How can a Domestic Violence Order be Breached?
Every Domestic Violence Order (DVO) in Queensland contains the following mandatory condition:
- The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved
Therefore, if the respondent is not of good behaviour towards the aggrieved, and/or they commit domestic violence against the aggrieved they will be charged with an offence of Contravene DVO.
A DVO can also include various additional conditions, such as conditions to prohibit contact with the aggrieved, prohibit the respondent from attempting to locate the aggrieved, prohibit the respondent from attending where the aggrieves lives or works. The orders can also include named persons and additional conditions in relation to those named persons and there can be various exceptions listed to conditions to accommodate the parties. For example, it is common to include an exception to the no contact condition if the respondent and aggrieved share children to allow them to have contact via text or email in relation to their children.
A breach of any of those conditions, regardless of the reason for it, including if the aggrieved consented to contact that is otherwise prohibited by the order, will also amount to a charge of Contravene DVO.
It is important that you fully understand all of the conditions and exceptions on the DVO so that you do not inadvertently breach the order as a lack of understanding of the order, or confusion about it will not give rise to a defence to the charge.
Police will initiate criminal proceedings for an offence of Contravene DVO even if the aggrieved is unwilling to make a complaint or has provided a statement they now wish to withdraw.
It is important to note that you can be charged with Contravene DVO if there is only a temporary DVO in place. The offence and penalties that apply are the same for failure to comply with conditions of a temporary order.
If you have been issued a police protection notice and breach a condition of that notice, you may be charged with the offence of Contravention of police protection notice.
What amounts to Domestic Violence?
Domestic Violence is defined in Queensland as:
(1) Domestic violence means behaviour by a person (the first person) towards another person (the second person) with whom the first person is in a relevant relationship that—
(a) is physically or sexually abusive; or
(b) is emotionally or psychologically abusive; or
(c) is economically abusive; or
(d) is threatening; or
(e) is coercive; or
(f)in any other way controls or dominates the second person and causes the second person to fear for the second person’s safety or wellbeing or that of someone else.
(2) Without limiting subsection (1), domestic violence includes the following behaviour—
(a) causing personal injury to a person or threatening to do so;
(b) coercing a person to engage in sexual activity or attempting to do so;
(c) damaging a person’s property or threatening to do so;
(d) depriving a person of the person’s liberty or threatening to do so;
(e) threatening a person with the death or injury of the person, a child of the person, or someone else;
(f) threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed;
(g) causing or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person;
(h) unauthorised surveillance of a person;
(i) unlawfully stalking a person.
(3) A person who counsels or procures someone else to engage in behaviour that, if engaged in by the person, would be domestic violence is taken to have committed domestic violence.
(4) To remove any doubt, it is declared that, for behaviour mentioned in subsection (2) that may constitute a criminal offence, a court may make an order under this Act on the basis that the behaviour is domestic violence even if the behaviour is not proved beyond a reasonable doubt.
(5) In this section—
unauthorised surveillance, of a person, means the unreasonable monitoring or tracking of the person’s movements, activities or interpersonal associations without the person’s consent, including, for example, by using technology.
• reading a person’s SMS messages
• monitoring a person’s email account or internet browser history
• monitoring a person’s account with a social networking internet site
• using a GPS device to track a person’s movements
• checking the recorded history in a person’s GPS device
The lists provided in Queensland legislation are not exhaustive lists and the meaning of domestic violence is broad.
What are Police required to prove?
To be convicted of the offence of Contravene DVO, the police must prove:
- The person is a respondent against whom a DVO has been made
- The person was either:
- Present in court when the order was made; or
- Has been served with a copy of the order; or
- Has been told by a police officer about the existence of the order;
- The person committed the conduct prohibited by a condition of the order. Eg. contacted the aggrieved or committed domestic violence towards the aggrieved
Penalty for Breach a Domestic Violence Order
If you have not been previously convicted of the offence of Contravene DVO, the maximum penalty is 120 penalty units or 3 years imprisonment. If you have previously been convicted of the offence within the last five years, you will be charged with the offence of Contravene DVO (aggravated offence) which has a maximum penalty of 240 penalty units or 5 years imprisonment.
If you have breached a police protection notice that was in force, the maximum penalty is 120 penalty units or 3 years imprisonment.
This post contains general advice only and is not intended as legal advice.