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Case study: Diversion for Persistent Breach of Family Violence Intervention Order

Updated: May 8

Date & location of offending


September 2020 - October 2020, North Melbourne.


Court


Melbourne Magistrates' Court, November 2021.


Facts


On 28 November 2021, there was an incident between our client and his former wife. Following that incident, our client made a complaint to the police and obtained an interim Intervention Order against his former wife.


His wife then made a cross-application.


At the time of the diversion assessment for our client, both interim orders were in force.


Following communication and photos published on our client's private Instagram account, he was charged with 4 (four) offences of Contravene Family Violence Intervention Order, and 1 (one) offence of Persistent Breach of Family Violence Intervention Order contrary to section 125A of the Family Violence Protection Act 2008 (Vic).


Our client had published photographs of himself, his former wife and their son. These photos were regular, not indecent, or improper in what they depicted.


Our client decided to publish the photos as a commemoration of his upcoming 50th birthday, and he had intended to publish to his friends and family (known Instagram contacts) they were not intended to cause his former wife offence.


A remark that he had also published on social media concerning family law proceedings was alleged to contact tacit criticism of his former wife which was also the subject of a contravention.


Notwithstanding these matters, the publications breached the condition of his former wife's intervention order against him that he not publish any material on social media about her.


When interviewed by police, our client was cooperative and gave a full account of his actions.


Our client was employed in his own business (accountancy practice) and was very concerned about the impact a finding of guilt, and the consequent criminal record would have upon his ability to continue his employment and his professional standing.


The maximum penalty under section 125A for Persistent Contravention of Family Violence Intervention Order is 5 years imprisonment.


How case resolved


Our client's case was extensively negotiated with the prosecution through several case conferences with Melbourne prosecutions.


A detailed submission was sent to prosecutions in which several arguments in favour of diversion was made.


The prosecution agreed that exceptional circumstances in favour of a recommendation for diversion were made out, and a diversion notice was completed and filed with the Court.


Further written submissions were filed with the Court at the diversion hearing. The submissions highlighted the nature of the offences (low-end), the circumstances in which they occurred, and our client's good character.


Our client's good character was demonstrated in several respects:


  • no previous offending

  • no subsequent offending

  • cooperation with police

  • testimonials provided by several referees.


Outcome achieved


Our client was granted a diversion and consequently avoided a disclosable court history for the indictable offence of Persistent Contravention of Family Violence Intervention Order. The only condition of the diversion plan was to be of good behaviour for 3 months.



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