Question 1

What is a domestic violence offence in NSW?

Accepted Answer

A domestic violence offence is a personal violence offence committed against a person with whom the accused has or had a domestic relationship — including a partner, former partner, family member or co-resident. The conduct charged is an ordinary criminal offence, such as assault or intimidation; what makes it a domestic violence offence is the relationship between the parties.

Question 2

Is domestic violence a separate charge?

Accepted Answer

No. There is no single offence simply called domestic violence. A person is charged with a specific offence, such as common assault, assault occasioning actual bodily harm, stalking or intimidation, or breach of an ADVO. The matter is recorded as domestic-violence related because of the relationship involved.

Question 3

Can a domestic violence charge be withdrawn if the complainant does not want to proceed?

Accepted Answer

Not automatically. Once police lay a charge, the decision to continue or withdraw rests with the prosecution, not the complainant. The complainant's wishes are one factor, but the prosecution applies its own guidelines in deciding whether to proceed.

Question 4

What is the difference between a summary and an indictable domestic violence offence?

Accepted Answer

Summary offences are dealt with in the Local Court. More serious indictable offences can be dealt with in the District Court. Many domestic violence matters are finalised in the Local Court, but the seriousness of the alleged conduct determines the court and the available penalties.

Question 5

What does the prosecution have to prove in a domestic violence assault?

Accepted Answer

For common assault, the prosecution must prove beyond reasonable doubt that the accused intentionally or recklessly caused another person to apprehend immediate and unlawful violence, or applied unlawful force, without consent and without lawful excuse such as self-defence. Each element must be established to the criminal standard.

Question 6

What is intimidation as a domestic violence offence?

Accepted Answer

Intimidation includes conduct that causes a person to fear physical or mental harm, including harassment or approaches made by any means that cause apprehension of violence. In a domestic context it is frequently charged alongside, or instead of, assault, and it can be based on words, messages or a course of conduct.

Question 7

What is stalking in a domestic violence context?

Accepted Answer

Stalking includes following a person or watching or frequenting the places they live, work or visit, in a way intended to cause fear of harm. Like intimidation, it can be proved by a pattern of conduct rather than a single act, and intention is a central issue.

Question 8

Is choking or strangulation treated differently?

Accepted Answer

Yes. NSW has specific offences addressing intentional choking, suffocation or strangulation, which carry significant penalties and are treated very seriously by the courts. These charges have particular elements, and the precise allegation should be examined carefully.

Question 9

Can I be charged if I was acting in self-defence?

Accepted Answer

Self-defence is a complete defence where the conduct was a reasonable response to the circumstances as the accused perceived them. Police may still lay a charge, but if self-defence is raised the prosecution must disprove it beyond reasonable doubt. Evidence of the surrounding circumstances is critical.

Question 10

What happens if both people were involved in a physical altercation?

Accepted Answer

Police must identify who, if anyone, was the primary aggressor and whether any conduct was lawful self-defence. It is not unusual for the full context to be more complex than the initial account suggests, which is why a careful review of all the evidence matters.

Question 11

What is an ADVO?

Accepted Answer

An Apprehended Domestic Violence Order is a civil order made to protect a person from violence, intimidation or harassment where the parties are in a domestic relationship. It imposes conditions on the defendant. It is not a criminal charge and does not, by itself, result in a criminal record.

Question 12

Does an ADVO give me a criminal record?

Accepted Answer

No. An ADVO is a civil order, not a criminal conviction, and does not create a criminal record. However, breaching an ADVO is a criminal offence, and a conviction for breach does appear on a criminal record.

Question 13

What is the difference between an interim and a final ADVO?

Accepted Answer

An interim ADVO is a temporary order made early in proceedings to provide protection until the matter is decided. A final ADVO is made either by consent or after a hearing, and lasts for the period the court specifies. Interim orders carry the same obligation to comply as final orders.

Question 14

Can I consent to an ADVO without admitting anything?

Accepted Answer

Yes. An ADVO can be made by consent without any admission of the facts alleged. This is a common and often sensible outcome that resolves the order without a hearing and without the defendant accepting the truth of the allegations.

Question 15

How long does an ADVO last?

Accepted Answer

A final ADVO lasts for the period specified by the court. If no period is specified, the default duration set by the legislation applies. The court sets the duration based on the circumstances and the assessed need for protection.

Question 16

What conditions can an ADVO impose?

Accepted Answer

Every ADVO includes mandatory conditions prohibiting violence, threats, intimidation and stalking. The court can add further conditions, such as not approaching the protected person, not contacting them, not going to their home or workplace, or not being in their company after drinking alcohol or using drugs.

Question 17

Can an ADVO stop me seeing my children?

Accepted Answer

An ADVO can include conditions that affect contact with children if they are protected persons, but the court will consider existing family law orders. The interaction between ADVOs and parenting arrangements is complex and should be addressed with care to avoid unintended breaches.

Question 18

Can I get an ADVO varied or revoked?

Accepted Answer

Yes. An application can be made to vary or revoke an ADVO, but the court must be satisfied that the change is appropriate in the circumstances. The protected person's views and any change in circumstances will be considered.

Question 19

What happens if I am served with an ADVO application?

Accepted Answer

You should obtain advice promptly. You can contest the order, seek to negotiate its terms, or consent without admissions. In the meantime, any interim order in force must be obeyed strictly, even if you dispute the allegations.

Question 20

Does an ADVO affect my firearms licence?

Accepted Answer

Yes. The making of an ADVO generally results in the suspension or revocation of a firearms licence and prohibits possession of firearms for the duration of the order. This is an automatic consequence that applies regardless of whether the order was made by consent.

Question 21

What is an APVO?

Accepted Answer

An Apprehended Personal Violence Order protects a person from violence, intimidation or harassment where the parties are not in a domestic relationship — for example, neighbours, co-workers or acquaintances. The legal tests are similar to an ADVO, but the relationship between the parties is different.

Question 22

How is an APVO different from an ADVO?

Accepted Answer

The key difference is the relationship. An ADVO applies to domestic relationships; an APVO applies to non-domestic relationships. APVO matters are often referred to mediation through a community justice centre before proceeding, which is not typically the case for ADVOs.

Question 23

Can an APVO be resolved at mediation?

Accepted Answer

Frequently, yes. Because APVO disputes often arise between neighbours or colleagues, the court may refer the parties to mediation. A successful mediation can resolve the underlying dispute without the need for an order at all.

Question 24

Does an APVO appear on a criminal record?

Accepted Answer

No. Like an ADVO, an APVO is a civil order and does not create a criminal record. However, breaching an APVO is a criminal offence that can result in a conviction.

Question 25

Can I defend an APVO?

Accepted Answer

Yes. You can contest an APVO at a hearing where the applicant must prove the grounds for the order. You can also negotiate the conditions or, in appropriate cases, consent without admissions. Advice should be obtained on the best approach for your circumstances.

Question 26

What must an applicant prove for an APVO?

Accepted Answer

The applicant must show they have reasonable grounds to fear, and do in fact fear, the commission of a personal violence offence, intimidation or stalking, and that the conduct warrants an order. Where the conduct is intimidation or stalking, the court must be satisfied it justifies the making of an order.

Question 27

Can both parties take out an APVO against each other?

Accepted Answer

Yes, cross-applications are possible where each party alleges fear of the other. The court will consider each application on its evidence. Cross-applications can complicate matters and benefit from careful strategic handling.

Question 28

How long does an APVO last?

Accepted Answer

As with an ADVO, a final APVO lasts for the period specified by the court, and a default statutory period applies if none is specified. The duration reflects the court's assessment of the ongoing need for protection.

Question 29

What can I do if the allegations against me are false?

Accepted Answer

A false allegation is met by methodically testing the prosecution case: examining inconsistencies, motive, timing, and any objective evidence that contradicts the account. The burden remains on the prosecution to prove the charge beyond reasonable doubt — you do not have to prove your innocence.

Question 30

Do people make false domestic violence allegations?

Accepted Answer

Most allegations are genuine, but false and exaggerated allegations do occur, sometimes in the context of relationship breakdown, family law disputes or property matters. The law addresses this not by assuming bad faith, but by requiring the prosecution to prove its case to a high standard.

Question 31

How does a court test the reliability of an accuser?

Accepted Answer

Through cross-examination and by comparing the account against objective evidence — timelines, messages, medical records and the accounts of independent witnesses. Internal consistency, consistency over time, and consistency with the surrounding facts are all relevant to weight.

