Have you or someone you know been accused of breaching an Intervention Order in Victoria?
If so, it's important to understand the legal requirements for proving this offence. Breach Intervention Orders are serious offences that can carry penalties ranging from fines to imprisonment.
In this blog post, we'll explain the elements, defences and penalties for breach of an Intervention Order.
Table of Contents
Breach Intervention Order Offences
Contraventions (breaches) of Family Violence Intervention Orders are prosecuted under the Family Violence Protection Act 2008 (Vic).
The most common offences prosecuted under the FVPA are:
What the Prosecution Must Prove for Breach of Family Violence Intervention Order
The Family Violence Protection Act 2008 (Vic) provides a broad definition of Family Violence.
For all these offences the prosecution must prove:
that a respondent was served with either the Family Safety Notice or Family Violence Intervention Order; AND
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).
Conditions of Family Violence Intervention Orders:
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 a 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 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 vary 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.
The decision of the Victorian Court of Appeal in DPP v. Cormick [2023] VSCA 186 establishes that the prosecution need not prove an accused had an intent to cause family violence, just that the accused intentionally and voluntarily did an act which did cause a complainant family violence (for example emotional harm or psychological harm). To read our article that discusses this case click here.
Defences to Breach of Intervention Order
Typically, the basis for defending a breach of an Intervention Order will involve a factual dispute about whether a breach did or did not occur. Depending upon the particular circumstances of the case other defences that might be considered include self-defence, mental impairment, or necessity.
Penalties for Breach of Family Violence Intervention Order Offences
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.
Persistently Contravene Family Violence Intervention Order: maximum of 600 penalty units; or 5 years imprisonment or both.
Sentencing Outcomes for Breach of Family Violence Intervention Order
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 [2014] VSCA 97; Wati Marrah v the Queen [2014} VSCA 119; Portelli v The Queen [2015].
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:
Fine
Imprisonment
In very limited circumstances, a diversion may be possible for a breach intervention order offence. Read our case study for a recent example where a diversion outcome was approved.
Conclusion
In summary, breach of an intervention order is a serious offence in Victoria and carries significant penalties.
To be found guilty of this offence, the prosecution must prove all elements beyond a reasonable doubt, including that there was an existing intervention order at the time of the alleged breach and that the accused either knew about or should have been aware of its existence.
If you have been charged with breaching an intervention order in Victoria it is important to seek advice from a criminal lawyer as soon as possible so that your legal rights can be protected.
As with any allegation of criminal offending, early preparation is key to defending an allegation of Breaching an Intervention Order. We provide legal advice and court representation for Family Violence and Personal Safety Intervention Orders in Victoria. Contact us or book an appointment online for a case assessment which includes an analysis of your matter and a breakdown of what needs to be done to get the best possible outcome for your situation.