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Domestic violence in NSW is a significant issue in our society. It is prevalent in our communities, is not discriminatory and can include both physical violence and exploitation through emotional, financial, psychological, and other forms of control. It is known to impact the most vulnerable members of our communities and can have long term effects on children who are victims of or witnesses to violence in the family home.
What is the Law Regarding Domestic Violence in NSW?
To highlight the focus on the issue of domestic and family violence in NSW, legislation was introduced in 2007 to better respond to the issue of domestic violence in our community, in the form of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘The Act’). While domestic violence itself is not defined within the act, certain offences can be categorised as domestic violence offences, as set out in Section 11 of the Act, if they are alleged to have been committed against a person with whom the accused shares a ‘domestic relationship’ with.
What is a Domestic Relationship?
Outlined in Section 5 of the Act, a domestic relationship includes people who are, or who have been:
- Married, or
- De facto, or
- In an intimate personal relationship with the other person, whether or not this has involved a relationship of a sexual nature, or
- Living in the same household as the other person, or
- Living as a long term resident in the same residential facility as the other person and at the same time as the other person, or
- In a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person, or
- A relative of the other person, or
- In the case of an Aboriginal or Torres Strait Islander, a part of the extended family or the kin of the other person according to the Indigenous kinship system of the person’s culture.
What are Some Common Domestic Violence Offences?
Allegations of domestic violence, when reported to Police, commonly result in certain charges against an accused person. These offences, located in the Crimes Act 1900 (NSW) and the Criminal Code Act 1995 (Cth) include, but are not limited to, the following:
- Common Assault. Section 61 of the Crimes Act 1900 (NSW)
- Assault Occasioning Actual Bodily Harm. Section 59 of the Crimes Act 1900 (NSW)
- Reckless Wounding. Section 35 of the Crimes Act 1900 (NSW)
- Distribute Intimate Image without Consent of the Other Person. This is commonly known as ‘revenge porn’. Section 91Q of the Crimes Act 1900 (NSW)
- Use Carriage Service to Menace, Harass or Offend. Section 474.17(1) Criminal Code Act (Cth), and
- Intentionally Choke, Suffocate or Strange Another Person Without Consent. Section 37 of the Crimes Act 1900 (NSW).
What is common to all these offences is that they are all serious offences that carry maximum penalties equal to or exceeding two years full time imprisonment. There were also two very specific offences that were outlined in the Act in 2007, indicating the renewed focus of the community on certain domestic violence offences. These offences included the following:
- The offence of Stalking or Intimidation with Intent to Cause Fear or Physical or Mental Harm.
- This offence carries a maximum penalty of 5 years imprisonment and/or a $5,500 fine.
- Stalking is defined in Section 8 of the Act as conduct including:
- Following the person,
- Watching or frequenting the vicinity of, or an approach to a person’s home, work, or place a person frequents socially.
- Contacting a person using the internet or other technologically assisted means,
- Intimidation is defined in Section 7 of the Act as conduct:
- Amounting to harassment or molestation of the person, or
- An approach made to the person by any means that causes the person to fear for his or her safety, or
- Any conduct that causes a reasonable apprehension of injury to a person with whom she has a domestic relationship with, or of violence or damage to any person or property.
- The offence of Contravening an Apprehended Violence Order.
- This offence carries a maximum penalty of 2 years imprisonment and/or a $5,500 fine.
What is an Apprehended Violence Order in NSW?
Where Police suspect that a domestic violence offence has been committed, they may make an application for the making of an Apprehended Domestic Violence Order (ADVO). The Police can make an application for an ADVO without charging you with a criminal offence. The basis of this application is outlined in Section 15 of the Act, where an application is made for the protection of a person against another person with whom he or she has a domestic relationship.
When the application is made by the Police, it is termed as a provisional order. This means that from the moment the order is served on a person, the person must comply with the order. The application will then be listed before the court to consider whether a final ADVO is made.
When considering whether a final order is to be made, the Court must be satisfied on the balance of probabilities as to the following (as outlined in Section 16 of the Act):
- That a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears:
- The commission by the other person of a domestic violence offence against the person, or
- The engagement of the other person in conduct in which the other person:
- Intimidates the person or a person with whom the person has a domestic relationship, or
- Stalks the person
Being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
The Court must also consider, outlined in Section 17 of the Act, the safety and protection of the protected person in the order and any child directly or indirectly affected by the conduct of the defendant alleged in the application of the order.
What conditions can be part of an Apprehended Domestic Violence Order?
