Allegations of family violence are complex and sensitive in nature. Being accused of family violence offending can have profound legal and personal consequences. In Victoria, family violence means behaviour towards a family member that is physically, sexually, emotionally, psychologically or economically abusive, threatening or coercive. It includes behaviour that in any way controls or dominates a family member; causing them to feel fear for their safety or wellbeing or that of another person. This extends to any behaviour by a person that causes a child to hear, witness, or otherwise be exposed to, the effects of family violence.1
‘Family violence’ and ‘domestic violence’ are used interchangeably; however, in Victoria ‘family violence’ is the term used in Court.
If accused of a family violence related crime, it is important to understand the legal defences and strategies available to you and to protect your rights.
This article will cover possible defences at law, the role of evidence in your case, and the importance of being represented by a lawyer.
Understanding family violence charges in Victoria
Family violence allegations can lead to criminal charges such as:
- Contraventions of intervention orders.
If convicted, these offences can lead to serious penalties including fines and imprisonment. For example, the offence of making a threat to kill carries a maximum penalty of ten years’ imprisonment. Being convicted of an offence in a family violence context can also impact your firearms licence, Family Court proceedings, employment, and immigration status.
The impact of a family violence allegation
Immediate consequences:
- Arrest and possible remand in custody.
- If granted bail, restrictions on your freedom such as a curfew or a condition that you not leave Victoria.
- Family Violence Safety Notices (‘FVSN’) or Family Violence Intervention Orders (‘FIVOs’) that may partially or fully restrict contact with family members and access to shared property, including your family home and pets.
Key defence strategies for family violence charges
False Allegations
- Allegations may arise from misunderstandings, mental health episodes, or ongoing family disputes.
- One advantage to being on the defence side is that you do not have to prove anything. The burden is on the prosecution to prove, beyond reasonable doubt, the elements of the charges against you based on evidence.
- However, in some cases it may still assist your defence to provide the Court with evidence; for example, text messages, CCTV footage, audio recordings, emails, witness statements or medical reports that support your defence or contradict the prosecution’s case against you.
- Evidence which confirms your case and/or highlights credibility (honesty and trustworthiness) and reliability (accuracy) issues with the prosecution case can be useful in successfully defending family violence allegations.
Self-defence
- Self-defence is a legal defence that can be used when a person genuinely believed that their conduct was necessary to defend themselves or another person from harm. The response must be reasonable in the circumstances as the person perceived them. Essentially, it is a question of whether the response was proportionate to the perceived threat. If self-defence is raised by the accused, the prosecution must disprove that they were not acting in self-defence. The Court will consider factors such as age, sex, health, and the use of weapons in assessing whether a person was acting in self-defence.2
Lack of Evidence
- It is the duty of your lawyer to identify weaknesses in the prosecution’s case, such as a lack of evidence, inconsistent witness statements, or issues with the procedure followed by police. For example, did the investigators have a proper basis, such as a warrant, to search you or your property?
- Cross-examination is an important opportunity to test the strength of a witness’ evidence. This is especially so in family violence case where the prosecution case relies on the complainant’s account and there is a lack of corroborative evidence (ie. independent evidence that supports the complainant’s statement).
Why legal representation is critical
- Assessment of the case: defence solicitors are expert in assessing the strength of the prosecution’s case, identifying weaknesses and raising viable defences. They analyse a case from all sides and provide you with advice that is in your best interests.
- Tailored defence strategies: defence strategies are crafted to the unique circumstances of your case. Importantly, you always have the right to contest criminal charges and not required to assist the police. Starting from the time of your arrest you have a right to silence which continues throughout the Court process. Be mindful that anything you say to police will be used as evidence against you in Court, and we strongly encourage you to seek legal advice on arrest.
- Courtroom Advocacy: a defence solicitor will effectively advocate for you in Court, ensuring procedural fairness and the protection of your rights. Experience shows that navigating family violence charges without legal representation can and often does result in poor outcomes. Importantly, a person accused of family violence offending is not permitted to personally cross-examine the complainant, making it all the more important to obtain legal representation early.
Conclusion
- It is critical to understand and utilise defence strategies when facing domestic violence allegations.
- Readers are encouraged to seek legal advice promptly to protect their rights and achieve a fair outcome.
- For expert advice and representation in family violence cases, contact Stary Norton Halphen today on (03) 8622 8200.
