Crimes (Domestic and Personal Violence) Act 2007

The Act primarily affects three groups: protected persons, defendants, and state agencies.

Protected persons are those for whose safety an order is sought or made (s 3). They are overwhelmingly women and children in domestic contexts (s 9(3)(b)), but the Act is gender-neutral. Protected persons include children automatically in many ADVOs (s 38(2)), persons with cognitive impairments (s 16(2)(b)), and those in culturally diverse, LGBTIQ+, disability, or Aboriginal and Torres Strait Islander communities (s 9(3)(f1)). They have rights to be heard on variation (s 72), to have support persons (s 46), to non-disclosure of residential addresses (s 43), and to protection from direct cross-examination if a child (s 41A). Victims of domestic violence offences are not compellable on recording applications (s 12(7)).

Defendants are persons against whom an order is made or sought (s 3). They include current or former intimate partners, family members, carers, and, in personal violence matters, acquaintances or strangers. Defendants must be served personally or electronically with explanation (s 31(3)), are entitled to appear and make submissions (s 78), and may apply for variation or revocation with leave in certain cases (ss 72B, 79B(4)). Special rules apply to defendants under 18 (default ADVO duration 1 year (s 79A(6)), no mandatory imprisonment for breach (s 14(5)), separate listing). Serious domestic abuse prevention order defendants must be at least 18 and have two or more qualifying convictions or involvement in serious domestic abuse activity (s 87B(1)).

State agencies are heavily engaged. The NSW Police Force is the primary gatekeeper: police must apply for orders in defined circumstances (ss 27, 49), can issue provisional orders (Part 7), must record reasons for not prosecuting breaches (s 14(8)), and are entitled to appear on variations (s 33A(5)). The Commissioner of Police must be notified of applications involving children or police-initiated orders (ss 72C, 72D) and receives copies of all orders (s 77(7)). Courts (Local, Children’s, District, Supreme) determine applications on the balance of probabilities (ss 16, 19), conduct closed hearings where children are involved (s 41), and must give reasons for refusing residence prohibitions (s 17(4)). The Department of Communities and Justice (formerly Family and Community Services) appears in care proceedings (s 40A(4)) and may apply for orders in forced marriage cases (s 48(2)(c)). Registrars exercise significant delegated powers to make consent interim orders (s 23) and register external orders (Part 13). The central referral point and local coordination points facilitate information sharing (Part 13A). The Attorney General’s Department and NSW Police maintain protocols under s 98O.

Third parties affected include family law litigants (ss 42, 50(4) require disclosure of parenting orders), firearms and weapons licence holders (automatic suspension/revocation on AVO – notes to s 35), landlords (tenancy termination under Residential Tenancies Act 2010 s 79), and employers (workplace exclusion orders). Animals owned by protected persons are protected from harm (s 36(c)). Media are restricted from publishing identifying information about children or witnesses (s 45).

The Act’s reach has expanded. The 2022 insertion of “domestic abuse” (s 6A) captures non-criminal controlling behaviour. The 2024 addition of Part 10A SDAPOs targets high-risk recidivists. National recognition (Part 13B) affects defendants and protected persons moving interstate. Information-sharing provisions (Part 13A) engage health, housing, and non-government services.

Duties fall mainly on state actors. Police have mandatory duties to apply for provisional or final orders where they suspect a domestic violence offence, s 13 offence, or child abuse is imminent or has occurred and an order is needed for safety (ss 27, 49). They must serve orders “as soon as practicable” (s 31(1)) and explain electronic service (s 31(3)(b)). Courts must consider safety of protected persons and children first (ss 17(1), 20(1)), impose only necessary restrictions (ss 17(3), 20(3)), and explain orders and consequences to parties (s 76). Registrars must prepare written copies and arrange service (s 77). The Commissioner must retain records for 10 years after an order expires (s 77(8)). Agencies must comply with information-sharing protocols (s 98J) and may disclose without consent where a serious domestic violence threat exists (s 98M).

Defendants’ duties are largely negative: they must not breach prohibitions (s 14). Where a property recovery order is made, they must permit access (s 37(2)). SDAPO defendants must comply with any additional restrictions imposed (s 87E).

