Updated: 6 days ago
We explain the elements, defences and penalties for Breach Intervention Order.
The Elements Breach Intervention Order offences and What the Prosecution Must Prove
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 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. 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).
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 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 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.
Other defences may include:
Penatlies for Breach 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 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  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.