What is domestic violence?
These Interagency Guidelines are about working with the legal system in responding to domestic violence so the definition of domestic violence used in these Guidelines is a legal one.
There are other definitions. Service providers often have their own definitions and these differences in definition account for differences in eligibility criteria for services.
The definition used in these Guidelines is the one contained in the Crimes Act. It has several components:
- What is a domestic relationship?
- What is a domestic violence offence?
- What are the grounds on which an AVO can be granted by the Court?
Another relevant definition is ‘victim of crime’. It is defined in the Victims Rights Act 1996.
Crimes Act
What is a domestic relationship?
Section 4(1) of the Crimes Act 1900 defines a domestic violence offence as a personal violence offence committed against:
a) A person who is or has been married to the person who commits the offence, or
b) A person who has or has had a de facto relationship, within the meaning of the Property (Relationships) Act 1984, with the person who commits the offence, or
c) A person who has or has had an intimate personal relationship with the person who commits the offence, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or
d) A person who is living or has lived in the same household or other residential facility as the person who commits the offence, or
e) A person who has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the person who commits the offence, or
f) A person who is or has been a relative (within the meaning of s4 (6)) of the person who commits the offence.
What is a personal violence offence?
A personal violence offence includes a range of offences and attempted offences, including but not restricted to, the following:
Assault
Maliciously destroying property
Breaching an AVO
Sexual assault
Murder
Manslaughter
Wounding with intent to do bodily harm
Discharging loaded firearms with intent,
Malicious wounding or infliction of grievous bodily harm
(See section 4(1) of the Crimes Act in Appendix B for a full list of personal violence offences.)
What are the grounds on which an AVO can be granted by the Court?
The grounds on which an AVO can be granted by the Court include:
- Domestic violence offence
- Harassment, molestation, intimidation and stalking.
The Magistrate must be satisfied on the balance of probabilities that a person who has a domestic relationship with another person has reasonable grounds to fear and in fact fears conduct that is sufficient to warrant the making of the order.
Section 562AE of the Crimes Act defines when a court may make an ADVO:
A court may, on complaint, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has a domestic relationship with another person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person, or
(b) the engagement of the other person in conduct amounting to harassment or molestation of the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order, or
(c) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if:
(a) the person is under the age of 16 years, or
(b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function.
(3) For the purposes of this section, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the possession of, or used by the person.
(4) An order made under this section may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court.
What is the meaning of victim of crime?
Section 5 of the Victims Rights Act 1996 defines the meaning of ‘victim of crime’
(1) For the purposes of this Act, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.
(2) A person suffers harm if, as a result of such an act:
(a) the person suffers actual physical bodily harm, mental illness or nervous shock, or
(b) the person's property is deliberately taken, destroyed or damaged.
(3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Act.
Other definitions
There are many definitions of domestic violence in use, two further ones are:
Partnerships Against Domestic Violence Statement of Principles agreed by the Australian Heads of Government at the 1997 National Domestic Violence Summit
Domestic violence is an abuse of power perpetrated mainly (but not only) by men against women both in relationship and after separation. It occurs when one partner attempts physically or psychologically to dominate and control the other. Domestic violence takes a number of forms. The most commonly acknowledged forms are physical and sexual violence, threats and intimidation, emotional and social abuse and economic deprivation.
NSW Health
Violent, abusive or intimidating behaviour carried out by an adult against a partner or former partner to control and dominate that person. It is most often violent, abusive or intimidating behaviour by a man against a woman. Domestic violence also has a profound effect upon children and young people and constitutes a form of child abuse.
Definitions of domestic violence and entitlements to services
How agencies define domestic violence can have an impact on what services agencies are prepared to provide.
The legal definition provides the foundation for these Interagency Guidelines as they are dealing with ‘working with the legal system in dealing with domestic violence’.
See Part 5 Appendix B for further details.
Victims are often not aware they are experiencing domestic violence
Victims of domestic violence are often not aware that what they are experiencing is domestic violence. This is particularly the case when women are socially and geographically isolated. It is important for health and other professionals as well as family and friends to support women who are experiencing domestic violence, by providing them with accurate information and referral to services.
It can occur in all kinds of relationships
Domestic violence can also occur in gay and lesbian relationships. However, it is difficult to know the extent of violence in same sex relationships because of the low rate of reporting, which is exacerbated by the victims' fear of homophobia, their unwillingness to reveal their sexuality if they have not publicly acknowledged their sexuality, and the perceived lack of community understanding.
There is, however, increasing awareness of these issues and action to assist victims of violence in gay and lesbian relationships.
The law relating to AVOs covers same sex relationships.
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