Breaching Family Violence Intervention Orders
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What is a family violence Intervention Order?
A Family Violence Intervention Order (FVIO) is a legal order issued by a court to protect individuals from family violence or the threat of violence. Family violence can include physical harm, emotional or psychological abuse, economic control, and threats or coercion that cause the victim to fear for their safety.
The order can impose various conditions on the respondent (the person the order is made against), including:
- Prohibiting the respondent from approaching or contacting the protected person.
- Requiring the respondent to leave a shared residence.
- Restricting the respondent from possessing weapons.
These orders are designed to ensure the safety and well-being of individuals experiencing family violence by legally restricting the behaviour of the perpetrator.
The Family Violence Protection Act 2008 (Vic) underwent significant amendments post-2012, introducing three key offences related to breaches of family violence intervention orders (FVIOs) and family violence safety notices (FVSNs):
- Contravention of Notice Intending to Cause Harm or Fear for Safety – Section 37A
- Contravention of Order Intending to Cause Harm or Fear for Safety – Section 123A
- Persistent Contravention of Notices and Orders – Section 125A
Each of these new offences carries a maximum penalty of five years of imprisonment, highlighting the serious nature of such breaches.
Specific Offences:
- Intending to Cause Harm or Fear for Safety (Sections 37A & 123A):
- Nature of the Offence:
These provisions make it an indictable offence to contravene an FVSN or FVIO in circumstances where the accused intends to cause harm or knows that their conduct will probably cause harm or fear to the protected person.
- Prosecution Requirements:
The prosecution must demonstrate that the accused contravened the FVSN or FVIO.
It must be shown that the accused either intended to cause or was aware that their conduct would likely cause:
- Physical or mental harm (which can include psychological harm or suicidal thoughts).
- Apprehension or fear in the protected person.
- Examples of Breach:
- Showing naked photos of the protected person to others.
- Uploading those photos to social media.
- Sending threatening messages (e.g., death threats).
- Indicating physical danger through intimidation (e.g., sending pictures of tombstones).
- Maximum Penalty:
Level 6 imprisonment (up to 5 years) and/or a fine of 600 penalty units.
2. Persistent Contravention of Notices and Orders (Section 125A):
- Nature of the Offence:
This section targets individuals who repeatedly contravene FVSNs or FVIOs, making it an indictable offence.
- Prosecution Requirements:
The prosecution must prove that the accused engaged in conduct constituting an offence against Section 37 or Section 123.
The accused must have committed such conduct on at least two other occasions within 28 days of the first offence.
All conduct must relate to the same protected person or the same family violence notice/order.
The accused must have known or should have known that they were breaching the notice or order.
- Calculating the 28-Day Period:
The 28-day period is calculated from the day before the date of the third offence. For instance, if two offences occurred on January 1 and 2, and another on January 29, it falls within the 28-day scope.
- Legal Precedent:
The case of Tognolini v R [2011] VSCA 113 clarifies that for acts to be considered separate “occasions,” there must be a clear separation in time or circumstance.
- Maximum Penalty:
Level 6 imprisonment (up to 5 years) and/or a fine of 600 penalty units.
Defences and Legal Considerations
- Defence Strategies:
If charged under Section 125A, it is crucial to consult an experienced criminal lawyer, as they may help raise defences against one or more alleged breaches.
- Duplicity Defence:
If charged with a persistent breach under Section 125A, the accused cannot be charged for the same breaches against sections 37, 37A, 123, or 123A.
- Summary and Indictable Matters:
Charges under sections 37A, 123A, or 125A are indictable but can be triable summarily. Consent from the accused is necessary for summary hearings, and the court considers various factors to determine if summary proceedings are appropriate.
Bail Considerations
If arrested and charged with any of these offences, the accused must “show compelling reasons” for their release. Legal representation is essential in these cases to navigate the complexities involved.
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What happens next?
If you’ve been charged with breaching a Family Violence Intervention Order (FVIO), it’s crucial to seek legal assistance immediately. Contact a criminal defence expert at MK Law on 1800 130 120. Our experienced lawyers will provide you with confidential advice and guidance to help you navigate your charges.
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