Those in abusive relationships often ask, can you sue for domestic violence in Australia? The answer is yes, victims of domestic violence can sue offenders regardless of their relationship with them. However, there are a number of complexities which are explored below.
How Do Courts Handle Domestic Violence Cases in Australia?
Australian courts protect the rights of all assault victims, whether assaulted by a family member or stranger on the street. Any victim of domestic violence in Australia has the right to claim damages from their offender, such as their spouse or intimate partner.
Domestic violence offenders will usually face criminal charges. However, the offender does not need to be criminally convicted before a victim can sue them for damages. Victims have the right to claim damages from their offenders no matter the outcome of the criminal cases against them.
For example, an offender could be found "not guilty" in criminal court but still be liable for damages in civil proceedings. The outcome of a criminal court proceeding has no bearing on the victim's chances of winning compensation in civil court. This is because the standard of proof in a criminal proceeding is 'beyond reasonable doubt'. In any other proceeding, the standard of proof is 'balance of probabilities'. Because of this, an offender may be able to get domestic violence charges dropped but still be sued by a victim.
Australian courts strive to protect domestic violence victims and keep them safe. Some of the primary ways in which Australian courts handle domestic violence cases to prioritise victim safety and security above everything else:
- Criminal charges may be filed against the alleged offender if suspected of harassing, assaulting, or intimidating the victim. Depending on the evidence, a criminal court could penalise the offender with fines or imprisonment.
- Alleged offenders are not allowed to engage in direct cross-examination with their victims. Australian courts created this rule to protect victims from suffering further trauma and emotional distress from their alleged offenders.
- Specialist domestic violence courts exist in some state and local jurisdictions throughout Australia. They aim to provide additional support services to domestic violence victims by special judicial officers trained in overseeing domestic violence cases.
- Family law may affect domestic violence cases where the victim and offender share children. Family law courts will give orders that protect the children's best interests.
- Courts may encourage victims to seek additional assistance and guidance from licensed counsellors, victim support groups, legal professionals, and other legal and mental health support resources and programs.
The first thing a domestic violence victim should do is seek legal representation. Police or an AVO lawyer can apply to the court for an apprehended violence order to prevent the alleged offender from contacting the victim in any way, whether this is in person or remotely. If there is evidence that an alleged offender is breaching an AVO they could be subject to penalties including imprisonment.
Can a Victim Claim Damages for Domestic Violence?
Domestic violence victims have the legal right to claim damages against perpetrators. The most common domestic violence-related damages claimed include lost salary & wages, hospital expenses, long-term recovery & physical rehabilitation, property damage, emotional distress, and pain and suffering.
Here is an overview of different types of damages a domestic violence victim can claim:
Lost Salary and Wages
A victim's physical and emotional injuries from domestic violence could prevent them from earning their regular salary or wages for an indefinite period. If this happens, they can seek compensation from the alleged offender for all present and future lost earnings.
Victims can also claim other economic losses and expenses from their domestic violence incident, such as acquiring additional security and relocating to a new home.
Emergency Hospital Care Expenses
Some domestic violence victims need emergency medical care at a hospital to treat their physical injuries. These victims can seek compensation for all the expenses related to the emergency medical services incurred, including the ambulance, surgery, and overnight stay costs.
Long-Term Medical Expenses
The physical and mental injuries from a domestic violence incident do not usually go away quickly. It could take weeks, months, or even years for a victim to return to a somewhat normal life.
Domestic violence victims can seek compensation for all rehabilitation, physical therapy, psychological counselling, and other long-term medical expenses.
Property Damage
The consequences of a domestic violence incident could extend beyond the physical injuries to a victim. They could also result in the victim's property suffering minor to severe damage, such as car damage, home damage, and other personal property damage. Victims can seek compensation for all property damage from the domestic violence incident.
Emotional Pain and Suffering
Civil courts recognise the emotional pain and suffering of domestic violence victims. That is why victims can seek general compensation for any emotional pain and suffering they live with because of the domestic violence incident. Emotional pain and suffering include loss of enjoyment of life and chronic depression and anxiety.
Please note that every domestic violence incident is unique. Once a lawyer reviews the details of a particular domestic violence case, they can determine the potential damages a victim can claim from the alleged offender.
Who Pays Costs When Suing for Domestic Violence?
Determining who pays the legal costs in a domestic violence lawsuit will usually depend on the outcome.
Initially, the plaintiff (the domestic violence victim filing the lawsuit) must pay upfront legal fees and expenses, such as legal filing fees and the cost of domestic violence lawyers. However, if the plaintiff wins the case against the defendant (the alleged offender), the judge may order the defendant to pay the plaintiff's legal costs.
Domestic Violence Survivors
Surprisingly, a small percentage of domestic violence survivors sue their spouses or partners after suffering injury and/or property damages. The percentages are similar in states across Australia.
Not all domestic violence survivors report incidences of family violence because they often feel obligated to protect their family members from suffering legal troubles. In addition, survivors may not always sue for damages if the offender has limited money or assets.
If a domestic violence survivor fails to recover compensation from the offender, they can file a compensatory claim under the Victims of Crime scheme. The scheme offers up to $100,000 to victims of domestic violence incidents on or after July 1st, 2015.
