Awareness Around Domestic Violence Related Offences Is Increasing

Protecting individuals from fear or acts of domestic and family violence is one of the roles held by:

• our judicial system;
• the Courts; and
• police.

Recent media attention surrounding domestic violence has placed a spotlight on these issues.

The Courts have always given serious consideration to domestic violence-related matters. Growing awareness has only increased the detail in which they examine related offences.

Recently, the Courts have given greater consideration to penalties imposed, to ensure they:

• are an appropriate punishment in the circumstances; and
• will act as adequate deterrence.

For this reason, it is more important than ever to engage a lawyer to appear with you before the Court. For legal advice about domestic violence, speak to a Sunshine Coast lawyer on 07 5408 0655.

The Offence

It is not a criminal offence to have a domestic violence order (DVO) made against you. Thus, it is not uncommon for respondents to consent to the Court making an order on this basis. It is an offence, however, to breach any of the conditions contained within the order.

For this reason, you should talk to a lawyer about your options before consenting to a DVO.

The Penalty

Maximum Penalty

s177 of the Domestic and Family Violence Protection Act prescribes the maximum penalties. Generally, this is:

• 3 years imprisonment; or
• a fine of up to $16,000 (or 120 penalty units). Note: penalty units are generally subject to an annual increase, so the maximum fine may be higher.

Second Offence (Or More) Within 5 Years

A previous conviction on a person’s history can increase the maximum penalty. A person convicted of a domestic violence offence in the past 5 years is subject to a maximum penalty of:

• 5 years imprisonment; or
• a fine of up to $32,000 (or 240 penalty units). See note on penalty units above.

Likely Penalty

The above are the maximum penalties a Court can impose by law for an offence of this nature. The Court needs to consider many other factors to determine an appropriate penalty. The likely penalty a person receives will depend on:

• when the Court made the original order;
• when the breach occurred;
• how long the order was in place before the respondent breached a condition;
• what condition the respondent breached;
• what other conditions are in place;
• whether the respondent has any criminal history;
• whether the respondent has committed a domestic violence offence before; and if so
• whether it was against the same complainant; along with
• the nature and circumstances of the breach.

Depending on these circumstances, other penalties are available, such as:

• good behaviour bonds;
• community service; or
• probation.

Breach of a protection order can also result in a criminal conviction.

What Is A “Breach”?

It is necessary to examine the conditions of an order in detail to determine what will amount to a breach. Our Sunshine Coast lawyers can review your order and offer you tailored advice.

All domestic violence orders will include a standard condition, that:

“The respondent must be of good behaviour and not commit domestic violence against the aggrieved or any other person named on the order.”

Other persons named on the order can include children, family, or friends of the aggrieved.

A Court will also decide if it is necessary or desirable to impose any other conditions. Frequent conditions imposed to protect the aggrieved and any other named persons include:

1. The respondent must not enter, approach, or frequent within a certain distance of:
   1. the aggrieved’s house;
   2. the aggrieved’s place of work; or
   3. other places often attended by the aggrieved.
2. The respondent must not:
   1. locate the aggrieved;
   2. attempt to locate the aggrieved; or
   3. have someone else locate the aggrieved.
3. The respondent must not:
   1. contact the aggrieved;
   2. attempt to contact the aggrieved; or
   3. have someone else contact the aggrieved on their behalf.
4. The respondent must not:
   1. follow within a certain distance of the aggrieved when the aggrieved is at any place;
   2. remain within a certain distance of the aggrieved when the aggrieved is at any place; or
   3. approach to within a certain distance of the aggrieved when the aggrieved is at any place.

The Court can also include exceptions to any of these conditions, depending on:

• the relationship between the parties; and
• whether there are children involved.

There are a wide range of actions that can constitute a breach of the conditions within an order.

Breach of The Standard Condition

Actions that will always breach the order include committing domestic violence:

• against the aggrieved; or
• in the presence of the aggrieved, even if not directed at the aggrieved.

Domestic violence is not limited to physical abuse. It can also include:

• threatening or coercive behaviour;
• emotional or psychological abuse;
• economic abuse;
• controlling behaviour;
• damaging or threatening to damage a person’s property;
• threatening to commit self-harm or suicide to intimidate or frighten the aggrieved; or
• conducting unauthorised surveillance of the aggrieved.

These behaviours would constitute a breach of the standard condition that is on all DVOs.

Breach of Other Conditions

At the other end of the scale, if an order has all the above conditions, less serious behaviour can form a breach.

Asking a friend, for example, to contact the aggrieved to ask a question, may breach a condition of the order. Even behaviour with good intentions can form a breach. For example, arranging for a florist to deliver flowers to the aggrieved or sending gifts. These behaviours can all contravene a domestic violence order.

If the order has a “no contact” condition, this applies regardless of who initiates the contact. If the aggrieved contacts the respondent first, any response can breach the order.

What Happens If You Breach the Conditions of A DVO?

If the respondent does not comply with the conditions of a DVO, any person can report this breach to the police. The police then have a duty to investigate the complaint and may charge the respondent.

When to Speak to a Domestic Violence or Criminal Defence Lawyer

Our Domestic Violence and Criminal Law team can assist you if:

• police have charged you with breach of a domestic violence order;
• you have concerns you may have breached your domestic violence order;
• you do not understand the conditions of your domestic violence order; or
• you are the aggrieved to a DVO and believe the respondent has contravened the order.

Call us on 07 5408 0655 or send us an email to discuss your options with a domestic violence lawyer.

Defences to Breaching A Domestic Violence Order

For a Court to convict a person of the offence of contravening a DVO, the respondent must have been:

• present when the Court made the order;
• served with a copy of the order; or
• told about the existence of the order and conditions of the order by a police officer, in any way.

As such, it is a defence to this charge for a respondent to prove they:

• did not know of the existence or the order; or
• were not aware of the conditions.

It is not enough, however, for the defendant to state they did not:

• understand the conditions of the order; or
• know their actions would constitute a breach.

A defendant can also raise a defence on a factual basis. That is that they did not perform the action alleged to have breached the order.

If you believe you have a defence, we can discuss your available options including:

• negotiating with the prosecution or aggrieved; or
• contesting the matter in Court.

We will also examine the available evidence, what the police alleged, and your version. Based on this, we can give you an idea of your prospects of success of defending the charge.

Appearing in Court

Appearing in Court can be a daunting process. Our domestic violence lawyers have experience speaking before the Court and achieve results. We will present your matter in the best possible light.

Before your Court appearance, proper preparation is key to prove to the Court you are:

• remorseful for your actions;
• willing to take steps to prevent similar events in the future; and
• otherwise of good character.

We will set out what steps you can take to present another side to the Court, beyond the offending.

If you have any questions about the process or likely outcome, our lawyers are here at every step to explain.

Aitken Whyte Lawyers Sunshine Coast are focused on results. Your rights are valuable and we will fight to protect these.

Breach of a domestic violence order can carry serious penalties. Know you’re getting the best result and call us today to discuss the way forward.

For legal advice, representation, or to discuss your situation, call 07 5408 0655.

Office Location and Contact Details

Sunshine Coast

Maroochydore
Aitken Whyte Lawyers
11/8 Pikki Street,
Maroochydore Qld 4558
Ph: +617 5408 0655
Fax: +617 3211 9311
Email Us