This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Persistent Breach of Family Violence Intervention Orders
In 2012 the Family Violence Protection Act 2008 was amended to include a criminal charge of Persistent Contravention of Notice and Orders, also referred to as “Persistent Breach”.
Section 125A was inserted into the Act to make the persistent contravention of Family Violence Intervention Orders or Family Violence Safety Notices an indictable offence. An indictable offence is a serious offence which is dealt with in the County Court of Victoria, although may remain in the lower Magistrates’ Court at the discretion of Victoria Police.
Persistent Breach has a maximum penalty of 5 years in prison or a fine of 600 penalty units, or both.
Often a charge of this nature will have other criminal charges attached. For example, there may be an intervention order in place which says the Respondent is not to contact the Affected Family Member. If police have reason to believe the Respondent called the Affected Family Member on multiple occasions they will likely lay charges of both Persistent Contravention of an Order and Stalking.
The Offence of Persistent Breach
The offence of Persistent Contravention of Notices and Orders is contained in section 125A of the Act. It reads as follows:
A person must not persistently contravene a family violence safety notice or a family violence intervention order.
What the Police Must Prove
To convict a person of Persistent Contravention of Notices and Orders, the prosecution must prove:
- the accused engaged in conduct that would constitute an offence against section 37 or 123;
- on at least 2 other occasions and within 28 days of the first offence, the accused engaged in conduct that would constitute an offence against section 37 or 123;
- against the same protected person or in contravention of the notice or order;
- the accused knew or ought to have known that they were contravening the notice or order.
It is difficult to calculate the 28-day period pursuant to the legislation. The 28-day period is not calculated from the day of the first offence. If an individual breaches a Family Violence Intervention Order or a Family Violence Safety Notice for the third time, section 125A is triggered. The 28-day period is then calculated backward from the day before the date of the third offence.
If the charge of Persistent Breach fails, a defendant can still be charged for the individual offences of Contravene Family Violence Order or Contravene Family Violence Safety Notice.
What Actions Might Constitute Persistent Breach?
- If an Affected Family Member was protected by a No Contact Intervention Order, and the Respondent text the Affected Family Member three times on separate occasions, the offence may be proven.
- If an Intervention Order was in place stating the Respondent was not to attend at the home of the Affected Family Member, and the Respondent visited the Affected Family Member three times within 28 days, the offence may be proven. The Respondent is guilty of the offence even in circumstances where the Affected Family Member has invited the Respondent to the property.
- If an Intervention Order was in place stating the Respondent was not to publish any information relating to the Affected Family Member online and the Respondent posted three separate status updates on Facebook about the Affected Family Member within 28 days, the offence may be proven.
Which Court Will Hear Your Matter?
Persistent Contravention of Notice or Order is dealt with in the County Court of Victoria, although may remain in the lower Magistrates’ Court at the discretion of Prosecution.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.