On 1 July 2024, the Crimes Legislation Amendment (Coercive Control) Act 2022 (NSW) came into effect (“Act”). This change in legislation now recognises coercive control in current and former intimate partner relationships as a criminal offence in NSW.
NSW is the first state in Australia to criminalise coercive control. The new Act better recognises the breadth of behaviour that can constitute family violence and highlights the effect of all types of abuse.
The family law jurisdiction has been dealing with the concept for some time, but it is a new introduction to criminal law.
What is coercive control?
The Federal Circuit and Family Court of Australia described coercive control in the Family Violence Best Practice Principles (5th edition) as:
“a course of conduct by one person aimed at dominating or exerting power over the other. It can include a pattern of controlling and manipulative behaviours such as (but not limited to):
- emotional manipulation including humiliation and threats
- surveillance and monitoring, often carried out online
- isolation from friends and family
- rigid rules about where the person can eat, sleep or pray, and
- placing limits on economic autonomy.”
What has been criminalised?
Section 54D of the Act provides that an adult now commits an offence if:
- the adult engages in a course of conduct against another person that consists of abusive behaviour, and
- the adult and other person are or were intimate partners, and
- the adult intends the course of conduct to coerce or control the other person, and
- a reasonable person would consider the course of conduct would be likely, in all the circumstances, to cause any or all of the following, whether or not the fear or impact is in fact caused—
- fear that violence will be used against the other person or another person, or
- a serious adverse impact on the capacity of the other person to engage in some or all of the person’s ordinary day-to-day activities.
Section 54F of the Act defines “abusive behaviour” as 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.
Examples of the above are also provided, and includes:
- Economically or financially abusive behaviours, such as withholding financial support, preventing/restricting/regulating employment, or having access to or control of income of financial assets.
- Behaviour that shames, degrades, or humiliates.
- Behaviour that monitors or tracks a person’s activities, communications, or movements.
- Behaviour that isolates the person from friends, family, or culture.
- Behaviour that causes injury or death to an animal, or threatens to do so.
- Behaviour that deprives or restricts a person’s liberty, such as unreasonable demands about how a person exercises their personal, social, or sexual autonomy, denying access to food, clothing, or sleep, or withholding necessary medical care.
What does this mean for family law proceedings?
A conviction, or even a charge of coercive control, could influence family law proceedings, including the Court’s assessment of the risk of family violence to a parent and the children.
Even if there is no conviction, the Family Court may have regard to the allegations and evidence of coercive control. Unlike in criminal law, where conduct has to be proven “beyond reasonable doubt,” allegations in family law only need to be proven “on the balance of probabilities.” This means that the Court needs only to be satisfied that it was more likely than not that there was coercive and controlling behaviour. Even if the Court cannot make a positive finding that there was coercive control, the Court can use the behaviour to make an assessment of unacceptable risk.
In Morton & Beatty [2022] FedCFamC2F 784, his Honour Judge Turnbull pointed out that there is no requirement that the perpetrator acted with intention. Unlike in criminal law, there is no mental element – “it is not a requirement that a perpetrator directs their mind to why they are behaving in a manner which may coerce or control or induce fear.”
As the new legislation only took effect from 1 July 2024, it may be some time before we see how the new laws are interpreted and applied.