Case Study: Persistent Breach of Family Violence Order

Updated: Oct 2

Date & Location


July 2020, Bayside.


Court

Moorabbin Magistrates' Court.


Facts


Our client and his former wife had been separated for several months.


A factor (there were many) that had precipitated the separation was an incident that subsequently resulted in a Family Violence Intervention Order being made against our client. That FV IVO was a full protection order which amongst several conditions, prohibited contact with our client's former wife (the affected family member) unless pursuant to a Family Court Order or written agreement, and then only in relation to childcare arrangements.

After separation, Family Court Proceedings commenced for both childcare and property issues. At the time of the offences, the relationship between our client and his former wife had become strained, and consequently the written agreement which regulated the shared custody arrangement had broken down.


During a period where our client believed that the AFM was not abiding by Family Court Orders, and consequently not having the contact he believed their written arrangement and Federal Circuit Court had provided for, a series of text messages were sent to the AFM.


The content of these text messages was not threatening in nature, but conveyed criticism and was not 'on point' and outside the terms of the conditions of the FV IVO that permitted communication.


As the communication occurred on several different occasions our client was charged with separate offences of Contravene FV IVO and Persistent Breach of FV IVO.


Persistent Breach of a Family Violence Intervention Order is an indictable offence under the Family Violence Protection Act 2008 (Vic).


At the time of being charged with these offences, our client had no prior criminal history.


How Case Resolved


In addition to having no criminal history, our client had a professional background, and it was identified early on that a criminal conviction was to be avoided if possible.


Case conference discussions with the prosecution commenced early, and the prospect of diversion was canvassed with the prosecution. Unfortunately, the prosecution did not recommend diversion, having regard to the views of the AFM and their policy which dictates that diversion will usually only be recommended in exceptional cases (for more information read our blog on What You Need To Know About Diversion and Family Violence Offences).


After providing advice on the merits of either contesting the case or making a plea in mitigation, our client instructed he would plead guilty.


The case was resolved based on a plea of guilty to the Persistent Breach of Family Violence Order, and one occasion of Contravene FV IVO (2 offences in total)


Sentencing Outcome


Our client's previous good character and community involvement were evident to the Magistrate by reason of several character references which were tendered during the plea in mitigation.


The circumstances of the offence were placed into context, and our client's remorse for the incident were other relevant factors the Court considered.


Ultimately, the Court was persuaded not to record a conviction, and our client was placed on an Adjourned Undertaking for 2 years and ordered to make a financial contribution to the Court fund.



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