Domestic Violence Lawyer

What Counts as Family or Domestic Violence?

The terms family violence and domestic violence tend to be used interchangeably, though family violence is the phrase more widely adopted within Aboriginal communities. Under the Family Law Act 1975 (Cth), it is described as behaviour, violent, threatening, or otherwise that a person uses to control or coerce a family member, or to make that family member fearful.

This can include:

• Physical harm, including sexual assault, or behaviour that causes fear of physical or psychological injury
• Stalking a family member
• Ongoing insults or put-downs
• Deliberately damaging or destroying belongings
• Deliberately harming or killing a family pet
• Unlawfully restricting a family member’s freedom
• Coercive control

What Is a Domestic Relationship?

A domestic relationship exists between two people where one:

• Is or was married to the other
• Is or was in a de facto relationship with the other
• Has or had an intimate relationship with the other, sexual or not, for instance, someone met through an online dating app
• Currently lives, or previously lived, in the same household, such as a flatmate
• Currently lives, or previously lived, in the same residential facility at the same time, such as an aged care home (this excludes correctional and detention facilities)
• Depends, or has depended, on the other for paid or unpaid care, for example, a support worker
• Is or was a family member of the other, covering parents, children, siblings, cousins, step-relatives, nieces, nephews, and aunts or uncles
• For Aboriginal or Torres Strait Islander people, is or was connected through extended family or kinship ties recognised under their cultural system

Child Protection Considerations

Children exposed to domestic violence can carry the physical, emotional, and developmental effects for years. Where a child is involved, the matter becomes a child protection issue, and allegations are often referred to the Department of Communities and Justice (DCJ), formerly the Department of Community Services. These are known as care and protection matters, and they generally involve two separate processes.

Care and protection process

These matters fall under the Children and Young Persons (Care and Protection) Act 1998 (NSW). Reporting suspected abuse isn’t limited to mandatory reporters like teachers and police officers; any member of the public can contact the DCJ helpline. Where a child is judged to be in immediate danger, the DCJ can remove them from their parents or guardians. It aims to keep Aboriginal and Torres Strait Islander children within their kinship network wherever this is achievable. Often, families are given a chance to address concerns before matters escalate to the Children’s Court, though this isn’t always possible.

Criminal process

Child abuse offences are generally investigated and prosecuted at the state level under the Crimes Act 1900 (NSW), though some conduct, such as using a carriage service to access child abuse material, falls under the Criminal Code Act 1995 (Cth). Any care and protection proceedings, including a criminal case, can have a direct bearing on a related Family Law matter and your capacity to take part in mediation or spend time with your children.

Family Law and the Notice of Risk

Anyone applying for parenting orders is required to lodge a Notice of Risk under the Family Law Act. This document alerts the Family Court of Australia or the Federal Circuit Court of Australia to any allegations or risk of child abuse or family violence affecting a child. It exists so families are directed toward the right support and early intervention services, and because the court itself is a mandatory reporter, it will pass on relevant allegations to child welfare authorities.

The Criminal Side of Domestic Violence

Domestic violence is treated as a criminal matter in Australia, with each state and territory legislating separately. In New South Wales, it sits under the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007 (NSW). Being charged, or having an ADVO naming children, can affect your Working with Children Check and, if your job involves a firearm, such as in security work, your employment itself.

Common domestic violence offences include:

• Damaging or destroying property
• Using a carriage service to menace, harass, or offend, such as through text messages, calls, or social media
• Breaching an AVO
• Stalking or intimidating someone with the intent to cause fear
• Choking, suffocating, or strangling another person
• Recording or sharing intimate images without consent, or threatening to
• Sexual assault offences

A conviction can carry a fine, imprisonment, or both, and it doesn’t remove your existing parenting obligations, including child support.

Apprehended Violence Orders

Where a court convicts someone of a domestic violence offence, an Apprehended Domestic Violence Order (ADVO) will usually follow. Police commonly apply for these on a victim’s behalf, though a private application through the Local Court is also possible. An ADVO can still be made even where a person is acquitted, since the criminal standard of proof (beyond reasonable doubt) is higher than what’s needed for an AVO (on the balance of probabilities). An AVO is a civil order rather than a criminal conviction, but breaching one is a criminal offence in its own right. Orders made interstate, such as a Victorian Family Violence Intervention Order, are recognised and enforced in NSW.

How the Court Process Works

The prosecution decides which court hears a domestic violence charge. Most matters go to the Local Court, where there is no jury, while more serious cases involving significant injury or death may proceed to the District or Supreme Court.

A conviction can mean imprisonment, a fine, or both, and an ADVO, even without a conviction, can still affect your day-to-day life, including your career. Getting advice early gives you the best chance of protecting your position. Contact our team for a free, no-obligation first consultation.

Disclaimer: This page contains general legal information only and is not a substitute for legal advice. Every matter is different, so speak with one of our domestic violence lawyers about your specific circumstances.