The legal system and domestic violence
The law and Our Australian community | Connecting the law and the community
Significant obstacles faced by women obtaining justice | The legal system
The legal system and domestic violence | Apprehended Violence Orders
Criminal Charges | Family law | Victims' rights, Approved Counselling and victims' compensation
The law and Our Australian community
A system that regulates relations
The law in Australia is a system that regulates our relations with the government (state and federal) and our community.
Laws are designed to protect our health and welfare, our basic rights, the environment and the economic system (including our right to own and enjoy property).
Two main sources
The law comes from two main sources:
- Law made by parliament (known as statute law or legislation)
- Law made by judges when deciding cases (known as common law or case law)
More recently Aboriginal customary law has been given some limited recognition in some states.
| Colonisation and constitutions
Australia inherited its legal system from England at the time of colonisation. Since then laws have been interpreted, applied and developed by Australian judges and new laws made by Australian parliaments.
Parliaments’ powers to make laws comes from the state and commonwealth constitutions.
Civil and criminal
The law is divided into two main branches:
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Criminal law
Criminal cases generally affect society as a whole and usually result in penalties such as fines, good behaviour bonds and imprisonment.
Criminal cases are usually prosecuted by the police, the Office of the Director of Public Prosecutions or some other government body. Criminal offences include stealing, assault, sexual assault, murder, fraud, domestic violence offences, serious driving offences and failing to lodge tax returns.
There can also be private prosecutions by individuals in the community.
If someone is charged with a crime it must be proved ‘beyond reasonable doubt’. The person being prosecuted is called the defendant or the accused. | Civil law
Civil cases usually involve private people, companies or government departments taking legal action against other private people, companies or government departments, and often result in orders to pay compensation or damages.
The person bringing the case is usually called the plaintiff (or sometimes the applicant or the complainant). The person who has a civil case brought against them is called the defendant or the respondent.
Examples of civil cases include contract law, family law and tort law.
AVOs
AVOs are civil orders with criminal consequences if there is a breach. (AVOs, although civil orders are contained in the Crimes Act.) |
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Connecting the law and the community
Certain sections of the community - women, Aboriginal and Torres Strait Islander peoples and people from non-English speaking backgrounds have traditionally not been included among the law-makers to any significant extent, or at all.
This combined with the origins of our legal system in English common law results in our legal institutions often not reflecting the diversity of the community and this in turn causing inequities in the legal system.
Some of the strategies that are being put in place to reduce these inequities include: |
- The education of judges and Magistrates
- Better access to interpreters
- Better access to legal aid
- The introduction of rights and entitlements for victims of crime through the Victims Rights Act and the Victims Support and Rehabilitation Act
- Women’s Domestic Violence Court Assistance Schemes at all Courts
- Informed workers: people working with domestic violence have a good understanding of the law and how it works and the impact of poor client service on victims of violence
- Ongoing law reform.
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Significant obstacles faced by women obtaining justice
The Australian Law Reform Commission Report No. 67 (Interim), Equality Before the Law, Women's access to the legal system, identified the common and significant obstacles faced by women in obtaining justice. These included:
- Lack of awareness of the law and legal services, due to the nature of domestic violence isolation
- Lack of confidence
- Lack of experience or knowledge about gaining information and negotiating systems
- Lack of child care services when receiving legal advice
- Inadequate information and poor advice
- Police/legal professionals being unaware of women's needs or experiences
- Services failing to provide accurate and appropriate assistance
- Prohibitive legal costs
- Inaccessibility of services
- Lack of appropriate safe waiting areas for women at the Local Court
- The overwhelming Court environment
- Undermining of a woman's credibility and minimisation of the problem
- Failure to address the different needs of women.
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The legal system
The legal system includes many elements. Some of the elements of the legal system that are more involved in working with domestic violence are:
Law makers
- Parliaments, judges and magistrates
The law
The law, especially:
Some other relevant Acts include:
Law enforcers
Law administration: courts
| Prosecutors
- NSW Police
- Office of the Director of Public Prosecutions
Legal service providers
- The Legal Aid Commission
- Community Legal Centres
- Private solicitors
Legal support services
- Women’s Domestic Violence Court Assistance Schemes
Law reformers
The Law Reform Commission
- State and Commonwealth Senate Committees
- Non-government organisations
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The legal system and domestic violence
There is a range of civil and criminal responses to protect victims and prevent domestic violence.
These remedies offer protection against many forms of domestic violence, including acts that are not physically violent.
Legal remedies
Legal action in response to domestic violence may address:
- A criminal action and provide punishment for it, and/or
- Future protection to a person by prohibiting or restricting certain behaviours of the defendant in the form of a protection order
- Compensation.
| Legal processes
Specific processes include:
- Protecting the victim: Apprehended Violence Orders (AV0s)
- Criminal charges arising out of a domestic violence incident.
- Family law and
- Approved counselling and/or compensation for victims of crime.
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Apprehended Violence Orders
In NSW the best protection from domestic violence is often provided by an Apprehended Violence Order which is an order made under Part 15A of the Crimes Act in conjunction with the charging, arrest and prosecution of offenders who commit criminal offences.
The Court grants AVOs in order to protect people against acts of violence such as physical assault, non-physical abuse such as harassment or intimidation, or damage or threatened damage to property.
