11. Family violence guidelines

These guidelines recognise the need for sensitivity when dealing with victims of family violence offences and the complexity often associated with such offences. The aim is to ensure the provision of advice to investigating authorities with recommendations as to prosecution and/or disposition of matters in a timely and sensitive manner.

These guidelines also recognise that, as with any other crime, a prosecution can only proceed in accordance with the prosecution guidelines. In particular, a prosecution cannot proceed unless, on the available, relevant and admissible evidence, there is a reasonable prospect of conviction (s310(4) of the Criminal Code).

11.1 What is family violence?

Section 7 of the Family Violence Act 2004 defines “family violence” as follows:

(a) any of the following types of conduct committed by a person, directly or indirectly, against that person's spouse or partner:

(i) assault, including sexual assault;
(ii) threats, coercion, intimidation or verbal abuse;
(iii) abduction;
(iv) stalking within the meaning of section 192 of the Criminal Code;
(v) attempting or threatening to commit conduct referred to in subparagraph (i), (ii), (iii) or (iv); or

(b) any of the following:

(i) economic abuse;
(ii) emotional abuse or intimidation;
(iii) contravening an external family violence order, an interim FVO, an FVO or a PFVO; or

(i) jointly owned by that person and his or her spouse or partner; or
(ii) owned by that person's spouse or partner; or
(iii) owned by an affected child.

Economic and emotional abuse or intimidation are defined in ss8 and 9, respectively.

11.2 Who is a family member?

Family relationship is defined in the Act as follows:

“Family relationship” means a marriage or significant relationship within the meaning of the Relationships Act 2003, and includes a relationship in which one or both of the parties is between the ages of 16 and 18 and would, but for that fact, be a significant relationship within the meaning of the Act.

Significant relationships are defined in s4 of the Relationships Act 2003 as follows:

(1) For the purposes of this Act, a significant relationship is a relationship between two adult persons –

(a) who have a relationship as a couple; and
(b) who are not married to one another or related by family.

(2) If a significant relationship is registered under Part 2, proof of registration is proof of the relationship.

(3) If a significant relationship is not registered under Part 2, in determining whether two persons are in a significant relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship;
(b) the nature and extent of common residence;
(c) whether or not a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(e) the ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared life;
(g) the care and support of children;
(h) the performance of household duties;
(i) the reputation and public aspects of the relationship.

(4) No finding in respect of any of the matters mentioned in sub section (3)(a) to (i), or in respect of any combination of them, is to be regarded as necessary for the existence of a significant relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

11.3 Charging advice

It is not uncommon for an accused person to be charged with an indictable crime and a number of related summary offences. Where possible, all charges should be included on the one complaint.

Police Prosecution Services should be directed that at the time of a plea being entered to any indictable matter all other associated charges are to be adjourned sine die to avoid separation of conduct.

When a file is sent to the Office it must include:

copy files for any other family violence charges pending against the accused
an annotated record of prior convictions highlighting any convictions for family violence related offences including details of the complainant and particulars of the complaint

Provision of this information is necessary to enable the Office to consider whether there is any tendency or relationship evidence and, where there is a course of conduct, that all matters (where possible) are dealt with in the one trial and/or hearing to avoid the complainant having to give evidence on multiple occasions.

11.4 Breach of restraint orders and family violence orders – charging advice

Where there are related criminal charges, alleged breaches of restraint orders or family violence orders may also factually give rise to charges of interfering with witnesses or perverting justice. If the breach does not involve a serious threat, a charge of breaching that order should be preferred over charges of interfering with witnesses or perverting justice.

These breaches often occur in contexts where there are also summary charges on foot, sometimes relating to serious summary assaults. If an indictable charge is laid in relation to a breach, it often results in the summary assault matters being adjourned sine die whilst the indictable offences are dealt with. This results in significant delay of the objectively more serious physical assaults.

11.5 Persistent family violence

The charge of persistent family violence (s170A of the Criminal Code) will only be considered where there is serious criminal conduct. The Director will normally only authorise this charge where there are three occasions of indictable offences. However, this is a guideline. In circumstances where there are two occasions of serious indictable conduct and other serious or sustained summary offences, the Director will consider whether this charge should be preferred.

Factors to be considered include:

Where there are allegations of assault a determination must be made whether the matter would ordinarily be charged summarily on complaint (s35 of the Police Offences Act) or charged on indictment (s184 of the Criminal Code) (see 12.3 Assault)
The period of time the alleged conduct persisted
Any act the accused is alleged to have done to encourage, or prevent, the complainant from reporting the matter to police
Whether the offences were committed in breach of an interim or police family violence order or a court ordered interim or family violence order.

