With coercive control being criminalised around Australia, most recently in New South Wales, and in Queensland with the recent introduction of “Hannah’s Law”, it’s worth taking a look at a recent Family Court parenting and property matter where the father was found to have engaged in family violence through coercive control. The case offers some useful reminders of how we should view the coercive control dynamic. Let’s take a look.
Coercive control in the case law.
The recent case of Obando & Obando (pseudonyms) culminated in the mother being given sole parental responsibility due to the presence of family violence in the form of coercive control which had occurred throughout the relationship, continued post-separation and was even demonstrated by the father during the court proceedings. The ongoing dynamic would mean requiring the mother to consult with the father regarding parenting decisions, through equal shared parental responsibility, would likely expose her to further coercion, leading to stress and negative mental health impacts, and this was not in the best interests of the children.
The Attorney General’s website discusses coercive control in depth.
What did the father do that constituted coercive control?
It was found that the father engaged in coercive control through an ongoing pattern of denigration of the mother through repeated insults and derogatory comments about her parenting and her maintenance of the household. He used “loud, aggressive and offensive language in those exchanges with the mother”. He also minimised his responsibility for two acts of actual physical violence which led to criminal charges and “showed no contrition” about these in court.
He also engaged in coercive control through economic coercion: texting the mother he was going to lose his job and therefore not be able to continue paying child support, when he wasn’t in fact at risk of losing his job. These text messages, regarded as financial abuse, were found to be designed to cause anxiety and place stress on the mother as to her ability to support the children. Last, but obviously not least, he made threats to hurt or kill the mother.
Are there “hallmarks” of coercive control that must be present?
Coercive control takes many forms. And while there are many behaviours that can form a pattern of coercive control, it is not necessary for all of the behaviours to be present for a finding to be made of coercive control existing. In this case, the judge described it as a “surprising submission by counsel for the father” that the mother’s case should be rejected on the basis that the conduct did not include the “hallmarks” of coercive and controlling behaviour.
Counsel enumerated several features which were not present in this case, arguing this meant the behaviour didn’t meet the definition. Such features included:
- the absence of evidence that the father had attempted to isolate the mother from family and friends
- the absence of evidence that the father attempted to retain the children
- the absence of evidence of physical abuse, later clarified as being the absence of evidence of “the higher level of physical abuse”
- the absence of allegations of forced sexual conduct
However, even if such characteristics are “usually” associated with coercive control, their absence does not mean the court can’t find coercion and control existed.
“Gave as good as each other”
It is not a defence to allegations of coercive control that both the alleged abuser and alleged victim “gave as good as each other”. The reason for this is that the courts are alive to the myth of the “perfect victim”, an idea often discussed in relation to sexual assault cases. This is also applicable in cases of family violence and coercive control.
The judge in this case asked the Family Report Writer: “Do we expect victims to be mute in all circumstances, or are we likely to see some response?” and noted the Family Report Writer’s response was “important and instructive”:
“In my clinical experience over about 17 years or so, I certainly see that there are alleged victims who would exhibit what I would call reactive abuse; that they’ve been verbally abused, or psychologically abused, or been the victim of other aspects of abuse and erupt, basically, because that kind of abuse can be very difficult to manage. So I would say that it would be likely that there would be women who, in these scenarios, become very angry.
They would likely appear very dysregulated, especially to authorities, whereas perpetrators of violence in this kind of dynamic can certainly come across as easier to work with, communicate a lot better. So it makes victims of this type of violence seem, for want of a better word, the problem. However, it’s what may have gone on behind the scenes that the police might not have had view of.”
Credibility not reduced by not being “perfect victim”
The judge found that the fact that the mother had “not been a ‘perfect victim’ in that she had verbally responded to the father’s verbal aggression towards her [or] that on several occasions she appeared angry and dysregulated at the time of police attendance” did not reduce her credibility. Further, the judge was satisfied that the father had deliberately “used provocative language directed towards the mother which could reasonably be anticipated to make her upset and to respond to him in an angry and frustrated manner. After evoking that response, the father started recording her.”
Takeaways on coercive control cases
What can we take away from this case’s discussion of the issue of coercive and controlling behaviour in family law disputes? First, coercive control: coercive and controlling behaviour, is family violence, and if successfully proven in a family court case, can result in the presumption of equal shared responsibility being rebutted.
Note, though, that the law changed after this judgment, and there is no longer a presumption of equal shared responsibility. However, under the soon-to-be updated laws, it’s to be made clearer that family violence must be considered when courts determine outcomes of parenting and property disputes.
Second, we need to be aware that not all “typical” characteristics of coercive control must be present in every case. And thirdly, it’s important that victims know they can speak up and hold an abuser accountable for coercive control, even if they are concerned they themselves have exhibited “reactive abuse” and have not been a “perfect victim”.
It’s common that abusers using coercive control will manipulate the victim into exhibiting reactive aggression, in order to make the victim look unstable, or like the true aggressor, and can result in authorities responding to them differently to how they respond to the perpetrator, who by contrast often seems calm and rational.
Do you need legal assistance with a family law matter involving coercive control? Alliance Family Law can assist you with separation, divorce, custody arrangements for your children, or property settlements; as well as supporting you with any related criminal law or other legal matters through our network of referral companies. Whilst we are a Canberra based firm we operate in all east coast States and the ACT.
For help, contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400, or through our contact page.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
