Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 No 80 An Act to protect persons from domestic and personal violence; to repeal Part 15A of the Crimes Act 1900; and to make consequential amendments to other Acts and instruments. Part 1 Preliminary 1 Name of Act This Act is the Crimes (Domestic and Personal Violence) Act 2007. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— applicant officer—see section 25. apprehended domestic violence order means an order under Part 4. apprehended personal violence order means an order under Part 5. apprehended violence order means— (a) a final apprehended violence order, or (b) an interim apprehended violence order. apprehended violence order proceedings means proceedings under this Act in relation to an apprehended violence order or an application for an apprehended violence order. authorised officer has the same meaning as in the Law Enforcement (Powers and Responsibilities) Act 2002 and includes the Registrar of the Children's Court. child means a person under the age of 16 years. Children's Magistrate includes the President of the Children's Court. Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 of the Commonwealth. court means— (a) the Local Court, or (b) the Children's Court, (c) (Repealed) exercising jurisdiction under section 91. defendant means the person against whom an apprehended violence order is made or is sought to be made. domestic abuse—see section 6A. domestic relationship—see section 5. domestic violence offence—see section 11. final apprehended violence order means an apprehended domestic violence order or an apprehended personal violence order. interim apprehended domestic violence order means an interim apprehended domestic violence order made by a court or Registrar under Part 6 or an authorised officer or senior police officer under Part 7. interim apprehended personal violence order means an interim apprehended personal violence order made by a court or Registrar under Part 6 or an authorised officer under Part 7. interim apprehended violence order means an interim court order or a provisional order. interim court order means an interim apprehended domestic violence order or an interim apprehended personal violence order made by a court or registrar of a court under Part 6. intimidation—see section 7. issuing officer—see section 25. non-local domestic violence order means a non-local DVO within the meaning of Part 13B. parent has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. personal violence offence—see section 4. property recovery order means a property recovery order made under section 37. protected person means the person for whose protection an apprehended violence order is sought or made. provisional order means an interim apprehended domestic violence order or an interim apprehended personal violence order made under Part 7. Registrar means a Registrar of the Local Court or the Registrar of the Children's Court. relative—see section 6. senior police officer means a police officer of or above the rank of sergeant. stalking—see section 8. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) If an apprehended violence order is varied, a reference in this Act to the order is a reference to the order as so varied. (3) A reference in this Act to a person being present in court includes a reference to a person being present in court by way of audio visual link, being facilities (including closed-circuit television) that enable audio and visual communication between persons at different places. (4) A reference in this Act to a finding of guilt includes a reference to the making of an order under section 10 of the Crimes (Sentencing Procedure) Act 1999. (5) Notes included in this Act do not form part of this Act. 4 Meaning of "personal violence offence" In this Act, personal violence offence means— (a) an offence under, or mentioned in, section 19A, 24, 25, 26, 27, 28, 29, 30, 31, 33, 33A, 35, 35A, 37, 38, 39, 41, 43, 43A, 44, 45, 45A, 46, 47, 48, 49, 58, 59, 61, 61B, 61C, 61D, 61E, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 65A, 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 73, 73A, 78A, 80A, 80D, 86, 87, 91P, 91Q, 91R, 93G, 93GA, 110, 195, 196, 198, 199, 200, 562I (as in force before its substitution by the Crimes Amendment (Apprehended Violence) Act 2006) or 562ZG of the Crimes Act 1900, or (b) an offence under section 13 or 14 of this Act, or (b1) an offence under section 109, 111, 112, 113, 114, 115 or 308C of the Crimes Act 1900, but only if the serious indictable offence or indictable offence referred to in those sections is an offence referred to in paragraph (a) or (b), or (b2) an offence under section 93AC (Child forced marriage) of the Crimes Act 1900 or the Commonwealth Criminal Code, section 270.7B (Forced marriage offences), or (c) an offence of attempting to commit an offence referred to in paragraph (a), (b), (b1) or (b2). 5 Meaning of "domestic relationship" (1) For the purposes of this Act, a person has a domestic relationship with another person if the person— (a) is or has been married to the other person, or (b) is or has been a de facto partner of that other person, or (c) has or has had an intimate personal relationship with the other person, whether or not the intimate relationship involves or has involved a relationship of a sexual nature, or (d) is living or has lived in the same household as the other person, or (e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 1987), or (f) has or has had a relationship involving his or her dependence on the ongoing paid or unpaid care of the other person (subject to section 5A), or (g) is or has been a relative of the other person, or (h) in the case of an Aboriginal person or a Torres Strait Islander, is or has been part of the extended family or kin of the other person according to the Indigenous kinship system of the person's culture. Note. "De facto partner" is defined in section 21C of the Interpretation Act 1987. (2) Two persons also have a domestic relationship with each other for the purposes of this Act if they have both had a domestic relationship of a kind set out in subsection (1)(a), (b) or (c) with the same person. Note. A woman's ex-partner and current partner would