11.5.1 Period of offending

Acts which occur within the same event or occurrence will not be relied upon as constituting separate occasions. There must be three separate occasions of family violence offences.

In Bellemore v Tasmania (2006) 16 Tas R 364 Slicer J, in considering a ground of appeal that challenged the validity of the then newly enacted s125A, said at [94]-[95] -

It would appear that Parliament intended to provide for some care in the exercise of discretion in the use of the wide power afforded and the bringing of proceedings within the section by requiring (s125A(7) prosecutions to be commenced only with “the written authority of the Director of Public Prosecutions.” Whether the enactment of the subsection provides such protection is a different matter which cannot be a ground for a constitutional challenge (see Lafitte v Samuels [1972] 3 SASR 1; Lodhi v The Queen (2006) 65 NSWLR 573; R v Cuerrier (1998) 127 CCC 3d 1).

One form of abuse of power which might arise is in circumstances where the prosecution relies on an initial or preparatory act (indecent touching), together with another act, both or all occurring within the same event or occurrence, as constituting two or three “occasions” so as to activate the procedural and evidentiary provisions of s125A. Again, inappropriate use of power in a particular circumstance would not provide a basis for constitutional challenge, but one for the strict construction of the terms of the enactment (Sarawati v The Queen (1991) 172 CLR 1). Consideration of that potential for the misuse of statutory power is not required on the hearing of this appeal. [emphasis added]

11.5.2 Time limitation period

This crime does not extend the time limit for family violence offences that may be imposed by any other Act.

11.5.3 Charging advice to Tasmania Police

At the time of charging, all family violence related charges should be included on the one complaint. A plea should be entered to the indictable offences and all associated charges should be adjourned sine die pending the outcome of the indictable offence. The file will be reviewed by the Office to determine if -

a charge of persistent family violence will be authorised
there is any tendency or relationship evidence and, where there is a course of conduct, that all matters (where possible) are dealt with in the one trial and/or hearing to avoid the complainant having to give evidence on multiple occasions.

11.6 After charging

As soon as a person is charged with an indictable family violence crime the Office must be notified of the relevant details by email. This is to ensure that the Office complies with the Tasmanian Charter of Rights for Victims of Crime.

The notification is to be emailed to the Office by the senior investigating officer within four working days of charging a suspect. The notification must include the following details:

the date of the notification
the date of the offence(s)
the date of arrest/charging
a list of the crimes charged
the original appearance date in court, and any subsequent dates
whether the accused has been remanded in custody or released on bail with conditions and, if so, an outline of the conditions
the accused's personal details, including their full name, residential address, date of birth, occupation and relationship to the complainant
the complainant's personal details, including their full name, residential address, date of birth and contact numbers
a copy of the facts for the prosecutor

If copies of the following documents are unable to be forwarded at the time of the notification, they are to be forwarded within seven days of the notification:

details of any interview conducted with the accused/co-accused, including the date of the interview, a DVD reference number and a summary of admissions made during the course of the interview
the name of the accused's legal representative, if known
the nature of the statement made by the complainant, including whether it was obtained by audio visual means
a summary of the forensic or medical evidence obtained
a summary of the major corroborative witnesses, together with personal details, including their full names, residential addresses and contact numbers
the names and contact details of the main investigating officers
the complainant's statement (or copy DVD, if it is an audio visual statement)
the complaint containing the charges
the accused's interview
the medical report (if any)

Where documents are subsequently released to the accused or defence counsel pursuant to the Right to Information Act 2009 or ss56(3) or 57(3) of the Justices Act 1959, a scanned copy of those documents should simultaneously be emailed to the Office for the attention of the Family Violence Liaison Clerk (FVLC).

The FVLC will contact the complainant by letter within two days of receipt of the notification providing advice as to the usual course of proceedings, with an assurance that the matter will be dealt with as speedily as possible. If the complainant is a young child, or there is a reason why making meaningful direct contact would be impractical or undesirable, or if any other exceptional circumstances exist, such contact will be with the parents or guardians of the complainant. In every other circumstance contact will be established directly with the complainant.

Police Prosecution Services will retain carriage of the matter in the normal manner until a committal order is made.

It is recognised that victims of family violence offences are particularly vulnerable in the criminal justice system process. The Office recognises the importance of keeping the complainant informed of the decision to prosecute or to discharge.

