Persistent Contravention of Family Violence Intervention Order or Notices

– section 125A of the Family Violence Protection Act 2008
Persistent TextingIt is an offence to persistently contravene a family violence intervention order or family violence safety notice. Persistent contravention is defined as at least twice in the preceding four weeks. The conduct must be related to the same protected person. Alternatively, it can relate to the same intervention order or notice and any of the protected people. At the time of the alleged contravention, the accused ought to have known that the conduct constituted a contravention of the order or notice.
 
Examples of Persistent Contravention of Family Violence Intervention Order or Notices
  • A person goes to the house of an ex-partner when there is an intervention order in place. Two weeks later the same person contacts their ex-partners mother who is included in the same order. That person ought to have known not to contact both people.
  • A person threatens a family member who is protected under an intervention order by way of damaging their property via text massage. The following day the same person posts a photo of their family member on social media. That person ought to have known not to contact that person or visit that property.
  • A person is repeatedly seen to be too close to a protected persons residence, work or their school or childcare if they are younger. That person ought to have known not to visit those locations.
Questions in cases like this
  • Did the conduct constitute a breach of an order or notice?
  • Did the person know or should they have known that they were breaching an order or notice?
  • Is there clear separation between the alleged conduct?
What are some of the possible defences to Persistent Contravention of Family Violence Intervention Order or Notices?

Cases related to the offence of Persistent Contravention of Family Violence Intervention Order or Notices may be defended on the basis of a failure to prove the intent to commit the offence, impossibility, necessity, factual errors, failure to comply with the elements of the offence (as stated above), and the concept of putting the prosecution to their proof.

Maximum penalty and court that deals with this charge

This offence carries a maximum fine of 600 ($96,714.00 at the time of print) penalty units or maximum of 5 years imprisonment, or both.
 
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What is the legal definition of Persistent Contravention of Family Violence Intervention Order or Notices?

It is an offence to persistently contravene a family violence intervention order or family violence safety notice.

The elements of the offence are:

  • an accused engages in conduct which constitutes a contravention of an intervention order in accordance with s123 or a contravention of a safety notice in accordance with s37; and
  • on at least two occasions in the preceding four weeks, that accused engaged in conduct which constitutes a contravention of an intervention order in accordance with s123 or a contravention of a safety notice in accordance with s37; and
  • that conduct occurred in relation to:
    • the same protected person; or
    • the same family violence intervention order (whether interim or final) or family violence safety notice, irrespective of whether it was directed at the same protected person; or
    • a family violence safety notice and a family violence intervention order (whether interim or final), provided that the relevant safety notice constituted the application for the relevant intervention order, irrespective of whether the conduct of the accused was directed at the same protected person; and
  • on each occasion in which the accused engaged in the relevant conduct, the accused knew or ought to have known that the conduct constituted a contravention of the intervention order or safety notice1
Legislation

The offence of Persistent Contravention of Family Violence Intervention Order or Notices, is governed by section 125A of the Family Violence Protection Act 2008.

“Have you been accused of persistently contravening a family violence order or notice?”
Elements of the offence
  • The accused engaged in conduct that would constitute an offence against section 37 of the Family Violence Protection Act 2008 (contravention of family violence safety notice) or section 123 (contravention of family violence intervention order)
  • On at least 2 other occasions within a period of 28 days immediately preceding the conduct (breach of order/notice), the accused engaged in conduct that would constitute an offence against section 37 or section 123 in relation to the same protected person; or the same family violence safety notice or family violence intervention order (when an interim order or final order), whether or not in relation to the same protected person; or a family violence safety notice and a family violence intervention order (whether an interim order or final order) made on the family violence safety notice as an application, whether or not in relation to the same protected person AND
  • On each of the occasions referred to in the paragraphs (a), and (b) the accused knew or ought to have known that the conduct constituted a contravention of the family violence safety notice or family violence intervention order (as the case requires).
Sentencing in the higher courts

High CourtIn the higher courts, 22 charges of Persistent Contravention of Family Violence Intervention Order or Notices have been made from 1 July 2011 to 30 June 2016. Most of these charges resulted in imprisonment (86.4%) but there were others who received a Community Correction Order (13.6%).2

Sentencing in the Magistrates’ Courts

In the Magistrates’ Courts, there were 2,820 cases (3,664 charges) of this offence that were heard in a span of 3 years from 1 July 2013 to 30 June 2016. Majority of the cases also led to imprisonment (34.4%), followed by Community Correction Order (31.7%), and fines (18.4%). Other sentences imposed were adjourned undertaking/discharge/dismissal (9.7%), wholly suspended sentence (3.9%), partially suspended sentence (1.8%), Youth Justice Centre order (0.3%), and other sentencing forms (0.1%).

Of the prison terms imposed, the longest was more than 36 months but this was the least imposed at only 0.6% of the cases that resulted in imprisonment. The majority of cases that led to a prison term was sentenced to less than 3 months at 38.2%.

Of the charges that resulted in fines, 0.3% (aggregate) were in the “$10,000 < $20,000" category - which is the highest category of fine imposed for this offence during the period. The majority of the charges that led to aggregate fines fell under the "$1,000 < $2,000" category (26.3%), and the majority of the charges that led to non-aggregate fines fell under the "$500 < $1,000" category (17.7%).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 related to Persistent Contravention of Family Violence Intervention Order or Notices
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