Specific legislation is in force in all Australian states and territories that empowers courts to make protection orders such as apprehended violence orders to protect victims of domestic violence or persons at risk of domestic violence. These laws in Australia provide protections for domestic violence in general regardless of gender. From a structural perspective, civil protection orders for domestic violence are generally obtained under applicable state or territory laws, with mutual recognition principles incorporated into the laws of the other Australian states and territories to ensure that a protection order issued in one state or territory is upheld nationally under the laws of other Australian states and territories.

Table 1 sets out the primary piece of legislation at the federal (commonwealth) level and in each Australian state and territory that is focused on addressing domestic violence and providing remedies and protections such as protection orders for victims of domestic violence.

The legislation in these jurisdictions differs in many ways. Section 3 of this report goes into more detail regarding the similarities and differences in key terminology and concepts used in the domestic violence legislation in each state and territory. However, at a high level, all central features of the legislative schemes have a largely similar effect in respect of crucial matters, such as the following:

• the types of conduct that may constitute domestic violence and the grounds on which protection orders may be made
• the types of orders that may be made in a domestic violence context
• the kinds of prohibitions, restraints and conditions that an order may impose on the person against whom it is made
• the capacity for temporary orders to be made or obtained quickly by police in emergency situations, without the need for an appearance before a court
• the (criminal) effect of contravening a domestic violence protection order

Certain types of conduct that are associated with domestic violence or that may lead to the making of a domestic violence protection order — for example, assault or sexual assault — may also constitute a criminal offense under the criminal codes in each state and territory.

Table 2 identifies the main criminal codes and related legislation in each state and territory that may separately criminalize types of conduct that are commonly associated with domestic violence.

Table 1: Principal legislation relating to protection orders and related protections for domestic violence victims

New South Wales 

Crimes (Domestic and Personal Violence) Act 2007 (New South Wales)(“NSW Act”)

The objectives of the NSW Act in relation to domestic violence are set out in Section 9 and include the following:

• ensuring the safety of all persons, including children, who experience domestic violence
• reducing and preventing the occurrence of violence within domestic relationships
• enacting legislation consistent with the principles underlying the Declaration on the Elimination of Violence Against Women
• enacting provisions that are consistent with the United Nations Convention on the Rights of the Child

The NSW Act supports these objectives by doing the following:

1. empowering courts to make domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking
2. ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice

Queensland

Domestic and Family Violence Protection Act 2012 (Queensland)(“Queensland Act”)

The Queensland Act has three stated objectives, as follows:

1. to maximize the safety, protection and well-being of people who fear or experience domestic violence and to minimize the disruption in their lives
2. to prevent or reduce domestic violence and the exposure of such violence to children
3. to ensure that individuals who commit domestic violence are held accountable for their actions

The Queensland Act supports these objectives by doing the following:

1. allowing a court to make a domestic violence order to provide protection against further domestic violence
2. giving police particular powers to respond to domestic violence, including the power to issue a police protection notice
3. imposing consequences for contravening a domestic violence order or police protection notice, particularly liability for committing an offense

Victoria

Family Violence Protection Act 2008 (Victoria)(“Victorian Act”)

The stated objectives of the Victorian Act are as follows:

1. to maximize safety for children and adults who have experienced family violence
2. to prevent and reduce family violence to the greatest extent possible
3. to promote the accountability of perpetrators of family violence for their actions

The Victorian Act supports these objectives by doing the following:

1. providing an effective and accessible system of family violence intervention orders and family violence safety notices
2. providing for the sharing of information that is relevant to assessing and managing a risk of family violence
3. creating offenses for contraventions of family violence intervention orders and family violence safety notices
4. providing a framework for achieving consistency in family violence risk assessment and family violence risk management

Western Australia

Restraining Orders Act 1997 (Western Australia)(“WA Act”)

The WA Act has the objective of providing orders to restrain people from committing family violence or personal violence by imposing restraints on their behavior and activities.

South Australia

Intervention Orders (Prevention of Abuse) Act 2009 (South Australia)(“SA Act”)

The SA Act has three stated objectives, as follows:

1. to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse, by providing the following:
   1. issuing intervention orders
   2. issuing associated orders relating to problem gambling and tenancy agreements
   3. registering foreign intervention orders
   4. enforcing South Australian and foreign intervention orders
2. to provide special police powers of arrest, detention and search in connection with issuing, serving and enforcing intervention orders
3. to further protect persons suffering or witnessing domestic or non-domestic abuse by doing the following:

1. providing special arrangements for witnesses in proceedings under this act
2. imposing limitations on publishing reports about proceedings or orders under this act

Tasmania

Family Violence Act 2004 (Tasmania)(“Tasmanian Act”)

The main objectives of the Tasmanian Act are to promote the safety, psychological well-being and interests of people affected by family violence.

The Tasmanian Act aims to achieve these objectives by providing a framework for protection orders to be made to protect victims of family violence against family violence offenders.

Australian Capital Territory

Family Violence Act 2016 (Australian Capital Territory)(“ACT Act”)

The ACT Acthas three stated objectives, as follows:

1. to prevent and reduce family violence
2. to ensure the safety and protection of people, including children, who fear, experience or witness family violence
3. to encourage perpetrators of family violence to be accountable for their conduct

The ACT Act aims to achieve its objectives by doing the following:

1. giving the courts power to make family violence orders (also known as an FVO in legislation) to protect people from family violence
2. creating offenses to enforce family violence orders
3. ensuring that access to the courts is as simple, quick and inexpensive as is consistent with justice
4. recognizing family violence orders made elsewhere in Australia and New Zealand

Northern Territory

Domestic and Family Violence Act 2007 (Northern Territory)(“NT Act”)

The NT Act has three stated objectives, as follows:

1. to ensure the safety and protection of all persons, including children, who experience or are exposed to domestic violence
2. to ensure that people who commit domestic violence accept responsibility for their conduct
3. to reduce and prevent domestic violence

The NT Act aims to achieve its objectives by providing the following:

1. making domestic violence orders to protect people from domestic violence and to encourage the people committing it to change their behavior
2. registering orders made in other jurisdictions
3. enforcing those orders
4. enabling particular entities to share information so that the following can be achieved:

1. assessments can be made about threats to the life, health, safety or welfare of people because of domestic violence
2. responses can be made to threats mentioned in subparagraph (i)
3. people who fear or experience domestic violence or people who commit domestic violence can be referred to the appropriate providers of domestic violence-related services

Federal (commonwealth)

Family Law Act 1975 (commonwealth)(“Commonwealth Act”)

Civil family violence protection orders are generally obtained under state and territory laws rather than under the Commonwealth Act. However, Part VII (Children), Division 11 (Family Violence) of the Commonwealth Act includes provisions that seek to resolve inconsistencies between family violence orders issued under state and territory legislation and parenting orders, recovery orders and injunctions issued under the Commonwealth Act specifically for the protection and in the best interests of children. The Commonwealth Act also contains mechanisms for obtaining parenting orders, taking into account the interests of the child with regard to factors such as family violence. Specifically, under Section 68N, the purposes of Part VII, Division 11 of the Commonwealth Act include the following:

1. to resolve inconsistencies between the following:
   1. family violence orders (being orders (including interim orders) made under a prescribed law of a state or territory to protect a person from family violence)
   2. certain orders, injunctions and arrangements made under the Commonwealth Act that provide for a child to spend time with a person or require or authorize a person to spend time with a child
   3. to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence
2. to achieve the objects and principles in Section 60B (objects of Part VII), which include “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”

Table 2: Principal criminal codes that may separately criminalize conduct associated with domestic violence

Federal (commonwealth)

Criminal Code Act 1995 (commonwealth)

The Criminal Code Act 1995 (commonwealth) is the main piece of commonwealth criminal legislation that is relevant to conduct associated with domestic violence in Australia and criminalizes slavery-like practices that may be associated with domestic violence such as forced marriage and child marriage. However, generally, the primary provisions relied upon by law enforcement authorities to prosecute conduct associated with domestic or family violence are contained in the various state and territory criminal codes, as set out below.

State and territory

Crimes Act 1900 (New South Wales)

The Crimes Act 1900 (New South Wales) is the main piece of legislation relating to criminal offenses in New South Wales. It criminalizes various forms of conduct that may be associated with domestic violence such as assault, sexual assault and intimidation (Section 545B).

Criminal Code Act 1899 (Queensland)

The Criminal Code Act 1899 (Queensland) is the main piece of legislation relating to criminal offenses in Queensland. It criminalizes various forms of conduct that may be associated with domestic violence such as common assault, rape and sexual assault. It also contains specific provisions that enable a domestic violence context to be considered as an aggravating factor associated with committing an offense.

Crimes Act 1958 (Victoria)

The Crimes Act 1958 (Victoria) is the main piece of legislation relating to criminal offenses in Victoria. It criminalizes various forms of conduct that may be associated with domestic violence such as stalking, assaults, rape, sexual offenses and child abuse offenses.

Crimes Act 1900 (Australian Capital Territory)

The Crimes Act 1900 (Australian Capital Territory)is the main piece of legislation relating to criminal offenses relevant to domestic/family violence in the Australian Capital Territory. It includes a wide range of offenses against the person such as assault, murder, manslaughter, threats to kill, forcible confinement, stalking, abuse of vulnerable persons, sexual assault and sexual intercourse without consent.

Criminal Code Act Compilation Act 1913 (Western Australia)

The Criminal Code Act Compilation Act 1913 (Western Australia) is the main piece of legislation relating to criminal offenses in Western Australia. It criminalizes various forms of conduct that may be associated with domestic violence such as assaults and violence against persons, stalking and sexual offenses. It also contains a specific offense if a person persistently engages in family violence (Section 300).

Criminal Code Act 1983 (Northern Territory)

The Criminal Code Act 1983 (Northern Territory)is the main piece of legislation relating to criminal offenses in the Northern Territory. It criminalizes various forms of conduct that may be associated with domestic violence such as sexual offenses against children, assaults, sexual assaults and sexual servitude. It also provides that an offense under Section 186AA (choking, strangling or suffocating in a domestic relationship) constitutes domestic violence under Section 5 of the NT Act.

Criminal Law Consolidation Act 1935 (South Australia)

The Criminal Law Consolidation Act 1935 (South Australia) is the main piece of legislation relating to criminal offenses in South Australia. It criminalizes various forms of conduct associated with domestic violence such as stalking, assault, rape and other sexual offenses.

Criminal Code Act 1924 (Tasmania)

The Criminal Code Act 1924 (Tasmania) is the main piece of legislation relating to criminal offenses in Tasmania. It criminalizes various forms of conduct that may be associated with domestic violence, such as sexual offenses against children, assaults, rape, stalking and bullying. It also contains the specific domestic violence offense of persistent family violence under Section 170A.

