Contravene Family Violence Intervention Order
– section 123 of the Family Violence Protection Act 2008
If you are charged with contravening a family violence intervention order it is very important that you obtain advice from a defence lawyer. Magistrates and judges views take these matters very seriously as they involve breaching a court order. Even sending a text message to a protected person can result in very serious consequences.
Family dynamics are complicated and messy, and often there is an important story to tell when someone breaches an intervention order. A lawyer will be able to help you tell this story in court. They can also help you fight the charge, if you believe you didn’t contravene the order and there was a mistake or fabrication.
Examples of Contravening a Family Violence Intervention Order
- You and your partner go through a messy break up, and your partner applies for a family violence intervention order. You do not consent to the order, so an interim order is put in place, and the conditions include not contacting your partner by any means or go within 100m of her residence and place of work. The following actions would likely constitute breaches:
- You find it hard to adjust to not talking to your partner anymore, and you send her a message saying you want to get back together.
- Your partner continually messages you and calls you and begs for you to return her calls. You return her call.
- Your partner works at a supermarket, and you decide you’ll do your grocery shopping there. You don’t talk to her, but she sees you shopping for items.
- You get drunk and call your partner. You don’t say anything but you stay on the phone for 10 seconds and then hang up.
Questions in cases like this
- Did the order actually prevent you from contacting the protected person? Look at the conditions of the order, because they can vary significantly.
- Was the protected person genuinely mistaken? Maybe they thought they saw you, or heard your voice, but it wasn’t you.
- Was it a genuine mistake on your part? For instance, you could have ‘pocket dialled’ the protected person and you didn’t realise.
What are some of the possible defences to Contravene Family Violence Intervention Order?
Cases related to the offence of Contravene Family Violence Intervention Order may be defended on the basis of sudden or extraordinary emergency, necessity, duress, impossibility, factual errors, failure to comply with the elements of the offence, and the concept of putting the prosecution to their proof.
Further, if you are a respondent under both a family violence safety notice and an intervention order in respect of the same protected person, then the order with the least restrictive conditions prevails to the extent of any inconsistency between the two. This means if you breach the intervention order but not the safety notice, it will not be considered a breach.
This offence carries a maximum fine of 240 penalty units or maximum of 2 years imprisonment, or both. It will generally be heard in the Magistrates’ court.
The offence of Contravene Family Violence Intervention Order is governed by section 123 of the Family Violence Protection Act 2008.
Elements of the offence
The prosecution must prove the following beyond reasonable doubt:
- A family violence intervention order has been made
This will generally be easy to prove. The prosecution should provide you with a copy of the order when they give you the brief of evidence.
- The family violence intervention order has been served on the respondent, or the respondent has had an explanation of the order given to them by a person in accordance with sections 57 or 96.
Again, this element is not usually in issue. The prosecution need to show that you were aware of the contents of the order.Under section 57, the court must give a clear, oral explanation to a respondent outlining:
- the purpose, terms and effect of the interim order;
- the consequences and penalties that may follow if the respondent fails to comply with the terms of the interim order;
- ba. that the interim order may be enforced against the respondent in another State or a Territory
- when the interim order expires and the means by which the interim order may be varied;
- that the interim order is a civil order of the court and the protected person cannot give permission to contravene the interim order;
- the process for deciding the final order;
- how the order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005;
- if the court has varied, suspended, revoked or revived a Family Law Act order because it is inconsistent with the interim order, the purpose, terms and effect of the variation or suspension;
- any relevant family violence services offering legal, emotional or practical support that may be available to the protected person or respondent.
It’s important to note that if the court fails to tell you any of the above, this does not affect the validity of the order. Also, if you receive a copy of the order and refuse to read the contents, this is not a defence.
Section 96 essentially has the same requirements in respect of a full intervention order.
- The respondent contravenes the order.
