Child-Related Domestic Violence in NSW

How children change a domestic violence matter

Children feature in domestic violence proceedings in several distinct ways, and they do not all arise from the same legal provision. The involvement of a child can affect:

• who is named as a protected person on an AVO — children can be included alongside the adult;
• sentencing — committing a domestic violence offence in the presence of, or against, a child is an aggravating factor that the court must take into account; and
• family law proceedings — a DV charge and any AVO arising from it are directly relevant to parenting arrangements under the Family Law Act 1975 (Cth).

Understanding which of these applies — and in what combination — is the starting point for any matter where children are part of the picture. They are not the same problem and they do not have the same legal mechanics, even when they arise from the same set of facts.

Crimes (Domestic and Personal Violence) Act 2007 (NSW) — the primary Act governing domestic violence offences and AVOs in NSW, including provisions relating to children as protected persons and the relevance of children to sentencing.

AVOs and children

A domestic violence order (AVO) in NSW names a protected person — usually the adult complainant — but children who are in a domestic relationship with the defendant, or who ordinarily live with or regularly spend time with the protected person, can also be named as protected persons on the same order.

Where children are named, the conditions of the AVO apply with respect to those children as well as the adult. This matters in practice for several reasons:

• Conditions that restrict contact with or approach to the protected adult will frequently also restrict contact with the children named on the order.
• Any conduct toward the children that breaches the order's conditions is a criminal offence under the Act — regardless of whether the adult protected person is present.
• A provisional AVO is commonly applied for by police at the time of charge, and those conditions take effect immediately — before any hearing or final order — so they can disrupt existing contact or parenting arrangements from day one.

Where an AVO names children and there are also family law parenting orders or arrangements in place, the interaction between the two requires careful attention. An AVO condition that prohibits contact does not automatically override a family law parenting order — the legal relationship between the two instruments is not straightforward, and conflicts between them need to be resolved, not ignored.

Sentencing and the aggravating factor

Committing a domestic violence offence in the presence of a child, or against a child who is in a domestic relationship with the defendant, is treated as an aggravating factor on sentence under NSW law. A court sentencing for a domestic violence offence must take this into account if it is established.

The practical effect is that the sentencing range shifts upward where this factor is present. This does not mean that every matter involving a child will result in a more severe outcome than it would otherwise — other factors, including any mitigating circumstances, remain relevant — but the presence of a child in the circumstances of the offence is a matter the court is required to weigh, and its weight is real.

The aggravating factor applies whether the child is the direct subject of the violent or threatening conduct, or whether the child was present and exposed to conduct directed at an adult. The courts treat exposure of children to domestic violence as serious in its own right. Every matter turns on its own facts.

The family law overlap

A domestic violence matter where children are involved almost always has a family law dimension — and the two streams of proceedings are legally separate but practically intertwined.

Under the Family Law Act 1975 (Cth), courts making parenting orders must consider family violence and any protection orders. A finding of domestic violence — or even a charge that is still before the courts — is material to parenting proceedings. So is the existence of an AVO, even a provisional one made without a hearing.

Common points of conflict include:

• AVO conditions restricting contact with the children, running alongside existing family court orders that provide for contact;
• one party using DV proceedings to influence family law outcomes — or family law proceedings being used to affect the DV charge;
• child protection notifications or investigations, which can be triggered separately by either the DV allegation or the family law proceedings; and
• the possibility of a court in one jurisdiction making orders that are inconsistent with, or that complicate, the orders of the other.

These pressures are sharpest in the immediate period after a charge and any AVO application — when bail conditions and provisional AVO conditions may be in place and family arrangements are disrupted. Managing the DV proceedings carefully, with awareness of the family law position, is important from the outset.

How Lenz Legal approaches matters involving children

Matters where children are involved require particular care, because the legal consequences spread across criminal law, AVO law and family law at the same time. The approach is to address all three streams as a single position rather than in isolation.

In practical terms that means: obtaining and reviewing the full AVO application and any interim conditions from the outset; understanding how those conditions interact with any existing family law orders; addressing the aggravating factor in the sentencing position where relevant; and maintaining a clear boundary between the criminal proceedings and the family law proceedings so that steps taken in one do not inadvertently damage the position in the other.

Where children are involved, the courts — and any relevant child protection authority — are paying close attention. The conduct of the proceedings, and the conduct of the defendant throughout, are both in view. Every matter turns on its own facts.

Child-related domestic violence — your questions answered