Cases under legislation relating to civil injunctions and protection orders for domestic violence

In Australia, civil mechanisms for protecting victims of domestic and family violence via injunctions requiring the perpetrator to refrain from performing certain actions (such as restraining them from entering the family home or workplace) are primarily governed by statutes, with specific domestic or family violence legislation in effect in each state and territory and some complementary protections available under federal legislation, as outlined in Table 1 above. A number of significant cases that supplement these statutory provisions and that are helpful in demonstrating how particular concepts under relevant domestic and family violence legislation are interpreted by the courts are summarized in Table 3 below.

Cases relating to civil claims brought by domestic violence victims under common law (e.g., tort)

It may be possible for a victim of domestic violence to bring a civil action in tort against a perpetrator to compensate for the victim’s loss or suffering. In Australia, although tort law does not cover the full scope of domestic violence, many of the intentional torts encompass conduct associated with domestic violence, enabling victims of domestic violence to sue perpetrators. Selected cases involving claims made by a victim under tort against a perpetrator of domestic violence in the past 20 years are summarized in Table 4 below.

In cases of physical violence or the apprehension of physical violence, the torts of assault and battery may be relevant. Battery makes actionable any touching without consent, which may include conduct such as pushing, slapping, punching, hair pulling, sexual assaults and attacks causing serious illness or disability. Assault relates to the apprehension of imminent harmful conduct, including threats of such conduct, and it may arise even in the absence of actual physical contact. There are also torts that enable actions against certain types of conduct associated with stalking. Specifically, the torts of trespass to land, nuisance and breach of privacy were all relied upon in a landmark Queensland case where the survivor successfully sued an ex-lover who stalked and harassed her for many years (Grosse v. Purvis [2003] QDC 151), although courts in other Australian jurisdictions have been reluctant to recognize a tort of invasion of privacy.

Torts of wrongful imprisonment (for example, in cases where domestic violence perpetrators lock up their partners or prevent them from leaving the house), intentional infliction of emotional harm (such as in cases where perpetrators sexually abuse children or kill or injure pets) and deceit (in cases of economic abuse such as fraud or forcing a victim to sign financial documents) may also give rise to causes of action resulting in a civil claim for damages by the victim.

Criminal cases relating to offenses committed in a domestic violence context

Where acts of domestic violence also constitute a criminal offense under state and territory or federal legislation, criminal proceedings may be initiated against the perpetrator. Table 5 below analyzes several significant criminal cases relating to offenses associated with domestic violence that have been decided in various Australian jurisdictions.

Table 3: Cases determined under legislation relating to civil injunctions and protection orders for domestic violence

New South Wales

NSW Act

McIlwraith v. R [2017] NSWCCA 13

This case considered the offense of intimidation under Section 13(1) of the NSW Act and held that the offense is one of specific intent such that an offender’s intoxication may be a relevant factor to be considered in determining criminal liability.

R v. Collins [2020] NSWDC 276

In dismissing an appeal against the severity of a sentence for indecent assault under the Crimes Act 1900 (New South Wales) and intimidation under the NSW Act, this case held that principles of general deterrence, denunciation and adequate punishment justify lengthy sentences for domestic violence-related offenses, acknowledging the indignity imposed upon the victim.

Queensland

Queensland Act

ODE v. AME [2018] QDC 277

This case considered the meaning of domestic violence as defined in the Queensland Act in assessing the respondent’s conduct in the time between the applicant’s initial (unsuccessful) application for a protection order in which the magistrate was not persuaded that a protection order was necessary or desirable as required under Section 37(1)(c) of the Queensland Act and subsequent appeal.

CPD v. Ivamy & Anor [2018] QDC 244

In setting aside a protection order against the appellant, the court considered the meaning of “necessary or desirable” under Section 37(1)(c) of the Queensland Act and confirmed that whether an order is necessary or desirable involves assessing the risk of future domestic violence between the parties in the absence of any order, and that there must be a proper evidentiary basis for concluding that such a risk exists. In this case, there was an insufficient evidentiary basis to demonstrate that communications sent by the appellant’s mother amounted to acts of domestic violence by the appellant, in relation to which it would be “necessary or desirable” to grant a protection order against the appellant in favor of the respondent.

JMM v. Commissioner of Police [2018] QDC 130

This case considered the appropriateness of a prison sentence handed down for contravening a domestic violence order and found that the sentence (three months of imprisonment, with 12 months suspended) was manifestly excessive for a single instance of verbal abuse in which the appellant swore at a 12-year-old child after pointing a knife at her.

RC v. MM [2018] QDC

This case interpreted the phrase “necessary or desirable” and emphasized that a protection order must be “necessary or desirable” to protect the aggrieved to be granted. An order may not be “necessary or desirable” in circumstances where sworn evidence shows there is no ongoing relationship between the parties.

SRR v. SLG [2016] QDC

This case considered the scope of a protection order in limiting the appellant’s possession and control of weapons, in the context of alleged veiled threats as to the unlawful use of a weapon. It was determined that it was reasonable to permit the possession of weapons by the appellant but limited to a geographical locality, being the property that he was managing.

LKL v. BSL [2015] QDC 337 (15 May 2015)

This case considered the nature of evidence required to support an application for a protection order and clarified that the formal rules of evidence do not apply. Rather, the court has broad powers to “inform itself in any way it considers appropriate” (Section 145), subject to an obligation of procedural fairness.

MAA v. SAG [2013] QDC 31 (28 February 2013)

This case interpreted the meaning of a “course of conduct designed to intimidate and harass” the aggrieved in the context of a course of conduct that included making numerous unfounded complaints to government agencies and legal actions against the victim.

LCJ v. KGC and Commissioner of Police [2012] QDC 67

This case interpreted the meaning of the phrase “likely to commit an act of domestic violence again, or carry out a threat to do so.” This case was decided under legislation that has now been superseded; however, the case contains relevant statements of principle.

Victoria

Victorian Act

YY v. ZZ [2013] VSC 743

This case considered the definition of “family violence” under the Victorian Act to determine that the applicant had engaged in family violence against his adult daughter, in the context of a judicial review of a family violence intervention order awarded against the applicant.

Ellis v. Caine [2011] VSC 386

This case considered in what circumstances an intervention order could be made under the Victorian Act (which relates to behaviors in relation to family members) as opposed to pursuant to equivalent provisions of the Stalking Intervention Orders Act 2008 (Victoria), which applies to behaviors relating to nonfamily members. The Personal Safety Intervention Orders Act 2010 (Victoria) has superseded this.

Western Australia 

WA Act

Re Magistrate G Benn; Ex Parte Gethin [2019] WASC 380

This case considered the definition of “cyberstalking” within the meaning of family violence under Section 5A of the WA Act to uphold a magistrate’s decision that evidence that the applicant was communicating in an intimidating and abusive manner constituted family violence. In particular, the respondent received a “barrage” of communications that could not be blocked, causing a significant impact on the respondent’s welfare and well-being. The large number of communications via phone calls, text messages and emails constituted cyberstalking and caused the respondent to be fearful, which therefore fell within the broad definition of family violence.

Goodacre v. Lumbers [2019] WASC 184

This case considered that a mere reference to a protected person in an SMS that was not sent to the protected person was not a breach of the family violence restraining order. The family violence restraining order prevented the appellant from “harassing the protected person by any electronic means, including by using the Internet and any social network application to depict or refer in any manner to the protected person.” The court interpreted the family violence restraining order in light of Part 1B of the WA Act, which is focused on protecting persons from behaviors that constitute harassment by electronic means and family violence, and found that it would be unreasonable to conclude that any reference to the protected person using the internet or any network application constitutes a breach of the family violence restraining order.

Cramphorn v. Bailey [2012] WASC 462

This case held that a protection order does not need to be served on the protected person for the protection order to be considered valid under the WA Act.

Pillage v. Coyne[2000] WASCA 135

In dismissing an appeal against a sentence for breaching a violence restraining order, this case emphasized the social importance of the WA Act and that protected persons in the community must have confidence that restraining orders will be obeyed (and the need for courts to impose significant consequences for breaches of restraining orders to support this objective).

South Australia

SA Act

White v. Police [2018] SASC 124

In dismissing an appeal against a decision to issue a final intervention order, this case considered the test under Section 6 of the SA Act for granting an intervention order, including the meaning of the phrases “reasonable to suspect” and “act of abuse.” In determining whether a defendant will commit an act of abuse within Section 6(a) of the act, the court noted that the test is not onerous and the term (as defined under Section 8 of the SA Act) has a wide definition. It was held that the “reasonable to suspect” requirement under Section 6(a) of the act involves an evaluative judgment as to the future by the magistrate, which is ultimately a finding of fact based on the evidence. As in this case the appellant came across as angry and malevolent toward the respondent and his family and significant animosity with racial overtones had been directed their way, the court found that it was reasonable to suspect that further acts of abuse of the nature provided for by Section 8(2)(b) and Section 8(3)(c) of the SA Act would be engaged in by the appellant in the absence of an intervention order, which were grounds for the intervention order to be upheld.

R v. Fox [2017] SASC 5

In dismissing an appeal against the denial of bail in circumstances where the applicant had been charged with breaching an intervention order by conduct involving violence, the court emphasized that defying a protection order in circumstances involving violence can only result in a release on bail in special circumstances, and that strict compliance with intervention orders is needed for them to fulfill their protective purpose.

Tasmania

Tasmanian Act

Barnes v. Crossin [2017] TASSC 61

This case interpreted provisions under the Tasmanian Act, which provides police powers of arrest without a warrant in circumstances where there is reasonable suspicion that family violence has taken place, and clarified that the power to arrest under the Tasmanian Act is to be read broadly and requires a “reasonable suspicion that the person concerned has committed family violence,” as compared to a suspicion that the person committed a (specific) family violence offense.

Moore v. Rittman [2018] TASSC 5

This case emphasized that therapeutic interventions for first-time family violence offenders are important in determining that a sentencing decision for assault and breach of a police family violence order (the magistrate did not record a conviction and adjourned the proceedings with the respondent agreeing to a good behavior condition and completing a men’s behavior change program) was not manifestly inadequate but was proportionate to the respondent’s personal circumstances.

Buxton v. Brinckman[2011] TASMC 24

This case found that the Tasmanian Act prevails to uphold an interim family violence order to the extent of any inconsistency with another piece of legislation. The defendant had an interim family violence order made against him, which prohibited him from entering the protected persons’ home or any other place where they may be staying or living from time to time. One of the protected persons began living at the defendant’s parents’ address while the defendant was on bail and one of the bail conditions was that he reside at his parents’ house. The defendant was charged with breaching the interim family violence order, which was upheld by the magistrate on the basis that the Tasmanian Act prevails over other legislation to the extent of any inconsistency and the defendant could have applied for a variation of bail conditions in the circumstances to avoid breaching the interim family violence order.

