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Our domestic violence lawyers have years of experience dealing with situations where are person is either accused of, or has been a victim of domestic violence.
Family relationships can be complex and challenging. Often emotions are high, particularly when children are involved.
Contact us immediately to speak to a Law society accredited specialist criminal lawyer. You can also read about some of our recent domestic violence cases by clicking here.
Domestic violence is defined as any offence committed by a person against the member of the family with whom the person shares or has shared a domestic relationship with. This is contained in the Crimes (Personal and Domestic Violence) Act 2007.
It is also referred to in the Family Law Act 1975 where it is defined as a person threatening, acting violent, or engaging in any behaviour of similar nature against a member of the person’s family and thereby causing the family member to be fearful.
There are a number of domestic violence offences, but the particular type of charge that police lay will depend on the conduct alleged. The most common domestic violence charges include:
There is a wide range of domestic violence offence which can result in sentences of varying severity. In today’s context, the courts are especially strict when it comes to domestic violence punishments. This is due to the prevalence of the offences and the perceived need for general deterrence.
There is a strong possibility that a criminal conviction will be recorded and in serious cases of domestic violence, a jail sentence.
Domestic offences do not need to involve any physical force being applied. If a person feels threatened by the actions of an accused and there are reasonable grounds for that fear, then an offence may be committed.
A domestic relationship includes:
If you are charged with a domestic violence offence, contact our specialist domestic violence lawyers in Sydney and Parramatta. You can call us on (02) 7804 2823 or email info@astorlegal.com.au.
The penalty for a domestic violence offence can range from a fine to a term of imprisonment. Much will depend on the seriousness of the charge and a person’s subjective case.
Whether or not a person receives a conviction for a domestic violence offence will depend on how the case is presented before a Judge or Magistrate.
These charges are set out in both the Crimes Act 1900 (NSW) and the Crimes (Domestic and Personal Violence) Act 2007. Domestic violence offences are most commonly dealt with as follows:
If a person is convicted of domestic violence offences, then an Apprehended Domestic Violence Order (ADVO) will also be made against them. It is important to note that an ADVO is not criminal record or criminal conviction. However, it may have an impact on certain jobs or in family law proceedings.
If a person does not comply with the conditions of the order, then they may be charged with breach AVO. A conviction for this will result in a criminal record.
Sentencing for domestic violence offences has become much more severe in recent years. Community standards have led to Courts being far more willing to impose serious penalties. Often, Magistrates and Judges will use an offender as an example to send a message to the wider community that domestic violence will not be tolerated. This is known as ‘General Deterrence’.
Importantly, this has led to it becoming far more difficult to obtain a Section 10 for domestic violence offences or charges.
However, Astor Legal have consistently been able to obtain section 10 dismissals for serious domestic violence charges. You can view some of the recent results our Sydney domestic violence lawyers have achieved by clicking here.
If you or someone you know has been charged with an offence, contact us now to speak to an accredited specialist criminal lawyer.
To be found guilty of a domestic violence offence, the prosecution must prove beyond a reasonable doubt the elements of the offence and that at the time of the alleged incident, you were in a domestic relationship with the complainant.
Generally, a mini-brief of evidence will be served on you at the first court appearance. This will include the alleged victim’s statement (usually a domestic violence evidence in chief – DVEC), photographs of any injuries.
At a later stage, witness statements, police statements and any medical records will be served. These must be served at least 14 days before the final Hearing date.
If after considering all the evidence, the prosecution can able to prove beyond reasonable doubt that you are guilty, the matter will proceed to sentencing for the domestic violence offence.
If you plead guilty to domestic violence charges, police will tender a Fact Sheet to the presiding Magistrate. It is important to read the police facts sheet and advise your lawyer of any disagreements you have with it. Negotiations can occur prior to the sentence date, where parts of the facts can be deleted or additions made so that it more accurately reflects your version of events.
The court will also receive any subjective material that your criminal defence lawyer provides. This can include psychologist reports, character references and an apology letter. We will then advocate on your behalf to explain how and why the offence took place and any mitigating factors. Your personal circumstances including the impact a conviction for a domestic violence offence will have on your work or career, any mental health issues, drug and/or alcohol issues, and treatment.
Based on the submissions made, the Magistrate or Judge will impose a sentence. Having the best domestic violence lawyers acting for you can be the difference between receiving a criminal conviction or not.
Contact Astor Legal to speak to our friendly team today.
If you choose to plead not guilty to a domestic violence offence, the court will set the matter for a final hearing date.
At the hearing, the prosecution bears the onus of proving the allegations beyond reasonable doubt. They will rely on evidence from the complainant, any photographs obtained and evidence from police to try to establish the domestic violence crime.
