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DOMESTIC VIOLENCE

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Our knowledge and experience in domestic violence cases is your best defence.

Have you been charged with domestic violence offence?

Family relationships are complex and challenging. Sometimes they lead to arguments and you react in a way that may be considered violent or aggressive. This may result in police involvement and domestic violence charges. Domestic violence and family violence offences are serious and complex criminal offences. Domestic violence refers to the violent behaviour between current or former intimate partners while family violence refers to the violent behaviour between members of the broader family unit.

If you have been charged with domestic violence and family violence offences, you should seek legal advice ASAP from one of our expert lawyers. Contact our office for a free initial consultation.

For a long time, the Australian legal system viewed domestic abuse as a private family matter. However, criminology studies and media reports have shown that cases of domestic violence and family violence have increased, especially the prevalence of intimate partner violence resulting in death. This has lead to an increase in advocacy and legal services as well as the implementation of a number of key law reforms addressing both violence against women and the criminal justice response to these offences by the NSW government.  

Consequences of domestic and family violence convictions on other areas of your life

Domestic violence and family violence charges are serious as they can have a significant impact on other areas of your life. For example:

  • Family law proceedings. When family law proceedings are initiated, a Notice of Risk must be filed with the Family Court as part of the application for Parenting Orders. This requires parties to state whether there has been any incidence of family violence that may place children at risk. 

Accusations of family violence may also interfere with your ability to participate in family law mediation and may result in as 60I certificate being issued. The mediator is responsible for decision-making around the appropriateness of mediation where domestic violence has been alleged. The failure to report domestic violence incidents is not enough proof that the alleged domestic violence incidents took place.

For further information about family law, please click on the family law link above.

  • Care and protection (child protection) matters may result in your children being taken into care. A police officer is a mandatory reporter. When they attend a family violence incident where children are present, they are required to report the matter to the Department of Communities and Justice (previously known as FaCS) who will investigate whether child abuse is involved, making it a child protection issue. Child protection matters are dealt with separately and are heard in the Children’s Court. 
  • Ability to travel overseas. People with criminal convictions and/or AVOs will be denied a visa to travel to countries such as the United States of America. Overseas immigration authorities are responsible for decision-making about your visa application.
  • Employment (criminal record checks and working with children checks). Domestic violence and family violence offences where children are involved will prevent you from receiving or maintaining a Working With Children Check. If you require a firearms licence as part of your employment, a conviction of a domestic violence offence and/or an AVO will require an automatic suspension of the licence for a period of 10 years.
  • Living arrangements. A provisional AVO, bail conditions or court order may order you to not reside at your normal place of residence. This means that you will have to find somewhere else to live. If you have property that you need to collect, it is advised that you DO NOT attempt to retrieve it. Instead, you should apply to the court for a Property Recovery Order. For more information about applying for a Property Recovery Order, contact our office for expert advice.

Legal response to domestic violence and family violence

In Australia, the legal system and its response to domestic violence and family violence is complex, with both state and Commonwealth legislation involvement.

In New South Wales, domestic violence and family violence are dealt with under the Crimes Act and the Crimes (Domestic and Personal Violence) Act

The Commonwealth provides protection under the Criminal Code where offences have been committed using a carriage service. For example, wire, cable, Internet, Intranet, telephone, SMS, etc.

Domestic violence involves both the criminal justice system and civil justice system.

  •  The criminal justice system deals with criminal charges for domestic offences. The prosecution must prove the alleged offences beyond a reasonable doubt. 
  • The civil justice system deals with AVOs (civil protection orders) put in place to protect a victim from harm. AVOs can be applied for by the police or an individual. It must be proved on the balance of probabilities that an offence likely took place and the person in need of protection (PINOP) is in fear of harm.
  • Criminal charges can be dealt with at the same time as an AVO as part of the same proceedings.

What should I do if I have been charged with a domestic violence offence?

Domestic violence offences are serious offences. The seriousness of your offence and a good legal representative can be the difference between a fine and imprisonment – gaol. Courts treat domestic violence as a very serious offence and therefore it is critical that you understand the possibility that you could go to gaol for this type of offence. 

What is domestic violence?

In NSW, the Crimes (Domestic and Personal Violence) Act defines domestic violence and family violence as:

An offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship being – 

  • a personal violence offence; or 
  • an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen; or
  • an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both)

Put simply, domestic violence and family violence is the enforcement of power and control over a person you are in a domestic relationship with. This is achieved through many forms of abusive and violent behaviours.