therefore have a domestic relationship with each other for the purposes of this Act even if they had never met. 5A Special provisions—carers and their dependants (1) A person (a dependant) who has or has had a relationship with another person involving the person's dependence on the ongoing paid care of the other person (a paid carer) is treated as having a domestic relationship with the paid carer only for the purposes of the protection of the dependant. (2) Accordingly— (a) a paid carer and a dependant are to be treated as having a domestic relationship for the purposes of any offence committed by a paid carer against a dependant, but not for the purposes of an offence committed by a dependant against a paid carer, and (b) an apprehended domestic violence order may be made against a paid carer for the protection of a dependant (or for the protection of two or more persons at least one of whom is a dependant), but not against a dependant for the protection of a paid carer. (3) This section does not limit or otherwise affect the application of this Act to a relationship between a dependant and an unpaid carer, or to a relationship between a dependant and a carer that, disregarding section (5)(1)(f), would be a domestic relationship under section 5. Note. For example, if a dependant and a paid carer are relatives, they will be treated as having a domestic relationship under section 5(1)(g) and an apprehended domestic violence order could be made against the dependant for the protection of the paid carer. (4) To avoid doubt, an apprehended personal violence order may be made against a dependant for the protection of a paid carer if the paid carer and dependant do not have a domestic relationship. 6 Meaning of "relative" For the purposes of this Act, a person is a relative of another person (the other person)— (a) if the person is— (i) a father, mother, grandfather, grandmother, step-father, step-mother, father-in-law or mother-in-law, or (ii) a son, daughter, grandson, grand-daughter, step-son, step-daughter, son-in-law or daughter-in-law, or (iii) a brother, sister, half-brother, half-sister, step-brother, step-sister, brother-in-law or sister-in-law, or (iv) an uncle, aunt, uncle-in-law or aunt-in-law, or (v) a nephew or niece, or (vi) a cousin, of the other person, or (b) where the person has a de facto partner (the person's partner)—if the other person is— (i) a father, mother, grandfather, grandmother, step-father or step-mother, or (ii) a son, daughter, grandson, grand-daughter, step-son or step-daughter, or (iii) a brother, sister, half-brother, half-sister, step-brother or step-sister, or (iv) an uncle or aunt, or (v) a nephew or niece, or (vi) a cousin, of the person's partner. 6A Meaning of "domestic abuse" (1) In this Act, domestic abuse means any of the following behaviours directed by one person (the first person) against another person (the second person) with whom the first person has a domestic relationship— (a) violent or threatening behaviour, (b) behaviour that coerces or controls the second person, (c) behaviour that causes the second person to fear for the person's safety or wellbeing or the safety and wellbeing of others. (2) Without limiting subsection (1), engaging in, or threatening to engage in, the following behaviour may constitute domestic abuse— (a) behaviour that is physically abusive or violent, (b) behaviour that is sexually abusive, coercive or violent, (c) behaviour that is economically or financially abusive, Examples— • withholding financial support necessary for meeting the reasonable living expenses of a person, or another person living with or dependent on the person, in circumstances in which the person is dependent on the financial support to meet the person's living expenses • preventing, or unreasonably restricting or regulating, a person seeking or keeping employment or having access to or control of the person's income or financial assets, including financial assets held jointly with another person (d) behaviour that is verbally abusive, (e) behaviour that shames, degrades or humiliates, (f) behaviour that is intimidation, (g) behaviour that is stalking, or that directly or indirectly harasses a person, or monitors or tracks a person's activities, communications or movements, whether by physically following the person, using technology or in another way, (h) behaviour that damages or destroys property, (i) behaviour that causes death or injury to an animal, or otherwise makes use of an animal to threaten a person, (j) behaviour that prevents the second person from doing any of the following or otherwise isolates the person— (i) making or keeping connections with the person's family, friends or culture, (ii) participating in cultural or spiritual ceremonies or practice, (iii) expressing the person's cultural identity, (k) behaviour that deprives the second person of liberty, restricts the second person's liberty or otherwise unreasonably controls or regulates a person's day-to-day activities, Examples— • making unreasonable demands about how a person exercises the person's personal, social or sexual autonomy and making threats of negative consequences for failing to comply with the demands • denying a person access to basic necessities including food, clothing or sleep • withholding necessary medical or other care, support, aids, equipment or essential support services from a person or compelling the person to take medication or undertake medical procedures (3) Domestic abuse includes behaviour by the first person that causes a child to hear or witness, or otherwise be exposed to the effects of, behaviour mentioned in subsection (1). (4) Domestic abuse may, in the context of the relationship, be constituted by— (a) a single act, omission or circumstance, or (b) a combination of acts, omissions or circumstances over a period of time. (5) Behaviour mentioned in subsection (1) or (2) may constitute domestic abuse even if the behaviour does not constitute a criminal offence. 