By law, ‘domestic violence orders’ include temporary protection orders and final protection orders. This means that if you have been named as a respondent, you can be criminally charged for breaching either order. It is therefore in the respondent’s best interests to comply with all conditions on the order at all times.
If you have been named as a respondent on a domestic violence order, you may think that as soon as you walk out of court, that’s the end of it. This is not correct. Not only are you required to strictly comply with all conditions on the order (for the duration of the order) but as a respondent, you are also liable to being criminally prosecuted for breaching the order.
Domestic violence order conditions can be specific (such as no contact conditions), but they can also be very broad. For example, a standard condition of every order is that the respondent be of ‘good behaviour’ towards the aggrieved. Many examples of breaches therefore come before the courts.
Common examples we have encountered include:
Importantly, even if the aggrieved instigates or invites the contact, if it is in breach of the order, you can still be charged and prosecuted.
If you are charged with a breach offence (under the Domestic and Family Violence Protection Act 2012), you will be required to attend court. Proceedings for breach offences are criminal proceedings, and in most instances, they can be finalised in the Magistrates Court.
If you are charged with a breach offence, you could be released on a Notice to Appear or granted bail by the watch house, or you could be remanded in custody to appear before a court.
If you are remanded in custody, you may want to make a bail application. Subject to certain circumstances, and unless the prosecution can show that the person charged poses an unacceptable risk, bail will often be granted.
In considering whether you are an unacceptable risk, the court will have regard to matters including:
If your breach offence involved the use, threatened use or attempted use of violence to a person or property, or if you have been convicted of another offence of that nature within the last five years, or if you have been convicted of a previous breach offence within the last two years, you will be in what’s called a ‘show cause’ position. If that happens, you must show cause as to why your continued detention is not justified.
The maximum penalty for breach of a domestic violence order is three years imprisonment, or five years imprisonment if, within the last five years, you have been previously convicted of a breach.
The type of penalty you could receive will depend on a range of factors, including:
If you are convicted of a breach offence, other consequences might include:
This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Gilshenan & Luton, Criminal Lawyers Brisbane and Sunshine Coast, Queensland.