If you have left, or are trying to leave, a domestic violence situation, one of your greatest fears may be that your former partner will come back. That living in your own home no longer feels safe.
For years, NSW law contained a gap that made this fear worse. If a perpetrator had previously owned or held a legal interest in the family home, they could argue that forcing entry was not technically a break-in under the Crimes Act. The home they shared with you could be used as a legal shield.
That gap has now been closed. The NSW Government has passed new legislation specifically targeting this loophole, and it is one of the most significant upgrades to domestic violence protections in NSW in recent years.
What the New Law Actually Says
The reform amends the Crimes Act 1900 (NSW) to allow perpetrators to be prosecuted for breaking and entering at a property, even if they previously held a legal or equitable interest in it.
In plain English: it does not matter if your former partner’s name was once on the title. It does not matter if they previously paid the mortgage, rented the property jointly with you, or had any other legal claim to the home. If they force their way in without your consent after the relationship has ended, and particularly where an Apprehended Domestic Violence Order (ADVO) is in place, they can now be charged with break and enter under the Crimes Act.
Why this matters: Before this reform, defence lawyers could argue that a perpetrator’s prior legal interest in the property meant their entry was not technically “unlawful” under the break and enter provisions. This gave abusers a potential shield against serious criminal charges. That defence has now been removed.
What charges can now be laid?
The amended break and enter offences are serious criminal charges. Depending on the circumstances, a perpetrator who forces entry into a former shared home may now face:
- Break and enter with intent: entering a home by force with intent to commit an offence (maximum 10 years imprisonment in the District Court)
- Break, enter and commit a serious indictable offence: where violence, assault or property damage also occurs (maximum 14 years imprisonment)
- Aggravated break and enter: where the offence is committed in company or with a weapon (maximum 20 years imprisonment)
These are not minor charges. Combined with existing domestic violence offences and the potential breach of an ADVO, a perpetrator who returns to a former shared home by force now faces a very serious criminal exposure.
How AVOs Work and Why They Matter More Than Ever
An Apprehended Domestic Violence Order (ADVO) is a court order that protects victim-survivors from harassment, intimidation, stalking, and violence. It can restrict where the other person goes, who they contact, and how they behave. Breaching an ADVO is a criminal offence in NSW, and the new break and enter reform works alongside AVO protections to create a much stronger legal shield.
What does an ADVO cover?
A standard ADVO will include conditions prohibiting the respondent from:
- Approaching or contacting you
- Going to your home, workplace, or children’s school
- Intimidating, stalking, harassing, or threatening you
- Damaging your property
- Approaching or contacting your children
Additional conditions can be added depending on your circumstances, including prohibiting the respondent from being within a certain distance of your address at any time.
How do I get an AVO in NSW?
There are two ways an ADVO can be obtained:
- Police-initiated ADVO: NSW Police can apply for an ADVO on your behalf if they respond to a domestic violence incident, receive a report, or have reason to believe you are at risk. You do not have to ask them to do this, they are required to consider it.
- Private application: You can also apply directly to your local Local Court for an AVO. A lawyer can assist you to prepare and file the application and appear at court with you.
Good to know: If you are in immediate danger, call 000. Police can issue an Interim ADVO on the spot, which takes effect immediately and remains in force until the matter is heard in court.
What happens if an ADVO is breached?
Breaching an ADVO is a criminal offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). A first breach carries a maximum penalty of 2 years imprisonment and/or a $5,500 fine. Where the breach involves an act of violence, the maximum increases to 5 years imprisonment. Under the new break and enter laws, a perpetrator who forces entry into your home may simultaneously be committing a breach of an ADVO and a break and enter offence — compounding their criminal liability significantly.
If You Are a Victim-Survivor: Your Rights Under the New Law
My former partner broke into the house we used to share. What should I do?
If this has happened to you, here is what to do immediately:
- Call 000 immediately if you are in danger or if the person is still present or nearby.
- Report it to police even after the fact: the new law means this may now be a break and enter offence, not just a domestic dispute.
- Document everything: photographs of damage, screenshots of messages, records of any prior incidents.
- Get legal advice: a lawyer can help you understand the new law, apply for or strengthen an ADVO, and ensure the police response is adequate.
I already have an ADVO. Does the new law change anything for me?
Yes. If your former partner was previously deterred from coming to your home only by the threat of an AVO breach, which carries lower penalties, they now face the additional risk of break and enter charges. The legal exposure for entering your home by force has increased substantially. If you believe your existing ADVO does not adequately protect you, speak to a lawyer about applying to vary its conditions.
My former partner’s name is still on the property title. Can they still be charged?
Yes, this is precisely what the new law is designed to address. Prior legal interest in the property is no longer a defence to breaking and entering. If they force entry without your consent, particularly in circumstances where a relationship has broken down and an ADVO is in place, they can be charged. The key element is consent: if you have not authorised their entry, and they force their way in, the law now applies.
Important: If your former partner is still on the property title or lease, there may be complex property law issues to resolve alongside the criminal and AVO proceedings. A family or property lawyer can advise you on your rights to exclusive occupation of the home.
Frequently Asked Questions
Does this new law apply to de facto relationships?
Yes. Domestic violence laws in NSW cover intimate partner relationships of all kinds, married couples, de facto couples, same-sex couples, and people who are or have been in a domestic relationship. The new break and enter reform applies regardless of the formal legal nature of the relationship.
What if my name is not on the lease or title, can I still get an AVO to protect me in that home?
Yes. An ADVO protects you as a person, not just a property. You can be granted protection in any place you ordinarily reside, regardless of whether your name appears on the lease or title. A lawyer can help you make this clear when applying for your ADVO.
Can an ADVO affect family law proceedings: custody, property settlement?
Yes, and this is an area where legal advice is essential. An ADVO can affect parenting arrangements and may be relevant evidence in family law proceedings. However, AVOs and family law orders operate under different legal frameworks, and the interaction between them can be complex. If you are dealing with both a domestic violence matter and a family law dispute, you should seek advice from a lawyer experienced in both areas.
How long does an ADVO last?
A final ADVO typically lasts for two years, though the court can order a longer period in serious cases. An interim ADVO issued in an emergency remains in force until the court makes a final order. At the final hearing, the court will decide whether to make the order permanent, vary it, or allow it to lapse.
What support services are available for domestic violence victims in NSW?
Beyond legal protection, a number of support services are available for survivors of domestic abuse in NSW, including:
- 1800RESPECT: National domestic violence counselling and referral line: 1800 737 732 (24/7)
- NSW Domestic Violence Line: 1800 656 463: state-based referral and support
- Women’s Legal Service NSW: Free legal advice for women.
- Legal Aid NSW: Free legal advice and representation for eligible people: 1300 888 529
We have over 20 years of experience in criminal defence and civil litigation, with deep expertise in AVO matters, domestic violence proceedings, and the NSW criminal courts. Contact us for a confidential consultation.
