislation will be tested in current and former intimate partner relationships first.
The government states that this is because coercive control has been strongly linked to intimate partner homicide. The NSW Domestic Violence Death Review Team found that in 97% of intimate partner domestic violence homicides cases, the victim had experienced coercive and controlling behaviours before being killed.
The NSW government has said they will review the legislation from 2026 including whether the legislation should be expanded to criminalise coercive control in other types of relationships.
What does coercive control look like?
Coercive control can include physical, sexual, psychological, emotional or financial abuse.
Under s 54F of the Crimes Act 1900 (NSW), “abusive behaviour” means behaviour that consists of or involves:
- violence or threats against, or intimidation of, a person, or
- coercion or control of the person against whom the behaviour is directed.
These are just some common examples of coercive control in an intimate relationship:
- Isolating them from friends, family and community;
- Monitoring their activities and communications, such as phone calls, emails, and text messages;
- Insisting on going with them when they spend time with friends or family;
- Using threats to the victim’s children, property or pets;
- Withholding basic needs;
- Controlling finances by limiting the victim’s access to money or other financial resources, or building up a lot of debt in their name;
- Emotional abuse, such as shame and humiliation, ‘silent treatment’, gaslighting, ‘love bombing’;
- Sexual coercion, including controlling their reproductive choices; and
- Physical violence or threats.
A new ‘Coercive Control Implementation and Evaluation Taskforce’ is to be implemented under the new legislation which is required to give a report to the Minister every 12 months.
The effectiveness of the new legislation is yet to be seen. There may also be concerns about the reluctance of the police to actively pursue these charges when presented with complaints from a victim.
What does this mean for Family Law matters?
Our firm often sees family law issues, such as parenting and/or property arrangements, which intersect with family violence. Coercive control (which falls within the definition of family violence under s 4AB of the Family Law Act 1975 (Cth) is taken into consideration in proceedings before the Federal Circuit and Family Court of Australia.
Parenting proceedings
In relation to parenting arrangements, the Court’s paramount consideration is the best interest of your children. If your former partner has been charged and/or convicted with coercive control, and you can show that your children will be unsafe and at risk in the care of your former partner, the Court is likely to favour your position in terms of parenting arrangements.
Property proceedings
In relation to property proceedings, historically coercive control has not greatly affected outcomes. The Family Law Act 1975 (Cth) (in its current form) does not overtly acknowledge the impact of family violence upon an individual’s capacity to contribute to a relationship. The Full Court case of Kennon & Kennon (1997) has been the pinnacle case relied upon by party to argue that family violence impeded their financial contributions to the relationship.
Significantly, the Family Law Act 1975 (Cth) is set to be amended to specifically require the Court to consider the effect of family violence, to which one party has subjected or exposed the other party, when determining a property settlement or ordering spousal maintenance. This is a shift from what has previously occurred where the Court may consider coercive control where it has had a ‘significant adverse impact’ on a party’s contribution to a relationship (in applying Kennon). If one party is convicted under the new coercive control laws, this will fall under the definition of family violence and the Court will be required to consider it when determining a property settlement or ordering spousal maintenance.
Ramsden Family Law – How We Can Help
In recent years, coercive control has come under the spotlight, becoming a more widely recognised issue in society. With growing awareness of its signs and the recent decision by the State of New South Wales to criminalize coercive control, it has become a pivotal factor in family law proceedings, particularly in parenting and property matters.
At Ramsden Family Law, we understand the complexities and challenges that arise in family law cases, especially those involving coercive control. Our experienced team provides expert advice and compassionate support to ensure your rights and best interests of your family are protected.
If you would like to discuss your family law matter, please do not hesitate to contact us today to schedule an obligation free initial consultation.
Posted in: Latest News
November 22 2024
