Casenote: Pickford & Pickford [2024] FedCFamC1A 249 – lessons for criminal and domestic violence lawyers
Background
The Pickford appeal decision concerns complex family law proceedings in which allegations of family violence, including coercive control, were central to the dispute. The parties were married for ten years and divorced in 2020. There were two children subject to these proceedings and the appeal primarily concerned the father’s challenge of the final parenting orders. The central theme of the father’s appeal was how the findings made of his commission of family violence against the mother were not legally or factually open to the primary judge.
Trial at first instance
At first instance, Altobelli J rejected the father’s proposal for equal time or for any increase in the amount of time he spent with the children. The Court found that the father had perpetrated family violence against the mother through controlling and coercive behaviour, showing no insight about the impact of his behaviour on the mother and the children [197]. His Honour reasoned that the potential impacts of family violence characterised by coercive and controlling behaviour are “even more insidious because of the subtlety of the behaviour”. His Honour thus concluded that an increase in time spent with the father by “even one more night” would put the children at an unacceptable risk.
The Appeal
Amongst other grounds of appeal, the Full Court considered whether it was open to the trial judge to find that the husband’s behaviour was “family violence” taking the form of coercive or controlling conduct. Aldridge, Carew JJ and Mccelland DCJ endorsed an expansive view of the concept of ‘family violence’ that extends beyond a strict interpretation of the provisions. Meanwhile, Austin and Williams JJ sought to limit the definition of family violence to only two types of behaviour: that which coerces or controls, and that which causes fear. The majority, however, did conclude that the intention of the alleged perpetrator will often be highly relevant when considering whether a party has been the subject of coercive or controlling behaviour, however, it is not determinative to the making of such a finding.
Lessons for criminal and domestic violence lawyers
While this decision is not directly binding in other jurisdictions, the Full Court’s consideration of ‘family violence’ offers insightful and persuasive arguments that may guide advocacy in criminal and domestic violence spaces. Pickford certainly contributes to the currently sparse and ambiguous legal discourse concerning the interpretation of ‘domestic and family violence’ in several legal contexts. Most significantly, this decision is a caution against the use of overreach and the misinterpretation of behaviours when identifying domestic and family violence, emphasising the critical role of objective analysis. This article will explore several issues for criminal lawyers to consider that have been raised by this decision.
1. Should the definitions of ‘domestic violence’ and ‘coercive control’ be widely or strictly construed?
In Pickford, the majority held that the section which defines ‘family violence’ is both remedial and protective, and as such should not be read down by artificial limitations, citing the High Court decision Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) CLR 355. Further, Aldridge and Carew JJ reiterate that the definition of family violence is “necessarily broad”, and any interpretation that may create unnecessary hurdles for alleged victims should be avoided [50]. This reasoning is easily applicable to the definition of ‘domestic violence’ in the Domestic and Family Violence Protection Act 2012 (Qld) (“DFVPA”), which is also remedial and protective in nature.
In dissent, Austin and Williams JJ note that the definition of family violence, notwithstanding its obvious breadth, is exclusive, not inclusive. Likewise, the definition of ‘domestic violence’ in the DFVPA is similarly broad yet exclusively constructed. Their Honours concluded that conduct which “coerces”, or “controls” is an “objective concept” focusing upon the characteristic nature of the behaviour itself, and, therefore, the victim’s subjective view of feeling coerced or controlled “is not enough” [111].
While this decision confirms that such protective and remedial provisions should be interpreted in conjunction with their statutory purposes, Austin and Williams JJ have identified that the classification of ‘coercive’ or ‘controlling’ behaviour may be limited to objective analysis of the conduct, as opposed to victims’ subjective experiences. For criminal and domestic violence lawyers, the dissenting opinions in Pickford highlight the necessary tension between upholding the protective statutory purpose of ‘domestic violence’ provisions and undertaking an objective analysis to determine whether conduct is ‘coercive’ or ‘controlling’.
2. Is the ‘reasonableness’ of the victim’s fear relevant when classifying behaviour as domestic violence?
For the purposes of the Family Law Act 1975 (Cth), a person’s behaviour that “causes a family member to be fearful” falls under the definition of ‘family violence.’ The definition of ‘domestic violence’ in the DFVPA is similarly constructed, capturing stand-alone behaviour that controls or dominates and causes fear for the victim’s safety or well-being in s 8(1)(f). This construction identifies the existence of the victim’s ‘fear’ as a necessary element under this specific limb of ‘domestic violence.’
