Updated: Apr 18
Charged with a breach intervention order offence?
Contraventions (breaches) of Family Violence Intervention Orders are prosecuted under the Family Violence Protection Act 2008 (Vic). The most common offences prosecuted under the legislation are:
- Contravene Family Violence Family Safety Notice
- Contravene Family Violence Safety Notice Intending Harm or Fear
- Contravention of Family Violence Intervention Order
- Contravention of Family Violence Intervention Order Intending Harm or Fear
- Persistent Contravention of Family Violence Intervention Order.
As to what constitutes Family Violence have a look at the definition set out under the Act and referred to on our Family Violence Offences page.
For all these offences the prosecution must prove that a respondent was served with either the Family Safety Notice or Family Violence Intervention Order. Further, that the respondent was made aware of the conditions of the Order (for example a non-approach condition, or non-contact by any means). A Family Violence Notice or Intervention Order will contain several conditions that operate for the benefit of the AFM (affected family member).
Some common conditions installed under Intervention Orders are:
- not to commit family violence
- not to approach the affected family member
- not to contact the affected family member by any means
- not to attend at a location where the affected family member lives, works, or otherwise attends
- not to publish any information about the affected family member on the internet
- not to damage property belonging to the affected family member
For a full list of the various conditions that might be listed on Family Violence Notice or Intervention Order you can view the legislation here.
To prosecute a person for a breach of any of the offences listed above the police must further prove that a condition contained in the Notice or Intervention Order was breached by the respondent.
There are aggravated forms of the offence, which recognise that the alleged criminality of a breach can varies greatly. Where the prosecution alleges a breach was far from inadvertent, but deliberate, and with intent to inflict harm upon the affected family member the penalty at law is greater. The same applies when the police allege a respondent intentionally, and persistently breached a Family Violence Intervention Order.
Defences to Breach of Intervention Order
Typically, the basis for defending a breach of Intervention Order will involve a factual dispute about whether a breach did or did not occur.
Although Contravene Intervention Order simpliciter does not require the prosecution to prove intention the offence at law is regarded as a strict liability offence. Accordingly an honest and reasonable mistake of fact may apply depending upon the circumstances of the alleged breach.
What the Penalties at Law for Contravene Family Safety Notice or Family Violence Intervention Order?
- Contravene Family Safety Notice: maximum of 240 penalty units; or maximum of 2 years imprisonment.
- Contravene Family Safety Notice Intending Fear or Harm: maximum of 600 penalty units; or a maximum of 5 years imprisonment, or both.
- Contravene Family Violence Intervention Order: maximum of 240 penalty units; or 2 years imprisonment, or both.
- Contravene Family Violence Intervention Order Intending Fear or Harm: maximum of 600 penalty units; or 5 years imprisonment or both.
- Persistently Contravene Family Violence Intervention Order: maximum of 600 penalty units; or 5 years imprisonment or both.
What are the Court Outcomes for Breach Intervention Order Offences?
The Victorian Court of Appeal has stated in several cases that the principal sentencing purpose for family violence offending is deterrence (Pasinis v The Queen  VSCA 97; Wati Marrah v the Queen [2014} VSCA 119; Portelli v The Queen .
It is not uncommon for a court to impose a conviction even where an accused has no criminal history.
Much will depend upon the type of contravention alleged (whether the aggravated forms of the offences discussed above), and the circumstances of the offence and the alleged offender.
Contraventions of Family Violence Offences are usually heard in the Magistrates' Court, and a Magistrate generally has a wide discretion as to the penalty imposed. As a general guide the most frequent outcomes reported by the Sentencing Advisory Council for the period 1 July 2016 - 30 June 2019, for the Magistrates' Court, included:
- Adjourned undertaking/dismissal
- Community Correction Order
In very limited circumstances, a diversion may be possible for a breach intervention order offence. Read our case study for a recent example where diversion was approved for breach of intervention order.
For an overview on a Community Correction Order refer to our article.
Early preparation important
As with any allegation of criminal offending, early preparation is key to defending an allegation of Breaching an Intervention Order. To organise a free case assessment call our office on (03) 9668 7600.