Aggravated contravention of a family violence intervention order is a more serious criminal offence than ordinary contravention. It arises where a person not only breaches a family violence intervention order, but does so intending to cause harm or fear to the protected person, or knowing that their conduct will probably cause such harm or fear.

The offence is created by section 123A of the Family Violence Protection Act 2008 (Vic) and carries a significantly higher maximum penalty than the basic contravention offence under section 123. It is usually heard in the Magistrates’ Court of Victoria.

At Angus Cameron and Partners, we regularly represent clients charged with serious family violence offences, including aggravated contravention. If you have been charged, it is essential to obtain legal advice as early as possible.

The Offence

The prosecution must prove beyond reasonable doubt that:

  • the accused contravened a family violence intervention order; and
  • in doing so, the accused intended to cause, or knew that their conduct would probably cause, the protected person physical or mental harm (including self-harm); or apprehension or fear for their own safety or that of anyone else.

Mental harm for the purposes of this offence includes psychological harm and suicidal thoughts.

The higher fault element — intention or knowledge — is what distinguishes this offence from the basic contravention offence. It is not enough that harm resulted from the conduct; the prosecution must prove the accused either intended that outcome or knew it was probable.

Penalty

The maximum penalty for aggravated contravention under section 123A of the Act is five years’ imprisonment, a fine of 600 penalty units, or both.

This is significantly higher than the two-year maximum for basic contravention. The higher penalty reflects the legislature’s recognition that conduct accompanied by an intention to cause harm or fear is more serious than a technical breach. Courts treat these charges seriously, and repeat offending or conduct involving actual physical harm will attract the most severe outcomes.

Defences

Being charged with aggravated contravention of a family violence intervention order does not mean you are guilty; there are several effective defences which we often use to assist our clients in obtaining a just outcome in their proceedings.

Order not properly served or explained

If the accused was not served with a copy of the order and did not receive an adequate explanation of its terms, the first element of the offence is not made out. This can be a significant issue where orders are made in the accused’s absence, or where the explanation given was inadequate.

Conduct did not breach the order

The terms of family violence intervention orders vary. In some cases, there may be a genuine question about whether the accused’s conduct actually breached the specific conditions of the order. Careful analysis of the order and the alleged conduct is essential.

No intention or knowledge of probable harm

Because the aggravated offence requires proof of intention or knowledge of probable harm, a defence may arise where the accused did not intend the relevant consequences and did not subjectively appreciate that harm or fear was a probable result of their conduct. This is the key distinction from the basic contravention offence, which requires only general intent.

Insufficient evidence

In criminal proceedings, it’s always up to police to prove their case beyond reasonable doubt. In many cases, police simply don’t have enough evidence to establish that an accused person committed the conduct alleged, or that they did so with the required intention or knowledge.

Improperly obtained evidence

Where evidence has been obtained improperly or unlawfully, it’s possible to argue it shouldn’t be used in court. For instance, in some cases, police conduct searches without lawful authority and this can lead to the exclusion of evidence. Legal arguments about improperly obtained evidence are always technical, so it’s important to engage a lawyer to assess whether such a defence is open in your case.

FAQs

What is the difference between basic contravention and aggravated contravention?

Basic contravention under section 123 requires only that the accused intentionally performed conduct that breached the order. Aggravated contravention under section 123A requires additional proof that the accused intended to cause the protected person harm or fear, or knew that harm or fear was a probable result of their conduct. The maximum penalty for aggravated contravention (5 years) is more than double that for basic contravention (2 years).

What is an AFM?

AFM stands for ‘affected family member’. This is terminology used by the Courts to describe the protected person in a family violence intervention order.

Can I be charged with aggravated contravention if no physical harm occurred?

Yes. The offence covers conduct intended to cause mental harm — including psychological harm and suicidal thoughts — or conduct intended to make the protected person fearful for their safety. Physical injury is not required.

What if the protected person contacted me first?

The fact that the protected person initiated contact is not a defence. The obligations under the order bind the respondent. If you respond to contact in a way that was intended to cause harm or fear, or that you knew would probably do so, the aggravated offence may still be established. This is a common and important issue that should be discussed with your lawyer.

Will I go to jail for aggravated contravention?

The risk of imprisonment is real. The maximum penalty is five years’ imprisonment, and courts treat intentional or knowing breaches seriously. The actual outcome will depend on the seriousness of the conduct, your prior record, and your personal circumstances. An experienced lawyer can advise you on the realistic range of outcomes in your matter.

Does the prosecution need to prove I actually caused harm?

No. The prosecution must prove that you intended to cause harm or fear, or that you knew your conduct would probably cause those outcomes. It does not need to prove that harm or fear actually resulted, though evidence of actual harm will often be relevant to sentencing.

Do I need a lawyer?

Yes. Aggravated contravention is a serious charge with a maximum penalty of five years’ imprisonment. An experienced criminal lawyer can identify any available defences, assess the strength of the prosecution’s case, and ensure your matter is presented as effectively as possible.

Related Guides

You may also find the following guides useful: