Introduction
Since a tranche of further amendments to the Family Law Act 1975 (Cth) (“the Act”) took effect on 10 June 2025, the legislative framework governing family law proceedings in Australia has confirmed that family violence is a relevant consideration in the determination of both parenting and property disputes.
Critically, while the Act allows the Court to consider allegations of family violence, it remains incumbent on the parties, and by extension their legal representatives, to substantiate such allegations to the requisite standard of proof.
This paper endeavors to assist practitioners to succeed in doing that.
What Constitutes Family Violence?
The term family violence is defined in s 4AB of the Act as being “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.” This definition is helpfully accompanied by a non-exhaustive list of behaviours which may constitute family violence for the purposes of the Act (s 4AB(2)).
In recognising instances of family violence, family law practitioners may be assisted by further examples contained within the National Domestic and Family Violence Bench Book as well as those embedded in the rulings of courts in comparable jurisdictions. In the United Kingdom, for example, Justice Hayden detailed an extensive list of behaviours which may constitute family violence in A County Council v LW & Another [2020] EWCOP 50 at [21]. Similarly, in Laurence v Ross, 2025 ABKB 131 at [132] (“Laurence v Ross”), Justice A. Loparco of the Court of King’s Bench in Alberta, Canada catalogued recent cases in which findings of coercive and controlling behaviour were made.
Impact of Family Violence
In recent decades, family courts in Australia, and comparable jurisdictions abroad, have evolved in accordance with community values to explicitly recognise the “insidious” nature of family violence (Pickford & Pickford (2024) FLC 94–230 (“Pickford & Pickford”) at [47]), and its “profoundly corrosive” effect on those subjected to or exposed to such behaviour (F v M [2021] EWFC 4 (“F v M”) at [64]).
In Khatri & Khatri (2024) FLC 94-207 at [86], the Full Court of the Federal Circuit and Family Court of Australia (the “Full Court”) adopted and applied the following statement of the England and Wales Court of Appeal: “…harm to a child in an abusive household is not limited to cases of actual violence to the child or to the parent. A pattern of abusive behaviour is as relevant to the child as to the adult victim” (Khatri & Khatri (2024) FLC 94-207 quoting Re H-N [2022] 1 WLR 2681 at [31]).
The Task of Proving Coercive Control
The challenge of proving family violence, particularly coercive control, is well recognised. As recently stated in Laurence v Ross at [125], family violence is both “insidious and inconspicuous as it is usually perpetrated by skilled manipulators, making it difficult to prove, because acts often take place in private.”
In F v M [2021] EWFC 4 at [108], Justice Hayden emphasised that, when considering whether a party has been the victim of coercive or controlling conduct, it is important to take a broad view of the evidence; warning that “a tight, overly formulaic analysis may ultimately obfuscate rather than illuminate the behaviour.” At [109], his Honour went on to state that, the “key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour… it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse.”
“While the law recognises family violence as central to parenting and property disputes, it remains up to practitioners to substantiate those allegations with evidence.”
Full Court authorities have established that, in some cases, the family violence endured by a party may be such that the Court infers that their parenting capacity might be adversely impacted if orders for a child/ren to spend time with the perpetrating parent were made (Keane & Keane (2021) 62 Fam LR 190 at [91] (“Keane & Keane”). Similarly, in property proceedings, the level of family violence may be such that the Court infers that a party’s ability to make direct or indirect contributions to marital property was adversely affected (Martell v Martell (2023) 66 Fam LR 650 at [24]). However my key point is that, if relevant evidence can be adduced as to impact, it should be rather than chancing that the Court may not make the necessary inference.
Gathering Evidence
The Interview
First and foremost, when gathering evidence from a client, it is essential to obtain a comprehensive picture of your client’s personal circumstances, the dynamic of their relationship with the alleged perpetrator, and the nature of the conduct to which they have been subjected.
A basic but useful questionnaire can be found on the website of the United Kingdom’s Children and Family Court Advisory and Support Service (CAFCASS) titled “Practice Aid for Assessing Coercive Control” (see Resources). Australian state and territory governments also have family and domestic violence risk assessment tools available, such as the Western Australian Family and Domestic Violence Common Risk Assessment Tool (see Resources). These tools helpfully provide information on how to use them in a trauma-informed manner. More sophisticated material is available by the Australian-based Safe and Together Institute website under the organisation’s resources tab. As these questions involve potentially traumatic material, it may be prudent to involve a social worker, mental health professional or support person in the interview, to provide emotional and psychological support to victim survivors. This also mitigates the re-traumatisation of victim survivors, by not requiring them retell their experiences to multiple service providers.