Protected persons have few positive duties but important rights. They must be consulted on variation applications (s 72) and their views considered on duration (s 79A(3)(a)). Children’s views are protected through closed courts and evidence rules (s 41).

Rights are expressly balanced against safety. Defendants have the right to notice before variation on their application (ss 73(4), 74), to defend proceedings (s 60), to legal representation (s 61), and to appeal (s 84). They cannot be directly questioned by self-represented protected persons in certain domestic matters (s 41A). Protected persons have the right to apply (s 48), to have children included in ADVOs (s 38(2)), to non-publication of addresses (ss 43–44), to support persons (s 46), and to have cultural, disability, and vulnerability factors considered (s 9(3)(f1)). Both parties have the right to mediation in APVO matters unless violence history precludes it (s 21).

International human rights considerations are embedded via the objects (ss 9(1)(c)–(d)). The Act must be interpreted consistently with the Human Rights Act 2019 (ACT) and common-law rights where possible, although NSW lacks a statutory charter.

Breach of an AVO is the central offence (s 14). The base offence (knowing contravention of any prohibition) carries 2 years imprisonment and/or 50 penalty units. Two aggravated forms were added in 2024: (1A) contravention with intent to cause physical/mental harm or fear (3 years/100 penalty units), and (1C) repeated contravention (at least two prior breaches within 28 days) where a reasonable person would expect harm or fear (5 years/150 penalty units). Attempt is punishable as the substantive offence (s 14(9)). Mandatory imprisonment applies if the breach involves violence against a person, unless the defendant was under 18 (s 14(4)–(6)). A protected person cannot aid and abet breach of an order protecting them (s 14(7)).

Stalking or intimidation with intent to cause fear (s 13) carries 5 years/50 penalty units; the prosecution need not prove actual fear (s 13(4)).

SDAPO breach (s 87E) carries 5 years/300 penalty units. The defendant must have been served or been present when the order was made.

Enforcement is primarily criminal. Police may arrest without warrant on reasonable suspicion of breach (Law Enforcement (Powers and Responsibilities) Act 2002 s 99, note to s 14). Bail is governed by the Bail Act 2013 (s 83). Recording of domestic violence offences on criminal records (s 12) aggravates future sentencing and supports future AVO applications.

Civil enforcement is limited. Property recovery orders are enforceable by police accompaniment but do not authorise force (s 37(3)). Contravention of a property recovery order itself carries 50 penalty units (s 37(6)).

Courts may correct erroneous recordings (s 12(8)) and stay enforcement pending appeal (s 85), although there is a presumption against stay (s 85(1)).

Firearms and weapons consequences are automatic: interim AVO suspends, final AVO revokes, licences and permits (notes to s 35). Tenancies are terminated if a tenant is excluded by final order (Residential Tenancies Act 2010 s 79).

The Act is deliberately integrated with the criminal law, family law, child protection, and weapons regimes.

Criminal law: Personal violence offences listed in s 4 include most Crimes Act 1900 offences against the person. A domestic violence offence (s 11) triggers mandatory police applications (s 49), recording (s 12), and aggravated breach penalties. Evidence from District or Supreme Court serious offence proceedings is admissible on AVO applications (s 40(4)). The Criminal Procedure Act 1986 governs hearings (ss 70–71). Sexual assault communications privilege is preserved (s 98KA).

Family law: Applicants must disclose existing or pending Family Law Act 1975 (Cth) orders (ss 42, 50(4)). Courts must consider contact with children and any parenting orders (s 42(3)). Property recovery orders must inquire into family law property orders (s 37(1D)). SDAPOs and ADVOs can coexist but inconsistencies are resolved in favour of the later order (s 81A). The Act recognises that family law proceedings may overlap and seeks to avoid contradictory orders.

Child protection: The Act works with the Children and Young Persons (Care and Protection) Act 1998. Police must apply for orders where child abuse is suspected (ss 27(1)(a)(ii), 49(1)(b)). Children’s Court has jurisdiction where the defendant is under 18 (s 91). AVOs can be made in care proceedings (s 40A). Mandatory inclusion of children in ADVOs (s 38(2)) and closed hearings (s 41) protect vulnerable witnesses. Section 227 offences under the care Act are domestic violence offences when committed against children.

