Domestic and family violence (DFV) allegations are treated with exceptional seriousness in NSW. Police will often lay a common assault charge quickly — sometimes on limited evidence — and once the charge is filed, the matter can proceed even if the complainant does not want it to continue.
If you have been charged with common assault in a domestic violence context, or told that police are investigating an incident at home, you should get legal advice immediately. What you say or do in the early stages can significantly affect the outcome.
Common assault can be charged alongside, or instead of, other DV offences such as Choking or Strangulation or Stalk or Intimidate (Domestic Violence).
At Lenz Legal we act only for the accused. We approach these matters on the basis that you are presumed innocent unless and until the prosecution proves the charge beyond reasonable doubt.
Common assault is defined under section 61 of the Crimes Act 1900 (NSW) and covers a wide range of conduct — including situations where no physical contact occurs. An assault can be:
any application of force
an act or gesture that causes another person to fear immediate and unlawful violence
a threat that creates a reasonable apprehension of harm
When the allegation arises between people in a domestic relationship, the charge becomes a domestic violence offence, triggering:
mandatory police responses
a provisional AVO/ADVO
strict bail considerations
a heightened assessment of perceived “risk”
Common assault can be charged alongside, or instead of, other DV offences such as Choking or Strangulation or Stalk or Intimidate (Domestic Violence).
To secure a conviction for common assault (DV), the prosecution must prove each of the following elements beyond reasonable doubt:
This may involve:
an alleged act of physical contact, or
conduct that caused the complainant to fear immediate and unlawful violence
Importantly, the law does not require injury, pain or lasting harm.
Identity must be proven with reliable evidence — not assumption, inference or one person’s version.
This can include partners, former partners, family members, household members or people in close personal relationships.
The prosecution must show you intended the act or were reckless as to its consequences.
Accidental contact does not amount to assault.
If even one element is not proven, you must be found not guilty.
We regularly see common assault DV charges come from:
arguments at home that escalate
misunderstandings or misinterpretations of physical movements
one-sided accounts made in moments of stress
neighbour or family intervention after hearing raised voices
separations, parenting disputes, or emotionally heightened situations
situations involving alcohol or drug use
cross-allegations where both parties make complaints
Police may charge based on incomplete or inconsistent accounts, particularly where they feel pressure to “err on the side of caution”.
A central part of our defence work is ensuring the court sees the full evidence — including 000 calls, body-worn video, text messages, photographs, and witness accounts.
Depending on the circumstances, defences may include:
If you acted to protect yourself, your children, or another person, and your response was reasonable.
Unintentional or accidental contact does not constitute assault.
If you were forced to act under threats or coercion.
Where the allegation did not occur, the evidence is inconsistent, or the complainant's account cannot be relied upon.
Where the conduct did not meet the threshold for assault.
Depending on the evidence, it may also be possible to negotiate withdrawal, downgrading, or amendment of facts with the prosecution.
Common assault carries a maximum penalty of 2 years imprisonment.
However, DV-labelled assault matters vary widely in seriousness, and realistic outcomes depend on:
the nature of the allegation
any injury or harm
your personal circumstances
prior history
context and intent
evidence supporting or undermining the allegation
Possible outcomes include:
Dismissal / Not Guilty (after a defended hearing)
Withdrawal of the charge after negotiations
Conditional Release Order (CRO) — without conviction
Conditional Release Order — with conviction
Community Correction Orders
Fines
In more serious matters, custodial sentences
Not every domestic-violence-labelled assault results in a conviction or a jail sentence.
Getting advice early can:
prevent accidental admissions to police
help you understand and comply with AVO/bail conditions
preserve evidence that supports your version
identify weaknesses in the prosecution case before positions harden
protect you from cross-allegations
put you in a stronger position for negotiation or hearing
When you come to Lenz Legal, we will:
listen carefully to your account of what happened
give clear, honest advice about your options
assess the strength of the evidence and identify weaknesses
advise you on AVO and bail conditions
negotiate with police and the prosecution where appropriate
represent you in court and build a strong defence strategy
focus on protecting your future and your reputation
You will deal directly with a criminal defence lawyer who understands the pressures and stigma that come with DV allegations — and who will fight to ensure the court sees the full picture.
For detailed guides on related offences, see:
Stalk or Intimidate (Domestic Violence)
Choking, Suffocation or Strangulation
Threaten or Cause Fear of Harm
Destroy or Damage Property – DV
Common assault is an offence under section 61 of the Crimes Act 1900 involving any unlawful physical force or conduct that causes a person to fear immediate violence.
No. Injury is not required. Many common assault charges involve no physical contact at all.
No. DV offences are prosecuted by the State. The complainant’s views matter, but they do not control the case.
Not unless your AVO or bail conditions allow it. A breach is a separate — and often more serious — offence.
Not necessarily. Many matters resolve without conviction. It depends on the evidence, context, and the outcome.
Get legal advice before speaking to police or attending court.
Contact Lenz Legal to discuss your situation and next steps.
We provide expert advice and representation fearlessly protecting the rights and liberty of our clients whether charged with serious indictable offences, summary offences or driving offences. Call us now to see just what is possible.
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