Breach of an Intervention Order

– section 123 of the Family Violence Protection Act

breach intervention order
Breach of an Intervention Order is laid when the police think that someone has not followed the terms of an intervention order.

Examples of Breach of an Intervention Order
  • A person texts their ex-partner after receiving an Intervention Order that prohibits texting the ex-partner.
  • A person comes within 100 metres of their ex-partner’s house in breach of an Intervention Order.
  • A person calls their ex-partner to arrange time with their daughter. An Intervention Order states that the person may not call their ex-partner.

Our client was charged with Breach of an Intervention Order by contacting their ex-partner on a number of occasions. We made detailed submissions about our client’s personal history including alcohol issues which had contributed to the offending. Our client agreed to begin treatment for his issues. The Magistrate imposed a good behaviour bond and a small payment to the court fund. No conviction was entered against him.

Questions in cases like this
  • When are you alleged to have breached the order?
  • In what way?
  • Did the parenting plan allow for changes if communicated?
  • Was there adequate communication between those involved?

Sometimes doing something that seems reasonable in the circumstances can represent a breach of an order (e.g. dropping off clothes). Even if it feels ridiculous, a complaint can be made and police may become involved. It is very important that every condition of an intervention order is followed with total vigilance to avoid charges being laid.

What are possible defences to a Breach Intervention Order charge?
  • Someone didn’t know about the Intervention Order.
  • A person had an honest and reasonable belief that they had not Breached the Intervention Order.
  • Another person was responsible for the activity.

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.
 

Maximum penalty and Court that deals with this charge

The maximum penalty for this offence is 2 years or 240 penalty units ($37,310.40), or both.

Breach of an Intervention Order is a summary charge, which means that it is usually heard in the Magistrates’ Court.
 

“Have you been charged with breaching an intervention order?”

 

What is the legal definition of Breach of an Intervention Order?

Legally, Breach of an Intervention Order is when someone does not follow the terms of an active Intervention Order.

The Law

The section that covers this offence is section 123 of the Family Violence Protection Act.

Elements of the offence

A person may be found guilty of this offence if the following elements are proven in court:

  • A family violence intervention order has been made against the accused; and
  • The accused has been served with a copy of the order; or
  • An explanation of the order was given to the accused in accordance with section 57(1) or 96(1) of the Family Violence Protection Act 2008; and
  • The accused contravened the order.
  • A parenting plan has been implemented and is recognized by the family violence intervention order and one of the requirements in the plan has been contravened.

prison penalty sentencing 

What can you be sentenced to for this charge?

If you are found guilty of Breach of an Intervention Order, you can face a range of penalties. Less serious breaches may result in fines, the most serious will mean a gaol period.

Sentencing in the higher courts

From 1 July 2011 to 30 June 2016, there were 244 charges of section 123(2) Contravene Family Violence Intervention Order (interim/final) that were heard in the higher courts of Victoria. Majority of these charges resulted in imprisonment (80.7%) although there were a few other sentencing forms imposed:

  • Community Correction Order (CCO) – 6.6%
  • Fine – 4.5%
  • Adjourned Undertaking/Discharge/Dismissal – 3.7%
  • Partially Suspended Sentence – 2.9%
  • Youth Justice Centre Order – 0.8%
  • Community-Based Order – 0.8%

Majority of the charges that led to imprisonment were sentenced to a term that was less than a year (72.1%) while the longest term imposed was between 1 and 2 years (4.6%).

Of the charges that led to CCO, majority were given a term that was between 1 and 2 years (62.5%). The longest CCO term imposed was between 3 and 4 years (6.2%).1

Please note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option. Community-based orders were also abolished in Victoria in 16 January 2012, effective immediately for all offences committed before, on, or after this date.2

Sentencing in the Magistrates’ Courts

There were 12,775 cases (22,883 charges) of section 123(2) Contravene Family Violence Intervention Order that were heard in the Magistrates’ Court of Victoria from 1 July 2013 to 30 June 2016. Majority of these cases led to financial penalties (27.6%) and Community Correction Order (23.5%). Other sentences imposed were:

  • Adjourned Undertaking/Discharge/Dismissal – 22.4%
  • Imprisonment – 19.6%
  • Wholly Suspended Sentence – 5.2%
  • Partially Suspended Sentence – 1.5%
  • Youth Justice Centre Order – 0.2%
  • Other – 0.1%

Of the fines imposed, the highest amount was somewhere between $5,000 and $10,000 (1.5% of the charges that led to fines for aggregate and 0.1% for non-aggregate). The majority were sentenced to an amount somewhere between $500 and $1,000 (27.2% for aggregate and 14.6% for non-aggregate).

For the Community Correction Order (CCO), majority were sentenced to a term that was between 12 and 18 months (50.8%, non-aggregate). The longest CCO term imposed was 24+ months which was applied in 7.3% of the charges that led to CCO.3

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.4

Other Important Resources
Case Studies

 



[1] Sentencing Advisory Council. “SACStat Higher Courts – Family Violence Protection Act 2008 (Vic): s 123(2) – contravene family violence intervention order (interim/final).” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_08_52_123_2.html (accessed February 25, 2019).
[2] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed February 25, 2019).
[3] Sentencing Advisory Council. “SAC Statistics – Family Violence Protection Act 2008 (Vic): s 123(2) – contravene family violence intervention order.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/08_52_123_2.html (accessed February 25, 2019).
[4] Sentencing Advisory Council. “Abolished Sentencing Orders.” SentencingCouncil.vic.gov.au. https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders (accessed February 25, 2019).