In Queensland it is a criminal offence to breach a condition of a domestic violence order (‘DVO’). The offence is found in section 177 of the Domestic and Family Violence Protection Act 2012 (‘the Act’) and carries a maximum penalty of three years imprisonment.
What do the prosecution have to prove?
For the charge to be made out, Police must prove the following ‘beyond a reasonable doubt’:
- That a DVO has been made against the Respondent. This includes either a Protection Order or a Temporary Protection Order;
- That the defendant was aware of the DVO, usually either by being present in Court or being served by Queensland Police;
- That the defendant breached a condition or conditions of the DVO.
If you were not aware of the existence of a DVO naming you as a Respondent and had not been served or informed of the DVO by a police officer, you may have a defence to the charge of contravention of a DVO. You should immediately seek legal advice in this instance.
As a minimum, DVO’s must contain a standard condition requiring a Respondent to be of ‘good behaviour’ towards an Aggrieved or named persons and not to commit domestic violence. The Court may impose additional conditions.
Other common conditions include:
- To have contact with the Aggrieved or named persons and not to ask any other person to contact the Aggrieved or named persons;
- To not approach or go within a certain distance of the Aggrieved or named persons including their residence, place of employment or place of education;
- To not attempt to locate the Aggrieved;
- To not publicise about or communicate with the Aggrieved via internet including social media websites.
Many DVO’s can have exceptions that allow the Respondent to have contact with the Aggrieved or named persons. Common exceptions include:
- Allowing contact with the written consent of the Aggrieved;
- Allowing contact for the purposes of attending family mediation or court proceedings;
- Allowing contact for the purposes of having contact with a child.
If you do not understand the conditions or exceptions contained on a DVO, it is strongly recommended that you obtain legal advice.
What constitutes a breach?
A DVO can be breached in many ways but often it depends upon the conditions outlined in it. The most common breaches include:
- Not being of good behaviour and committing an act of domestic violence (see below ‘what is domestic violence’);
- Breach of ‘non-contact’ conditions.
What is domestic violence?
Domestic violence is defined under sections 8 to 12 of the Act. The definition is broad but can includes:
- Physical abuse;
- Emotional abuse;
- Economic abuse;
- Verbal abuse;
- Property damage;
- Threats to cause personal injury or self-harm.
As with any offence concerning the use of violence, self-defence and other defences may still apply.
What are the usual penalties?
The maximum penalty for breaching a DVO is three years imprisonment or a fine of up to 120 penalty units.
The maximum penalty increases to five years imprisonment if you have previously been convicted of a domestic violence offence within the last five years.
Typically, the penalties open to the Court are broad and vary depending on the facts, any related prior entries on a defendant’s criminal history and the circumstances of the offending.
Commonly, the range of penalties include a good behaviour bond, a fine, a community-based order which includes community service or probation or in more serious matters (usually where the breach involves violence or prior related entries on a criminal history) a term of imprisonment.
If you have been charged with breaching a DVO, it is strongly recommended that you obtain legal advice.
What negotiations can be made?
For ‘non-contact’ breaches, it may be possible to persuade the prosecution that it would not be in the public interest to proceed with the charge.
When it comes to breaches involving allegations of physical violence, the prosecution are usually much less open to negotiation. However, we are often able to negotiate about the facts of the offence.
What Courts can the offence be heard in?
The offence of a contravening a domestic violence must be heard summarily, in the Magistrates Court. However, an aggravated breach may proceed on indictment in the District or Supreme Courts in certain situations.