Question 32

Can motive to lie be raised in my defence?

Accepted Answer

Yes. Where there is a proper basis, evidence of a motive to fabricate or exaggerate can be explored. It must be put fairly and supported by the evidence, but it can be a legitimate and important part of testing a complainant's reliability.

Question 33

What evidence helps disprove a false allegation?

Accepted Answer

Contemporaneous messages, call records, location data, CCTV, independent witnesses and medical evidence can all contradict a false or exaggerated account. Preserving this material early is important, because some of it can be lost over time.

Question 34

Should I confront my accuser or contact them to sort it out?

Accepted Answer

No. If there is an ADVO or bail condition in place, any contact may be a criminal offence, and even where there is not, contact can be misinterpreted or used against you. All communication should go through your lawyer.

Question 35

Will it help to provide my account to the police?

Accepted Answer

Not without advice. You are not obliged to participate in a police interview, and an account given without proper preparation can cause more harm than good. Obtain legal advice before deciding whether and how to respond.

Question 36

Can I sue someone for making a false allegation?

Accepted Answer

Civil remedies are sometimes available but are complex and separate from the criminal proceedings. The immediate priority is usually defending the criminal matter. Any further steps can be considered once that is resolved.

Question 37

What if the allegation is exaggerated rather than entirely false?

Accepted Answer

Exaggeration is addressed in the same way as fabrication — by testing the account against the objective evidence. Establishing that key parts of an account are unreliable can create reasonable doubt about the charge as a whole.

Question 38

What should I do if I have just been charged?

Accepted Answer

Obtain legal advice before providing any account to police. You are not obliged to participate in an interview, and what is said in the hours after an incident frequently becomes the most important evidence in the matter. Note any conditions of bail or an interim ADVO carefully and comply with them.

Question 39

Will I get bail in a domestic violence matter?

Accepted Answer

It depends on the court's assessment of risk. The court considers whether there is an unacceptable risk to the protected person, the community or the proceedings. A well-prepared application proposing conditions that address those concerns improves the prospects of release.

Question 40

What is the unacceptable risk test?

Accepted Answer

The court asks whether there is an unacceptable risk that, if released, the accused would fail to appear, commit a serious offence, endanger a person or the community, or interfere with witnesses. If a risk is identified, the court considers whether bail conditions can reduce it to an acceptable level.

Question 41

What are show cause offences?

Accepted Answer

For certain serious offences, the accused must first show cause why their detention is not justified before the court considers the unacceptable risk test. Some domestic violence offending can engage show cause requirements, which makes a carefully prepared application especially important.

Question 42

What conditions are commonly imposed on bail?

Accepted Answer

Common conditions include not contacting or approaching the complainant, residing away from the complainant, reporting to police and surrendering travel documents. Conditions are tailored to the concerns identified in the particular matter.

Question 43

What happens if I breach bail conditions?

Accepted Answer

Breaching bail can lead to arrest and a reconsideration of bail, which may result in detention. Even a technical breach is serious. If a condition is impractical, the answer is to apply to vary it, not to ignore it.

Question 44

Can I apply to change my bail conditions?

Accepted Answer

Yes. An application can be made to vary bail conditions where circumstances change or a condition is unworkable. The court will consider whether the variation is consistent with managing any identified risk.

Question 45

What is an interim ADVO and how does it relate to bail?

Accepted Answer

When a person is charged with a domestic violence offence, police usually apply for an interim ADVO at the same time. Its conditions operate alongside any bail conditions, and both must be complied with. They often overlap, but they are separate orders.

Question 46

How quickly should I get legal advice?

Accepted Answer

As early as possible — ideally within the first 24 hours. Early advice protects your position before an interview, assists with a first bail application, and allows time to preserve evidence that may otherwise be lost.

Question 47

What evidence is used in domestic violence matters?

Accepted Answer

Evidence may include the complainant's account, statements from other witnesses, body-worn video, recorded triple-zero calls, text and social media messages, photographs of injuries, medical records and police observations. Each category has strengths and limitations that affect the weight it can be given.

Question 48

Can a case proceed on the complainant's word alone?

Accepted Answer

Yes, it can. The law does not require corroboration. A court may convict on the evidence of a single witness if it is satisfied beyond reasonable doubt. That is precisely why the reliability and consistency of that evidence is examined so carefully.