Domestic relationships

A person has a domestic relationship with another person if the person:

  • Is or has been married to the other person; or
  • Is or has been a de facto partner of the other person; or
  • Has or has had an intimate relationship with the other person, whether or not the intimate relationship involved or has involved a relationship of a sexual nature. An example would be someone you have met on an online dating site; or
  • Is living or has lived in the same household as the other person. An example would be a roommate; or
  • Is living or has lived in the same residential facility as the other person and at the same time as the other person (not a correctional centre or detention centre). An example would be a nursing home; or
  • Has or has had a relationship involving his/her dependence on the ongoing paid or unpaid care of the other person. An example would be a home care nurse; or
  • Is or has been a family member of the other person. This includes mother, father, child, sibling, cousin, stepparents, stepchildren, step-siblings, nephew, niece, current or ex aunt or uncle, etc; or
  • In the case of an Aboriginal or Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person’s culture.

Examples of violence and abusive behaviour

Domestic violence isn’t just about causing physical injury. It takes many different forms:

  • Physical violence
  • Sexual violence
  • Psychological abuse
  • Financial Abuse
  • Social Abuse
  • Stalking
  • Cultural/spiritual abuse
  • Verbal abuse
  • Technology-assisted abuse

Coercive control or intimate terrorism is currently being debated and the Attorney-General has recently announced new laws are set to be introduced in NSW criminalising it. The Coercive Control Discussion Paper defines it as a repeated pattern of abusive behaviour which can be physical, sexual, psychological, emotional or financial abuse to another of their autonomy and independence.

Due to the impact domestic violence can have on a victim’s mental health, battered women syndrome has become a recognised psychological condition. This mental health condition has been associated with women killing their family member. For further information about murder or manslaughter, click on the criminal law link above.

Domestic Violence Offences

Some common domestic violence and family violence offences are outlined below. For information about assault-related offences (common assault, assault occasioning actual bodily harm (ABH) and assault occasioning grievous bodily harm (GBH), click on the criminal law link at the top of the page.  

A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is guilty of an offence.

The maximum penalty for this offence is 5 years imprisonment.

If the property was destroyed or damaged by fire or explosives, the maximum penalty is 10 years imprisonment.

That means that if you damage or destroy property belonging to a family member, even if you share that property with the family member, you may be guilty of an offence. For example, if you have an argument with your wife and you throw the remote at the TV cracking the screen, you can be guilty of damaging property even though you both own it.

Use of a carriage service to stalk, harass, intimidate is a Commonwealth law offence. 

A person commits an offence if:

  • The person uses a carriage service; and
  • The person does so in a way (whether by method of use or the content of the communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

The maximum penalty for this offence is 3 years imprisonment.

The seriousness of this offence is accelerated when the offence involves:

  • The transition, making available, publication, distribution, advertisement or promotion of material; and
  • The material is private sexual material.

The maximum penalty is 5 years imprisonment

A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence.

The maximum penalty for this offence is 2 year imprisonment, a fine of $5,500 or both.

Defences:

  • You were not served with a copy of the AVO by police or the court. 
  • It was necessary to attend mediation
  • It was done in compliance with a property recovery order

Read more about the AVO PROCESS >.

A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. 

The prosecution does NOT need to prove that the person feared physical or mental harm, only that it was the accused's intention.

The maximum penalty for this offence is 5 years imprisonment, a fine of $5,500 or both.

This offence also includes:

  • Causing a person to fear physical or mental harm to another person with whom he/she has a domestic relationship
  • It only needs to be proven it was intended to cause fear, not that it did cause fear
  • A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without that person's consent.

The maximum penalty for this offence is 5 years imprisonment.

  • A person is guilty of an offence if:

If the offence renders the person unconsciousness, insensible or incapable of resistance, 

and is reckless as to render the other person unconscious, insensible or incapable of resistance

The maximum penalty for this offence is 10 years imprisonment.

  • A person is guilty of an offence if the person:

chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and

does so with intention of enabling himself/herself to commit, or assisting any other person to commit, another indictable offence

The maximum penalty for this offence is 25 years imprisonment

Record an intimate image without consent:

A person who intentionally records an intimate image of another person 

Without the consent of the person; and

Knowing the person did not consent to the recording or being reckless as to whether the person consented to the recording is guilty of an offence.