The victim does not have to be living with the person who abuses her. The order itself does not give a criminal record. However the breach of an AVO is a criminal offence and the police may arrest and charge the alleged offender. AVOs are designed to: |
- Ensure the safety and protection of all persons who experience domestic violence,
- Reduce and prevent violence between persons who are in a domestic relationship with each other, and
- Enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence Against Women.
See Part 4 Section B Protecting Victims - AVOs and the civil legal process for details.
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Criminal Charges
The police have a duty to investigate offences and take appropriate action. This can range from cautioning the person to arresting and charging the person.
Many acts of domestic violence constitute criminal offences and should be reported to the police immediately or as soon as possible. This is not limited to physical assault - stalking, trespassing and malicious damage are all criminal behaviours.
The police are responsible for deciding whether or not to proceed with charging the person. If the police decide to arrest and charge the offender, he will be prosecuted by the police or the Office of the Director of Public Prosecutions (ODPP). The victim is a witness for the prosecution case.
It is possible for a woman to commence a private prosecution for a criminal offence where the police have decided not to act. To do so, she should see the Chamber Magistrate at her Local Court and lay a complaint. She should get legal advice about whether to do this.
See Part 4 Section C Perpetrators - the criminal legal process for further details.
Differences between
AVOs and Criminal Charges
The purpose of this table is to highlight the major differences.
See Part A Section F. AVOs an introduction and Part 4 B and Part 4 C for full details |
Apprehended Violence Order | Criminal Charge (eg. Assault) |
| Is not a criminal conviction. | Offender, if charged and found guilty, usually has a criminal conviction recorded. |
| Women can apply for the order themselves, or under certain circumstances the police have an obligation to assist a victim by applying for an order for her. | Police lay charges and prosecute the matter.
(A woman may commence a private prosecution) |
| Purpose is to provide protection from future violence, harassment or molestation or stalking | Purpose is to deal with offences which have already occurred. ( i.e. past behaviour) and may have a deterrent effect. |
Places conditions or restrictions on the offender, i.e. orders the offender not to do certain things.
The conditions can be "tailor made" to suit the individual victim's need for protection. | Imposes a sentence (e.g. bond, fine, prison sentence) on the offender. |
| Standard of proof. Magistrate must be satisfied on the balance of probabilities, ie, it is more likely than not that the victim's fear is reasonable and justified. | Standard of proof. Must be proved beyond reasonable doubt that the alleged offence occurred. |
| A breach of an AVO (ie. breaking the conditions of an order) is a criminal offence. |  |
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Family law
The purpose of the Family Court of Australia is to resolve or determine family disputes with as little antagonism as possible and to encourage the parties to reach their own agreements about their children, finances and property.
To do this the Court provides a range of services including:
- Information services
- Dispute resolution services (counselling, mediation and financial conciliation) and
- Judges deciding matters brought through the Family Court.
Some of the areas the Family Court deals with are:
- Marriage and the dissolution of marriage
- Disputes between married couples about the ownership and division of property
- Children and parenting within the context of marriage and divorce
- Family violence.
| The Family Court and domestic violence
There are several areas where the work of the Family Court directly relates to domestic violence. They include:
- The workings of the Family Court
- Parenting orders
- Location and recovery orders
- Family violence orders (which in NSW are AVOs)
- The relationship between parenting orders and AVOs
- Injunctions for personal protection.
See Part 4 Section D Family law and family violence for further details. |
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Victims' rights, Approved Counselling and victims' compensation
Section 6 of the Victims Rights Act 1996 outlines 17 rights in the Charter of Victims rights. Victims should have access to appropriate counselling and other services and access to a victims compensation scheme.
A victim of domestic violence may be eligible to apply for Approved Counselling and/or for compensation if she sustains an injury as a result of an act of violence.
A victim of domestic violence may be entitled to counselling under the Approved Counselling Scheme if they:
- were the victim of domestic violence;
- witnessed domestic violence being perpetrated on someone; or
- are the parent or guardian of a victim of domestic violence who was a child at the time of the incident.
A victim of domestic violence may be eligible for compensation if they suffered injury as a result the violence. There is a specific compensable injury of Domestic Violence which ranges from $7,500 to 10,000 or the claim may be for other compensable injuries listed in the Schedule of Injuries.
Claims that are not covered by the victims compensation scheme include where:
- the act of violence did not occur in NSW;
- it cannot be proved that an act of violence occurred; or
- injury is not established.
In some circumstances an award of compensation may be reduced or dismissed. This includes cases where:
- the offence was not reported to the police within a reasonable time (unless it can be established that the delay was justified); or
- they did not assist the police in their inquiries.
| Incidents of domestic violence which may result in eligibility for victims compensation include violent criminal acts that cause injury, such as an assault, sexual assault, intimidation or harassment.
Not every incident of behaviour that might be experienced as mistreatment will result in eligibility for victims compensation. For example, some emotional, economic, or psychological mistreatment may cause injury, however if it does not constitute a criminal offence it will not result in eligibility for victims compensation. In other matters, there may be insufficient evidence to establish how injuries were occasioned.
In general, eligibility to claim for the compensable injury of Domestic Violence is where the victim has been injured by someone:
- With whom they are or were in an intimate personal relationship with;
- Who is a relative;
- Who has a relationship involving dependence with them; or
- With whom they share a house.
The compensable injury of Domestic Violence may also apply if they were injured as a result of intimidation or stalking in apparent contravention of an apprehended domestic violence order.
See Part 4 Section E Victim Services: Approved Counselling and victim’s compensation for further details. |
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