In Pickford, Austin and Williams JJ considered the father’s submission in the appeal that the victim’s fear could only be established by applying a test of reasonableness. Notably, the majority did not address this argument, as they maintained that fear was not essential to establish family violence under the Family Law Act 1975.
Nonetheless, Austin and Williams JJ expressly rejected the father’s ‘reasonableness’ submission, stating that “the damage is done even if the victim has a low threshold of tolerance” [114]. The plurality clarified that the victim’s sensation of fear may be established at trial either by accepting the victim’s evidence of experiencing it or by inferring it from the surrounding facts and circumstances [113]. Their Honours emphasised that the Court may accept that a victim is genuinely fearful due to a perpetrator’s behaviour, even in circumstances where a “reasonably stoic person” may not have been.
For criminal and domestic violence lawyers, Austin and Williams JJ’s ‘egg-shell skull’ analysis persuasively describes the victim’s fear as a subjective experience of the perpetrator’s conduct, which the Court may satisfactorily infer from the evidence, even if a reasonable person may not have been fearful. For practitioners in criminal and domestic violence fields, this analysis may offer some guidance when evaluating if a victim’s fear can be established on the evidence, and the relevance of whether such a fear is reasonable or not.
3. What is the role of intent when identifying coercive or controlling behaviour?
On appeal, the parties in Pickford contended the issue of intention and its role, if any, in determining whether behaviour constitutes "coercion" or "control." In this case, the Full Court unanimously agreed that it is not necessary to prove the perpetrator's intention to meet the burden of proving an allegation of family violence through coercive or controlling behaviour.
Aldridge and Carew JJ dismissed the parties’ contentions as ultimately a “straw man,” stating that intention is not an element of coercive or controlling behaviour and that a person may engage in such behaviour even if they are unaware of its impact [45]-[46]. Aldridge and Carew JJ further confirmed that the primary focus of the fact-finding process is on the behaviour itself and its impact [47]. Similarly, Austin and Williams JJ concluded that while the inference of an intention to control or dominate the alleged victim is often decisive, “it is not an essential ingredient” [111].
Additionally, McClelland DCJ cautioned against analysing the evidence through the lens of criminal law principles and concepts, citing the England and Wales Court of Appeal in RE H-N [21]. His Honour concluded that the concepts of mens rea and intention are not appropriate for legislation that is intended to be protective and educative. Since the introduction of the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Act 2024 (Qld), this distinction between protective and punitive legislation has become increasingly significant.
The newly introduced offence of ‘coercive control’ captures a course of conduct constituting ‘domestic violence,’ as similarly described in the DFVPA, provided that:
- The conduct is reasonably likely to cause harm; and
- The person intended the course of conduct to coerce or control the other person.
The explicit inclusion of an ‘intent’ element for the purposes of the Criminal Code 1899 (Qld) sharply contrasts with the DFVPA’s omission of such an element in its broad, descriptive definition of ‘domestic violence.’ This key difference reflects the distinct and separate purposes of the two statutes, reinforcing the DFVPA’s primary objective of protecting and maximizing the safety of victims. Therefore, practitioners should be mindful that, while intention is often relevant in considering behaviour within the context of a relationship, it is not determinative when characterising behaviour as ‘domestic violence’ under the DFVPA.
Conclusion
The Pickford decision offers important insights for criminal and domestic violence lawyers, particularly in relation to the interpretation of ‘domestic violence’ and the nuances involved in assessing coercive or controlling behaviour. The Full Court’s decision reinforces that the definitions of these behaviours should be broad and protective, ensuring they serve their intended purpose of safeguarding victims rather than creating legal barriers. Nonetheless, the decision highlights the need for a careful, objective analysis of behaviour within the context of the relevant relationship. For practitioners in the criminal and domestic violence spaces, understanding these considerations is crucial to ensuring the effective application of the law and the protection of victims. While Pickford concerns family law and therefore not directly authoritative in other legal contexts, it raises important avenues of enquiry with respect to the meaning of domestic and family violence. The Full Court’s reasoning and ultimate findings may give rise to similar scrutiny towards overly broad allegations or inferences of violence from misinterpreted actions in other jurisdictions. Ultimately, Pickford serves as a reminder of the delicate balance between protecting victims and ensuring that legal definitions are applied carefully and objectively.
Authors: Rebecca Fogerty and Ruby Tilley

