Breach of a Domestic Violence Protection Order
Should I get legal advice if a domestic violence protection order is made against me?
The conditions of a Domestic Violence Order or notice are very serious and it is important to obtain legal advice to fully understand all of the conditions. Breaching a Domestic Violence Protection Order (including any temporary orders or police protection notices) is a serious criminal offence. If you are found guilty of breaching a protection order, you could face serious penalties, including terms of imprisonment.
What the law says about breaches of a domestic violence order
Section 177 of the Domestic and Family Violence Protection Act 2012 makes it an offence to breach the conditions of a Domestic Violence Protection Order.
If you are a respondent of a Domestic Violence Order, you must not contravene any conditions imposed by the order, if:-
(a) you were present in court when the order was made; or
(b) you have been served with a copy of the order; or
(c) a police officer has told you about the existence of the order.
What the police must prove
In order for the Police to prove their case at Court, they must prove each of the following matters beyond a reasonable doubt:-
- The accused was the respondent in respect of a Domestic Violence Order that was in place at the time of the offence;
- The aggrieved was a person named on that Domestic Violence Order as a person to benefit from that order; and
- The accused breached that order by:
(a) failing to be of good behaviour towards the aggrieved;
(b) committing an act of domestic violence; and/or
(c) failing to comply with one of the conditions made by the court.
It will be necessary for the Police in every offence to prove that the accused was the person who committed the offence. Click here to learn more about identification evidence.
The maximum penalty for breach of a Domestic Violence Protection Order is 3 years imprisonment or a fine of 120 penalty units*.
If you have previously been convicted of a ‘domestic violence offence’ within 5 years of breaching the Domestic Violence Protection Order, the maximum penalty is 5 years imprisonment or a fine of 240 penalty units*.
*One penalty unit = $117.80.
You should contact us if you are charged with breach of a Domestic Violence Protection Order. Our lawyers are experienced in these charges and can give you detailed advice around the charge and your options.
What is a domestic violence offence?
A previous conviction of a ‘domestic violence offence’ within 5 years increases the maximum penalty for breaching a Domestic Violence Protection Order.
A ‘domestic violence offence’ includes:
- Breaching of a Domestic Violence Protection Order; or
- Any other offence (such as assault) that constitutes ‘domestic violence’ under the Domestic and Family Violence Protection Act 2012.
The laws have recently changed around the term ‘domestic violence offence’. If you have previously been convicted of an offence that is considered ‘domestic violence’ under law, the prosecution can make an application that the previous conviction be known as a ‘domestic violence offence’.
It is very important that you receive legal advice around your criminal history, as previous convictions may affect your penalty for a breach of a Domestic Violence Protection Order.
Which court will hear the matter if I breach a Domestic Violence Protection Order?
A contravention or breach of a Domestic Violence Protection Order is heard in the Magistrates Court.
Possible defences to this offence include but are not limited to:
- Where the accused was not the subject of the Domestic Violence Order Notice.
- Where the accused was not aware of the Domestic Violence Order Notice.
- Where the accused was not served with a copy of the Domestic Violence Order Notice.
- Where a police officer did not inform the accused of the particular condition as well as the Domestic Violence Order in general.
- Duress – example: there was a threat to the accused or another person that the accused reasonably believed would have been carried out if he/she had not have done the act that was in breach of the order.
- Necessity – example: there was an extraordinary emergency.
- Identification i.e. not the accused.
- Mistake of fact – example: the accused had an honest and reasonable, but mistaken belief that they were not the subject of the Domestic Violence Protection Order.
It is not a defence for proceedings in respect of an interstate order to show that the accused was unaware the interstate order could be registered in Queensland or was in fact registered in Queensland.
You should contact us about what defences may be open to you if you are in breach of a Domestic Violence Protection Order.