This article was written by Kristen Moore - Managing Associate- Werribee
Kristen holds a Bachelor of Laws and a Bachelor of Arts (Political Science and Sociology) from Victoria University. She also holds a Graduate Diploma in Legal Practice from the Australian National University. Kristen is admitted as a solicitor in the Supreme Court of Victoria and the High Court of Australia. Following admission to practice, Kristen worked exclusively in the areas...
Breach Family Violence Intervention Order (Vic)
The Family Violence Protection Act 2008 seeks to maximise safety of persons that have been exposed to family violence, to prevent and reduce family violence and to promote accountability of perpetrators of Family Violence. In seeking to fulfil its purpose the Family Violence Protection Act 2008 provides both the framework and legislative requirements for the making of family violence Intervention Orders and establishes criminal offences pertaining to breaches of Family Violence Intervention Orders.
Elements – what must be proven
In order to satisfy the court that a person is guilty of breaching a Family Violence Intervention Order, the prosecution must establish the following beyond a reasonable doubt:
- That the accused was served a copy of the Intervention Order or that the accused received an explanation of the order in accordance with the legislation (as outlined below), and
- That the accused breached the order.
What is an explanation of the order?
When making an Intervention Order, the court may in accordance with section 96 and 57 of the Family Violence Protection Act 2008, provide an explanation of the order to the accused. This explanation must be a clear oral explanation and should include, inter alia, the following;
- The purpose, terms and effect of the order (including the effect of the order on any firearms authority or weapons approval held by the Respondent or weapons exemption which applies to the Respondent); and
- If the order prohibits the Respondent living with, spending time with or communicating with the child, that prohibition; and
- If the order includes a condition requiring arrangements between the protected person and Respondent relating to a child living with, spending time with or communicating with the respondent to be in writing, that condition; and
- The consequences and penalties that may follow if the Respondent fails to comply with the terms of the final order; and
- That the final order may be enforced against the Respondent in another State or a Territory under the National Domestic Violence Order Scheme Act 2016 and corresponding DVO recognition laws; and
- That the final order is a civil order of the court and the protected person cannot give permission to contravene the final order; and
- How the final order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005 ; and
- If the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the final order, the purpose, terms and effect of the variation or suspension.
Penalty
The maximum penalty for the contravention of a Family Violence Intervention Order is a term of imprisonment of not more than 2 years and/or a fine of not more than 240 penalty units. In circumstances of persistent breach (i.e. multiple breaches occurring within a 28 day period), the maximum penalty is a term of imprisonment of not more than 5 years and/or a fine of not more than 600 penalty units.
Defences
If the Family Violence Intervention Order prohibits a person from contacting or communicating with the Protected Person, it is not a defence to breaching a Family Violence Intervention Order if the Protected Person allowed the Respondent or gave the Respondent permission to contact or communicate with them.
A defence to breaching a Family Violence Intervention Order exists if the alleged conduct does not breach a condition of the order.
A valid defence may also exist in circumstances where a Respondent has been served with more than one order pertaining to the Protected Person (or one Intervention Order and one Safety Notice) and the order or safety notice that has been made later in time is less restrictive (resulting in the alleged conduct having breached the earlier but not the later order).
To establish either of the above defences, the defence would have the onus of proving on the balance of probabilities that the conduct that has been alleged does not breach a condition of the order in force at the time of the alleged breach.
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