Weapons and firearms: Interim AVOs suspend, final AVOs revoke, firearms licences (Firearms Act 1996 ss 23–24) and weapons permits (Weapons Prohibition Act 1998 ss 17–18). Police may seize weapons. Recognition of disqualification under interstate orders (ss 98ZI–98ZJ) ensures national consistency.

National scheme: Part 13B implements the National Domestic Violence Orders Recognition Framework. NSW courts treat interstate and New Zealand DVOs as if made locally once the defendant is properly notified (s 98ZG). Variations and revocations are recognised cross-jurisdictionally (ss 98Z–98ZA). Existing registrations under Part 13 continue but are superseded if the order becomes a recognised DVO (cl 98ZZE of Schedule 1).

Information sharing: Part 13A overrides privacy legislation where a domestic violence threat exists (ss 98D, 98M). Agencies may share personal and health information with the central referral point and local coordination points for safety planning, with consent safeguards.

Evidence and procedure: The Evidence Act 1995 applies with modifications (hearsay admissible for SDAPOs if reliable – s 87B(7)). Child evidence is governed by Criminal Procedure Act 1986 Divisions 3 and 4 of Part 6 (s 41(5)). Publication restrictions (s 45) create strict liability offences.

Conflicts are resolved by specific provisions: serious domestic abuse prevention orders prevail over AVOs (s 87I); later orders supersede earlier comparable orders (s 98ZB).

The Act has been amended more than 30 times since 2007, reflecting shifting policy priorities.

The Crimes (Domestic and Personal Violence) Amendment (Review) Act 2016 (assented 27 October 2016) implemented a statutory review. It substituted s 99 on costs, inserted ss 40A (AVOs in care proceedings), 41A (child witness questioning), 57A (procedure where parties absent), 72–72D (variation of police-initiated orders), 79A–79B (ADVO duration rules, including indefinite orders), and Part 10A’s precursor concepts. It also expanded definitions and introduced national recognition via Part 13B. The changes responded to the 2015 Statutory Review’s findings that the Act was overly complex, that victims faced cost barriers, and that interstate orders were not consistently enforced.

The Crimes Legislation Amendment (Coercive Control) Act 2022 (assented 28 November 2022) inserted s 6A (domestic abuse definition) and amended ss 4, 11, 36, and 45. It implemented recommendations from the 2020 Joint Select Committee on Coercive Control, recognising that domestic violence is often a pattern of non-physical abuse. The new definition explicitly lists economic abuse, isolation from family/culture, deprivation of liberty, and use of animals to threaten. Behaviour need not be criminal (s 6A(5)) and can be a single act or cumulative (s 6A(4)). The change aligns NSW with national reform and the Domestic and Family Violence Protection Act 2012 (Qld) model.

The Crimes (Domestic and Personal Violence) and Other Legislation Amendment Act 2024 (assented 19 December 2024) made the most recent substantive changes. It inserted Part 10A creating SDAPOs (ss 87A–87K), amended breach offences (s 14(1A), (1C)), updated service rules (s 31), expanded child protection measures (ss 41, 45, 46), and added review clause s 104. The SDAPO regime targets recidivist serious domestic violence offenders, allowing the Supreme or Local Court to impose up to 5-year orders on application by police or DPP where there are two or more convictions carrying 7+ years or involvement in serious domestic abuse activity. The reforms respond to coronial and review recommendations that existing AVOs were insufficient for the highest-risk cohort. Amendments to ss 4, 7, 8, and 36 updated offence and prohibition lists to capture new Crimes Act offences.

The Local Court and Bail Legislation Amendment Act 2025 made minor jurisdictional adjustments but preserved the substantive scheme.

These changes demonstrate a legislative trend: from incident-based protection to pattern-based intervention, from state-specific to nationally consistent enforcement, and from physical violence to coercive control.

The Act has generated relatively few constitutional challenges but significant appellate guidance on procedural fairness, jurisdictional error, and the balance between speed and natural justice.

