Domestic violence and the law
Many people contact our Centre in relation to domestic violence matters. We are contacted by both survivors of domestic and family violence and by accused perpetrators. It is often the first time that our clients have been in contact with the criminal justice system. It is common for both the victim and the accused to be traumatised by both the initial incident, and their involvement with the police and the court system.
Generally, a person involved in the domestic violence incident, a witness or a neighbour, will call the police for assistance. When the police attend a domestic violence incident, the police routinely interview the people involved on camera, and attempt to obtain written statements. Police are required under law to charge a person with a criminal offence, such as assault or intimidation where it appears that such an offence has occurred.
Apprehended Violence Orders (AVOs)
Police are also required to apply for a provisional AVO where they suspect that a domestic violence offence has been committed. In some cases, the police may apply for a provisional AVO even where they do not charge a person with a criminal offence.
It is not uncommon for victims to have only wanted the police to caution the other party involved. However, police are required to lay charges and apply for an AVO where a domestic violence incident has occurred. The matter is therefore taken out of the hands of the victim. Even where the victim contacts police and advises that they do not want the AVO to proceed, it remains a decision for the police to make.
Often people regret having called the police because they think police action in applying for an AVO and/or laying charges was too extreme. However, as stated earlier, the law requires that the police take such action.
Police decide what conditions are listed on a provisional AVO. At court, police also advise the Magistrate what conditions they want on an AVO. Conditions may include restrictions on where a person can reside, places they can visit, and whether the defendant can contact the person in need of protection. These conditions may mean, for example, that the defendant has to leave their place of residence and reside elsewhere.
Domestic violence is a serious crime
The message from the courts is clear – domestic violence offences will not be tolerated in any form. Domestic violence is a serious crime. The police and courts treat it with an appropriate level of seriousness. A person has a right to feel safe in their home, and with the people that they are in a domestic relationship with. Any minor assaults will result in criminal charges and an AVO.
Marrickville Legal Centre assists many people who are traumatised by domestic violence incidents. The only way to avoid involvement with the police and the court system in relation to domestic violence incidents is for people not to commit them. If they do, they will be dealt with severely.
People who receive legal assistance are more likely to appreciate the seriousness of the matter. They are more willing to address the cause of the offending by engaging with counselling, anger management and drug/alcohol rehabilitation. Therefore, these people are far less likely to commit further offences.
Sarah contacted the Centre after her husband had been charged with assault and the police had taken out a provisional AVO on him. Police were contacted by Sarah after she had a heated argument with her husband who had pushed her. Sarah only wanted the police to warn her husband. However, police could not ignore the fact that a push constituted an assault. Sarah’s husband was therefore charged with common assault. The maximum penalty for common assault is two years imprisonment and a $5500 fine (if the assault is domestic violence related). Police also applied for a provisional AVO.
Sarah contacted the Centre saying that she didn’t want the AVO anymore, and that she didn’t want her husband charged with assault. Sarah was advised that the decision to withdraw the AVO or the assault charge was out of her hands – it was now a decision for the police to make. Sarah’s husband pled guilty to the assault charge, for which he was convicted. As required by law, the court ordered a final AVO, for a 2 year period.
If you are experiencing domestic or family violence, contact Marrickville Legal Centre. If you are in immediate danger, please call ‘000’.