Contravene Family Violence Intervention Order Intending to Cause Harm or Fear

– section 123A of the Family Violence Protection Act 2008
ThreateningContravene Family Violence Intervention Order Intending to Cause Harm or Fear is a charge laid when a person allegedly contravenes a Family Violence Intervention Order (IVO) knowing that their conduct will probably cause physical or mental harm to the protected person (AFM) or an apprehension of fear in the protected person for their own or another person’s safety.
Examples of Contravene Family Violence Intervention Order Intending to Cause Harm or Fear
  • A person subject to an IVO who has been served with a copy of the order and had the order properly explained to them sends a text message to the AFM in which they threaten to kill the AFM and their family.
  • A person subject to an IVO who has been served with a copy of the order and had the order properly explained to them pursues the AFM down a busy highway, aggressively gesturing to the AFM and repeatedly swerving in front of the AFM’s car.
  • A person subject to an IVO who has been served with a copy of the order and had the order properly explained to them calls the AFM and tells them that unless the AFM commits suicide the AFM’s children will be killed.
Questions in cases like this
  • Is the accused person subject to an IVO?
  • Has the accused person been served with a copy of the IVO and had the order properly explained to them?
  • Has the accused person breached the IVO?
  • Has the accused person breached the IVO knowing that their conduct will probably cause harm to or incite fear in the AFM?
What are some of the possible defences to Contravene Family Violence Intervention Order Intending to Cause Harm or Fear?

Most defences to this charge are based on some element(s) of the offence not being made out. These defences include:

  • The accused person has not had the IVO explained to them in accordance with sections 57(1) or 96(1) of the Act;
  • The accused person did not contravene the IVO; or
  • The AFM has not suffered the threshold ‘harm’ or ‘apprehension of fear’ necessary for the offence to apply.

Two defences unique to this offence are specified in the Family Violence Protection Act 2008 (Vic) (the Act).

It is a defence to this charge if the accused person can prove that:1

  • They were the respondent under the IVO; and
  • A ‘family violence safety notice’ in relation to the same AFM and accused person was also in force at the time the offence was alleged to have been committed; and
  • The accused person’s conduct was not in contravention of the family violence safety notice.

Where this offence applies because an accused person has contravened a recognised DVO,2 it is also a defence to this charge if the accused person can prove that:3

  • They were the respondent under the recognised DVO; and
  • A family violence safety notice in relation to the same AFM and accused person—
    • Was issued after the recognised DVO was made; and
    • Was in force at the time the offence was alleged to have been committed; and
  • The accused person’s conduct complied with the family violence safety notice; and
  • The accused person could not have complied with the recognised DVO at the same time.

The latter defence works in conjunction with s 40 of the Act, which provides that if the accused person is subject to both a family violence safety notice and a recognised DVO, then they must comply with the safety notice.4

There is also a double jeopardy clause in the Act to prevent an accused person being punished for a contravention of a DVO in Victoria under s 123A of the Act if they have already been punished for the contravention in another State or Territory.5

Maximum penalty and court that deals with this charge

This offence carries a maximum fine of 600 penalty units (a $96714 fine) or a maximum of 5 years imprisonment, or both.

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.6 As such, the maximum fine for this offence is liable to change.

This charge is predominantly heard in the Magistrates’ Court.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

What is the legal definition of Contravene Family Violence Intervention Order Intending to Cause Harm or Fear?

LawThe legal definition of Contravene Family Violence Intervention Order Intending to Cause Harm or Fear is as follows:

  1. A person against whom a family violence intervention order has been made and who—
    1. has been served with a copy of the order; or
    2. has had an explanation of the order given to him or her in accordance with section 57(1) or 96(1)—
       

    must not contravene the order intending to cause, or knowing that his or her conduct will probably cause—

    1. physical or mental harm to the protected person, including self-harm; or
    2. apprehension or fear in the protected person for his or her own safety or that of any other person.
       
  2. It is immaterial that some or all of the course of conduct constituting an offence against subsection (2) occurred outside Victoria, so long as the protected person was in Victoria at the time at which that conduct occurred.
  3. It is immaterial that the protected person was outside Victoria at the time at which some or all of the course of conduct constituting an offence against subsection (2) occurred, so long as that conduct occurred in Victoria.
Legislation

The relevant legislative provision for Contravene Family Violence Intervention Order Intending to Cause Harm or Fear is section 123A of the Family Violence Protection Act 2008 (Vic) (the Act).