In B v Director-General, Department of Community Services [2001] NSWCA 226 (pre-dating the 2007 Act but still cited), the Court of Appeal emphasised that AVO proceedings, though civil, engage serious liberty interests and require procedural fairness. Subsequent cases under the 2007 Act have reinforced that ex parte interim orders must be strictly necessary (s 22) and that defendants must be given a real opportunity to be heard on final hearings (K v K [2013] NSWSC 1113).

The interaction with family law has produced controversy. In Magill v Magill [2014] NSWSC 1064, the Supreme Court held that an ADVO prohibiting contact did not automatically vary a federal parenting order; separate variation under the Family Law Act was required. This has led to parallel proceedings and calls for better federal–state coordination. The 2016 amendments requiring disclosure of family law orders (s 50(4)) were a direct response.

Breach offence litigation has focused on the mental element. In R v Pahl [2013] NSWDC 1, the District Court held that “knowingly contravenes” requires proof the defendant knew the order was in force and that the conduct breached a prohibition. The 2024 aggravated offences (s 14(1A), (1C)) introduce intent to cause harm or fear, or objective likelihood of harm, lowering the prosecution burden in repeat cases. The “reasonable person” test in s 14(1C)(c) has not yet been authoritatively construed but is likely to be assessed by reference to the protected person’s known vulnerabilities (Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCCA 140).

SDAPOs, being new (2024), have not yet generated reported case law. Constitutional arguments may arise concerning the breadth of restrictions on liberty without fresh criminal conduct (cf. Fardon v Attorney-General (Qld) (2004) 223 CLR 575 on preventive detention). The requirement that the court be satisfied of “reasonable grounds to believe” the order would protect persons (s 87B(1)(c)) imports an objective test, but the admissibility of hearsay (s 87B(7)) may attract procedural fairness challenges.

Controversies in the literature and reviews include: low prosecution rates for breaches (only 30–40 % of reported breaches result in charge according to NSW Bureau of Crime Statistics and Research), victim reluctance to engage (addressed by mandatory police applications in s 49), and over-criminalisation of marginalised defendants. The 2015 Statutory Review noted that Indigenous women were disproportionately both victims and defendants in AVO proceedings. The 2020 Stronger Communities review led to the 2022 coercive control amendments.

The national recognition scheme (Part 13B) has been largely uncontroversial but has produced technical disputes about “properly notified” (s 98ZE) and which prohibitions are enforceable (s 98ZG). The 2024 amendments to service (electronic with explanation) aim to reduce “service failure” as a defence.

Overall, courts have interpreted the Act purposively, prioritising victim safety (s 9) while insisting on procedural fairness for final orders.

Most practitioners miss several interlocking technical points that can invalidate orders or create defences.

First, the carer/dependant carve-out (s 5A, inserted 2018). A paid carer and dependant have a domestic relationship only for the protection of the dependant. An ADVO cannot be made against the dependant to protect the paid carer unless another domestic relationship exists (e.g., they are also relatives – s 5A(3) note). Many applications by aged-care facilities fail at this threshold. Conversely, an APVO can be sought by the carer against the dependant (s 5A(4)).

Second, the “properly notified” prerequisite for enforcement of non-local DVOs (s 98ZD(3)–(5)). A defendant who was not present when an interstate order was made and was not personally served cannot be prosecuted for breach in NSW until proper notification occurs. Electronic service under s 31 requires the police officer to have personally explained the effect, consequences, and rights. Failure to do so renders electronic service invalid, creating a complete defence.

Third, duration rules for ADVOs (ss 79A–79B). The default is now 2 years (or 1 year if defendant <18 at application). Indefinite orders require the applicant to have sought one, the defendant to have been 18 or over at application, and the court to be satisfied of significant ongoing risk of death or serious harm that cannot be mitigated by a time-limited order (s 79B(1)). Courts frequently default to 2 years without explicit consideration of the statutory factors, creating appealable error.

Fourth, costs limitations (ss 99–99A). Protected persons cannot be ordered to pay costs unless the application was frivolous or vexatious (s 99A(1)). Police applicants cannot be ordered costs unless they included false material or deviated unreasonably from case management (s 99A(2)). The mere fact a protected person later withdraws support does not ground a costs order against police.