Any ADVO contains a standard condition, which states that the respondent must not:
- Assault or threaten the protected person or anyone they have a domestic relationship with
- Stalk, harass or intimidate the protected person or anyone they have a domestic relationship with, and
- Intentionally or recklessly destroy or damage any property that belongs to or is in the possession of the protected person or anyone they have a domestic relationship with.
Further conditions can be added and can include:
- Prohibiting a respondent from contacting or attempting to contact a protected person or anyone they are in a domestic relationship with.
- Prohibiting a respondent from locating or attempting to locate the protected person or anyone they have a domestic relationship with.
- Prohibiting a respondent from approaching or attempting to approach the protected person or anyone they have a domestic relationship with, including distance requirements.
- Prohibiting a respondent from being with the protected person or anyone they have a domestic relationship with, within 12 hours of taking alcohol or illegal drugs.
What are the Sentencing Options for Domestic Violence Offenders?
Under Section 4A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court sentencing a person for a domestic violence offence must impose either a sentence of full-time imprisonment or a supervised order. If the Court is satisfied a difference option is more appropriate, they must give reasons for doing so.
Under Section 4B, the Court must consider the safety of the victim if it seeks to impose any supervised order, being a Community Correction Order, Conditional Release Order, Home Detention order or Intensive Correction order.
It is clear from the legislation that domestic violence offences are treated with a significant degree of seriousness. It is important that if you are charged with any domestic violence offence, you seek legal advice to understand fully the seriousness of the charges against you.
What Should I do if I have been Charged with a Domestic Violence Offence?
Domestic violence offences are treated seriously in the courts. Given the prevalence of domestic violence in our society, principles of general and specific deterrence are significant in sentencing offenders. In our experience, Police often ‘over charge’ accused persons with an array of domestic violence criminal offences, which can lead to accused persons being charged with numerous offences stemming from the one incident, when a single offence could be more appropriately considered. There are also numerous instances where alleged victims, for whatever reasons may not have been truthful in their complainants to the Police.
The law, practice and procedure pertaining to how domestic violence offences and Apprehended Domestic Violence Orders are heard in court are often complex and it is important that you seek advice and legal representation from an experienced criminal defence lawyer if you are charged with any domestic violence offence and/or are facing an application for an Apprehended Domestic Violence Order.
Where can I get help with Domestic Violence?
Domestic Violence is not just a criminal law issue. It is a significant social issue in our community as well. All too often, domestic violence is thought of as being perpetrated by a man against a woman. Domestic violence is much more broad than that as outlined in what is defined as a domestic relationship, above. Fortunately, there are numerous services available to assist victims as well as perpetrators of domestic violence.
If you are in immediate danger, call 000 for Police and other emergency assistance, such as an Ambulance.
There are also several other organisations which can assist with issues of domestic violence.
1800RESPECT
1800 737 732
This is a 24-hour national sexual assault, family and domestic violence counselling line for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.
Individuals can also access local support services and search the internet using Daisy, a free app developed by 1800RESPECT that protects user privacy. Visit their website: https://1800respect.org.au/
Men’s Referral Service
1300 766 491
This service from No to Violence offers assistance, information and counselling to help men who use family violence. Visit their website: https://ntv.org.au/get-help/
Mensline Australia
1300 789 978
Supports men and boys who are dealing with family and relationship difficulties. 24/7 telephone and online support an information service for Australian men. Visit their website: https://mensline.org.au/
Lifeline
13 11 14
Anyone across Australia experiencing a personal crisis or thinking about suicide can call 13 11 14, or text 0477 13 11 14 at night (6pm-midnight AEDT). Someone will help put you in contact with a crisis service in your state or territory. Visit their website: https://www.lifeline.org.au/
Kids Help Line
1800 551 800
Free, private and confidential, telephone and online counselling service specifically for young people aged between 5 and 25 in Australia. Visit their website: http://www.kidshelpline.com.au/
Elder Abuse Help Line
1800 353 374
Free information and support services for people who experience or witness the abuse of an older person. Operating hours vary. Visit their website: https://www.eapu.com.au/helpline
Financial Counselling Australia
1800 007 007
Access free resources and advice from a private financial counsellor. Call 1800 007 007 to speak to someone in your state. Visit their website: https://www.financialcounsellingaustralia.org.au/
Beyond Blue
1300 22 4636
Information and support to help everyone in Australia achieve their best possible mental health, whatever their age and wherever they live. Visit their website: https://www.beyondblue.org.au/
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you have been charged with a domestic violence related criminal offence and/or are facing an application for an Apprehended Domestic Violence Order and require legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss your matter with one of our lawyers.
