NSW family violence laws were upgraded on Monday with coercive control being criminalised.

He has worked with victim survivors who, even after experiencing nightmares, still had no idea it was coercive control. “It’s really hard for people to comprehend,” he said.

New South Wales is the first jurisdiction in Australia to criminalise coercive control. Queensland is following suit and its law (which has not yet come into force) will be named after Hannah Clarke. Hannah Clarke and her three children were killed after she had been terrorised for years by her ex-husband Rowan Baxter, who relentlessly terrorised her, including refusing to let her wear pink, dictating what she could eat, spying on her through her window and making false accusations against her on fake social media profiles.

Hannah’s mother Sue Clark said he “destroyed her beautiful soul” by controlling her interactions with loved ones, tracking her every move and telling her no one would love her. For years, she didn’t know it was abuse. “But he didn’t hit me, mum,” she said. As soon as she moved away from him, his grip tightened. Even their children were petrified. “It’s amazing, even though she had broken free, he still had that power,” her father Lloyd said at a coercive control training conference in Sydney on Thursday.

There was much debate about how the NSW legislation should be framed. Lawmakers eventually settled on a law that only applies to adult intimate partners (not including abuse of the elderly or people with disabilities). Prosecutors must prove that the offender repeatedly engaged in the behaviour and that the behaviour was abusive (involving violence, threats, intimidation, coercion or control). Crucially, and controversially, they must prove that the offender on purpose Coerce or control others.

“When you’re talking about coercive control, motivation can be really hard to prove,” said Hayley Boxall, a leading domestic violence researcher at the Australian National University. “A lot of the behaviour may not be front-of-brain behaviour. They may not say ‘I’m doing this to control, to conquer’, they may think it’s family expectations, or there are attachment disorders and emotion regulation issues.”

The offender may have obsessive compulsive disorder, which involves a desire for order and consistency, “which may not be intended to be controlling but could be seen as abuse.” Gambling is another compulsive disorder, Boxall said: “How do you distinguish between addictive behavior … controlling finances because of a gambling addiction, and financial abuse?”

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Scotland criminalised controlling relationships in 2018, with a lower threshold. Prosecutors only need to prove the offender was reckless about whether physical or psychological harm would result. In the first year, 246 people were prosecuted under the law. Coercive Control Legislation84% of which were convicted.

Dr Emma Forbes, national lead prosecutor for domestic violence at the Crown Prosecution Service Scotland, said the country’s coercive control legislation was considered the “gold standard”, but prosecutors still faced many challenges – the biggest of which was not the difficulty of proving the crime. “The barriers that existed before still exist now,” she said. “The justice system institutionally does not believe women and children. Women still feel they will not be believed or heard, so the key is to keep them involved in the process long enough for them to be tried and believed”.

In two years’ time, NSW will review the law to consider whether the threshold for intentional offences should be lowered to reckless ones.

In New South Wales, Boxall also worries that the pervasive, yet subtle, nature of coercive control doesn’t square with the state’s justice system, where prosecutors must prove each incident using evidence, from statements from victims and witnesses to photos of injuries. Coercive control can be difficult to even articulate, let alone establish in court. “How do you articulate a pattern of abuse that might involve these microaggressions in everyday life?” she says.

Another obstacle is the public’s lack of awareness of non-physical abuse. It sometimes takes months or even years for victims to realize what’s happening. “It’s a bit like boiling a frog,” Sarah said. “It’s a slow, gradual buildup, and then you find yourself immersed in it. For a long time, I defined (abuse) as physical violence and didn’t realize all the other things that were going on.”

Because the laws come into force on Monday, courts can only hear cases of abuse that occurred from July onwards. And because proving an offence requires a pattern of behaviour, it takes time to build up. As policy co-ordinator at the Women’s Legal Service, Liz Snell is an expert in prosecuting family violence in NSW.

“We don’t anticipate a lot of prosecutions initially. This will take time,” she said. “We certainly acknowledge that this may be a difficult crime to prove.”

Snell expects the first wave of impact will be in family violence injunction applications. “It is likely that there will be more ADVOs based on coercive control and we encourage people to report them to police,” she said.

Deputy Chief Constable Peter Thurtell, the domestic violence officer, told The Herald “Ultimately, this is very useful for victims and the prosecution. Traditionally when we speak to victims, we might not take this line of questioning,” Wednesday said. “It might be something that victims don’t want to disclose because they don’t realize it’s something that police can investigate.”

He is not worried about the lack of potential evidence. Police will be able to use financial records to prove abuse (to help them, some abusers use “description” lines on bank transfers to attack victims, such as “you’re going to hate my next move” or “get out of this mood”), text messages to prove intimidation and isolation attempts, and tracking devices to prove surveillance. They will be able to use testimony from victims and witnesses.

NSW Police has also developed the Empower You mobile app, which has an unassuming icon on the home screen but provides a secret portal for victims to take notes, record their abusers and take videos and photos.

However, the nature of coercive control means victims are often afraid to do anything that would anger their abuser, let alone document their experiences or film the abuse. “That has always been the case,” Thurtell said. “Fear of retaliation is something that victims of domestic violence have long worried about.”

The industry is suspending judgement until it sees how the legislation works. “It will only become clear when the true effectiveness of the law is tested in a trial, which we expect will be complex and take time,” said Karen Bevan, chief executive of Full Stop, an organisation that supports people affected by sexual, domestic or family violence. “Imposing this offence is a vital first step.”

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Nicole Yarde of the Women and Girls Emergency Center hopes resources will match the rhetoric. Police and shelters are overwhelmed. “I worry that if people realize they are in an abusive relationship full of coercive control, and they seek support and no one is there to support them … will they give up and say I tried, but no one can help me?”

Still, the department, police and prosecutors hope they will cooperate.“I’ve never seen this level of cooperation,” said Michelle England, the acting deputy director of prosecutions who leads training for the office.

Sarah believes the new law is a step forward and a strong signal that abuse will not be tolerated, but she says victims who have the courage to sue their abusers under the untested law should be firmly supported.

Speaking out is a scary thing. “The shame and the judgement that I feel makes me not want to be seen as weak,” she said. “It’s not my shame, my weakness, or me that should be judged; it’s the shame of the abuser. But we’re not there yet.”

• Names have been changed for legal and personal safety reasons.

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