Table of Contents
If you or someone close to you has been accused of domestic violence in New South Wales, it can be very stressful with so many unknowns. On this page, we will explain what to know and do first if facing domestic violence charges in New South Wales.
To do this, we’ll cover:
- ADVO’s and criminal domestic violence charges in NSW
- What is possible in defending domestic violence allegations
- What happens if the person accused of DV is a parent (e.g. will they be able to see their kids?)
What to do first when facing an ADVO &/or domestic violence criminal charges
Domestic Violence Related Offence Categories In NSW
In New South Wales, allegations of abuse or violence of a spouse/partner, family members or housemates can result in the Police issuing an Apprehended Domestic Violence Order (commonly called an ADVO), which is a civil (non-criminal) Order. A person may also be criminally charged in addition to an ADVO.
Civil Applications
- Apprehended Domestic Violence Order (ADVO) – This is where the alleged abuse or violence occurs between people who have a domestic relationship. This could include a spouse/partner, a child or a dependent of one or both parties. It also includes anyone who lives in the same home.
- Apprehended Personal Violence Order (APVO) – This is where the alleged abuse or violence occurs between the defendant (person accused of violence) and a person they do not have a domestic relationship with. For example, a neighbour, co-worker or stranger.
For the purposes of this article, we are focusing only on domestic violence and ADVO’s.
In addition to receiving an ADVO, it may be the case that criminal offences are alleged, such as:
- Physical violence – hitting, punching, choking, use of weapons
- Sexual violence – non-consensual sexual acts
- Emotional/ psychological violence – verbal abuse, threats, stalking, intimidation
- Financial abuse – controlling access to funds, preventing financial independence (e.g. employment)
- Coercive control – repetitive control, coercion, isolation or monitoring.
ADVO Conditions
An ADVO will include specific conditions that must be complied with.
The mandatory conditions that are imposed for every ADVO are that the defendant must not:
- Assault or threaten the protected person/s;
- Stalk, harass or intimidate the protected person/s;
- Destroy or damage any property belonging to the protected person/s (whether deliberately or recklessly);
- Harm any animal that belongs to or is in the possession of the protected person/s.
These mandatory conditions extend to anyone the PINOP has a domestic relationship with i.e., new partners, children, other family members.
Additional conditions can also be included, such as:
- Restraints on contact with the person/s named on the ADVO
- Restraints on living arrangements
- Restraints on trying to locate a person
- Restraints on attending specific locations such as the family home, a workplace, school or child care facility
- Restraints on the use of alcohol and/or drugs within X hours of any allowed contact with the protected person/s
- Restraints on being able to possess a weapon or firearm.
Domestic Violence Criminal Charges
In New South Wales, there are no offences specifically named as ‘family violence offences’ or ‘domestic violence offences’, however, some offences may be considered domestic violence.
Offences may include, but are not limited to the following:
- Common assault
- Assault occasioning actual bodily harm
- Wounding or grievous bodily harm with intent
- Intimate image offences
- Contravention of Domestic Violence Order (offence for not following the conditions of ADVO)
- Use of a carriage (telecommunications) service to threaten, menace, harass or cause offence
Why NSW Police Are Strict With Domestic Violence Charges
Due to increased media attention and political focus on family and domestic violence, police are under significant pressure to take action on all domestic violence matters. This means police will often charge even very minor incidents that might not have resulted in charges in the past.
It is some people’s view that the police don’t want to be criticised for not doing enough, so they’ve swung the other way and now charge people for the most minor things. For example, we’ve seen cases where someone threw headphones on the ground in frustration during an argument, a small piece broke off, and this resulted in property damage charges and an ADVO that excluded them from their home.
While this strict approach aims to protect victims and aims to prevent horrific outcomes such as murder, it can also mean that people’s lives are significantly disrupted over relatively minor incidents. The consequences of this can include:
- Immediate exclusion from your home
- Criminal record implications
- Visa and travel restrictions
- Employment consequences;
- Impact on any existing matters within the Family Court system.
Penalties for Domestic Violence Charges NSW
Typically, for repeat offences, especially repeat or intentional breaches (even for what might be considered a minor breach, such as contacting someone but not threatening them), higher penalties are likely to be imposed.
As mentioned above, if an ADVO has been issued, the ADVO conditions determine any limitations on contact, behaviours, and movements. If a person is on bail, conditions may also include restrictions about the way the defendant is to behave, whether they can have contact with the protected person/s and if so, in what circumstances, and/or restraints on going within a certain distance of the protected person’s residence, work and/or school. Bail conditions may be broad and may include a requirement to comply with the ADVO conditions. Sometimes, the conditions of the ADVO will be inconsistent with the conditions of bail. For example, the ADVO may only have the mandatory conditions, whereas the Court may impose stricter conditions, such as a condition not to contact or approach the victim. If someone has both an ADVO and is on bail, the conditions of both must be followed, even if these are inconsistent.
Although a breach of bail is not a criminal offence, it may result in bail being revoked, meaning that the person will be arrested and taken into custody until either stricter bail conditions are imposed or the matter is resolved in Court.
The maximum penalties for any additional criminal charges are detailed in full on dedicated pages. For insights into the maximum penalties and possible defences in NSW for the following offences, click those relevant to you, below:
Facing intimate image offences? Click here.
Facing assault or related charges? Click here.
What To Do First Upon Being Questioned or Charged With Domestic Violence Related Offences
If you or someone you care about is accused of DV, being questioned in relation to criminal matters, has been issued an ADVO or is facing domestic violence charges of any kind, it is important they know this:
Do not answer any questions from police without first speaking to a criminal lawyer.
The only requirement in NSW is that the person provide their correct name and address.
There is no obligation for anyone to answer any other questions from police, even if they have been taken to a Police Station, arrested or taken into custody.
Police have an obligation in NSW to tell you this however, they will often encourage people to participate to help their investigation.
Many people accidentally incriminate themselves by trying to appear cooperative and to avoid negatively impacting the perception of the police involved. Even if you are not guilty, it is important that you obtain legal advice prior to agreeing to participate in an interview.
And if you have any children, you will want to ensure your experienced criminal lawyer also has a deep understanding of Family Law. You will need them to provide accurate advice to answer any questions you have in relation to how any allegations can impact seeing your children, including any custody arrangements.
We can help you at any stage of the process, whether you are facing an ADVO or criminal charges. We also work in family law so if you have any concerns relating to seeing your children, including custody matters, we can help.
We have two office locations – Penrith & Blacktown – as well as phone and online consultations if preferred.
Disclaimer: The content in this article provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.