K v. K[2012] TASMC 3

This case considered the definition of “family violence” under the Tasmanian Act and the relative credibility of the complainant and applicant in upholding an application for the revocation of an interim family violence order on the basis that conduct constituting family violence could not be supported with evidence.

Howe v. S[2013] TASMC 33

This case considered a number of alleged breaches of a police family violence order, which included a condition not to “directly or indirectly threaten, harass, abuse or assault [the female protected person].” Among other things, this case interpreted the meaning of “harassing” under Section 4 of the Tasmanian Act to reject the defendant’s argument that a person could not be harassed by one act alone under law, stating that the reference in the statutory definition to “any one or more of the following actions” indicates that one action can be sufficient to meet this threshold.

Director of Public Prosecutions (Acting) v. J C N[2015] TASFC 13

In determining to revoke a grant of bail in a case involving a breach of a domestic violence order, this case held that the court must be satisfied that bail would not adversely affect the safety, well-being and interests of an affected person or child under Section 12 of the Tasmanian Act, and that bail should therefore not be granted in a case where there was a significant risk that the respondent would continue to offend if bail was granted and there was sufficient evidence to prove guilt at trial (notwithstanding a surety of AUD 4,000 and the respondent agreeing to comply with a curfew and reporting conditions).

Australian Capital Territory

ACT Act

R v. Rappel [2017] ACTSC 38

This case highlighted that an interim order under the ACT Act is to receive the full protection of the law, including protection while any dispute about the application of the act is resolved. In the context of criminal law proceedings where there was an interim domestic violence order in force under the ACT Act when the offender murdered his former partner, this case emphasized that the purpose of the ACT Act is to provide protection to members of the community from domestic violence and that a breach of an interim order constitutes a serious offense.

Northern Territory

NT Act

Midjumbani v. Moore [2009] NTSC 27

In dismissing an appeal against the sentence for breaching a domestic violence order (also known as a DVO in legislation), this case considered the application of Section 121(3) of the NT Act, which enables a court to avoid imposing a sentence where there has been no harm as a result of the breach, and the court is of the opinion that it is not appropriate to record a conviction and sentence the person in the “particular circumstances” of the offense.

The court found that while the circumstances of the offender may be relevant, the focus is on the circumstances of the offense, particularly that the offender’s gender alone should not form the basis of differential treatment in sentencing.

Bonney v. Thompson [2011] NTSC 81

In granting an extension of a no-contact domestic violence order, this case considered that a history of domestic violence and events that took place after the initial order was made were relevant facts for the court to take into account pursuant to Section 53 and Section 19(2)(d) of the NT Act in determining whether there were reasonable grounds for the protected person to fear domestic violence.

Idai v. Malogorski [2011] NTSC 102 (14 December 2011)

In a sentencing appeal relating to a range of offenses including contravening a domestic violence order and assault, the court applied Section 121(7) of the NT Act, which requires the court to order a term of imprisonment for a domestic violence order offense to be served cumulatively after any other sentence, rather than concurrently.

Carne v. Wride & Carne v. Nicholas [2012] NTSC 33 (15 May 2012)

Among other things, this case interpreted Section 5 of the NT Act, which states that domestic violence includes causing harm and intimidation (and, per Section 6, intimidation includes any conduct that has the effect of unreasonably controlling or causing mental harm), in determining that an act of attempted suicide did not constitute domestic violence in breach of a domestic violence order. No evidence was adduced to establish mental harm was actually suffered and the court found that it was not open to the magistrate to be satisfied beyond reasonable doubt that the attempted suicide was conduct that caused mental harm to the son to amount to domestic violence under Section 6(1)(c). It was also not open to the magistrate to conclude that the appellant attempted to cause mental harm under Section 5(f), since there was insufficient evidence to prove beyond reasonable doubt that the attempted suicide was aimed at the victim and her children.

Federal (commonwealth)

Commonwealth Act

Carra v. Shultz [2012] FMCAfam 930

This case interpreted the definition of “family violence” as contained in Section 4AB(1) of the Commonwealth Act in rejecting an argument that a mother’s act of preventing the father from spending time with their child was an act of family violence. This case clarified that withholding time or communication with a child does not constitute family violence, provided that behavior that coerces or controls a family member, or causes them to be fearful, constitutes family violence.

Willmont & Halliday [2012] FamCA 918

This case determined that it was appropriate to make orders placing children in the exclusive care of their mother, with no provision for communication with their father, in circumstances where there was, on balance, sufficient evidence of inappropriate conduct that could not be explained by exposure to anyone else other than the father, combined with evidence of the father’s lack of empathy for the children and his use of them to convey hateful messages arising from his own anger. The court found that this represented a risk to their health and safety, which was not outweighed by the benefits of time in the company of their father.

Headley & Steners [2017] FCWA 169

This refers to child-related proceedings resulting in seven months of imprisonment for a father who had committed multiple breaches of domestic violence orders in the context of a history of sustained and significant family violence.

May And Blackthorn & Anor [2018] FCWA 23

In this case, the sole responsibility of a child was awarded to the paternal grandmother in circumstances where the child’s father had physically assaulted the child’s mother and exposed them to family violence. This case considered the best interests of the child with regard to the factors in Section 60CC(2) of the Commonwealth Act, being the “benefit to the child of having a meaningful relationship with both the child’s parents and the need to protect the child from physical or psychological harm,” and held that the need to protect the child from harm in the context of domestic violence outweighed the interests of a meaningful relationship with both parents.

Keating & Keating [2019] FamCAFC 46

In allowing a wife’s appeal in relation to property settlement orders, claiming an adjustment (which the primary judge refused to make) due to her exposure to significant family violence during and after the relationship, the Full Court applied the Kennon & Kennon (1997) FLC 92-757 principles (family violence demonstrated to have a significant adverse impact upon one party’s contributions to a marriage is a relevant consideration in assessing contributions in a property settlement).

Table 4: Selected civil cases in a domestic violence context

Ainsworth v. Ainsworth [2002] NSWCA 130 - Assault on four separate occasions

This case demonstrates that substantial damages may be awarded to compensate the victim for psychological and physical injuries and loss of income sustained due to domestic violence.

The plaintiff was awarded damages of AUD 572,815. Expert evidence was presented regarding psychological and physical injuries sustained by the plaintiff as a result of the assaults committed by her partner and corresponding loss of income, which were all taken into account in the award of damages.

Grosse v. Purvis [2003] QDC 151 - Invasion of privacy; harassment; intentional infliction of physical harm; nuisance; trespass; assault; battery; negligence

The Queensland District Court awarded the plaintiff damages (including exemplary and aggravated damages) of AUD 178,000 due to the embarrassment, hurt, distress and post-traumatic stress disorder suffered by the plaintiff as a result of an invasion of privacy constituted by the stalking behavior of her partner. This case determined that the conduct of the defendant, generally described as stalking, fell within an actionable civil claim for an invasion of privacy.

The court formulated the essential elements for the civil action of an invasion of privacy as comprising the following:

1. a willed act by the defendant
2. a willed act by the defendant that intrudes upon the privacy or seclusion of the plaintiff
3. a willed act by the defendant that intrudes upon the privacy or seclusion of the plaintiff in a manner that would be considered highly offensive to a reasonable person of ordinary sensibilities
4. a willed act by the defendant that intrudes upon the privacy or seclusion of the plaintiff in a manner that would be considered highly offensive to a reasonable person of ordinary sensibilities that causes the plaintiff detriment in the form of mental psychological or emotional harm or distress, or that prevents or hinders the plaintiff from doing an act that she is lawfully entitled to do

Giller v. Procopets [2004] VSC 113 - Breach of confidence; intentional infliction of emotional distress; invasion of privacy

This case demonstrates the challenges involved in recovering damages or compensation for mental or emotional distress for breaching confidence in a domestic setting (but see alsoGiller v. Procopets [2008] VSCA 236below, in which damages for emotional distress were awarded upon appeal). This case did not follow the Queensland District Court inGrosse v. Purvis[2003] QDC 151 in recognizing a tort of invasion of privacy.

The (male) defendant filmed a series of sexual encounters between himself and the (female) plaintiff, some of which were filmed surreptitiously without consent. Thereafter, the defendant did the following:

• threatened to show the film to people, including the plaintiff’s employer
• showed the film to some people, left a copy of the film with the plaintiff’s father and contacted the plaintiff’s employer

The plaintiff sought compensatory, aggravated and exemplary damages.

The Supreme Court of Victoria held the following:

• There was a breach of confidence, however:
  • A breach of confidence is an equitable cause of action for which common law damages are not available.
  • The law does not recognize equitable compensation for mental distress.

• In relation to an intentional infliction of emotional distress, the law does not provide a remedy for distress falling short of actual mental injury or psychiatric harm.
• There is no cause of action for a breach of privacy under Australian law.

Giller v. Procopets [2008] VSCA 236 - Breach of confidence; intentional infliction of emotional distress; invasion of privacy

After extensively reviewing relevant Australian and international developments in the context of the facts inGiller v. Procopets [2004] VSC 113 as summarized above, the Victorian Court of Appeal held that there was no reason that the plaintiff should not be able to recover damages for the distress caused by the breach of confidence and awarded her AUD 40,000 in damages.

The Victorian Court of Appeal approved the proposition that the victim of a domestic assault was entitled to compensation “for any injury suffered, pain and suffering and loss of enjoyment of life together with any distress, indignity and humiliation” (Neave JA at 480), although the award of damages in this case demonstrates that the amount of damages available for distress-type injuries may be limited.

Additionally, the court did not specifically rule on the question of whether Australian law should recognize a tort of invasion of privacy, stating that it was unnecessary for it to decide this issue in light of its findings in relation to the action for breach of confidence.

Varmedja v. Varmedja [2007] NSWDC 385 (30 April 2007) - Assault and battery; trespass to the person

Total damages of approximately AUD 233,000, including AUD 25,000 aggravated damages and AUD 50,000 exemplary damages, were awarded for a series of physical and sexual assaults perpetrated by a husband on his wife, including “twenty-five acts each of anal and of oral intercourse without consent, and two hundred acts of vaginal intercourse without consent” resulting in the following:

A significant chronic post traumatic shock disorder and chronic adjustment disorder and depression with symptoms associated with pain and functional sequelae from the physical and psychological injuries at the hands of the defendant.

This case clearly distinguished between aggravated damages, compensatory damages for “increased mental suffering or hurt feelings due to the way the defendant behaved” and exemplary damages:

[…] to punish and provide retribution where there has been deliberate, intentional, reckless disregard for the plaintiff’s interests … to act as a deterrent to the defendant and to others who are minded to behave in a similar way, to demonstrate the court’s disapproval of the conduct.

Exemplary damages are exceptional and rarely awarded. However, exemplary damages may be awarded for trespass to the person, including in cases of domestic violence, and they were justified in this case on the basis that compensatory damages did not sufficiently express the court’s disapproval of the defendant’s conduct, described by the court as “conscious wrongdoing in contumelious disregard of another’s rights.”

Varmedja v. Varmedja[2008] NSWCA 177 - Assault and battery; trespass to the person

The New South Wales Court of Appeal dismissed an appeal against the award of damages in Varmedja v. Varmedja [2007] NSWDC 385 (30 April 2007) and affirmed the lower court’s award of exemplary damages, emphasizing (at 168) “the issue of general deterrence and, importantly, the necessity for the Court to express its disapproval of the appellant’s conduct,” which (at 169):

[…] was high handed, outrageous and showed complete contempt for the rights and feelings of the respondent. It was malicious and deliberate. The respondent was forced to undergo and undertake humiliating sexual acts without her consent and in circumstances where she was threatened with dire consequences if she did not succumb to the appellant’s demands. A stronger case for exemplary damages is difficult to imagine.

Elliott v. Kotsopoulos [2009] NSWDC 164 - Assault and battery

Damages were awarded of AUD 324,549 (including aggravated damages of AUD 25,000 and exemplary damages of AUD 30,000) for assault and battery in the case of a 27-year-old woman who suffered a terrifying assault at the hands of her ex-boyfriend resulting in significant scarring to her face and lower lip and injury to her teeth and gums, along with psychological injuries, including post-traumatic stress disorder. This case held that the award of common law damages was unconstrained by the Civil Liability Act 2002 (New South Wales).

The court considered the following:

The manner in which the defendant inflicted harm on the plaintiff by following her to Sydney, laying in wait for her in a pre-meditated manner, chasing her around the apartment, dragging her around by the hair, punching her in the face, all carried out in the presence of a work colleague was egregiously high-handed, humiliating and outrageous mal-behaviour well apart from ordinary human fallibility so as to justify an award of aggravated damages towards the higher end of the range.

It “constituted egregious and deliberate conduct in contumelious disregard of the plaintiff’s rights deserving of punitive censure” by means of an award of exemplary damages.

Morris v. Karunaratne [2009] NSWDC 346 - Deceit; assault and battery

In this case, total damages of AUD 197,500 were awarded for assault and battery. This case provides a useful examination of the principles relevant to the assessment of damages in assault and battery claims, including for the award of the following:

• compensatory general damages (taking into account pain, suffering, bruising and psychological injury, including a depressive condition developed as a result of the assaults)
• damages “that are not dependent upon proof of any injury or loss, but awarded to reflect the intentional nature of the tortious conduct” to reflect the “violation of the dignitary interest”
• damages for loss of earnings (economic loss)
• aggravated and exemplary damages

This case also demonstrates the limited circumstances in which a claim for deceit will be available in a domestic context, finding the following:

False representations occurring within a sexual relationship, which is personal, private, and intimate, cannot be justly or appropriately assessed by reference to bargaining transactions, with which the tort of deceit is typically associated.

In this case, the court rejected a claim of deceit on the basis that the woman entered into the marriage in reliance upon a false representation made by her husband and his parents denying that the husband had hit and been physically violent toward his first wife.

The claim of assault and battery (upheld by the court) was based on a series of events in which the husband shouted at the plaintiff, humiliated her, denigrated her and her family, threatened or verbally intimidated her, physically held or restrained her, pushed, pinched, prodded or poked her, beat her, struck her, punched her, kicked her, urinated on her in the shower, and forced her to prostrate herself before him and his parents and to apologize to them. The court found the following:

• Harmful contact was intentionally made by the first defendant to the person of the plaintiff that constituted the tort of battery.
• There were episodes in which he intentionally created in her an apprehension of imminent harmful contact that constituted the tort of assault.

Cooper v. Mulcahy Mulcahy v. Cooper [2013] NSWCA 160 - Assault and battery

This case contains a useful examination of the principles applicable to determining an appropriate award of damages, in the context of a claim made as part of a property settlement determination in respect of various assaults and batteries alleged to have occurred during the relationship.

Murdock v. Betham [2018] NSWDC 192 - Assault and battery; false imprisonment

Damages of AUD 243,254 were awarded to the plaintiff who was assaulted by her husband in a violent knife attack that ended their relationship and left her with scars and disabilities. She was also “held naked, cold and exposed, with tape over her mouth and around her hands, by her own husband.” Aggravated damages of AUD 25,000 were awarded because the assault was “by her husband, her trusted protector.” The defendant had previously been convicted of a criminal offense for his conduct and was in custody serving a lengthy prison term for his conduct at the time the civil claim was brought against him.

Table 5: Selected criminal cases relating to domestic violence across Australian jurisdictions

Marital rape

R v. L (1991) 174 CLR 379 — High Court of Australia

This case considered the issue of marital rape in obiter dictum (nonbinding commentary) and rejected the existence of marital immunity for rape as part of the common law of Australia at the time.

PGA v. R (2012) 245 CLR 355— High Court of Australia

This case held that rape in marriage was an offense under the common law of Australia in1963and there was no marital exemption or marital immunity from rape under the common law of Australia at that time.

The appellant was charged in 2009 with two counts of rape for offenses that allegedly occurred in 1963 when the complainant and appellant were married and living together. The court held by majority that there was no marital exemption from prosecution for rape at the relevant time, as the foundation of any such rule was the presumption that wives gave irrevocable consent to intercourse with their husbands. That presumption was found to have “fallen away” by 1935 as a result of statutory reforms creating access to divorce and property rights for married women. Thus, if the marital exemption for rape prosecution was ever part of the common law of Australia, domestic statute law had removed any basis for its continued acceptance by 1935 at the latest.

The majority decision in this case has been criticized on the basis that it failed “to acknowledge the lived experiences of wives and husbands and their relationship to the law as it was understood in 1963” and replaced “the fiction of marital consent to sexual intercourse with a new fiction: namely, that the common law recognised rape in marriage throughout the 20th century.”^[1] The dissenters considered that the immunity was a settled rule of the common law in 1963 and that to restate the law in other terms now would criminalize conduct that was lawful at the time it was committed.

SPC v. R[2020] SASCFC 43 (28 May 2020)—Supreme Court of South Australia (Full Court)

This case contains an interesting discussion of appropriate jury directions regarding relationship evidence and other forms of evidence in the context of proceedings relating to marital rape.

Admissibility of relationship, context, tendency and coincidence evidence in criminal proceedings relating to domestic violence

Preliminary comment 

The admissibility of relationship, context, tendency or coincidence evidence in proceedings relating to serious domestic violence-related offenses such as murder, rape and assault occasioning bodily harm can be a controversial issue under Australian criminal law. In some cases, such evidence can be pivotal to the prosecution’s case and necessary to put the charged offense into context, particularly in cases of unlawful killing in a domestic or family setting in circumstances where the victim cannot give evidence or cases such as sexual assault that often occur without witnesses in a domestic context. However, in considering the admissibility of such evidence, courts typically must weigh up the probative value of the evidence against the prejudicial effect it may have on the accused and may come to different conclusions on a case-by-case basis depending on factors including the specific nature of the evidence, the nature and context of the offense and the evidentiary provisions in force in the jurisdiction of the proceedings.

Wilson v. R (1970) 123 CLR 334 (17 June 1970)—High Court of Australia

This case established that evidence of the “nature of the current relationship between the applicant and his wife” may be relevant to the appellant’s guilt and was therefore admissible in the context of a murder trial in which a critical issue was whether the accused deliberately shot his wife or discharged his gun by accident. This type of evidence could be admissible in cases where it establishes motive or if it provides context that helps to explain an occurrence or assists in the choice between two explanations of an occurrence.

Pfennig v. R (1995) 182 CLR 461 — High Court of Australia

This case provides authority for the following proposition:

[…] [propensity] evidence ... will be admissible only if its probative value exceeds its prejudicial effect ... in other words, that there is no reasonable view of the evidence consistent with the innocence of the accused.^[2]

In this case, the accused was convicted of the murder of a 10-year-old boy (M) whose body was never found. The accused’s counsel conceded that the only two possible explanations for M’s disappearance were that he drowned or he was abducted. The subject of appeal was the admission of the evidence of a 13-year-old boy (H) who was, on the accused’s own plea of guilty, abducted and raped by the accused 12 months after M’s disappearance. The fact pattern of H’s abduction and rape was consistent with the known facts relating to M’s disappearance.

Evidence was admitted at trial on the basis that its high probative value exceeded its prejudicial effect. The High Court of Australia determined that the evidence was correctly admitted and it dismissed the appeal.

HML v. R; SB v. R; OAE v. R [2008] HCA 16 (24 April 2008) — High Court of Australia

This case provides authority for the proposition that evidence of other (uncharged) conduct by an accused may be, depending upon the circumstances, admissible (for example, as relationship or context evidence) for non-tendency purposes, including:

1. as affecting the plausibility of other evidence or to assess the credibility and coherence of the complainant’s evidence
2. as essential background against which the evidence of the complainant and the accused necessarily falls to be evaluated, to show the continuing nature of the conduct and to explain the offenses charged
3. to overcome a false impression that the event was an isolated one and that the offense happened unexpectedly, where the acts are closely and inextricably mixed up with the history of the offense
4. to ensure that the jury is not required to decide issues in a vacuum
5. as negating issues raised in the defense of the accused such as accident or mistake

Tasmania v. R D P [2009] TASSC 72 (25 February 2009)— Supreme Court of Tasmania

This case considered the admissibility of certain relationship evidence in the prosecution of rape charges. It determined that evidence of general physical and verbal abuse unconnected with sexual activity was not sufficiently relevant to the alleged offense to be admissible. However, other evidence as to the nature of the relationship, such as general physical abuse and physical violence used to coerce the complainant into sexual intercourse, was admissible since it was more specifically relevant to the charge of rape (the probative value of such evidence outweighed its potential prejudicial effect).

Roach v. R[2011] HCA 12 (4 May 2011)— High Court of Australia (appeal from Queensland Court of Appeal)

This case considered the admissibility and weight of certain relationship evidence, being evidence of previous (uncharged) assaults that the offender committed on the complainant during their relationship, in the context of a charge of assault occasioning bodily harm. It interpreted Section 132B of the Evidence Act 1977 (Queensland)and determined that evidence of the history of the domestic relationship between the defendant and victim was admissible as relevant to the charges in question.

Norman v. R [2012] NSWCCA 230 (9 November 2012)— New South Wales Court of Criminal Appeal

This case considered the admissibility of certain relationship evidence in the context of a conviction for marital rape. The court emphasized that while relationship evidence may be admitted if it provides particular context to a crime, evidence of two isolated incidents of nonsexual domestic violence should have been excluded because of their potentially prejudicial character and lack of specific relevance to the charges of rape in this case. Specifically, such evidence:

[…]was not necessary to place the sexual assaults within a meaningful context… [I]t is difficult to see what, if any, use the jury could have made of the evidence other than to engage in impermissible propensity reasoning that the appellant was the type of man who might have sexual intercourse with a woman without her consent.

However, the court also determined that the inadmissibility of this particular evidence was not sufficient to overturn a conviction in this case because the Crown case against the appellant was so overwhelming that there was no significant possibility that a jury would have acquitted the appellant.

R v. Gittany (No. 5) [2014] NSWSC 49 (11 February 2014) — Supreme Court of New South Wales

This case considered the dynamics of domestic and family violence in the sentencing decision for a man convicted of murdering his female partner and determined that evidence of the offender’s long history of manipulative behavior in the relationship was an aggravating factor relevant to sentencing and supported a lengthy sentence.

The offender was found guilty of the murder of his female de facto partner and sentenced to 26 years of imprisonment with a non-parole period of 18 years. Despite the offense not having been planned or premeditated in the traditional sense, the court found that evidence of a long history of manipulative behavior by the offender (including controlling behavior throughout the relationship) informed the state of mind in which the offense was committed and the offender’s moral culpability, supporting a lengthy sentence.

Pasoski v. R [2014] NSWCCA 309 (15 December 2014)— New South Wales Court of Criminal Appeal

This case considered the admissibility of evidence of a pattern of controlling behavior as “context evidence” in criminal proceedings for sexual assault and assault occasioning actual bodily harm. Such evidence was determined to be admissible on the basis that it put the complainant’s allegations concerning the offenses into a realistic context, showing that the relationship was an unhappy one from the complainant’s perspective so as to make more plausible her evidence that she did not consent to having sexual intercourse with the applicant on the five occasions in question.

Hughes v. R [2017] HCA 20 (14 June 2017)— High Court of Australia

This case considered whether tendency evidence is required to display features of similarity with the facts at issue before it can be assessed as having “significant probative value.”

The majority held that there is likely to be a high degree of probative value when: (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency; and (ii) the tendency strongly supports the proof of a fact that makes up the offense charged.

The majority endorsed the test for significant probative value posed in R v. Ford [2009] NSWCCA 306 that “the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged” and added the following:

It is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.

DPP (Victoria) v. Paulino (Ruling No 1) [2017] VSC 343 (17 June 2017)— Supreme Court of Victoria

This case considered the admissibility of relationship evidence in the context of a murder trial (the defendant and deceased had been in a relationship and had two children). It determined that evidence of a poor relationship between the accused and deceased (relationship evidence) was admissible as relevant to whether the accused killed the deceased and whether the accused had a motive to do so.

R v. Pamkal [2019] NTSC 95 (18 June 2019)— Supreme Court of the Northern Territory

This case considered the admissibility of evidence of past violent conduct by the accused against the complainant by reference to its probative value in determining whether the complainant consented to sexual intercourse with the accused. It determined that it was appropriate for such evidence to be admitted both as relationship or context evidence and as tendency evidence in the context of a claim of sexual violence.

R v. Toweel [2019] QCA 303 (20 December 2019)— Queensland Court of Appeal

In dismissing an appeal against the conviction of a man for strangulation and assault against a woman with whom he was in a relationship and had a child, the Queensland Court of Appeal held that evidence of five previous incidents of domestic violence was relevant to establish that the alleged offending did not occur randomly and to demonstrate the nature of the relationship between the appellant and complainant, and that it was admissible, having been presented to the jury in conjunction with a warning from the trial judge that the jury was not to use the evidence as demonstrating the appellant’s propensity to commit similar offenses.

Admissibility of expert or opinion evidence in the prosecution or defense of criminal charges

Preliminary comment

In some cases, opinion or expert evidence has been admitted in connection with the criminal prosecution of domestic violence offenses on the basis that domestic and family violence is an area of specialized knowledge. This may include evidence about the dynamics of violent relationships; battered woman syndrome; the cycle of violence; and the complex reasons some people stay in violent relationships, do not report violence or behave in certain ways to protect themselves. Expert witnesses qualified to give such evidence have included psychiatrists, psychologists, social workers and academics.

The cases discussed in this section provide examples of decisions from various Australian jurisdictions in which the admissibility of opinion or expert evidence about the context of domestic and family violence has been considered in criminal proceedings.

R v. Runjanjic and Kontinnen (1991) 53 A Crim R 362; (1992) 56 SASR 114[1991] SASC 2951 (28 June 1991)— Supreme Court of South Australia (Full Court)

This case accepted the admissibility of expert evidence of battered woman syndrome to support a defense of duress by two women who had participated in a plan to help a man forcibly confine the complainant and cause her injury, in circumstances where the two women had been subject to a pattern of domineering and violent conduct as part of their relationship with the man.

R v. Kina [1993] QCA 480 (29 November 1993)— Queensland Court of Appeal

An appeal against a murder conviction was granted five years after the initial conviction after the court took into account expert evidence from a social worker regarding domestic violence suffered by the appellant at the hands of her partner, which was gathered by the social worker while working with the appellant in prison.

The female appellant, an Aboriginal woman, had been convicted of murder for killing her male partner of three years and was sentenced to life imprisonment. In determining that a miscarriage of justice had occurred and setting aside the conviction, the court took into account expert evidence provided by a social worker who had amassed evidence of the abuse suffered by the appellant at the hands of her partner over a number of years while working with the appellant in prison following her conviction, including evidence that the deceased had continually beaten her up, forced her to have anal sex with him and tied her up, and had threatened to anally rape her 14-year-old niece. The appellant’s solicitors had not allowed the social worker to provide any evidence of the abusive relationship as part of the original trial that led to the appellant’s conviction.

Osland v. R [1998] 197 CLR 316 (10 December 1998) — High Court of Australia

This case confirmed the admissibility of expert evidence relating to battered woman syndrome as relevant to the appellant’s role in killing her husband, and to the issue of whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk.

It held that “expert evidence is admissible with respect to a relevant matter about which ordinary persons are [not] able to form a sound judgment …without the assistance of [those] possessing special knowledge or experience in the area” and which is the subject “of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience,”and it affirmed that evidence of battered woman syndrome is capable of meeting this test.

R v. Yeoman [2003] NSWSC 194 (21 March 2003)— Supreme Court of New South Wales

In determining an appropriate sentence for the crime of manslaughter committed by a woman against her partner (with whom the offender had been in a 25-year violently abusive relationship since she was 17 years old without the means to leave the relationship), the court took into account evidence of a social worker about the impact of prolonged domestic violence on women. The court found that the offender’s criminality was at the lower end of the scale of culpability and the exceptional sentence of a good behavior bond for four years was appropriate, notwithstanding the fact that a life was taken. The court also referred to cases involving battered spouse or partner syndrome in reaching this conclusion.

R v. Falls [2010] QSC (Applegarth J, 3 June 2010)— Supreme Court of Queensland

This case provides useful guidance as to how evidence of battered woman syndrome is relevant to legal defenses in murder trials.

The accused was acquitted of murder after having shot and killed her husband who had subjected her to significant physical and emotional abuse, including physical violence on multiple occasions, beating one of the family’s dogs to death, numerous incidents of sexual violence and rape and threatening to kill her or harm the couple’s children. Expert evidence of battered woman syndrome from two forensic psychiatrists was admitted to support defenses of self-defense under Section 271(2) and Section 273 of the Criminal Code Act 1899(Queensland)and “killing for preservation in an abusive domestic relationship” under Section 304B of the Criminal Code Act 1899 (Queensland).

R v. Ney [2011] QSC (Dick AJ, 8 March 2011)— Supreme Court of Queensland

In determining an appropriate sentence for the crime of manslaughter committed by a woman against her partner, the court took into account expert evidence from a psychologist and psychiatrist of chronic post-traumatic stress disorder and borderline personality disorder as a result of multiple traumas suffered by the accused since her teenage years and a series of violent intimate relationships endured since that time.

Liyanage v. Western Australia[2017] WASCA 112 (22 June 2017)— Supreme Court of Western Australia (Court of Appeal)

This case held that social context evidence, such as evidence about the history of the parties’ relationship, the defendant’s culture and the nonpsychological impediments of leaving a violent relationship may only be admissible if it is demonstrated to be precisely and specifically relevant to the issues that the jury is required to decide.

The court upheld the exclusion of evidence provided by a social worker at trial on the basis that the evidence was too general in nature and would not assist the jury beyond the knowledge and inferences able to be drawn by a reasonable person. A relevant factor was that more specific relationship evidence had been provided by the appellant and admitted at trial, considered by the jury and taken into account in the jury’s decision to convict for the reduced charge of manslaughter instead of murder.

Other relevant criminal cases

Preliminary comment

This section provides some interesting examples of decisions reached in criminal proceedings in connection with a wide range of crimes associated with domestic and family violence including stalking, breach of restraining orders, aggravated burglary, assault occasioning bodily harm or grievous bodily harm, sexual assault, rape, manslaughter and murder committed in a domestic or family context.

Many of these cases reflect the trend of Australian courts increasingly acknowledging the seriousness of domestic and family violence-related criminal offenses, identifying a domestic violence context as an aggravating factor in a crime being committed and emphasizing the need for sentencing to give effect to specific and general deterrence and denunciation in relation to domestic and family violence.

R v. Secretary[1996] NTCCA 18 (2 April 1996)— Northern Territory Court of Criminal Appeal

This case considered whether self-defense was open for consideration by the jury in the context of a murder trial of a woman who killed her husband by shooting him with a rifle in his sleep. The court ruled that although the man had been asleep at the time he was killed, self-defense was open for consideration by the jury in circumstances where the accused had been subjected to verbal, mental and physical abuse (including death threats, beatings and sexual assault) for a period of eight years leading up to the incident, and specific physical assaults and further threats of assault immediately before the man went to sleep.

This case was decided under superseded legislation, but it contains relevant statements of principle.

Gallegos v. R[1999] WASCA 191 (6 October 1999) — Supreme Court of Western Australia (Court of Appeal)

This case upheld a three-and-a-half-year sentence for aggravated burglary and assault occasioning bodily harm in circumstances where the offender and victim were ex-lovers and the complainant was pregnant at the time of the assault, reiterating that “in cases of domestic violence a sentence which gives effect to both personal and general deterrence will normally be called for” that may“justify a substantial sentence of imprisonment.”

