Key points:

• Allegations of coercive control in family law proceedings, previously insufficient to warrant criminal proceedings, could now be the subject of criminal prosecution.
• With the expanded range of criminal conduct covered by this new offence, care needs to be taken when taking initial instructions, reviewing, advising, and drafting documents.
• Clients may now find themselves the subject of criminal charges, where previously no charges would have been laid, or there was an AVO only. This may delay the resolution of family proceedings.
• Alternatively, an ex-partner’s conduct disclosed in the course of family law proceedings, may require reporting to police where previously police intervention was not warranted.

On 17 November 2022, the NSW Government passed the Crimes Legislation Amendment (Coercive Control) Bill 2022 (NSW), becoming the first Australian jurisdiction to criminalise “coercive control”. The new offence is not yet enforceable. The provision will come into force as early as 1 February 2024.

In introducing the bill to Parliament, Attorney General Mark Speakman noted that the bill was designed to support “victim-survivors held hostage in their own homes and in their own lives by domestic terrorism” and noted that out of 112 domestic violence homicides in NSW between 2008-16, all but one found coercive controlling behaviour preceding the homicide.

We have a dedicated Coercive Control offence page for more information on this new provision.

In addition to the criminal law implications, the new provision will also impact family law practitioners.

The impact of the ‘coercive control’ provision on family lawyers

The type of controlling behaviour now captured criminally by this provision, although often relevant in family law (for example whether there has been ‘family violence’), previously might have been insufficient to warrant criminal prosecution. However now, this type of evidence in family law affidavits and proceedings could also be the subject of criminal prosecution. This is particularly so given the heightened media attention on the new offence.

Because conduct falling short of assault or intimidation might now constitute a criminal offence, care needs to be taken when drafting and reviewing family law material. The definition of ‘abusive behaviour’ appears wide and may depend on the particular circumstances.

Clients may find themselves the subject of criminal proceedings at the same time as family law proceedings, where previously that was not the case. Additionally, charges may now be laid where police had previously taken the view that a standalone AVO proceedings were sufficient without any criminal charges . This may delay the resolution of any family law proceedings.

Alternatively, if when taking instructions early on, clients disclose behaviour from an ex-partner that might constitute the new criminal offence of coercive control, consideration needs to be given to whether police involvement early on is appropriate.

Key contacts:

Justin Wong – justin.wong@streetonlawyers.com.au or (02) 90259888