The maximum penalty is 3 years imprisonment, a fine of $11,000 or both.

  • Distribute an intimate image without consent:

A person who intentionally distributes an image of another person

Without the consent of the person; and

  • Threatening to record intimate images:

A person who threatens to record an intimate image of another person 

Without the consent of the other person; and

Intending to cause that other person to fear that the threat will be carried out is guilty of an offence.

The maximum penalty is 3 years imprisonment, a fine of $11,000 or both

  • Threatening to distribute intimate images:

A person who threatens to distribute an intimate image of another person

Without the consent of the other person; and

Intending to cause that other person to fear that the threat will be carried out is guilty of an offence.

The maximum penalty is 3 years imprisonment, a fine of $11,000 or both.

Sexual assault is a special category of assault with a number of sub-categories. Due to its complexity, sexual assault has been given its own page, Sexual Charges. To read more about this offence, click on the link above.

Domestic Violence Court process

The prosecution has the decision-making power to determine which court your matter will be heard in if you have been charged with an offence. Most domestic violence and family violence charges will be dealt with in the Local Court, however, more serious offences involving significant physical injury or death may be dealt with in the District Court or Supreme Court. If your matter is heard by the Local Court, a jury will not be present.

The following is the Local Court process:

STEP 1

Contact a Legal Representative

  1. Contact our service for legal advice and possible representation so that you can achieve the best possible outcome.
STEP 1

STEP 2

Mention

Your matter will go before the court for its first appearance. If you plead guilty to the offence and/or consent to the AVO, your matter will be finalised. You will need to comply with the orders of the court. If you plead not guilty and/or contest the AVO, your matter will be adjourned and set for another date.

STEP 2

STEP 3

Brief Mention

The police will present you and the court with a copy of the brief of evidence. The matter will then be adjourned again and a hearing date will be set. This will allow you and your legal representative to review the evidence against you and give you a chance to collect evidence to dispute the charges.

STEP 3

STEP 4

Hearing

Your matter will be heard in its entirety. Both parties will present their evidence. Sometimes this is a straight forward process and the matter is finalised the same day. Sometimes a hearing may be heard over several days. Once your matter is finalised, you will be sentenced the same day.

STEP 4

Domestic Violence Sentencing Options available to Local Court

Imprisonment is a last resort. The Local Court has a number of sentencing options available before it considers a sentence of imprisonment.

A section 10 is the best possible outcome in the event the court finds you guilty of a domestic violence offence. There are three orders available to the court under section 10 of the Crimes (Sentencing and Procedure) Act where the court believes it is inappropriate to further punish an offender.

  • Section 10 (1) (a)- dismissal with no conviction recorded
  • Section 10 (1) (b)- dismissal with no conviction on conditions set by the court. For example, not to commit an offence for a period of two years 
  • Section 10 (1) (c)- dismissal with no conviction on the condition that the offender enters into an intervention program. For example drug and alcohol counselling. 

A section 10 is an acknowledgement of the court that you have committed an offence, however, the court is satisfied that it is out of character and you are unlikely to continue offending. It's the court's way of giving you a second chance.

Before granting a section 10, the court will consider:

  • Your criminal record. 
  • Your character, antecedents, age, health and mental condition, drug use, previous allegations of family violence and domestic violence
  • The trivial nature of the offence
  • Extenuating circumstances that lead to the offence being committed 
  • Any other matter the court considers relevant

Intensive Corrections Orders are an option available to the court where a sentence of imprisonment is imposed on the condition that a defendant is of good behaviour and agrees to supervision by a community corrections officer rather than go to prison. 

Additional conditions that may be imposed by the court include:

  • home detention
  • electronic monitoring
  • curfew
  • community service (up to 750 hours)
  • participation in rehabilitation or treatment programs, for example drug treatment/counselling
  • no drugs or alcohol
  • refrain from certain relationships/associations, for example, members of your family, etc.
  • ban from certain locations

Community Corrections Orders are similar to Intensive Corrections Orders. The main exception being that a defendant needs to make themselves available to attend court at any time the court requires.

A Conditional Release Order is similar to an Intensive Corrections Order or Community Corrections Order. A Conditional Release Order can be issued with or without a conviction recorded.

