Domestic violence and the court process

Domestic violence offences are dealt with differently to other offences. For an offence to be classed as a domestic violence offence, a domestic relationship must exist between the parties involved.

In New South Wales, legislation defines what is meant by a “domestic relationship” and “domestic violence offences”. These definitions are contained in the Crimes (Domestic and Personal Violence) Act 2007.

A domestic relationship is a relationship in which two people:

  • previously have had a domestic relationship with the same person;
  • have or previously had a dependant relationship (paid or unpaid);
  • are related, or were previously related;
  • are living together, or have lived together in the past;
  • are in a de facto relationship;
  • have, or have had an intimate personal relationship together (this does not need to be a relationship of a sexual nature);
  • are married, or were previously married; or
  • are part of the extended family or kin, or have been in the past (if Aboriginal or Torres Strait Islander).

A domestic violence offence is an offence committed by one party against someone with whom they share a domestic relationship and they, for example, do one of the following:

  • assault that person;
  • damage property belonging to that person;
  • stalk or intimidate that person; or
  • breach an Apprehended Domestic Violence Order (ADVO) against them for the protection of the other person.

If charged with a domestic violence offence, a person will be required to attend Court. They will be named as the defendant and the prosecution will be required to prove their case against the defendant. If you’ve been charged with a domestic violence, there are many family law solicitors in Wollongong that can help you resolve the matter.

In between the date of being charged and the Court date, the defendant will may be released on bail depending on the severity of the alleged offence. This will involve certain conditions which need to be met.

It is important to note that from the date a defendant is charged with a domestic violence offence, it is likely there will be an interim ADVO made against the defendant. This will become final if a defendant later pleads guilty or is found guilty.

On the first day of Court a defendant will be handed information relating to their case. Upon receiving that information, a defendant may be asked whether they wish to enter a plea of guilty or not guilty. A defendant may ask the Court for further time to decide and the matter will be adjourned.

If a defendant pleads guilty, the Magistrate will be handed their criminal record, Facts Sheet outlining details of the offence and any other supporting documents.

The Court will then hear from the defendant or their legal representative in deciding on an appropriate penalty. A defendant may wish to provide character references to the Court at this time. Submissions made to the Court generally include the defendant’s account of the offence, an explanation for committing the offence and personal information relating to the defendant. This information may include details of the defendant’s background, community ties, employment or relevant rehabilitation.

On the other hand, if a defendant pleads guilty to the domestic violence offence, the matter will be adjourned for hearing. This means that the evidence (documents and possibly oral evidence provided by witnesses) will be put to the Court and the Magistrate will make a decision based on that evidence.

Using the supporting evidence, the prosecution will ask the Court to find a defendant guilty. The Magistrate will reach a decision based on whether or not the prosecution has proved guilt on the balance of probabilities.

The Magistrate may make this decision on the day or adjourn the matter to a future date.

If a defendant is found guilty of the offence, the Magistrate will then consider the appropriate penalty.

In deciding an appropriate penalty, the Court will consider the defendant’s details such as their criminal record, the nature and seriousness of the offence, whether the defendant has sought treatment and how likely it is that the defendant will re-offend. Penalties range from pecuniary penalties (fines) to custodial sentences (imprisonment).

If a defendant is found not guilty, the case will be dismissed.

1 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 5.
2 Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 11.