Domestic violence charges in NSW
What a domestic violence flag does to a criminal charge: police obligations, the ADVO, bail and contact conditions, the protected person as a witness, and sentencing.
A domestic violence offence is an ordinary offence, assault, intimidation, property damage, committed against someone in a domestic relationship with you, and the flag changes everything around it. Police must charge and must apply for an ADVO. Bail conditions will stop you contacting the other person and going to their home, and those conditions bind you from the moment they are set. The prosecution can proceed even if the other person does not want it to.
- Read your bail conditions and the interim ADVO and put every condition in your phone; do not contact the protected person under any circumstancesSection 4 of this guide
- Arrange somewhere to live if the conditions exclude you from your home; the court does not do this for youSection 4 of this guide
- Get a lawyer or apply for Legal Aid before the first mention; the ADVO and the charge are dealt with togetherSection 8 of this guide
This is the wrong place if you were planning to represent yourself. A domestic violence charge combines a criminal matter, a civil order with immediate effect, bail conditions that are easy to breach and a witness the prosecution controls. None of that is a self-representation matter.
| What makes it DV | Any offence against a person in a domestic relationship: partner, former partner, family, household, carer |
| Police must | Charge where there are grounds, apply for an ADVO, assess risk |
| The ADVO | Civil order, interim conditions effective immediately, final order at the criminal outcome |
| Bail | Almost always no contact and no attendance at the protected person's home or work |
| The witness | The protected person can be compelled; the prosecution decides, not them |
| Sentence | Domestic context is an aggravating factor; the court must consider a supervised order or custody |
1What makes an offence a domestic violence offence
Start here
The offence is the ordinary offence: common assault, assault occasioning actual bodily harm, stalking or intimidation, destroying or damaging property, contravening an AVO. What makes it a domestic violence offence is that the other person is or was in a domestic relationship with you: a spouse or de facto partner, a former partner, someone you have or had an intimate relationship with, a relative, a member of your household, or a person you care for or who cares for you. The flag is recorded on the charge and it changes what police must do, what conditions you are under, and how the court sentences.
Legal basis: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 11; Crimes (Sentencing Procedure) Act 1999 (NSW) s 4A. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
2Police obligations
No discretion
When police attend a domestic violence incident and have grounds to believe an offence has been committed, they are required to act. They charge the person they identify as the offender, they apply for an apprehended domestic violence order, and they complete a risk assessment. They do not need the consent of the other person to charge, and a person who says they do not want their partner charged cannot prevent it. Police can also issue a provisional ADVO on the spot, which takes effect immediately.
Legal basis: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 27, 28A (provisional orders). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
3The ADVO
Civil order, criminal consequences
An apprehended domestic violence order is a civil order, not a conviction, and it runs alongside the criminal charge in the same court proceedings. Police apply for it; the other person is the protected person, not the applicant. An interim order is made at or before the first mention and its conditions apply immediately. Every ADVO carries three mandatory conditions: not to assault, threaten, stalk, harass or intimidate the protected person; not to destroy or damage their property; and not to intentionally or recklessly harm any animal of theirs. Additional conditions commonly prohibit contact, approaching the protected person, attending their home or workplace, and being in their company within twelve hours of drinking or taking drugs.
The final order is usually decided when the criminal matter is finalised. A guilty plea or finding of guilt to a domestic violence offence means the court must make a final ADVO unless satisfied it is not required. A final ADVO of two years is common. Breaching any condition of an ADVO is a criminal offence carrying two years, and the court is required to consider imprisonment for a breach involving violence.
Legal basis: Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 14 (contravention), 22 (interim), 36 (mandatory conditions), 39 (order on conviction). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
4Bail and contact conditions
The condition you will breach if you are not careful
Bail on a domestic violence charge almost always includes a condition not to contact the protected person and not to attend their home or workplace. If that is your home, you are excluded from it and you need somewhere else to live tonight. The condition applies to your conduct. If the protected person phones you, texts you, or asks you to come home, replying is contact and coming home is a breach. It does not matter who initiated it, and the fact that the protected person wanted the contact is not a defence.
Breach of bail brings you back before the court and can mean bail is revoked. Breach of the ADVO is a separate criminal charge on top of the original one. A person who started with a common assault and ends with a common assault, a breach of bail and a contravene AVO has turned one matter into three and has told the court that orders do not bind them.
Legal basis: Bail Act 2013 (NSW) ss 20A, 77 to 79; Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14. This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
5The protected person as a witness
Not their decision
In a domestic violence prosecution the protected person is a witness for the prosecution, not a party. The prosecution can proceed whether or not they want it to, can compel them to attend by subpoena, and can rely on their recorded statement to police, which in domestic violence matters is usually taken on video at the scene and can be played as their evidence in chief. A protected person who gives evidence inconsistent with that recording can be cross-examined on it by the prosecutor. Whether the matter goes ahead is the prosecution's decision.
Any attempt to influence the protected person about their evidence, to ask them to withdraw the complaint, or to have someone else do so, is itself a serious criminal offence.
Legal basis: Criminal Procedure Act 1986 (NSW) Chapter 6 Part 4B (domestic violence evidence in chief); Crimes Act 1900 (NSW) s 315A (threatening or intimidating a witness). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
6Defences
What is available
The defences are those of the underlying offence: self-defence for an assault, absence of intent to cause fear for intimidation, lawful excuse for property damage. For all of them the prosecution must prove each element beyond reasonable doubt. Domestic violence matters are frequently defended and frequently won at hearing, because they often turn on one account against another, but the hearing is a contest on the evidence and it is run by a lawyer.
7Sentencing
Aggravation and the presumption
An offence committed in a domestic relationship is an aggravating factor. Where a person is sentenced for a domestic violence offence, the court must impose either full-time imprisonment or a supervised order, a CCO or ICO with supervision, unless it records reasons for a different sentence. In practice that means a first-offence domestic violence common assault with a good record can still end without a conviction, but the court has to explain why, and the material in front of it has to justify the explanation.
Legal basis: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 4A, 4B, 21A(2)(ea). This is a summary for general understanding. The full provisions are more detailed and may not apply in all circumstances.
8What to do now
Action
No contact, no exceptions, no matter what the other person says. Somewhere to live. Comply with every bail and ADVO condition to the letter. Get a lawyer or apply for Legal Aid before the first mention, because the interim ADVO is decided there and the conditions you accept or contest on that day shape the next two years. If a program is relevant, a men's behaviour change program or counselling, begin it now rather than after being told to.
Any domestic violence charge
A domestic violence matter is a criminal charge, a civil order with immediate effect, and bail conditions with a breach risk that runs every day, decided together at a first mention that most people attend without understanding what is being decided. A consultation with the lawyers who built Standard before that mention is the right step, and Legal Aid is available for many of these matters.
Request a consultationGeneral information only, not legal advice. NSW-specific. Every matter turns on its own facts and laws can change. Reading this guide does not create a solicitor-client relationship between you and the lawyers who produced it.