43. FV Contravention — Which Charge? (Vic)¶
Scope and currency
Cheat sheet · Family Violence Protection Act 2008 (Vic) · ss 37, 37A, 123, 123A, 125A
Precondition (all charges): the accused must (i) have been served with the order/notice, or (for an order) had it explained in accordance with s 57(1), 60G(1) or 96(1); and (ii) have contravened it. For a family violence safety notice both service and a s 35 explanation are required (s 37(1)(a)–(b)). Child respondent: oral explanation is not enough — the order must be served.
The decision sequence¶
GATE 1 What was breached?
→ Family violence safety notice (FVSN): → s 37 branch. → Family violence intervention order (FVIO), interim or final: → s 123 branch.
GATE 2 Intent / knowledge to cause harm or fear?
Did the accused contravene intending to cause, or knowing the conduct would probably cause, physical or mental harm (incl. self-harm) to the protected person, or apprehension/fear for their or another's safety? → Yes — FVSN: s 37A (aggravated). Yes — FVIO: s 123A (aggravated). Both Level 6 (5 yrs / 600 PU). → No: basic contravention — s 37 (FVSN) or s 123 (FVIO). Both Level 7 (2 yrs / 240 PU).
GATE 3 Persistent contravention? (s 125A)
Conduct constituting a s 37 or s 123 offence, plus at least 2 other such occasions in the 28 days immediately preceding, where on each the accused knew or ought to have known the conduct was a contravention? → Yes: charge s 125A persistent contravention (Level 6; 5 yrs / 600 PU). The occasions must relate to the same protected person, the same notice/order, or an FVSN and the FVIO made on it as an application.
The five charges at a glance¶
| Charge | Breached | Extra element | Max penalty | Bail (Sch 2 Bail Act) |
|---|---|---|---|---|
| s 37 | FVSN | — (basic) | Level 7: 2 yrs / 240 PU | Item 18 (if violence used/threatened + qualifying prior) |
| s 37A | FVSN | intent/knowledge — harm or fear | Level 6: 5 yrs / 600 PU | Item 18 (as above) |
| s 123 | FVIO | — (basic) | Level 7: 2 yrs / 240 PU | Item 18 (as above) |
| s 123A | FVIO | intent/knowledge — harm or fear | Level 6: 5 yrs / 600 PU | Item 18 (as above) |
| s 125A | FVSN or FVIO (persistent) | + ≥2 occasions in 28 days; knew / ought to have known | Level 6: 5 yrs / 600 PU | Item 19 |
Bail note (Sch 2 — show compelling reason): Item 18 captures ss 37/37A/123/123A only where the accused used or threatened violence and either has a violence conviction within the preceding 10 years, or the bail decision maker is satisfied the accused separately used/threatened violence against the protected person. Item 19 captures s 125A. A s 20 Crimes Act 1958 threat to kill that is a family violence offence is Sch 2 item 7.
Defences and order interplay¶
• "Least restrictive prevails" defence: where the accused is respondent under both an FVSN and an FVIO for the same protected person, it is a defence that the other order was in force and the accused's conduct did not contravene it (s 37(3) / s 123(3)). Effect: the order with the least restrictive conditions prevails to the extent of any inconsistency. Onus on the defence on the balance of probabilities (Evidence Act 2008 s 141(2); R v Carr-Briant [1943] KB 607).
• Recognised DVO does not excuse an FVSN breach: it is not a defence that a recognised DVO made before the FVSN was in force and the conduct did not contravene the DVO (s 37(4)). Where both an FVSN and a recognised DVO apply, comply with both; if impossible, comply with the FVSN (s 40).
• s 125A alternative verdict + double jeopardy: on a s 125A charge the jury may acquit but convict of the underlying s 37/s 123 offence. A s 125A conviction or acquittal bars later prosecution under ss 37, 37A, 123 or 123A for the same conduct or 28-day period. Interstate double jeopardy: s 125B.
Mens rea for breach¶
Some mental element is now required. DPP v Cope (a pseudonym) [2021] VMC 14 held the prosecution must establish a mens rea element under s 123(2) — the accused must have known the conduct contravened the order (query actual knowledge vs the "ought to have known" standard in s 125A(2)©), displacing the strict-liability reading suggested by Police v Beukes (2011) (SA; persuasive only). For the intent offences (ss 37A/123A), DPP v Cormick [2023] VSCA 186 confirmed the prosecution need not prove an intent to cause the particular effect; general intent to do the act is implied (He Kaw Teh).
Jurisdiction (extraterritorial)¶
Conduct is caught if: the protected person was in Victoria when the conduct occurred (e.g. a text sent from interstate), or the conduct occurred in Victoria while the protected person was interstate (s 37(2A)–(2B); s 123(2A)–(2B)). Same bounds for ss 37A, 123A and 125A.
Service-vs-explanation tension (FVSN)
s 35(4) provides an FVSN is not invalid if police fail to give the explanation, yet s 37(1)(b) requires proof of the explanation before liability for breach. The notes flag the two as difficult to reconcile — confirm the current position before relying on a no-explanation breach.
Currency watch¶
• National DVO Scheme — recognised DVOs enforceable in Victoria from 25 November 2017 (National Domestic Violence Order Scheme Act 2016).
• Mens rea — DPP v Cope (a pseudonym) [2021] VMC 14; DPP v Cormick [2023] VSCA 186 (verify any later appellate treatment).