A section 32 is a diversionary option available under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a defendant is, or at the time the domestic violence offence occurred:

  • cognitively impaired
  • suffering from mental illness
  • suffering from a mental condition for which treatment is available in a mental health facility

The options available to a magistrate under a section 32 include:

  • adjourning the matter
  • granting the defendant bail
  • any other order the magistrate deems appropriate
  • dismissing the charges and discharging the defendant into the care of a responsible person (e.g. a parent) on the condition they attend a specified place for assessment or treatment.

If the court convicts you of a domestic violence offence, it will likely issue an Apprehended Violence Order, also known as a restraining order. There are two types of Apprehended Violence Orders:

  • Apprehended Domestic Violence Order (e.g. between husband and wife)
  • Apprehended Personal Violence Order (e.g. between neighbours, work colleagues, etc)

Even if the court acquits you of a domestic violence offence, it can still issue an Apprehended Violence Order. That is because the prosecution might not have been able to prove you committed the offence beyond a reasonable doubt, however, it may have been able to meet the requirements for an AVO.

Apprehended Violence Orders are not a criminal conviction, rather they are civil court order that can be issued for the protection of a victim. However, if you breach an AVO, it becomes a criminal offence. It has a lower burden of proof (on the balance of probabilities) than a criminal offence (beyond reasonable doubt).  This means that even if the court dismisses the domestic violence charges, it may still issue an Apprehended Violence Order if it believes it is reasonable for the protection of the victim.

Read more information about APPREHENDED VIOLENCE ORDERS >

Domestic violence law reform

The NSW Attorney General Mark Speakman recently announced new changes to domestic violence legislation. The amendments are yet to be passed through Parliament, but if they are, they will:

  • Extend AVOs for up to two years after the end of a custodial sentence imposed by the court. This means that an AVO won’t expire while you are in prison
  • Include a mandatory order on AVOs protecting animals
  • Allow victims to give evidence via video link instead of in person if you are unrepresented in court
  • New jury directions educating jurors on why victims delay or fail to report domestic violence 

Disclaimer

The above is general legal information and should not be considered legal advice. You should speak with one of our solicitors for legal advice tailored to your specific legal problem. The penalties listed are maximum penalties. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.

Recent Cases

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Section 10 Non-Conviction for alleged Domestic Violence

The Events and Police Charges Our client was involved in a domestic altercation entailing two separate charges of common assault under s61 of the Crimes Act. The offence of common assault carries an imprisonment term of 2 years. He also had an AVO taken out against him in relation to …

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Frequently Asked Questions.

Yes. Anyone who has been charged with a domestic violence offence and/or has had an AVO taken out against them must attend court. Failure to attend may result in your matter being heard in your absence and you being found guilty.

In 2015 The Council of Australian Government (COAG), introduced the National Recognition of Domestic Violence Orders. All Australian states and territories have agreed to share information about and enforce interstate Domestic Violence Orders and some international Domestic Violence Orders. 

Domestic Violence Orders that were issued after 25 November 2017 are automatically recognised by the equivalent Department of Justice in each state. For Domestic Violence Orders that were made before that date, you will need to register the order in the Local Court. You can contact our office for further information about how to register your interstate Domestic Violence Order issued before 25 November 2017.

In NSW, all Domestic Violence Orders Australia wide are recognised and enforceable. This also includes any amendments that have been made to the order. For example, if you breach a Domestic Violence Order issued by the Magistrates Court in Brisbane, Queensland (Qld) while you are in NSW, you will be prosecuted as if the order had been breached in Qld. Likewise if you breach a NSW Domestic Violence Order issued by a NSW court, it is enforceable in Queensland under the states Domestic and Family Violence Protection Act.

If you have experienced domestic violence, it is important to report your experience to the police. They may be able to charge the other person with domestic violence offences or assist you in applying for an Apprehended Domestic Violence Order. If you have reported your experience to police and they have not been able to assist you, contact our office for a free initial consultation. We may be able to assist you to make an application to the Local Court for an Apprehended Domestic Domestic Violence Order. 

You can access social service providers such as:

  • 1800RESPECT (1800 737 732) for free 24 hour sexual assault and family violence counselling
  • 1800 019 123 a dedicated contact line for Aboriginal victims of crime
  • ACON an LGBTI health organisation where you can access information, referrals, counselling and advocacy for family violence 
  • DVNSW an online referral service for assistance with housing, counselling, etc.

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