The complainant, where possible, is to be kept informed of developments in the progress of the matter. The FVLC will forward a copy of the notification to the WAS. The WAS manager will allocate the matter to a WAS officer who then has the responsibility of contacting the complainant and is available to provide updates, e.g. the name of the prosecutor allocated to their case, anticipated dates for preliminary proceedings, meetings with the prosecutor and/or the date of trial.

The decision to prosecute or recommend discharge is considered in the same way as for any indictable crime (see 2. Decision to prosecute - considerations). In most instances, it will involve a discussion with the complainant before a final determination is made.

In the event it is determined that an indictment should not be filed, the complainant will be informed of that decision as early as possible. This is conducted by inviting the complainant into the Office to enable those reasons to be explained to them by the prosecutor. Where possible, a WAS officer will be present when this takes place. If this is not possible, the notification may be communicated in writing by the prosecutor. Again, the complainant can request the Director to review the decision and should be informed of this right.

11.7 Returning the file for completion

When a file involving family violence is returned to Tasmania Police for completion the prosecutor returning the file must request Tasmania Police to:

provide any records relating to police intervention during the course of the relationship
if known, advise whether the complainant has previously been involved in a family violence prosecution
if not included in the first instance, provide copy files for any other family violence charges pending against the accused and an annotated record of prior convictions, highlighting any convictions for family violence related offences. where records are available, including details of the complainant and particulars of the complaint.

11.8 Giving evidence

A prosecutor must consider the compellability of witnesses in any proceedings (s18 of the Evidence Act 2001). A prosecutor ought to make witnesses aware of this provision and invite them to obtain independent legal advice as to their rights and obligations, if applicable.

In all family violence matters the Evidence (Children and Special Witnesses) Act 2001 (the Act) must be considered. All complainants and many witnesses potentially have access to alternative arrangements for giving evidence in court to limit, to the greatest extent practicable, the distress or trauma suffered (see 14. Witnesses).

In any prescribed proceedings where a witness may be declared a “special witness” counsel should consider making an application to have the witness declared a special witness, regardless of whether the relevant witness will give evidence live in court, via closed circuit television or in a pre-recorded hearing. The Act provides that where a witness is declared a special witness in any prescribed proceedings the court must (where facilities are available) make an audio visual record of the evidence (s7A). In the event of a subsequent trial or retrial this recording may be admitted into evidence (s7B).

In situations where an audio visual recording of the evidence will be made, please liaise with court staff to ensure that the recording settings are modified so that only the image of a witness is recorded during the evidence and that any recording is at highest possible resolution.

Please note that the Criminal Justice Report released following the Royal Commission into Institutional Responses to Child Sexual Abuse identified recording a complainant’s evidence in order to avoid the need for a complainant to give evidence again if there is a subsequent trial as an important procedure in child sexual abuse prosecutions.

11.9 Bail applications

See 16. Bail guidelines.

11.10 When a complainant retracts their complaint

In some family violence matters the complainant or victim may retract their complaint or ask that the matter not proceed. In these circumstances, it is the policy of the Office to take into account the complainant’s wishes, and reasons for them. However, this is not the only factor to be taken into account when determining whether to proceed.

Other factors include:

whether it is believed the complainant’s wishes are freely expressed
any psychological effect on the complainant in proceeding
the seriousness of the matter
the strength of the prosecution case
the need for deterrence of the alleged offender

11.11 Sentencing considerations

Upon conviction for a family violence offence, where relevant, a prosecutor should refer the court to s13 which provides:

When determining the sentence for a family violence offence, a court or a judge –

(a) may consider to be an aggravating factor the fact that the offender knew, or was reckless as to whether, a child was present or on the premises at the time of the offence, or knew that the affected person was pregnant; and
(b) must take into account the results of any rehabilitation program assessment undertaken in respect of the offender and placed before the court or judge.

The prosecutor must consider seeking a family violence order (FVO) from the sentencing judge. Section 36 provides:

Where, in proceedings for a family violence offence, the court or a judge is satisfied on the balance of probabilities as to the matters set out in section 16(1), the court or judge may make an order under this Act in addition to any other order which the court or judge may make.

Section 18 sets out the criteria for making an FVO. In particular, in determining whether to seek an FVO a prosecutor must take into account:

the future risk of harm to the complainant and/or affected child
the wishes of the complainant (the weight of which will depend on the circumstances of the case including the gravity of the risk and the interests of any affected child)
the length of any FVO (an order can be for a finite or indefinite period (s19)).

Last updated: 10 July 2026