Question 49

How are text messages and recordings used?

Accepted Answer

Electronic communications can be powerful evidence, but they must be authenticated and read in context. A single message can read very differently when the full exchange and surrounding circumstances are considered. Both the prosecution and defence may rely on them.

Question 50

What is body-worn video and how does it affect my case?

Accepted Answer

Body-worn video is footage recorded by police at the scene. It can capture the immediate accounts and demeanour of those present. It can assist the prosecution, but it can equally assist the defence where it is inconsistent with a later account.

Question 51

Are recorded triple-zero calls used as evidence?

Accepted Answer

Yes. The recording and transcript of an emergency call can be tendered. Its content and tone may be relied on by either side, and like all evidence it must be considered in the context of everything else that is known.

Question 52

Can my own recordings or messages help my defence?

Accepted Answer

They can. Messages, call logs, photographs and recordings in your possession may contradict the allegation or provide important context. You should preserve them and provide them to your lawyer rather than acting on them yourself.

Question 53

What weight does medical evidence carry?

Accepted Answer

Medical evidence can establish the existence and nature of an injury, but it does not, on its own, establish how an injury occurred. The cause is a matter of inference from all the evidence, and that inference can be contested.

Question 54

What happens if the evidence is inconsistent?

Accepted Answer

Inconsistencies — between accounts, over time, or against objective evidence — can create reasonable doubt. Not every inconsistency is decisive, but significant unexplained inconsistencies in central matters can undermine the reliability of the case.

Question 55

Can illegally obtained evidence be excluded?

Accepted Answer

Sometimes. The court has a discretion to exclude improperly or illegally obtained evidence after weighing the competing considerations. Whether the discretion applies depends on the particular circumstances of how the evidence was obtained.

Question 56

Why is preserving evidence early so important?

Accepted Answer

Some evidence — such as CCTV, phone data and messages — can be deleted, overwritten or lost over time. Acting early to preserve relevant material can make the difference between having and not having the evidence that supports a defence.

Question 57

What happens at a defended hearing?

Accepted Answer

The prosecution calls its evidence and witnesses are cross-examined. The defence may call evidence. The magistrate then decides whether the charge has been proved beyond reasonable doubt. The burden remains on the prosecution throughout.

Question 58

Do I have to give evidence at my hearing?

Accepted Answer

No. A defendant is not obliged to give evidence and no adverse inference is drawn from silence. Whether to give evidence is a strategic decision made in light of the strength of the prosecution case.

Question 59

What is the standard of proof at a hearing?

Accepted Answer

The criminal standard — beyond reasonable doubt. The magistrate must be satisfied to that standard on each element of the offence. If there is a reasonable doubt, the charge must be dismissed.

Question 60

What is cross-examination and why does it matter?

Accepted Answer

Cross-examination is the questioning of a witness by the other side. It is the principal means of testing the reliability and credibility of evidence. Effective, fair cross-examination of a complainant or witness is often central to a defended hearing.

Question 61

How long does a defended hearing take?

Accepted Answer

It varies. A straightforward Local Court hearing may be completed in a day, while more complex matters with multiple witnesses can take longer or be heard over several days. Preparation time before the hearing is usually far greater than the hearing itself.

Question 62

What is a no-case submission?

Accepted Answer

At the close of the prosecution case, the defence may submit that the evidence, taken at its highest, could not establish the offence. If the submission succeeds, the charge is dismissed without the defence needing to call any evidence.

Question 63

Can the complainant be required to attend the hearing?

Accepted Answer

Yes. Where the matter is contested and the complainant's evidence is relied on, they can be required to attend and be cross-examined, subject to the protections the law provides for certain witnesses. Their attendance and evidence are often central to the case.

Question 64

What happens if I am found not guilty?

Accepted Answer

If the charge is dismissed, no conviction is recorded and the matter is at an end, subject to any prosecution appeal rights. Any related ADVO is considered separately and does not automatically fall away with the criminal charge.

Domestic Violence Defence Questions, Answered

Domestic Violence Charges

ADVOs

APVOs

False & Exaggerated Allegations

Bail & First Steps

Evidence

Defended Hearings

Sentencing & Penalties

Appeals & Annulments

Children, Family Law & Related Matters

Process, Costs & Working With a Lawyer

Confidential advice on your domestic violence matter