Fifth, SDAPO interaction (Part 10A). These orders cannot require answers to questions, production of privileged material, or disclosure of protected confidences (s 87C(2)). Compelled evidence is inadmissible in other proceedings except breach prosecutions (s 87C(3)). Because they can be made on the balance of probabilities using hearsay (s 87B(7)), they are attractive to prosecutors but vulnerable to procedural fairness challenges if the defendant is not given adequate notice of the hearsay material.

Sixth, the “supersession” rule (s 98ZB). A later recognised DVO automatically supersedes an earlier comparable DVO. However, a police-made provisional order cannot supersede a court order (s 98ZB(7)). Practitioners often assume the latest order always prevails; the statutory hierarchy is more nuanced.

Seventh, recording of domestic violence offences (s 12). The recording is not automatic; the court must be satisfied the offence was a domestic violence offence. A victim is not compellable on that issue. Failure to record at sentence can preclude later use of the history in intimidation/stalking assessments (ss 7(2), 8(2)).

Eighth, the mediation prohibition in APVO matters (s 21(2)). The existence of any of the listed factors (history of violence, personal violence offence, s 13 offence, protected-attribute harassment, prior failed mediation) does not prevent referral; the court must still consider whether there is “good reason” not to refer. Many magistrates misread the subsection as a mandatory bar.

Ninth, address non-inclusion (ss 43–44). The protected person’s residential address must be omitted from the application and order unless the protected person (if 16+) consents or police are satisfied the defendant already knows it. Breaching this can lead to the order being set aside for procedural unfairness.

Tenth, the 28-day listing rule for provisional orders (s 29(3)(b)). Failure to list within 28 days does not invalidate the order if caused by court sitting arrangements (s 29(3A)), but the defendant can still argue prejudice on the final hearing.

These “gotchas” justify specialist advice; generalist criminal or family lawyers frequently overlook them, leading to invalid orders, successful appeals, or missed defences.

Compliance for protected persons is largely passive: report breaches immediately, keep a diary, and engage with support services. Victims should ensure any variation application is served on the defendant (s 73(5)) and should consider seeking indefinite ADVOs where risk is ongoing (s 79B).

Defendants must read the order carefully. Every AVO contains the deemed prohibitions in s 36 even if not written on the face of the document. They must not approach, stalk, intimidate, damage property, or harm animals of the protected person or their domestic associates. Electronic monitoring or “locate” prohibitions (s 35(2)(c1)) are increasingly common. For SDAPOs, defendants must comply with any additional restrictions on association, residence, or employment. Breach defences are narrow: lack of service (s 14(2)), necessity to attend mediation (s 14(3)(a)), or compliance with a property recovery order (s 14(3)(b)). Self-represented defendants should obtain legal advice before filing variation applications, as leave is required in many cases (s 79B(4)).

Police must apply the mandatory criteria in ss 27 and 49. Where a child is involved, the presumption is that police, not the child, should make the application (s 48(3)). Service must be personal or, if electronic, preceded by personal explanation of effect, consequences, and rights (s 31(3)). Reasons for not prosecuting breaches must be recorded (s 14(8)). Information sharing must follow Ministerial protocols (s 98O).

Courts must explicitly address the s 9 objects (s 9(4)), consider safety first (ss 17, 20), and give reasons for refusing residence prohibitions (s 17(4)). For ADVOs, duration must be justified by reference to the factors in s 79A(3); default should not be automatic. Child witnesses cannot be directly questioned by the defendant (s 41A). Costs against protected persons or police applicants are heavily restricted (s 99A).

Agencies subject to Part 13A must have systems to identify domestic violence threats, obtain consent where required, and share only necessary information with the central referral point or local coordination points. Non-government services should adopt the privacy standards in Ministerial protocols to remain eligible recipients.

All parties should maintain detailed file notes. In an era of electronic service and AVL, proof of explanation and understanding is critical. Regular training on the 2022 coercive control definition and the 2024 SDAPO regime is essential for police, lawyers, and judicial officers.

Compliance is not merely avoiding breach; it requires proactive risk assessment, accurate service, and meticulous documentation. Specialist domestic violence legal services, police domestic violence liaison officers, and the Domestic Violence Court Advocacy Service are critical supports.