3 Common Defence to Breach of Intervention Order
Lack of Awareness
What It Means
This defence to breach of intervention order is based on the idea that the accused was not properly informed about the intervention order. In legal terms, this is often called “lack of service” or “lack of notice.”
Legal Requirements
For this defence to breach of intervention order to be valid, the accused must not have been served with a copy of the intervention order, or they must not have received a proper explanation of its terms and conditions.
How to Prove It
Documentary evidence can be used, such as the lack of a service receipt or an affidavit from a process server. Witness testimony may also be helpful.
🔑 Key Takeaway: If you weren’t adequately informed about the intervention order, gather all possible evidence to prove this point. Legal advice is crucial here.
Mistake of Fact
What It Means
This defence to breach of intervention order is applicable when the accused had an honest and reasonable belief in a set of facts that, if true, would make their actions lawful.
Legal Requirements
The accused must prove that they had a genuine belief in a fact and that this belief was reasonable under the circumstances.
How to Prove It
This often involves presenting evidence that shows why the accused had this belief and why it was reasonable. This could be text messages, emails, or other forms of communication that led to the mistaken belief.
🔑 Key Takeaway: This defence is tricky but not impossible. You’ll need strong evidence and possibly expert testimony to prove your case.
Duress
What It Means
Duress is a defence to breach of intervention order that can be used if the accused was coerced or threatened into breaching the intervention order.
Legal Requirements
The accused must prove that they were under unlawful pressure to commit the act and that there was no reasonable way to escape the situation.
How to Prove It
Evidence could include text messages or recordings of threats, witness testimonies, or any other proof of coercion. The level of coercion must be substantial, often involving a threat to life or severe harm.
🔑 Key Takeaway: Duress is a high bar to clear. You’ll need compelling evidence to prove that you had no other reasonable option but to breach the order.
Elements of Breaching an Intervention Order
Understanding the elements required to prove a breach of an intervention order is crucial for both parties. Here are the key components the prosecution must establish to successfully argue that an intervention order has been violated.
Awareness of the Order
What It Means
The accused must have been aware of the intervention order for establishing a breach. This goes beyond just being served; the accused must understand the terms and conditions laid out in the order.
Legal Requirements
The prosecution must prove that the accused was served with the order and that they understood or should have understood what it entailed.
How to Prove It
The prosecution often relies on the service receipt or an affidavit from the process server. They may also use evidence like text messages or emails where the accused acknowledges the order.
🔑 Key Takeaway: Ignorance is not bliss in legal matters. Ensure you’re fully aware of the terms of any intervention order against you.
Intentional Violation
What It Means
The accused must have intentionally violated the terms of the order. Accidental or unintentional violations generally do not count.
Legal Requirements
The prosecution must prove that the accused knowingly and willingly violated the terms of the order.
How to Prove It
This could involve showing evidence of premeditation, such as text messages or emails where the accused discusses plans to violate the order.
🔑 Key Takeaway: Accidents happen, but intention matters in the eyes of the law. Make sure you’re clear on what constitutes a breach.
Penalties for Breaching an Intervention Order
Breaching an intervention order is no small matter and can result in various penalties, ranging from fines to imprisonment.
The court takes several factors into account when determining the appropriate penalty.
For fines, the court considers the severity of the breach, any prior offences, and the accused’s financial situation.
The amount can vary widely and is often set according to specific legal guidelines.
Imprisonment is usually reserved for more severe cases and involves its own set of considerations.
These include the nature of the breach, the level of harm caused, and any previous offences by the accused.
Legal standards also guide the length of the prison term, ranging from a few months to several years.
Always Seek Legal Advice: Defence to Breach of Intervention Order
Breaching an intervention order is a serious offence with significant penalties, including fines and imprisonment.
The stakes are high, and the consequences can be life-altering.
However, it’s crucial to understand that defences are available under specific conditions.
These can include lack of awareness, mistake of fact, and duress, can be complex to navigate and require substantial evidence to be effective.
This is where the importance of seeking legal advice comes into play. A legal expert can provide:
- Tailored advice based on the specifics of your case.
- Helping you understand your rights.
- The defences available to you.
- The best course of action to take.
We can guide you through the legal process, present your case most effectively and strategise a strong defence to breach of intervention order.
Legal advice is not just a formality; it’s a necessity that can make a world of difference in the outcome of your case.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