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means— (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Example of conduct that may amount to harassment of a person— (1) Intentionally disclosing or threatening to disclose any of the following about a person without the person's consent, known as "outing"— (a) the person's sexual orientation, (b) the person's gender history, (c) that the person has a variation of sex characteristics, (d) that the person lives with HIV, (e) that the person is, or has been, a sex worker. (2) For subsection (1)(b) of this example, gender history means the sex recorded at birth for the person is different to the sex the person identifies with, lives in or seeks to live in, whether or not the person's record of sex is altered under— (a) the Births, Deaths and Marriages Registration Act 1995, Part 5A, or (b) the corresponding provisions of a law of another State or Territory or a jurisdiction outside Australia. Note. An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) conduct that causes a reasonable apprehension of— (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property, or (iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or (d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or (e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage). (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour. 8 Meaning of "stalking" (1) In this Act, stalking includes the following— (a) the following of a person about, (b) the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, (b1) the monitoring or tracking of a person's activities, communications or movements— (i) whether by using technology or in another way, and (ii) whether or not the monitoring or tracking involves contacting or otherwise approaching the person, (c) contacting or otherwise approaching a person using the internet or any other technologically assisted means. (2) For the purpose of determining whether a person's conduct amounts to stalking, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour. Part 2 Objects of Act in relation to domestic and personal violence 9 Objects of Act in relation to domestic violence (1) The objects of this Act in relation to domestic violence are— (a) to ensure the safety and protection of all persons, including children, who experience or witness domestic violence, and (b) to reduce and prevent violence by a person against another person where a domestic relationship exists between those persons, and (c) to enact provisions that are consistent with certain principles underlying the Declaration on the Elimination of Violence against Women, and (d) to enact provisions that are consistent with the United Nations Convention on the Rights of the Child. (2) This Act aims to achieve those objects by— (a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice. (3) In enacting this Act, Parliament recognises— (a) that domestic violence, in all its forms, is unacceptable behaviour, and (b) that domestic violence is predominantly perpetrated by men against women and children, and (c) that domestic violence occurs in all sectors of the community, and (d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patterns of abuse over many years, and (e) that domestic violence occurs in traditional and non-traditional settings, and (f) the particularly vulnerable position of children who are exposed to domestic violence as victims or witnesses, and the impact that such exposure can have on their current and future physical, psychological and emotional well-being, and (f1) the particular impact of domestic violence on Aboriginal persons and Torres Strait Islanders, persons from culturally and linguistically diverse backgrounds, persons from gay, lesbian, bisexual, transgender and intersex communities, older persons and persons with disabilities, and (f2) the intersection between animal abuse and domestic violence, and (g) that domestic violence is best addressed through a co-ordinated legal and social response of assistance and prevention of violence and, in certain cases, may be the subject of appropriate intervention by the court. (4) A court that, or person who, exercises any power conferred by or under this Act in relation to domestic violence must be guided in the exercise of that power by the objects referred to in this section. 10 Object of Act in relation to personal violence (1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. (2) This Act aims to achieve that object by— (a) empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice, and (c) ensuring that other avenues of dispute resolution are encouraged where appropriate. Part 3 Domestic violence and other offences 11 Meaning of "domestic violence offence" (1) In this Act, domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being— (a) a personal violence offence, or (b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or (b1) an offence under the Crimes Act 1900, section 54D(1), or (c) an offence, other than a personal violence offence or an offence mentioned in paragraph (b1), in which the conduct that constitutes the offence is domestic abuse. (2) In this section, offence includes an offence under the Criminal Code Act 1995 of the Commonwealth. 12 Recording of domestic violence offences (1) The charge in respect of an offence may indicate that the offence is a domestic violence offence. (2) If a person pleads guilty to an offence or is found guilty of an offence and the court is satisfied that the offence was a domestic violence offence, the court is to direct that the offence be recorded on the person's criminal record as a domestic violence offence. (3) If the court makes a direction under this section to record an offence as a domestic violence offence, the prosecution may make an application to the court requesting that the court direct that specified offences in respect of which the person has previously pleaded guilty or been found guilty be recorded as domestic violence offences. (4) Any such application is to include sufficient information in support of the request to enable the court to make a decision as to whether such a recording is appropriate. (5) The court may require the prosecutor to provide further information to enable it to make a determination as to whether to direct a recording to be made under this section. (6) If satisfied after considering an application under subsection (3) that an offence referred to in the application was a domestic violence offence, the