Breach of a Family Violence Intervention Order in Victoria

In Victoria, Family Violence Intervention Orders (FVIOs) are made under the Family Violence Protection Act 2008. A person who has an FVIO made against them must not breach the conditions of the order. If they do so, they are guilty of a criminal offence. This page deals with breaches of Family Violence Intervention Orders in Victoria.  

Family Violence Intervention Orders are used in situations where this has been or is likely to be violence between people who are in a domestic family relationship. A person may apply for an order for their own protection. Alternately, police may apply for an order on a person’s behalf.  

Breaching an FVIO

Breaching an FVIO is an offence under section 123 of the Family Violence Protection Act 2008. This offence attracts a maximum penalty of a fine of 240 penalty units or imprisonment for two years.

Breach of FVIO intending to cause harm

Breaching an FVIO with the intention of causing physical or mental harm to the protected person or of causing them to fear for their safety is an offence under section 123A of the Family Violence Protection Act 2008. This offence attracts a maximum penalty of a fine of 600 penalty units or imprisonment for five years.

Persistent breach of FVIO

Under section 125A, of the Family Violence Protection Act 2008, it is an offence to persistently breaches an FVIO or family violence safety notice. This offence consists of breaching an order or a notice two or more times within 28 days. It attracts a maximum penalty of a fine of 600 penalty units or imprisonment for five years.

Report breaches to police

If you are the protected person in a Family Violence Intervention Order and you believe that the defendant has breached the order’s conditions, you should report this to the police promptly. You should also try to write down the details of the breach including important information such as dates, times, and what happened. This will assist police when investigating the offence.

Varying an order

A protected person who is dissatisfied with the conditions of a Family Violence Intervention Order should not encourage the defendant to do anything that breaches the order’s current conditions. Instead, they should apply to the court to have the conditions amended or to have the order cancelled.

Defences to breach FVIO

A person charged with breaching a Family Violence Intervention Order may have a legal defence. Some of these are outlined below.

Defendant was not aware of order

It is important to note that a Family Violence Intervention Orders in Victoria do not operate until the defendant has been served with a copy of the order or until they have received an explanation of the order in accordance with the Family Violence Protection Act 2008. If a person is charged with breaching an order that they were not aware of, they have a defence.

Mistake of fact

Breaching a Family Violence Intervention Order is a strict liability offence. This means that it does not require the accused to have had a specific mental state (such as intent or recklessness). However, it does require the accused to have had knowledge of the essential facts making up the offence.

If a person is charged with breaching an order and the offence occurred because of an honest and reasonable but mistaken belief in a matter of fact, they have a legal defence.

Examples of where a person has a defence of mistake of fact are:

• Where a person approaches the protected person mistaking them for someone else;
• Where a person attends the protected person’s workplace believing on reasonable grounds that they do not work there anymore.

Accident

If a person is the defendant in an order that prohibits contact with the protected person and they come into contact with the protected person accidentally or by chance, they are not guilty of an offence. For example, if the defendant attends the local supermarket and the protected person is there, no offence has been committed. However, if the defendant then attempts to talk to the protected person, they are committing an offence.

Duress

If a person carries out conduct that breaches an order only because they were placed under duress by another person, they are not guilty of an offence. For example, if a person was forced by another person to attend an address where the protected person was present contrary to the terms of an order, they have a defence.

The defence of duress very rarely succeeds as a very high level of coercion must have been present. The accused must have feared serious harm or death if they did not comply with their attacker’s demands.   

What if the protected person contacts me?

In Victoria, a protected person cannot be found guilty of encouraging, permitting, or authorising a defendant to breach a Family Violence Intervention Order. This means that a protected person will not be in contravention of the order even if they invite the defendant to come to their home or spend time with them contrary to the conditions of the order. However, in this situation, the defendant will be in breach if they accept the invitation. Therefore, it is important to get legal advice before responding to any communication made by the protected person in an FVIO.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.

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