Crimes Domestic and Personal Violence Act (NSW)

The main legislation dealing with domestic violence in New South Wales is the Crimes Domestic and Personal Violence Act 2007. The Act aims to reduce and prevent the occurrence of violence within domestic relationships in New South Wales. This legislation was drafted to be consistent with Australia’s obligations under the Declaration on the Elimination of Violence against Women and United Nations Convention on the Rights of the Child.

What is Domestic Violence?

The Crimes (Domestic and Personal Violence) Act 2007 does not offer a specific definition of domestic violence. Australian law defines domestic violence as one person trying to dominate and control another person in a family-like or domestic relationship.  It includes physical, sexual, psychological, economic and emotional abuse that happens within a domestic relationship. It is important to stress that domestic violence is not just physical abuse: it extends to actions such as controlling another person’s finances, preventing them from leaving the house, or threatening to damage their property or hurt their pets. Other serious, but less well-known forms of domestic violence are forced marriage (where consent to marriage is not freely given), and reproductive coercion (where someone controls a woman’s contraceptive and pregnancy choices).

Anyone can be the victim of domestic violence. Although domestic violence is statistically more likely to be perpetrated by men, they can be victims too, and women can be perpetrators of domestic violence to both male and female partners. Children can be victims or perpetrators of domestic violence with parents and siblings.

Is Domestic Violence a Crime?

The Crimes (Domestic and Personal Violence) Act 2007 recognised that offences committed in a domestic setting are inherently different from the same offence committed outside the home. Prior to the introduction of this legislation in NSW, a perpetrator of domestic violence may have been convicted of a crime (for instance, assault), but there would be no record that this assault occurred within a domestic relationship. The Crimes (Domestic and Personal Violence) Act 2007 created a specific offence, making it easier to identify individuals who have committed acts of violence within domestic relationships.

What is a Domestic Relationship?

Domestic violence occurs within a domestic relationship and as such, the definition of domestic relationship is central to determining what falls under the ambit of the Crimes (Domestic and Personal Violence) Act.

Under the Act, a domestic relationship includes people in an intimate relationship (regardless of whether this relationship was marriage, de facto or otherwise), irrespective of whether the relationship was sexual in nature.

A domestic relationship also includes carer relationships (paid and unpaid), and relatives. A relative is broadly defined in the Crimes (Domestic and Personal Violence) Act 2007 to include close relations (such as parents and siblings), more distant relations (such as cousins), as well as in-laws. In the case of Aboriginal or a Torres Strait Islanders, a relative is anyone accepted within an Indigenous kinship system.

What is a Police Domestic Violence Order?

The Crimes (Domestic and Personal Violence) Act 2007 allows police to apply for Apprehended Domestic Violence Order (ADVO) on behalf of a victim. An ADVO restrains a suspected perpetrator of domestic violence from contacting the alleged victim. It may also impose other restrictions, such as preventing the perpetrator from approaching the victim after they have consumed alcohol or drugs. The legislation also introduced new protections that made it mandatory for a NSW police officer to make an application for an ADVO in certain circumstances, including when the officer suspects that domestic violence has occurred.

Other Protections Introduced by the Act

The Crimes (Domestic and Personal Violence) Act introduced a new procedure whereby perpetrators of certain serious personal violence offences are automatically subject to apprehended violence orders. The defendant can only contest the order in court when the concurrent criminal charges have been finalised. This spares the victim the trauma of being cross-examined at both a criminal proceeding and an ADVO hearing.

The Crimes (Domestic and Personal Violence) Act also helps to protect children in domestic violence situations. Under the legislation, when a victim of domestic violence takes out an apprehended violence order, there is a rebuttable presumption that their children will be protected by the same order. This approach guarantees that a mechanism is in place to promote the safety of children in a domestic violence situation, without the need for a separate process.

What Help is Available?

Help is available for victims of family and domestic violence. If you are experiencing domestic violence right now, you should contact the police urgently on 000. If you are safe right now but need support, you can call:

• 1800RESPECT (1800 737 732)
• Lifeline (13 11 14)

If you require legal advice, contact Armstrong Legal on 1300 038 223 or send us an email.