Hellings v. R[2003] WASCA 208 (3 September 2003) — Supreme Court of Western Australia (Court of Appeal)

This case upheld a cumulative sentence of 11 years and six months for two counts of aggravated stalking and one count of a “threat with intent to prevent the complainant doing an act she was lawfully entitled to do” (constituted by an aggressive 10-page letter in which the offender threatened violence against the complainant if she participated in court action). The stalking was serious and persistent with 160 calls over a 22-day period and overt threats being made. The letter included credible, serious and graphic threats, and the offender had breached a restraining order, meaning that the total sentence was not disproportionate to the offending given the persistent nature of the applicant’s conduct.

Gilmour v. State of Western Australia [2005] WASC 243 (8 November 2005)— Supreme Court of Western Australia

This case considered principles applicable to refusing bail in the context of domestic violence-related charges of aggravated stalking, breaching a violence restraining order and attempting to pervert the course of justice. Bail was denied by taking into account the adverse effects on the protected persons of a release on bail, the concern for the failure to achieve the purposes of protection orders in this case and any difficulties in proving any future breach of a protection order. The subsequent case, Gilmour v. The State of Western Australia [2008] WASCA 42 (28 February 2008)— Supreme Court of Western Australia (Court of Appeal), upheld atotal effective sentence of four years and 10 months of imprisonment for aggravated stalking and attempting to pervert the course of justice, emphasizing the need for personal and general deterrence in cases of domestic violence.

R v. Bastan; DPP v. Bastan [2009] VSCA 157 (4 August 2009)— Victorian Court of Appeal

In determining that an initial sentence for a marital rape committed in the context of an arranged marriage was manifestly inadequate, this case considered that the fact that the applicant and the complainant had shared a consensual sexual relationship in the past should not have been considered a mitigating factor resulting in a reduced sentence, and rather that “those who have been in a relationship should be deterred from asserting any right or power in a like fashion against their former partners.”

Munda v. Western Australia [2013] 249 CLR 600— High Court of Australia

 In dismissing an appeal against a sentence on the grounds that it was manifestly excessive, the High Court of Australia emphasized the importance of vindicating the dignity of domestic violence victims in sentencing, stating the following:

Just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fueled destruction of a woman by her partner.

Filiz v. R [2014] VSCA 212 (11 September 2014)— Victorian Court of Appeal

This case emphasized the importance of general deterrence as a significant sentencing factor in relation to violent offending against a former partner, and that such offending will attract serious consequences and even harsher penalties where it involves the breach of an order that exists for the victim’s protection.

B, JL v. Police [2017] SASC 9 (10 February 2017)— Supreme Court of South Australia

This case discussed the principles of sentencing for domestic violence offenders under 18 years old in setting aside a conviction of a 17-year-old individual for aggravated assault against his pregnant partner in favor of a 12-month good behavior bond. The court emphasized that the appellant had a history of domestic violence and highlighted the need for general deterrence. Nevertheless, the court held that the public interest in a conviction being recorded is diminished when the defendant is a youth and took into account the specific circumstances of the crime and subsequent relationship between the offender and victim, including that the offender was now reconciled with the victim and his ability to provide for her and their children would be diminished by recording a conviction.

Mayne v. Tasmania [2017] TASSC 38 (29 June 2017) — Supreme Court of Tasmania

In this case, the court upheld a sentence of seven months of imprisonment for assault (in which the man pushed a pillow onto his female partner’s face causing her to struggle to breathe for two to five seconds) on the basis that the sentence was not manifestly excessive with regard to principles of general deterrence, particularly taking into account the following:

Acts of violence committed in a family or domestic context causing fear and distress to victims can have debilitating effects upon their well-being or the well-being of a family member witnessing such violence.

Kalala v. R [2017] VSCA 223 (30 August 2017) — Victorian Court of Appeal

The court rejected an appeal against a sentence in which the appellant asserted that a sentence for incitement to murder of nine years of imprisonment with a non-parole period of six years was manifestly excessive because (among other things) it was the highest sentence yet imposed for the offense. The court upheld the sentence, concluding that inciting the murder of a partner is an extreme form of family violence and that the applicant’s motivation, to have his partner killed as punishment for perceived infidelity, reflects the worst of male attitudes toward women and “must be viewed as involving moral culpability at the highest level.”

DPP v. Lade (a pseudonym) [2017] VSCA 264 (21 September 2017) — Victorian Court of Appeal

In finding that a sentence handed down for sexual assault, stalking and related offenses committed by the offender against his ex-wife was manifestly inadequate, the court held that domestic sexual assault is particularly serious when it is violent, nonconsensual and humiliating for a victim that is treated as “marital chattel.”

Saxton v. R [2017] VSCA 357 (5 December 2017) — Victorian Court of Appeal

In dismissing an appeal against sentencing on the grounds that a sentence for charges of common law assault and recklessly causing injury was manifestly excessive, the court emphasized the importance of general deterrence and denunciation in a family violence context.

Patsan v. R [2018] NSWCCA 129 (29 June 2018) — New South Wales Court of Criminal Appeal

In dismissing an appeal against sentencing on the grounds that a sentence for recklessly causing grievous bodily harm was manifestly excessive, the court acknowledged the special dynamics of domestic violence. It also emphasized that criminal law has an important role to play in promoting general deterrence, specific deterrence, denunciation and community protection in the context of domestic violence.

R v. Peet [2018] SASCFC 91 (5 September 2018) — Supreme Court of South Australia (Full Court)

In finding that a sentence handed down to a man for the murder of his female partner and two children was manifestly inadequate and extending the offender’s non-parole period from 30 years to 36 years, the court reaffirmed the principles discussed in Munda v. Western Australia [2013] 249 CLR 600 that a just sentence must “accord due recognition to the human dignity” of the victims, particularly in the context of a relationship characterized by domestic violence.

R v. Simonds [2018] ACTSC 265 (21 September 2018) — Supreme Court of the Australian Capital Territory

This case confirmed that the required evidentiary standard in criminal proceedings is “beyond reasonable doubt” and applied this standard to an examination of contradictory versions of events provided by the complainant and the accused in a case involving numerous domestic violence-related offenses including assault, unlawful confinement and threats to kill. Specifically, although the judge overall did “think the complainant was probably telling the truth” and held “serious suspicions” as to the version of events portrayed by the accused, there was sufficient evidence contrary to the complainant’s version of events to create reasonable doubt, resulting in the charges being dismissed and a version of not guilty being entered.

R v. Robertson [2019] VSC 145 (6 March 2019) — Supreme Court of Victoria

This case considered the fact that the deceased was the offender’s intimate partner to be an aggravating feature in determining an appropriate sentence for the crime of murder. In assessing the seriousness of the offense, the court held that it “is an aggravating factor that [the deceased] was [the offender’s] intimate partner” and, in assessing the culpability of the offender, the court held the following:

Features of jealousy, the need to possess, and uncontrollable rage associated with extreme violence emerge too frequently in cases of the murder of an intimate female partner. These features heighten [the offender’s] moral culpability.

R v. Hudson [2019] ACTSC 110 (2 May 2019) — Supreme Court of the Australian Capital Territory

The court imposed a long prison sentence upon an offender for a range of domestic violence-related crimes, including using a carriage service to harass (harassing his ex-partner via text message and Facebook) and threatening and blackmailing her new partner. The court emphasized the high objective seriousness of the accused’s harassment of his ex-partner and that sentences must deliver appropriate punishment, and speak to the purposes of accountability, denunciation and recognition of harm.

R v. ABE [2019] QCA 83 (14 May 2019) — Queensland Court of Appeal

The court applied a reduced sentence for a woman convicted of grievous bodily harm committed against her husband (after having separated with him) in circumstances where the woman was the primary carer of their daughter who was severely disabled. The court emphasized that hardship to an offender’s family (in this case, the daughter who was severely disabled who would lose her primary carer) resulting from the offender’s imprisonment cannot override all other sentencing considerations. However, in some cases, family hardship may result in a substantial reduction in either the sentence or the period to be served before parole eligibility, even where the offending is serious.

R v. Cowling [2019] ACTSC 138 (23 May 2019) — Supreme Court of the Australian Capital Territory

This case provides an example of the flexibility that a court may exercise in sentencing for domestic violence offenses taking into account the offender’s personal circumstances and history and prospects for rehabilitation. In this case, a sentence was ordered to be served by way of an intensive corrections order to encourage the rehabilitation of the offender in the context of a conviction for unlawful confinement, choking, suffocating or strangling and assault committed by a man against his female partner. The intensive corrections order was made on the condition that the offender perform 400 hours of community service, continue to engage with psychological services to manage his mental health, and be assessed for and complete offense specific intervention.

Ivanov (a pseudonym) v. R [2019] VSCA 219 (8 October 2019) — Victorian Court of Appeal

The sentencing decision demonstrates that courts will take into account the specific circumstances, including the broader domestic and relational context, of a criminal offense relating to domestic violence. In particular, the domestic setting of an offense is not an aggravating factor in sentencing in all cases; in limited circumstances, it may include factors that result in a reduced sentence.

The court upheld an appeal on the grounds that a sentence of nine years and six months of imprisonment with a non-parole period of seven years was manifestly excessive in the context of marital rape self-reported by the offender, which the victim had never intended to report because the victim wanted the opportunity to resolve her relationship issues without police involvement in her marriage. At the sentencing hearing, the victim gave evidence in support of the offender and told the court that this was a private matter and that she wanted the appellant to be released so that the couple could start repairing their relationship. Despite this, the trial judge sentenced the appellant to nine years and six months of imprisonment with a non-parole period of seven years. The court considered that while it is appropriate for sentencing judges to be cautious when confronted with evidence of forgiveness by victims of violence in a domestic context, whether sexual or otherwise, extraordinary circumstances call for an extraordinary response. In this case, the court took into account the appellant’s early pleas, remorse, previous good character, hardship involved in his imprisonment and strong prospects of rehabilitation, and reduced the appellant’s sentence to four years of imprisonment, with two years non-parole.

Deacon v. R [2019] NTCCA 21 (11 October 2019) — Northern Territory Court of Criminal Appeal

This case considered the admissibility of evidence obtained by undercover police in relation to the murder by a man of his female de facto partner, in circumstances where the police established a fake criminal operation and created the impression that the group had power, by virtue of its links, to corrupt law enforcement officers and to destroy incriminating evidence. As part of the operation, the police utilized the interview technique of minimization, by which they sought to devalue the deceased and other women to create a bond of misogyny to gain the offender’s trust. The offender eventually admitted to killing the deceased by punching her to the head and then choking her, and led the operatives to the site of the remains. The conduct of the police operatives (which did not involve violence or related coercive methods) was not deemed to constitute “oppressive conduct” that should cause the evidence provided by the accused to be inadmissible.