Elements of the offence

The elements of this offence are:

  1. A family violence order must be made against the accused person;
  2. A copy of the order must have been served on the accused person;
  3. The accused person must have had an explanation of the order given to them in accordance with sections 57(1) or 96(1) of the Act;
  4. The accused person must have contravened the order; and
  5. The accused person contravened the order knowing that their conduct would probably cause physical or mental harm to the AFM, or an apprehension of fear in the AFM for their own safety or the safety of another person.

This offence applies to any contravention of an IVO that occurs on or after 17 April 2013, regardless of when the IVO was issued.7
 
Element 1: A family violence order must be made against the accused person
An accused person must be subject to an IVO to satisfy the first element of this offence.

How an IVO is made, where an application for an IVO is made, who may make an IVO and other relevant information is specified in Part 4 of the Act.

Element 2: A copy of the order must be served on the accused person
An accused person must have had the IVO served on them to satisfy the second element of this offence. An IVO must be served on a respondent personally or, if a court makes an order for alternative service under section 202A(1) of the act, in accordance with that order.8

A court may make an order for alternative service (service other than personal service) by any means the court specifies if the court is satisfied that alternative service is likely to bring the IVO to the attention of the person to be served, will not pose an unacceptable risk to the AFM or any other person’s safety, and is appropriate in all the circumstances.9

Element 3: The accused person must have had an explanation of the order given to them in accordance with sections 57(1) or 96(1) of the Act
The accused person must have had the IVO explained to them in accordance with section 57(1) (for an interim IVO) or 96(1) (for a final IVO) of the Act for the third element of this offence to be satisfied.

An explanation in accordance with section 57(1) requires to the court to provide a clear oral explanation the following matters to the respondent:10

  1. the purpose, terms and effect of the interim order;
  2. 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 under the National Domestic Violence Order Scheme Act 2016 and corresponding DVO recognition laws; and
  1. when the interim order expires and the means by which the interim order may be varied;
  2. for the respondent, that the interim order is a civil order of the court and the protected person cannot give permission to contravene the interim order;
  3. the process for deciding the final order;
  4. how the order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005;
  5. 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;
  6. any relevant family violence services offering legal, emotional or practical support that may be available to the protected person or respondent.

Call Doogue + George
An explanation in accordance with section 96(1) requires to the court to provide a clear oral explanation the following matters to the respondent:11

  1. the purpose, terms and effect of the final 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
  2. if the family violence intervention order prohibits the respondent living with, spending time with or communicating with the child, that prohibition; and
  3. if the family violence intervention 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
  4. the consequences and penalties that may follow if the respondent fails to comply with the terms of the final order; and
  • da. 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
  1. for the respondent, that the final order is a civil order of the court and the protected person cannot give permission to contravene the final order; and
  2. how the final order interacts with a Family Law Act order or an order under the Children, Youth and Families Act 2005; and
  3. 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.

A respondent to both an interim and final IVO must either receive written notice at court or, if they are not at court, be served with notice in writing which contains the above explanation.12

In the case of a child respondent, an oral explanation is not sufficient to allow the order to be enforced.13

Element 4: The accused person must have contravened the order
An accused person must have contravened a condition of their IVO to satisfy the fourth element of this offence.

Whether or not an accused person contravenes their IVO will depend on the conditions of their order. For example, a person’s order might include a 200 metre exclusion clause prohibiting the accused person from coming within 200 metres of anywhere the AFM lives or works. If an accused person came within 180 metres of the AFM’s house while driving down a nearby street, they would have technically breached the order and satisfied the fourth element of this offence.

In determining whether an accused person has contravened an IVO, it is irrelevant whether:

  • Any of the accused person’s contravening conduct occurred outside Victoria, so long as the AFM is in Victoria at the time that the accused person’s contravening conduct occurred;14 or
  • The AFM was outside Victoria at the time of the accused person’s contravening conduct, as long as the contravening conduct occurred in Victoria.15

Element 5: The accused person contravened the order knowing that their conduct would probably cause physical or mental harm to the AFM, or an apprehension of fear in the AFM for their own safety or the safety of another person.