It is crucial that you have leading domestic violence lawyers by your side, who have a proven track record of obtaining ‘not guilty’ verdicts and avoiding criminal convictions. The complainant will need to be cross-examined at length and evidence will need to be presented to attack the credibility and reliability of any witnesses.
Often the complainant may wish to withdraw domestic violence charges. In this case, we can advise you on how to get domestic violence charges dropped.
Previously, NSW Police investigated domestic violence charges much the same as any other reported crime. Statements from alleged victims were either hand written or typed .
NSW Police now use ‘Domestic Violence Evidence Kits’ (DVEC). These kits include video cameras, digital cameras and voice recorders. Amendments to legislation means that Police now use these devices to video record statements from alleged victims. The alleged victim will still need to attend court however that recording can be played as their ‘evidence’ at court. This often provides very compelling evidence.
The following defences to domestic violence offences apply:
Self Defence: Self-defence allows a person to be found ‘not guilty’ of an offence if their actions were committed to protect themselves or another person. Self-defence is most often used to defend domestic violence assault charges. Once an accused raises self-defence, the prosecution must prove beyond reasonable doubt that they were not acting in self-defence.
Duress: Duress is a legal concept which refers to a person being forced into committing a crime against their will.
Necessity: Necessity can be used where a crime to escape an immediate threat. Once you have raised necessity, the prosecution must prove beyond reasonable doubt that one (or more) of the above points has not been established.
Automatism: Automatism is a legal defence based on an accused person’s actions being involuntary. There is a general presumption that an accused person’s actions are voluntary. In order to establish the defence of automatism, an accused must prove that there was a reasonable possibility that their actions were not voluntary.
Mental Illness defence: A mental illness defence requires an accused person to prove on the balance of probabilities (ie. greater than 50%) that at the time of the offending, you could not appreciate the moral wrongfulness of your actions.
Call us today on (02) 7804 2823 or email us at info@astorlegal.com.au to speak to our specialist domestic violence lawyers in Sydney.
Domestic violence is also known as family violence in the context of family law proceedings. Following a domestic violence incident, police will usually apply for an AVO. This can have a significant effect in family law matters, such as parenting and property proceedings.
Where a Magistrate makes a determination in AVO proceedings, this can be used by the Family Law Courts unless there is new evidence. That is why it is important to consult leading AVO lawyers if there is an AVO case against you.
If you are experiencing domestic violence in your relationship, there any many community organisations you can contact for help. Both men and women can be victims of domestic violence.
Contact Astor Legal on (02) 7804 2823 or email us at info@astorlegal.com.au to speak to our friendly team.
Family violence is any violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful pursuant to Section 4AB (1) of the Family Law Act 1975.
In 2011, the definition of family violence set out in the Family Law Act 1975 was amended to include coercion and control. The definition of abuse was also amended to include the phrase, “serious psychological harm”.
Some examples of family violence are:
Section 4AB (a) of the Family Law Act 1975 sets out that family violence can also consist of exposing a child to any of the above behaviours.
Any form of domestic violence in parenting cases will have a dramatic effect on the amount time each party can spend with the children. In a parenting matter, a party may be found to have exposed the children to family violence if there is evidence that the children have:
When a person applies for parenting orders or responds to an application for parenting orders, the party must file a Notice of Risk form. The form requires parties to set out any allegations of child abuse, family violence or other risks about to the child or children.
Domestic violence is usually not relevant to property settlement proceedings. There are however unique instances where a court may have to take family violence into account in determining the assessment of contributions of each party.
The leading case that deals with the relevance of domestic violence in property settlement matters is Kennon v Kennon [1997] FamCA 27. In that case, the wife argued that the domestic violence assault she suffered from the husband should be taken into account in respect to her contributions to the relationship.
The court found that domestic violence may be relevant if there was a “violent course of conduct” by one party during the marriage on the other party, resulting in a “significant adverse impact” upon that party’s contributions. A violent course of conduct would also be relevant if it made the other party’s contributions “significantly more arduous than they ought to have been”.
For example, if one party assaulted the other party regularly during the relationship which leads to injuries, making it difficult for them to conduct homemaker duties. In Kennon, the court held that this principle would apply only to “exceptional cases”.
Domestic violence is also relevant where the family violence of a party “has produced consequences which have diminished or destroyed the property of the parties”. It is also relevant in cases where domestic violence has led to a reduction in the value of the property. For example, if a party destroys or damages a wall at the parties’ matrimonial home, in the course of an argument.
Contact us now to speak to an experienced domestic violence lawyer to discuss how we can assist you.