DPP v. Ristevski [2019] VSCA 287 (06 December 2019) — Victorian Court of Appeal

The court determined that an initial sentence for manslaughter was manifestly inadequate in a case where the respondent killed his wife, put her body in a car and disposed of her body in a remote location, and then lied to relatives and police about it. This case considered that the domestic setting was an aggravating circumstance, the “sentence imposed on the respondent was far too low to reflect the needs of general deterrence, denunciation and just punishment” and while “there was a time when the seriousness of such domestic violence offences was not properly recognised. That is no longer the case.”

R v. Castel [2020] QCA 91 (6 May 2020) — Queensland Court of Appeal

This case considered the appropriateness of a sentence for a woman convicted of committing manslaughter against her husband. The court emphasized that the domestic context of the domestic violence offense is an aggravating factor in sentencing. Specifically, it applied Section 9(10A) of the Penalties and Sentences Act 1992 (Queensland), which refers to offenders convicted of domestic violence offenses and prescribes that the fact that the offense is a domestic violence offense is an aggravating factor in sentencing that is added to the other aggravating factors and balanced with any mitigating factors.

R v. UG [2020] ACTCA 8 (27 February 2020) — Australian Capital Territory Court of Appeal

In the context of serious family violence proceedings involving offenses of assault, property damage and threats to kill children, this case contains a useful discussion (at 45-51) regarding sentencing principles for family violence offenses. It clarifies that family violence offenses do not constitute a special category of offense in relation to which different sentencing principles apply and, absent express statutory provisions to the contrary, there is no place for a separate sentencing regime that applies to offenders who commit family violence offenses (or any other general category of offenses). However, when relevant to the particular case, the sentencing court will take into account matters that are frequently associated with family violence offenses. These matters include the following:

1. whether the offense forms part of a course of conduct
2. whether and how a weapon was used
3. whether the offense was associated with actual or threatened violence
4. the impact on victims
5. whether the offender was in a position of trust or authority regarding the victim, which is usually and perhaps even “necessarily” the case in relation to domestic violence offenses

Parker v. Tasmania [2020] TASCCA 9 (12 June 2020) — Tasmanian Court of Criminal Appeal

In upholding a lengthy prison sentence handed down to a man convicted of two counts of assault against his terminally ill female partner, the court emphasized the importance of general deterrence in sentencing for offenses involving the infliction of violence on the vulnerable, which frequently occur in a domestic or relationship setting, and that such conduct requires a sentence that reflects the insidious nature of such offending, and the importance of protecting those vulnerable to such harm.

N/A

As set out in Table 1 and illustrated by the cases referred to in Table 3, all Australian states and territories have legislation in place that empowers courts to make orders to protect the victims of domestic and family violence, or those at risk of suffering domestic and family violence. In many cases, local authorities, such as the police, can commence such orders on behalf of victims.

Protection orders in general are civil not criminal proceedings. In addition, every Australian jurisdiction has some provision to recognize and enforce New Zealand domestic violence orders once registered in the local justice system by the victim.

Victims of domestic violence may be able to apply for injunctions under the Commonwealth Act to protect partners or children who are suffering or at risk of suffering domestic violence. Most injunctions relating to the protection of a partner or child suffering or at risk of suffering domestic and family violence are made through relevant state legislation, as Commonwealth Act injunction processes are costly, complex and difficult to enforce. Moreover, other advantages of injunctions issued under state and territory law may include the following:

• protection orders can protect a wider range of family members such as siblings, extended family and other members of a household
• a wider range of people can initiate proceedings for a protection order, including the police
• state and territory family violence acts specify a wide range of conditions or prohibitions that can be included in a protection order
• police are more familiar with procedures under state and territory family violence legislation

As illustrated by the cases set out in Table 4, it may be possible for a victim of domestic violence to bring a civil action in tort against a perpetrator to compensate for the victim’s loss or suffering. In Australia, although tort law does not cover the full scope of domestic violence, many of the intentional torts encompass conduct associated with domestic violence, enabling victims of domestic violence to sue perpetrators.

Victims of domestic violence may be eligible to receive financial “victims of crime” compensation in some cases if the perpetrator is prosecuted under criminal law.

Potential causes of action under criminal laws

While there is currently no specific criminal offense of domestic violence, Australian criminal laws recognize a broad range of criminal conduct that may be considered to be acts of domestic violence, as illustrated by the cases summarized in Table 5 above. Additionally, Table 6 below sets out a non-exhaustive summary of potential criminal causes of action relating to various types of conduct associated with domestic violence. Table 7 below provides a more detailed summary of the criminal offense of stalking in Australian states and territories as an offense that may be particularly pertinent in a domestic violence context.

Table 6: Potential causes of action under criminal law for conduct associated with domestic violence

Physical abuse

Conduct

Physical violence with or without weapons, e.g., punching, slapping, pushing, kicking, headbutting and hairpulling

Possible criminal offense(s)

Common assault, assault occasioning bodily harm (battery) and causing grievous bodily harm — Sections 54, 59(1) and 61 of the Crimes Act 1900 (New South Wales)

Conduct

Neglecting, abusing or ill-treating an individual where the act has caused serious physical harm or death

Possible criminal offense(s)

Assault-related offenses; in the case of children, failure to protect a child from harm — Section 101 of the Children and Community Services Act 2004 (Western Australia)

Conduct

Violence resulting in death

Possible criminal offense(s)

Murder, manslaughter and assault causing death — Section 25A of the Crimes Act 1900 (New South Wales)

Conduct

Forcing entry into a house

Possible criminal offense(s)

Stalking — Section 13 of the NSW Act; causing damage to property

Conduct

Throwing items at a person

Possible criminal offense(s)

Common assault, assault occasioning bodily harm (battery) and causing grievous bodily harm — Sections 54, 59(1) and 61 of the Crimes Act 1900 (New South Wales)

Conduct

Tying a person up

Possible criminal offense(s)

Common assault and assault occasioning bodily harm (battery) — Sections 59(1) and 61 of the Crimes Act 1900 (New South Wales); common law offense of false imprisonment

Conduct

Damaging/destroying property or threatening to do so

Possible criminal offense(s)

Destroying or damaging property — Section195 of the Crimes Act 1900 (New South Wales)

Conduct

Harming pets or threatening to do so

Possible criminal offense(s)

Cruelty to animals — Section 18 of the Animal Care and Protection Act 2001 (Queensland); serious animal cruelty — Section 242 of the Criminal Code Act 1899(Queensland)

Conduct

Locking a person in a room or house

Possible criminal offense(s)

Common assault and assault occasioning bodily harm (battery) — Sections 59(1) and 61 of the Crimes Act 1900 (New South Wales); common law offense of false imprisonment

Conduct

Preventing a person from visiting relatives or friends

Possible criminal offense(s)

Coercive control abuse — proposed legislation in the Northern Territory; common law offense of false imprisonment

Conduct

Preventing a person from seeking aid

Possible criminal offense(s)

Coercive control abuse — proposed legislation in the Northern Territory; common law offense of false imprisonment

Conduct

Using violence or threatening violence to prevent a person from dressing as they choose

Possible criminal offense(s)

Common assault, assault occasioning bodily harm (battery) and causing grievous bodily harm — Sections 54, 59(1) and 61 of the Crimes Act 1900 (New South Wales); coercive control abuse — proposed legislation in the Northern Territory

Conduct

Secret or enforced administration of drugs

Possible criminal offense(s)

Common assault, assault occasioning bodily harm (battery) and causing grievous bodily harm — Sections 54, 59(1) and 61 of the Crimes Act 1900 (New South Wales); using an intoxicating substance to commit an indictable offense — Section 38 of the Crimes Act 1900 (New South Wales); unauthorized administration of drugs or poisons — Section 37 of the Medicines, Poisons and Therapeutic Goods Act 2008 (Australian Capital Territory)

Emotional and psychological abuse

Conduct

Neglecting, abandoning or ill-treating a child

Possible criminal offense(s)

Failure to protect child from harm — Section 101 of the Children and Community Services Act 2004 (Western Australia)

Conduct

Pressuring a victim/witness to dismiss the case or not to give evidence

Possible criminal offense(s)

Threatening or intimidating witnesses — Section 315A of the Crimes Act 1900 (New South Wales); perverting the course of justice — Section 319 of the Crimes Act 1900 (New South Wales)

Conduct

Racial abuse

Possible criminal offense(s)

Common assault — Section 61 of the Crimes Act 1900 (New South Wales)

Conduct

“Outing,” e.g., sexual orientation or HIV status

Possible criminal offense(s)

Blackmail — Section 87 of the Crimes Act 1958 (Victoria); making threats of hate-based violence — Section 93Z of the Crimes Act 1900 (New South Wales)

Stalking and harassment

Conduct

Offensive/obscene/menacing telephone calls, text messages, letters, emails or social media/online messages

Possible criminal offense(s)

Common assault and stalking/intimidation, e.g., stalking or intimidation with the intent to cause fear of physical or mental harm — Section 13 of the Crimes (Domestic and Personal Violence) Act 2008 (New South Wales); using a carriage service to menace, harass or offend — Section 474.17 of the Criminal Code Act 1995 (commonwealth) (Schedule 1 to the Crimes Act 1914 (commonwealth))

Conduct

Posting intimate images, messages or defamatory/insulting material

Possible criminal offense(s)

With respect to intimate images, offenses relating to recording, distributing or threatening to distribute without consent — Sections 91P, 91Q and 91R of the Crimes Act 1900 (New South Wales); using a carriage service to menace, harass or offend — Section 474.17 of the Criminal Code Act 1995 (commonwealth) (Schedule 1 to the Crimes Act 1914 (commonwealth)); stalking or intimidation with the intent to cause fear of physical or mental harm — Section 13 Crimes (Domestic and Personal Violence) Act 2008 (New South Wales)

Conduct

Excessive contact, e.g., numerous phone calls to check someone’s whereabouts, leaving unexpected/unwanted gifts, defamation of character to friends/family employers, etc.