Supportive Evidence
It goes without saying that, should a matter proceed to hearing, your case should be supported by the best available evidence. While there is no strict requirement to provide corroborative evidence in support of an allegation of family violence – where such evidence is available, it should be presented.
To assist with the task of gathering evidence, practitioners may be guided by the United Kingdom Crown Prosecutor Service’s website which features a non-exhaustive list of possible sources of evidence. This list includes:
Is noteworthy that the above guide was constructed in the context of discharging the requisite onus to sustain a criminal prosecution. Therefore, it can be accepted that a litigant in family law proceedings has an even greater prospect of discharging their onus according to the civil standard set out in s 140 of the Evidence Act 1995 (Cth) (or the equivalent State provision), if they are equally diligent in obtaining evidence in accordance with the guide.
“The true nature of coercive control is rarely revealed by a single act—it emerges through patterns of behaviour that corrode safety, trust, and autonomy.”
Presentation of Evidence
As explained by Justice Hayden in F v M at [108], a judge’s task of making findings of fact, including in respect to coercive and controlling behaviour, is done by evaluating the “separate strands of evidence and then considering them in the context of the whole”. His Honour further noted that, in the context of considering allegations of coercive or controlling behaviour, “some features of the evidence will weigh more heavily than others and evidence which may not be significant, in isolation, may gain greater relevance when placed in the context of the wider evidential canvas.”
Accordingly, when prosecuting a case in which coercive and controlling behaviour is alleged, you will need to present evidence of those stands and, importantly, draw the strands together.
In Re JK (A Child) (Domestic Abuse: Finding of Fact Hearing) [2021] EWHC 1367 (Fam) at [27], Justice Poole suggested that, in addition to witness evidence, a trial judge would be assisted by the parties providing a concise statement setting out:
(a) a summary of the nature of the relationship;
(b) a list of the forms of domestic abuse that the evidence is said to establish;
(c) a list of key specific incidents said to be probative of a pattern of coercion and/or control;
(d) a list of any other specific incidents so serious that they justify determination irrespective of any alleged pattern of coercive and/or controlling behaviour;
(e) any reply indicating which specific allegations listed at (d) were admitted or disputed.
Other evidence-gathering methods available to practitioners include:
Appreciating where Expert Testimony is Required
If corroborating evidence is available to bolster an allegation of family violence, then such evidence should be presented to the Court. Indeed, there are specific rules which ensure the tendering of such evidence may occur – namely, r 7.1 of the Rules. Furthermore, as lay evidence cannot be given about matters of medical science (ss 76 and s79 of the Evidence Act 1995 (NSW)), practitioners must recognise when expert testimony must be adduced to prove a particular allegation of family violence.
This is particularly relevant if you are seeking that the Court make a finding that the victim survivor has a diagnosable mental illness (such as Post-Traumatic Stress Disorder) as a result of the conduct to which they have been subjected where the victim survivor is contending that their future parenting capacity would be adversely impacted by spend time orders (Keane & Keane at [91]); or, in a property dispute, if the victim seeks an adjustment for their future needs as a result of reduced earning capacity: Pantoja & Pantoja [2025] FedCFamC1A 104 at [71].
Conclusion
It is now well established that family violence, including coercive and controlling behaviour, can profoundly affect a victim survivor’s capacity to parent and make financial and non-financial contributions, and impact upon their future needs in the years following the breakdown of the relationship.
Given the scourge of family violence, practitioners should endeavour to ensure the best evidence is available to the Court. While family law judges, through their training and experience, are becoming increasingly well-informed on this area – findings are only open to judges which are based on the evidence before them.
Proving family violence is complex and to achieve justice for victim survivors in family law proceedings, legal practitioners must adopt a rigorous and strategic approach to gathering and presenting proof, including through the use of corroborative materials and, where available, expert testimony.
“Courts can only act on what is before them — it’s the practitioner’s role to ensure the truth is supported by the best available evidence.”
Resources