This is generally the most contentious element. You and a lawyer should examine the conditions on the order carefully, and work out whether you breached the order.Some common conditions of IVOs include not committing family violence, not damaging the protect person’s property, not contacting the protected person by any means, and not going within a certain distance of where the protected person lives or works.Family violence is widely defined in section 5 of the Act and includes physical, sexual, emotional, psychological and economic abuse, threatening or coercive behaviour, controlling or dominating the protected person, and exposing a child to family violence.Section 6 defines economic abuse as denying the second person the financial autonomy they would have had but for that behaviour, or withholding financial support from the second person (or their child) in circumstances where the second person is dependant on that person for financial support for their reasonable living expenses.
- The respondent had the requisite state of mind.
There is debate over the state of mind required under section 123. It is unlikely an offence carrying a maximum penalty of two years could be committed through mere carelessness or inadvertence, so it’s likely the prosecution will need to prove that you intentionally or recklessly committed the act which breached the order. In Ke Kaw The v The Queen (1985) 157 CLR 523, the High Court held by a 4:1 majority that it was improbable that Parliament intended that a serious criminal offence with serious consequences could be committed as a result of mere carelessness. Gibbs CJ said the following at 528-9:“There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.”This means that the pocket dial scenario described earlier would probably not constitute a breach, as you might have no idea that your phone rang the protected person’s number. However, if you called the protected person without really turning your mind to whether you were breaching the order, that would probably constitute a breach. Of course, every scenario is different and turns on its own facts.
Sentencing in the higher courts
From 1 July 2011 to 30 June 2016, there were a total of 244 charges of Contravene Family Violence Intervention Order that came before the higher courts of Victoria. Majority of these charges resulted to imprisonment (80.7%).
Other sentences imposed were: Community Correction Order (6.6%), fine (4.5%), adjourned undertaking/discharge/dismissal (3.7%), partially suspended sentence (2.9%), Youth Justice Centre order (0.8%), and Community Based Order (0.8%).
Of those who were sentenced to prison, 72.1% were sentenced to 0 < 1 year while 4.6% were sentenced to 1 < 2 years. Most of the Community Correction Orders imposed were for 1 < 2 years (62.5% of those who received CCOs) although the longest was for 3 < 4 years (given to 6.2%).
The highest amount of fine imposed was $2,000 < $5,000 although this was given to only 9.1% of those who received a financial penalty. The amount most frequently imposed was < $1,000 (63.6%).
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.
Sentencing in the Magistrates’ Courts
In the Magistrates’ Courts, a total of 12,775 cases of Contravene Family Violence Intervention Order were heard from 1 July 2013 to 30 June 2016. These involved 22,883 charges of the said offence that led to a variety of penalties.
Of the 12,775 cases, 27.6% resulted in a financial penalty, 23.5% in a Community Correction Order, 22.4% in an adjourned undertaking/discharge/dismissal, 19.6% in a prison term, 5.2% in a wholly suspended sentence, 1.5% in a partially suspended sentence, 0.2% in a Youth Justice Centre order, and 0.1% in other sentencing options.
Majority of the fines imposed were $500 < $1,000 (27.2% aggregate and 14.6% non-aggregate, of those who received a financial penalty). The highest amount was however $5,000 < $10,000 and was given to 1.5% (aggregate) and 0.1% (non-aggregate) of those who were fined.
Most of those who were sentenced to prison received a term of < 3 months (40.9%) although the longest period imposed was for 36+ months (0.4%).
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.
Other important resources
- SACStat Higher Courts – Family Violence Protection Act 2008 (Vic) : s 123(2) – contravene family violence intervention order (interim/final)
- SAC Statistics – Family Violence Protection Act 2008 (Vic) : s 123(2) – contravene family violence intervention order
Case studies related to Contravene Family Violence Intervention Order
- Contravene Family Violence Intervention Order Whilst on Bail
- Family Violence – Accused With Cognitive Disability
- Contesting a Charge of Contravene Family Violence IVO
- Adjourned Undertaking for Persistent Contravene Family Violence Intervention Order
- Diversion for Contravene Family Violence IVO
This area of law tends to be highly emotional and complex and there are serious consequences which flow from a finding of guilt. Because of this, it is important to get a lawyer who is going to be able to tell your side of the story.