Is There a Difference Between Family and Domestic Violence and Assault?

Family Violence

What is Family Violence?

In Victoria, “domestic violence” is also referred to as “family violence”. The key piece of legislation regarding family violence is the Family Violence Protection Act 2008 (Vic).  

Family violence is when a person behaves in a way towards a family member that is:

• Physically abusive (e.g. hitting, kicking, burning, neglectful care);
• Sexually abusive (e.g. using threats to pressure someone into sex);
• Emotionally or psychologically abusive (e.g. verbal or written bullying or taunting);
• Economically abusive (e.g. controlling another person’s finances without consent);
• Threatening (e.g. threatening physical or emotional harm);
• Coercive (e.g. threatening self-harm if the relationship ends); or
• Controlling and dominating causing fear (e.g. threatening to hurt someone else) (s 5(1)(a)). 

The Act also states that family violence includes any behaviour that causes a child to:

• Hear; 
• Witness; or
• Be exposed to the effects of any of the above-listed behaviour (s 5(1)(b)).

If the police are called to a family violence situation, it is at their discretion whether or not they:

• Apply for a Family Violence Intervention Order against the accused (see below);
• Charge the accused with assault (see below); or
• Both.

Who Is Considered a Family Member?

Family violence can only be committed against a “family member”. Any of the following relationships may be considered a “family member”:

• Current and previous spouses or domestic partners (e.g. husband, wife, de facto partner);
• People who have or had an intimate personal relationship (e.g. girlfriend or boyfriend);
• Stepfamily (e.g. step dad or step mum);
• Relatives (e.g. brothers, sisters, grandparents, mother-in-law, father-in-law, etc.);
• Children who regularly reside with the respondent (or previously have); or
• Children who have an intimate personal relationship with the respondent (or previously have) (s 8).

What is The Consequence for Family Violence?

The victim (i.e. the applicant) or the police may seek a Family Violence Intervention Order against a person accused of family violence (i.e. the respondent). 

A Family Violence Intervention Order is a strict set of restrictive conditions that the Court imposes upon the respondent. Conditions that the Magistrates Court may deem necessary or desirable include:

• The respondent cannot commit family violence
• The respondent is excluded from the family residence
• The respondent is excluded from approaching or contacting certain family members
• The respondent’s personal property is subject to the directions of the Magistrates Court
• The respondent is to be prohibited from or have limited child contact 
• The respondent’s firearms licence is to be suspended or cancelled. 

A Family Violence Intervention Order does not give the respondent a criminal record. However, breaching the conditions of an Intervention Order is a criminal offence and may result in a criminal record (and a maximum penalty of up to 5 years imprisonment).

How Can You Fight a Family Violence Intervention Order?

If the applicant or the police seek a Family Violence Intervention Order against you, you will have the opportunity to respond during a Magistrates’ Court hearing.

The applicant must be able to prove to the magistrate that an Intervention Order is justified. You can either consent to the Order being made or argue against it. 

To successfully defend against a Family Violence Intervention Order, the respondent must prove to the magistrate that:

• They have not committed family or domestic violence; or
• They are not likely to commit family or domestic violence again. 

For further details, please see How to Prepare for an Intervention Order Hearing. 

Assault

What is Assault?

In Victoria, assault is a criminal offence under the Summary Offences Act 1966 (Vic) and the Crimes Act 1958 (Vic). Assault matters are heard separately from family violence matters and may result in punitive punishment (i.e. imprisonment or a fine).

Most assault offences relate to unlawfully applying force or threatening another person (e.g. punching someone or threatening to hit someone). 

Some of the most common assault charges in Victoria include:

• Unlawful Assault and Common Assault
• Aggravated Unlawful Assault
• Intentionally, Recklessly or Negligently Causing Injury or Endangering Life
• Indictable Assault
• Threaten to Kill
• Threaten to Inflict Serious Injury

What if I Assault a Family Member?

If you assault a family member, you may be subject to both a Family Violence Intervention Order and criminal assault charges. The term “family member” is defined above – scroll up to see  “Who is Considered a Family Member?”.

If the police are called to a family violence situation, it is at their discretion whether or not they:

• Apply for a Family Violence Intervention Order against the accused (see above);
• Charge the accused with a criminal assault offence; or
• Both.

What is the Penalty for Assault?

The penalty for assault depends on the specific offence you are charged with. The maximum penalty for assault offences ranges from 3 months imprisonment (for summary offences) to 25 years imprisonment (for indictable offences).

In Victoria, common penalties in relation to assault include:

• Imprisonment
• A Community Corrections Order
• A Good Behaviour Bond (Adjourned Undertaking)
• A criminal conviction

How Can You Defend an Assault Charge?

To defend an assault charge, the accused must demonstrate that the prosecution has failed to prove all elements of the offence beyond a reasonable doubt. This will result in the accused being found not guilty.

Further, the accused may be able to rely on a legal defence in some circumstances. Legal defences to assault may include:

• Self-defence
• Duress
• Mental Impairment
• Intoxication
• Consent

What to Do if You Have a Family Violence or Assault Matter

If you are involved in a Family Violence matter or have been charged with assaulting a family member, please contact Sher Criminal Lawyers immediately. 

Our team of defence experts specialise in both family violence and assault matters. We carefully analyse each case on its own merits and assess which legal options will result in the best possible outcome for you and your family. 

Please get in touch and ask for a free consultation by way of Zoom, Facetime or in person at our Melbourne or Moorabbin offices. Our specialist family violence and assault lawyers are available 24/7 and here to help protect your legal interests.