In domestic violence cases, the law and public discussion often focus on the direct victim, usually a partner who has experienced physical violence, threats, intimidation or psychological abuse. But what about children who are nearby when the violence happens?
A child may not be physically assaulted, but they may see the violence, hear threats, witness damage in the home, try to intervene, call police, or live with the emotional impact afterwards. This raises important legal questions. Can a child who witnesses domestic violence also be treated as a person affected by the violence? Can a child be included as a protected person in an Apprehended Violence Order, also known as an AVO? Can a child’s evidence be used in court? Does age affect their legal position?
This article explains the effects from domestic violence on children in NSW, how AVOs may protect children who witness violence, and what legal risks may arise when child evidence is involved in criminal or domestic violence proceedings.
Can Children Who Witness Domestic Violence Be Victims?
Yes. In NSW, domestic violence is not limited to physical assault. The legal framework recognises that a child may be harmed by being exposed to violence in the home, even if the child is not directly attacked.
Children may experience domestic violence by:
- Seeing a parent, sibling or family member being assaulted
- Hearing shouting, threats, crying or calls for help
- Seeing damaged property, blood, injuries or police attendance after an incident
- Trying to stop the violence
- Feeling ongoing fear, instability or pressure within the home
The effects from domestic violence can be serious for children because the harm is not always physical. A child may suffer fear, sleep problems, anxiety, behavioural changes, difficulty concentrating, or emotional distress after witnessing violence at home.
What Counts as a Child Witness to Domestic Violence?
A child witness is not limited to a child who saw the entire incident directly. In practice, a child may be treated as exposed to domestic violence if they saw, heard or experienced the immediate impact of the incident.
For example, a child may be relevant to an AVO or domestic violence case if they:
- Saw one parent assault another parent
- Heard threats or violent arguments from another room
- Saw furniture, walls or personal items damaged after an incident
- Was present when police arrived
- Was told to stay silent or take sides
- Tried to protect a parent or sibling
This matters because the court may need to assess whether the child is at risk, whether the child should be included in an AVO, and whether the child’s account can help prove what happened.
Can Children Be Listed as Protected Persons in an AVO?
Yes. A child can be listed as a protected person in an AVO, even if the child was not physically assaulted.
In NSW, police and courts may consider whether a child is at risk because of the domestic relationship and the surrounding circumstances. The question is not only whether the child has already suffered physical harm. The court may also consider whether the child is exposed to fear, intimidation, emotional harm or further domestic violence.
Common examples include:
- A father assaults the mother while the child is present, and police apply for an AVO protecting both the mother and child
- A child witnesses threats, shouting or property damage during a family dispute
- A parent resumes contact with the alleged perpetrator, but the court remains concerned about the child’s safety
- The alleged conduct involves intimidation or coercive behaviour that affects the whole household
Including a child in an AVO can have significant legal consequences. It may affect communication, living arrangements, parenting routines, school pickup, handover arrangements and future family law disputes.
Can a Child’s Evidence Be Used in Court?
Children can give evidence in court, but the process is handled carefully. A child’s age is relevant, but age alone does not decide whether the child can be a witness. The key issue is whether the child can understand questions and give answers that the court can properly assess.
Competence to Give Evidence
Under NSW evidence law, the court may need to consider whether a child has the capacity to understand questions and give answers that can be understood. Very young children may require closer assessment, especially if they are under school age or have difficulty explaining what they saw.
A child does not need to speak like an adult. However, the court must be satisfied that the evidence can be tested fairly and understood in context.
Video Evidence and Court Protections
Courts may use special procedures to reduce the stress placed on children. Depending on the case, this may include:
- Pre-recorded evidence
- Giving evidence by audio visual link
- Having a support person present
- Limiting intimidating or inappropriate questioning
- Using procedures that reduce direct contact with the accused person
These measures are designed to protect vulnerable witnesses while still allowing the evidence to be tested.
Hearsay and Indirect Evidence
If a child is too young or too distressed to give evidence directly, the prosecution may try to rely on indirect evidence. For example, an adult may say that the child told them what they saw or heard.
This can create legal problems. Hearsay evidence is subject to strict rules, and not every out-of-court statement will be admissible. The court must consider whether an exception applies and whether admitting the evidence would be fair.
Credibility and Reliability Risks
Child evidence can be powerful, but it must be approached carefully. Issues may arise if:
- The child’s account changes over time
- The child has been influenced by an adult
- The child gives answers to please a parent
- The child does not understand the question
- The child’s evidence conflicts with other evidence
- There are no supporting records, messages, photographs, medical notes or police observations
This does not mean child evidence is unreliable. It means both protection and procedural fairness must be considered.
Practical Risks in AVO and Domestic Violence Cases
Although the AVO system can protect children, it is not always simple in practice.
When a Parent Does Not Want Protection
Sometimes a parent may not want the child included in an AVO. They may say the child did not see anything, or they may wish to reconcile with the alleged perpetrator. This can create evidentiary difficulties for police and the court.
However, the court may still consider the child’s safety separately from the adult’s wishes.
Family Law and Parenting Arrangements
AVOs can interact with parenting arrangements. For example, an AVO may limit contact between a parent and child, while a parenting arrangement may still allow time with the child. This can create confusion and pressure for both parents.
In these situations, legal advice is important because criminal law, AVO conditions and family law arrangements may overlap.
Child Trauma May Be Overlooked
Children may not always express trauma clearly. Some children become quiet, withdrawn or fearful. Others may show behavioural changes, nightmares, anger or difficulty at school.
The absence of visible injury does not mean there is no harm. The effects from domestic violence may be emotional or psychological, rather than physical.
Contact Arrangements May Create Ongoing Risk
Even when an AVO is in place, contact arrangements can sometimes create ongoing risk. If a child continues to have contact with a person accused of domestic violence, there may be concerns about emotional pressure, manipulation, intimidation or further exposure to conflict.
This is why AVO conditions must be carefully drafted and understood.
Balancing Child Protection and Procedural Fairness
Domestic violence cases involving children require a careful balance. The law must protect children from harm, but it must also protect the rights of the accused person and ensure that evidence is reliable.
Difficult questions may include:
- What if a child was pressured to say something?
- What if the child is the only witness?
- What if the child heard violence but did not see it?
- What if police apply for an AVO based on limited information?
- What if an AVO affects parenting arrangements before all facts are tested?
These questions show why AVO and domestic violence cases involving children can be legally complex. A protective response is important, but the process must also be fair and evidence-based.
Facing an AVO or Domestic Violence Case Involving Children?
If you are involved in an AVO or domestic violence case involving children, early legal advice is important. These matters can affect your family relationships, parenting arrangements, criminal record risk, bail conditions, court strategy and long-term contact with children.
Jenny Xu‘s criminal defence team can assist with AVO matters, domestic violence allegations, evidence review, court preparation and legal strategy where children are involved as protected persons or witnesses.
This article is for general information only and is not legal advice. Laws may change, and every case depends on its own facts. You should speak with a qualified lawyer before taking action.