Possible criminal offense(s)

Stalking — Section 21A of the Crimes Act 1958 (Victoria); stalking or intimidation with the intent to cause fear of physical or mental harm — Section 13 of the Crimes (Domestic and Personal Violence) Act 2008 (New South Wales)

Conduct

Following an individual physically and using online methods such as checking online media activity or tracking an individual through GPS applications

Possible criminal offense(s)

Stalking — Section 21A of the Crimes Act 1958 (Victoria); stalking or intimidation with the intent to cause fear of physical or mental harm — Section 13 of the Crimes (Domestic and Personal Violence) Act 2008 (New South Wales)

Conduct

Constantly visiting an individual’s (or their friends’ or family’s) home, workplace or regularly known location

Possible criminal offense(s)

Stalking — Section 21A of the Crimes Act 1958 (Victoria); stalking or intimidation with the intent to cause fear of physical or mental harm — Section 13 of the Crimes (Domestic and Personal Violence) Act 2008 (New South Wales)

Conduct

Breaching the conditions of an intervention order, restraining order or an apprehended violence order

Possible criminal offense(s)

Contravention of a notice intending to cause harm or fear for safety — Section 37A of the Victorian Act; contravening an apprehended violence order — Section 14 of the Crimes (Domestic and Personal Violence) Act 2008 (New South Wales)

Sexual abuse

Conduct

Intentional or reckless transmission of a sexually transmitted infection

Possible criminal offense(s)

Assault occasioning bodily harm (aggravated assault and aggravated battery); sexual assault — Sections 59 and 61I of the Crimes Act 1900 (New South Wales); not taking reasonable precautions against spreading a notifiable disease or scheduled medical condition that is sexually transmissible — Section 79(1) of the Public Health Act 2010 (New South Wales)

Conduct

Enforced sexual activity

Possible criminal offense(s)

Sexual assault/rape — Sections 61I-61K of the Crimes Act 1900 (New South Wales)

Financial abuse

Conduct

Enforced financial dependence or unreasonably depriving someone of money

Possible criminal offense(s)

Evidence of family violence; in relation to a person, this includes evidence of the social, cultural or economic factors that impact on the person or a family member who has been affected by family violence — Section 322J (c) of the Crimes Act 1958 (Victoria)

Verbal abuse

Conduct

Persistent verbal abuse, e.g., constant unreasonable criticism

Possible criminal offense(s)

Potentially, assault occasioning bodily harm — Section 59 of the Crimes Act 1900 (New South Wales)

Conduct

Threatening with an item used as a weapon, e.g., a knife, tool, telephone or chair

Possible criminal offense(s)

Common assault — Section 61 of the Crimes Act 1900 (New South Wales)

Conduct

Threatening to kill someone

Possible criminal offense(s)

Common assault — Section of the 61 Crimes Act 1900 (New South Wales)

Conduct

Threats to cause injury

Possible criminal offense(s)

Common assault — Section 61 of the Crimes Act 1900 (New South Wales)

Conduct

Threats to seriously damage or undermine social status

Possible criminal offense(s)

Common assault and/or blackmail — Section 61 and/or Section 249K of the Crimes Act 1900 (New South Wales)

Religious or spiritual abuse

Conduct

Ridiculing or insulting religious or spiritual beliefs or preventing the other person from practicing their religious or spiritual beliefs

Possible criminal offense(s)

Offense of publicly threatening or inciting violence on the grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status — Section 93Z of the Crimes Act 1900 (New South Wales)

Honor-based violence

Conduct

Violence, threats of violence, intimidation, coercion or abuse (including psychological, physical, sexual, financial or emotional abuse) that has or may have been committed to protect or defend the honor of an individual, family and/or community for alleged or perceived breaches of the family and/or community’s code of behavior

Possible criminal offense(s)

Common assault, assault occasioning bodily harm (battery) and causing grievous bodily harm — Sections 54, 59(1) and 61 of the Crimes Act 1900 (New South Wales)

Forced marriage

Conduct

Being forced to enter a marriage without expressing valid consent

Possible criminal offense(s)

Forced marriage — Section 270.7B of the Criminal Code Act 1995 (commonwealth)

Female genital mutilation (FGM)

Conduct

Removal or mutilation of the whole or any part of a girl’s external genitalia for nonmedical reasons

Possible criminal offense(s)

FGM — Section 73 of the Crimes Act 1900 (Australian Capital Territory); Section 54 of the Crimes Act 1900 (New South Wales)

Conduct

Breast flattening

Possible criminal offense(s)

Child abuse and FGM — Section 73 of the Crimes Act 1900 (Australian Capital Territory)

Table 7: Summary of stalking offenses under criminal laws in each Australia state and territory

New South Wales

NSW Act

Section 13 of the NSW Act makes it an offense to stalk or intimidate another person with the intention of causing the other person to fear mental or physical harm (including causing the person to fear physical or mental harm to another person with whom they have a domestic relationship). The offense carries a maximum penalty of five years of imprisonment or a fine of 50 penalty units (as of March 2022 AUD 5,500), or both.

Queensland

Criminal Code Act 1899 (Queensland)

Section 359E(1) of the Criminal Code Act 1899 (Queensland) makes it an offense to unlawfully stalk a person. “Unlawful stalking” is defined in Section 359B of the above code. It includes one protracted act or conduct that occurs on more than one occasion of the following kinds (or similar): following, loitering near, watching or approaching a person; contacting a person in any way, including, for example, by telephone, mail, fax, email or through the use of any technology; loitering near, watching, approaching or entering a place where a person lives, works or visits; leaving offensive material where it will be found by, given to or brought to the attention of a person; giving offensive material to a person, directly or indirectly; an intimidating, harassing or threatening act against a person, whether or not involving violence or a threat of violence; and an act of violence or a threat of violence against or against the property of anyone, including the defendant. Such conduct will amount to unlawful stalking if it would cause the stalked person apprehension or fear, reasonably arising in all the circumstances, of violence to or against the property of the stalked person or another person; or if it causes detriment, reasonably arising in all the circumstances, to the stalked person or another person.

The offense carries a maximum penalty of five years of imprisonment (Section 359E(2)) or seven years of imprisonment if aggravated.

South Australia

Criminal Law Consolidation Act 1935 (South Australia)

Section 19AA(2) of the Criminal Law Consolidation Act 1935 (South Australia) makes it an offense to stalk another person. The basic offense carries a maximum penalty of three years of imprisonment and an aggravated offense carries a maximum penalty of five years of imprisonment.

Section 19AA(1) specifies that a person will “stalk” another person if, on at least two separate occasions, the person follows the other person (Section 19AA(1)(a)(i)); enters another place frequented by the other person (Section 19AA(1)(a)(ii)); enters or interferes with property in the possession of the other person (Section 19AA(1)(a)(iii)); gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person (Section 19AA(1)(a)(iv)); publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by or brought to the attention of the other person (Section 19AA(1)(a)(iva)); communicates with the other person or to others about the other person by way of mail, telephone (including associated technology), facsimile transmission, the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person (Section 19AA(1)(a)(ivb)); keeps the other person under surveillance (Section 19AA(1)(a)(v)); or acts in any other way that could reasonably be expected to arouse the other person’s apprehension or fear (Section 19AA(1)(a)(vi)) with the intention of causing serious physical or mental harm to the other person or a third person, or with the intention of causing serious apprehension or fear.

Tasmania

Criminal Code Act 1924 (Tasmania)

Section 192 of the Criminal Code Act 1924 (Tasmania) makes stalking an offense. The acts that comprise stalking are set out in paragraphs (a) to (j) of Section 192(1) of the Criminal Code Act 1924 (Tasmania). It includes doing any of the following with the intent to cause another person physical or mental harm or to be apprehensive or fearful: following the person or a third person (Section 192(1)(a)); keeping the person or a third person under surveillance (Section 192(1)(b)); loitering outside a place that the person or a third person frequents (Section 192(1)(c)); and entering or interfering with the property of the person or the third person (Section 192(1)(d)), and so on. Section 192(2)(a) requires that the conduct must be sustained or must occur on more than one occasion.

Potential penalties include 21 years of imprisonment or a fine, or both.

Victoria

Crimes Act 1958 (Victoria)

Section 21A of the Crimes Act 1958 (Victoria) makes it an offense to stalk another person. The maximum penalty for conviction of the offense is 10 years of imprisonment. The Crimes Act 1958 (Victoria) specifies the acts or conduct that constitutes stalking, which include following the victim or any other person; contacting the victim by post, telephone, fax, text message, email or other electronic communication, or by any other means whatsoever; publishing on the internet or using email statements relating to the victim; and causing an unauthorized computer function. There must be an intention to cause physical or mental harm or fear in the victim.

Western Australia

Criminal Code Act Compilation Act 1913 (Western Australia)

Section 338E of the Criminal Code Act Compilation Act 1913 (Western Australia) makes it an offense to pursue another person with the intent to intimidate that person or a third person.

“Intimidate,” in relation to a person, includes causing physical or mental harm, or apprehension or fear to the person (Section 338D). “Pursue” is defined in Section 338D as repeatedly communicating with or following a person; repeatedly causing a person to receive unsolicited items; and watching or besetting a person’s home, place of employment or any place the person happens to be.

The offense carries a maximum penalty of 3 years of imprisonment, although this can be extended to up to eight years of imprisonment for aggravated offenses.

Australian Capital Territory

Crimes Act 1900 (Australian Capital Territory)

Section 35 of the Crimes Act 1900 (Australian Capital Territory) makes it an offense to stalk another person with the intent to cause apprehension or fear of harm (Section 35(1)(a)), or to cause harm to the stalked person or another person (Section 35(1)(b)) or harass the stalked person (Section 35(1)(c)).

The maximum penalty for the offense is either five years of imprisonment (if the offense involved a contravention of an injunction or other order made by a court, or the offender was in possession of an offensive weapon) or two years imprisonment of in any other case.

For an act to constitute stalking, Section 35(2) of the Crimes Act 1900 (Australian Capital Territory) requires one of the acts specified in paragraphs (a) to (j) to be done on at least two occasions. The acts that may constitute stalking include following or approaching the stalked person; loitering near, watching, approaching or entering a place where the stalked person resides, works or visits; keeping the stalked person under surveillance; interfering with property in the possession of the stalked person; and giving or sending offensive material to the stalked person, or leaving offensive material where it is likely to be found by, given to or brought to the attention of the stalked person.

Section 35(4) deems a person to have the requisite intent to stalk if the person knows or is reckless about whether stalking the person would result in an apprehension or fear of harm in the stalked person or the stalked person being harassed.

Northern Territory

Criminal Code Act (Northern Territory)

Section 189(2) of the Criminal Code Act (Northern Territory) makes it an offense to stalk another person. The offense requires a person to engage in repeated instances of or a combination of any one of a number of specified acts, including following the victim or any other person (Section 189(1)(a)); telephoning, sending electronic messages to or otherwise contacting the victim or another person (Section 189(1)(b)); entering or loitering outside or near the victim’s or another person’s place of residence, business or any other place frequented by the victim or the other person (Section 189(1)(c)); interfering with property in the victim’s or another person’s possession (whether or not the offender has an interest in the property) (Section 189(1)(d)); giving offensive material to the victim or another person or leaving it where it will be found by, given to or brought to the attention of the victim or the other person (Section 189(1)(e)); keeping the victim or another person under surveillance (Section 189(1)(f)); or acting in any other way that could reasonably be expected to arouse apprehension or fear in the victim for their own safety or that of another person (Section 189(1)(g)) with the intention of causing physical or mental harm to the victim or arousing apprehension or fear in the victim.

The penalty for the offense is two years of imprisonment, extending up to five years of imprisonment for aggravated offenses.