court is to direct that the offence be recorded on the criminal record of the person concerned as a domestic violence offence. (7) A victim of an offence is not compellable in any proceedings before the court to determine whether the court should make a direction under this section to record an offence as a domestic violence offence. (8) A court that directs a recording to be made under this section or is required to take such a recording into account may, on application or on its own motion, correct the recording if it considers that there is an error in the recording. (9) Regulations may be made for or with respect to the recording of offences under this section, including the manner in which and time within which such recordings are to be made. Note. An indication in the charge for an offence that a person has committed a domestic violence offence will be relevant in bail proceedings. The recording on a person's criminal record that an offence is a domestic violence offence will be relevant to sections 7 and 8 of this Act, where previous behaviour constituting a domestic violence offence is taken into account for the purpose of determining whether a person's behaviour amounts to intimidation or stalking, and to sections 27 and 49 of this Act, which require police to make applications for apprehended domestic violence orders in situations where the person in question has already committed a domestic violence offence. Section 21A of the Crimes (Sentencing Procedure) Act 1999 provides that a record of previous convictions is an aggravating factor to be taken into account when determining the appropriate sentence for an offence. 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty—Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed. 14 Offence of contravening apprehended violence order (1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty—Imprisonment for 2 years or 50 penalty units, or both. (2) A person is not guilty of an offence against subsection (1) unless— (a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or (b) in any other case, the person was served with a copy of the apprehended violence order. (3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned— (a) was necessary in order to attend mediation under section 21, or (b) was done in compliance with the terms of a property recovery order. (4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person. (5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence. (6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so. (7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned. (8) A police officer is to make a written record of the reasons for— (a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or (b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9), if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer. (9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed. Note. The Law Enforcement (Powers and Responsibilities) Act 2002 contains powers of police officers in relation to suspected offences, including a power to arrest a person, without warrant, if the police officer suspects on reasonable grounds that a person has committed an offence. Part 4 Apprehended domestic violence orders 15 Application for making of apprehended domestic violence order by court (1) An application may be made in accordance with Part 10 for an apprehended domestic violence order for the protection of— (a) a person against another person with whom he or she has or has had a domestic relationship, or (b) two or more persons against another person with whom at least one of those persons has or has had a domestic relationship. (2) An application is to be treated as an application for an apprehended personal violence order if none of the persons for whose protection the order would be made has or has had a domestic relationship with the person against whom it is sought. (3) Subsection (2) does not apply to a provisional order that is made by a senior police officer and treated as an application for an order pursuant to section 29. 16 Court may make apprehended domestic violence order (1) A court may, on application, make an apprehended domestic violence order if it is satisfied on the balance of probabilities that a person who has or has had a domestic relationship with another person has reasonable grounds to fear and in fact fears— (a) the commission by the other person of a domestic violence offence against the person, or (b) the engagement of the other person in conduct in which the other person— (i) intimidates the person or a person with whom the person has a domestic relationship, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. (2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for whose protection the order would be made in fact fears that such an offence will be committed, or that such conduct will be engaged in, if— (a) the person is a child, or (b) the person is, in the opinion of the court, suffering from an appreciably below average general intelligence function, or (c) in the opinion of the court— (i) the person has been subjected on more than one occasion to conduct by the defendant amounting to a personal violence offence, and (ii) there is a reasonable likelihood that the defendant may commit a personal violence offence against the person, and (iii) the making of the order is necessary in the circumstances to protect the person from further violence, or (d) the court is satisfied on the balance of probabilities that the person has reasonable grounds to fear the commission of a domestic violence offence against the person. (2A) An apprehended domestic violence order that is made in reliance on subsection (2)(d) cannot impose prohibitions or restrictions on the behaviour of the defendant other than those prohibitions that are taken to be specified in the order by section 36. (3) For the purposes of this section, conduct may amount to intimidation of a person even though— (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person. Note. Part 8 provides for the matters that may be included in orders. Part 9 contains additional provisions relevant to the making of orders. 17 Matters to be considered by court (1) In deciding whether or not to make an apprehe