Often, legal terms with precise meanings are used interchangeably in casual conversation. However, Australian law is clear in its differentiation between common assault and domestic violence.
Defining Violence
What is Domestic Violence?
Also commonly known as family violence, domestic violence occurs when a person commits one or more of the following acts towards a family member.
- Physical abuse
- Sexual abuse
- Emotional abuse includes bullying, taunting, or threatening
- Economic abuse by controlling another’s finances without consent
- Coercive abuse typically threatens self-harm to control the actions of the abused
- Stalking includes unwanted obsessive attention
- Abuse facilitated abuse, including publishing photos without consent, using spyware, sharing or threatening to share messages or images
- Dominating, controlling, causing fear
- Causing a child to hear, witness, or otherwise be impacted by the above behaviour is domestic violence.
Central to the definition of domestic (or family) violence is the definition of the term family. This includes,
- Current and former spouses or domestic partners
- Those who have shared an intimate personal relationship
- Relatives including siblings, grandparents, and in-laws
- Stepfamily
- Children who regularly reside with or have a personal relationship with the respondent
It is crucial to understand that an act of domestic violence does not mean the perpetrator can be charged with assault. Ultimately, the legal response is to get a family violence restraining order. This action is in accordance with the Restraining Orders Act 1997 (WA) section 5A.
A family violence restraining order is an alternative to criminal prosecution. The response offers a civil law reaction to family and domestic violence.
FVROs allow victims of domestic violence to seek protection under the law by asking that the court impose conditions that restrict behaviours that are not ordinarily criminal.
The premise is to prevent the victim from being further harassed, injured, or threatened by the perpetrator because of the restricted contact laid out in the family violence restraining order.
It is important to remember that breaching an FVRO IS a criminal offence and is subject to a criminal conviction.
What is Common Assault?
Common assault is a criminal offence that refers to unlawfully applying force or threatening another person. These cases are approached differently from domestic violence cases and can result in punitive punishment, including fines and imprisonment. Common assault includes one or more of the following,
- Committing acts of physical violence, including hitting, kicking, choking, or otherwise acting in a way that causes bodily pain or harm
- Acting in a manner that causes another to believe that you intend to harm them, such as shaking your fist, spitting, shouting, or throwing things
- Intimidating or bullying another person to make them behave in a certain way
- Reckless behaviour results in another person’s injury, although there may have been no intent to cause harm. Typically, this involves horseplay or generally rowdy behaviour
Potential Penalties if Convicted
- Imprisonment for a maximum of two-years
- A fine of $ 5,500.00
- Custodial sentencing
- Community correction order (with conviction)
- A fine with a recorded criminal conviction
Charges of assault relate to section 313 of the Criminal Code as well as to the definition set in the Criminal Code section 222
“A person who strikes, touches, moves, or otherwise applies force of any kind to the person of another, either directly or
indirectly, without his consent, or with his consent, if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or a present ability to effect his purpose is said to assault that other person and the act is called an assault. “
Unlike the civil law response to domestic violence, the response to assault is criminal with the intent to punish the perpetrator. The following table highlights the differences in response to domestic violence and common assault.
| The FVRO | Criminal Prosecution | |
|---|---|---|
| WHO BRINGS THE CHARGES | The victim, an authorised representative of the victim, police, courts | The Police, Prosecutors |
| PURPOSE | Protect the victim from future violence | Punish the offender for illegal activities |
| HOW PROVEN | The balance of probabilities | Beyond a reasonable doubt |
| OUTCOME | Conditions placed on the behaviour of the offender towards the person who brought charges | If convicted, the offender will receive a sentence |
What Happens if I Go to Court?
Before going to court, you will receive an “initial disclosure” that outlines the following information
- What your accuser says happened
- Either a copy or recording of your accuser’s statement
- Relevant photographs—such as your accuser’s injuries or damaged property
At your first court appearance, you will be asked if you plead guilty or not guilty. If you have not conferred with your lawyer, you can ask for your case to be put on hold to get legal advice. The amount of time will not be more than two weeks.
What Happens if I Plead Not Guilty?
A hearing date is set, and the prosecution and defence begin preparing their cases. Prosecutors must inform your lawyer if they plan to gather any additional evidence on you. You and your lawyer will attend the hearing, at which time charges against you will be presented, and your lawyer will have the chance to disprove or cast reasonable doubt on the charges.
What if I Plead Guilty?
Before entering a guilty plea, consult with your lawyer and carefully examine the facts sheet that tells what the police say happened. If you disagree with the account, you can ask to make changes by speaking with the prosecutor. You may need to go forward with a hearing (sometimes called a plea in mitigation) where you and your lawyer will explain what happened and why, as well as other pertinent facts.
If you have legal issues that centre around assault or domestic violence, it is in your best interest to contact us at WN Legal as soon as possible. The crimes are serious, and the consequences can be harsh. Understanding your rights and the nuance of the legal system is vital. We offer a free 30-minute consultation where we can review your case and let you know how our criminal and assault lawyers can help you. Never go it alone in court. You need experienced representation to make sure you receive fair treatment.
**Please Note**
The material provided here is for informational use only and does not constitute binding legal advice. You should not use this information as a replacement for an individual consultation with a trained legal professional.