The final element of this offence is that the accused person knew that their contravening conduct would probably cause physical or mental harm to the AFM, or apprehension of fear in the AFM for their own safety or the safety of another person.

‘Mental harm’ includes psychological harm and suicidal thoughts.16 ‘Physical harm’ and ‘apprehension of fear’ are not defined in the Act and carry their ordinary meanings.

An accused person must know that their contravening conduct would probably harm the AFM or raise an apprehension of fear in the AFM. The accused person must be aware that it is more likely than not that their conduct will harm the AFM or raise an apprehension of fear in the AFM to satisfy the final element of this offence.

“Can they prove you knew that your conduct would probably cause the complainant harm?”
Sentencing in the higher courts

Higher CourtFrom 1 July 2011 to 30 June 2016, there were 22 charges of Contravene Family Violence Intervention Order Intending to Cause Harm or Fear heard in the higher courts of Victoria. The majority of these charges resulted in a prison term (86.4%) although Community Correction Order (9.1%) along with other sentencing options (4.6%) were also imposed.

Of the prison terms handed down, the longest was between 2 and 3 years, although this was not common (only imposed on 5.3% of those who were sentenced to prison). The imprisonment term most often imposed was less than one year, which was imposed on 47.4% of those who were imprisoned.17

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, a total of 2,103 cases of Contravene Family Violence Intervention Order Intending to Cause Harm or Fear were heard from 1 July 2013 to 30 June 2016. These cases involved 2,684 charges.

The penalties imposed were (% based on the number of cases): imprisonment (33.2%), Community Correction Order (29.2%), fine (17.6%), adjourned undertaking/discharge/dismissal (12.3%), wholly suspended sentence (4.8%), partially suspended sentence (2.5%), Youth Justice Centre order (0.4%), and other penalties (0.1%).

The longest prison term imposed was over 36 months but this was given to only 0.9% of those who were sentenced to prison. Most people who received a gaol term were sentenced to less than 3 months imprisonment (36.0%).18

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.19

Other important resources

 



[1] Family Violence Protection Act 2008 (Vic) s 123A(5).
[2] A ‘DVO’ is a domestic violence order made in a state territory other than Victoria that applies in Victoria by virtue of the National Domestic Violence Order Scheme Act 2016 If the DVO was made after 25 November 2016, the DVO applies in Victoria automatically. If the DVO was made prior to 25 November 2016, it will need to be ‘declared’ to be a nationally recognised order. Any party to the DVO can request it be declared to a registrar at any Court in Victoria (see https://familyviolence.courts.vic.gov.au/applicant/national-domestic-violence-order-scheme-ndvos).
[3] Family Violence Protection Act 2008 (Vic) s 123A(6).
[4] Family Violence Protection Act 2008 (Vic) s 40.
[5] Family Violence Protection Act 2008 (Vic) s 125B.
[6] See http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/.
[7] Family Violence Protection Act 2008 (Vic) s 224D(4)
[8] Family Violence Protection Act 2008 (Vic) s 202
[9] Family Violence Protection Act 2008 (Vic) s 202A
[10] Family Violence Protection Act 2008 (Vic) s 57(1)
[11] Family Violence Protection Act 2008 (Vic) s 96(1)
[12] Family Violence Protection Act 2008 (Vic) ss 57(2A), 96(3)
[13] See http://www.judicialcollege.vic.edu.au/eManuals/FVBBWeb/34469.htm
[14] Family Violence Protection Act 2008 (Vic) s 123A(3)
[15] Family Violence Protection Act 2008 (Vic) s 123A(4)
[16] Family Violence Protection Act 2008 (Vic) s 123(A)(1).
[17] SACStat Higher Courts – Family Violence Protection Act 2008 (Vic) : s 123A(2) – contravene family violence intervention order-intending harm or fear < https://www.sentencingcouncil.vic.gov.au/sacstat/higher_courts/HC_08_52_123A_2.html >
[18] SAC Statistics – Family Violence Protection Act 2008 (Vic) : s 123A(2) – contravene family violence intervention order intending to case harm or fear < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/08_52_123A_2.html >
[19] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >