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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.
The client came to us charged with Common Assault (DV), Destroy/Damage Property (DV) and Resist Arrest.
Once the police brief was served on us it became apparent that there were a number of issues with the police case from the matters conception.
Police had failed to comply with their obligations during arrest. The police also didn’t have enough evidence to prove that a common assault had occurred at all, or that anyone saw our client damage the property as alleged.
The matter ran to a hearing, and after one adjournment and two failed attempts for police to bring all of their witnesses to court, the police weren’t able to lead evidence on the common assault and destroy/damage property without their witnesses.
Despite the lack of evidence and compliance with their obligations, the police wanted to proceed on the resist arrest. Our lawyer spoke with the prosecutor and they agreed to withdraw all of the charges.
Our client could not have been happier with the advice we provided and the forensic decisions we made during the matter.
Last week Astor Legal appeared at Sydney District Court on behalf of a client charged with a number of domestic violence charges.
Originally he had been charged with Intentionally Choke, Common Assault, Assault Occasioning Actual Bodily Harm and Stalk/Intimidate. In total there were six charges.
We entered pleas of ‘not guilty’ to four of the six charges and pleaded guilty on disputed facts to the remaining two charges.
After extensive cross-examination of the complainant, our client was found ‘not guilty’ of the four domestic violence charges. You can read about that case by clicking here.
The remaining two charges of assault occasioning actual bodily harm and common assault proceeded to Sydney District Court on a severity appeal.
We undertook a significant amount of preparation for the appeal.
This included arranging for our client to undergo extensive psychological counselling. We also obtained letters from his employer and work colleagues setting out that a conviction may result in a loss of job.
We appeared at Downing Centre Court for the appeal and made lengthy submissions in support of no conviction being recorded. Despite the prosecutor strongly opposing this, we were able to rebut their submissions.
Ultimately, the Judge was persuaded by our submissions and sentenced our client to a conditional release order without conviction for 12 months. Our client was ecstatic with the result.
Our client is a 32-year-old man from America living with his husband in Australia. Police were called to their house after a complaint was made by their neighbours who suspected a domestic incident.
Our client and his partner explained to police that our client had recently had major surgery following a motor vehicle accident and that they did not want police intervention. Despite this, officers applied for an apprehended violence order (AVO) against our client.
Our client came to us extremely upset at the situation and stressed with the thought of proceedings against him.
We immediately got to work advising him of the process of AVO proceedings and drafted lengthy representations for the withdrawal of the AVO. Because our client had instructed us early on, we were able to file representations prior to the first court date.
The case was listed at Manly Local Court where police sought an adjournment to determine our representations for the withdrawal of the AVO.
Ultimately, Police were persuaded through our negotiations to withdraw the AVO early in the proceedings.
Our client and his husband were overjoyed, and can now live their lives without concerns of an AVO affecting their future.
Our client was a 47-year-old senior financial analyst working for one of the ‘big four’ banks. He had been married to his wife for over fifteen years and the pair had two children together.
Ten years ago our client pleaded guilty to domestic violence charges which were dealt with by way of a Section 10 dismissal.
Shortly afterwards he had a drive while suspended charge dismissed pursuant to Section 10.
He came to us after being charged with a common assault domestic violence offence. There had been a build-up of issues between the pair during the lockdown. Eventually, one of their heated verbal arguments turned physical and police were called.
When police arrived, he was questioned and made admissions to the offence. In addition to being charged, police applied for an AVO.
Following the incident our client’s wife asked police to withdraw the charge and AVO, however, our client’s admissions meant that this was refused.
He came to us after speaking to other lawyers who had told him he had no prospect of avoiding a conviction given his record. We took a different view.
We immediately got to work by arranging for him to start seeing a forensic psychologist. He was diagnosed with a borderline personality disorder. One of the symptoms of the disorder was an inability to control his impulsiveness.
We also obtained character references from his employer which confirmed he needed to be conviction free in order to maintain his role.
We appeared at Blacktown Local Court we made submissions in support of a Section 14 Mental Health Application. Despite the numerous previous charges on his record, the Court was ultimately persuaded to grant the application.
As a result, our client remains conviction free. Both he and his wife were overjoyed with the outcome.
Recently Astor Legal appeared at Downing Centre Local Court in relation to a client charged with a number of domestic violence charges including Intentionally Choke, Common Assault, Assault Occasioning Actual Bodily Harm and Stalk/Intimidate.
Police alleged that our client had become engaged in a heated argument with his wife in the kitchen. This argument then moved to the bedroom of their 8-year-old daughter. It was alleged that while their daughter was present, our client had slapped his wife in the face before throwing a fan at her.
The prosecution claimed that our client had then choked his wife for a number of seconds, leaving her unable to breathe. It was alleged that his wife then ran out of the apartment and to the front of the building where she called Police and waited for them to arrive.
Our client contacted us after his arrest by Police. He was bail refused and brought before Waverley Local Court for a bail application. We appeared for him and despite strenuous objections by the prosecutor, we were able to have our client released on bail.
We then got to work preparing his defence.
We obtained CCTV footage from the apartment complex which showed that the complainant had not ran from the apartment, but rather walked at a leisurely pace. We were also able to obtain the 000 recording of her phone call to Police where she gave a version that was significantly different to what she told the Police officers who arrived on the scene.
At the hearing we were able to cross-examine her at length about these inconsistencies. Further inconsistencies in her version were revealed during our cross-examination.
Ultimately, the Magistrate could not be satisfied beyond reasonable doubt on each of the allegations and our client was found ‘not guilty’.
Our client is a 35-year-old father living in Zetland with his pregnant wife and 7-year-old child.
He had recently completed a university degree in project management and was searching for work.
Prior to finding a job he was charged with stalk/intimidate and destroy/damage property over an incident in the family home. Police alleged that our client had threatened to drag his wife out of the home. He had also kicked a door and caused significant damage to it.
He initially went to another criminal law firm but grew frustrated with their lack of results after spending a significant sum of money.
He came to us desperate to avoid a conviction.
We immediately got to work preparing the case. First, we enrolled our client with a psychologist for anger management counselling.
Next, we obtained letters from other in the project management industry detailing the impact a conviction would have on his prospects of gaining employment. We also had our client repair the door at his own expense.
We attended Downing Centre Local Court with our client. Despite initially facing significant resistance from the Magistrate, we were able to persuade Her Honour to not record a conviction.
Our client was extremely grateful and has since obtained employment as a project manager for a large multi-national firm.
Our client is a well-known media personality who is also a board member of a domestic violence charity.
He was on holiday with his wife and two children in the NSW South Coast when an incident occurred between himself and his wife.
Police were called to the scene. When they arrived they video recorded a statement with his wife. This is known as a Domestic Violence Evidence in Chief (DVEC).
Despite our client protesting his innocence, officers applied for an apprehended violence order (AVO) against him.
Our client came to us distressed at what had occurred and also concerned about the possibility of media attention.
We immediately go to work in preparing lengthy and detailed legal representations for the withdrawal of the AVO.
Ultimately, after significant negotiation with Police we were able to persuade them to withdraw the AVO early in proceedings.
This saved our client significant time and expense. Both he and his family can move on with their lives without the AVO hanging over their heads.
Our team recently appeared at Mount Druitt Local Court for a defended Hearing on domestic violence charges.
Our client was an elderly businessman who was facing two sets of domestic violence charges. The first set of charges involved using a carriage service to menace. The second set of charges included common assault and contravene AVO. ⠀
The Police case consisted of the complainant and a witness, as well as extensive telephone records. Police had obtained video recorded statements from our client’s wife and son. They had also obtained phone records of both our client’s phone and his wife’s phone.
Our client had also participated in an interview and stated that he had no memory of the incident. The complainant later told Police that she did not want the charges to proceed, but Police ignored her. ⠀
Despite this, we were able to beat all of the charges. The prosecution in fact withdrew the use carriage service to menace charges mid-way through the Hearing, and the remaining charges were dismissed at the end of the Hearing. ⠀
In the result, our client was able to walk free from Court and spent the New Year with his grateful family.⠀
Our client is a 28-year-old woman who came to Australia from Tanzania on a partner visa.
She had been with her partner for 5 years and the pair had been married for the last 3 years.
Police had alleged that one evening, while she was at home with her partner she had stabbed him twice with a large, serrated knife. The complainant phoned ‘000’ and Police attended a short time later.
The officers gave evidence in Court that our client was severely intoxicated when they arrived. They also said that they observed the alleged victim with a significant wound that was still bleeding and transported him to St Vincent’s Hospital.
The the complainant spoke to the on-call doctor and received treatment and the wound was bandaged.
Police charged our client with ‘Assault Occasioning Actual Bodily Harm‘. If found guilty the maximum penalty for this offence is 5 years imprisonment.
Our client also participated in an interview with Police where she made damning admissions, including, “I did wrong to cut his hand, I admit that. I’m fine to get some punishment”.
Despite this, our team of assault lawyers meticulously prepared the case and set out a detailed cross-examination of the alleged victim.
Our lawyers were able to cross-examine the complainant at length about inconsistencies in his version of events. We also raised his level of intoxication at the time of the incident.
Ultimately, after a two day Hearing, the Magistrate was persuaded to dismiss the charge. Due to the strength of our defence, Police also withdrew the Apprehended Violence Order (AVO) they had taken out against our client.
After being subjected to onerous bail and AVO conditions for almost a year, our client can finally have some peace of mind.
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