Criminal law
Contravene AVO
Breaching an apprehended violence order is a criminal offence in its own right, and it is treated more seriously than most people expect. Where the breach involved an act of violence, the court must impose a term of imprisonment unless it gives reasons for not doing so.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Alicia prosecuted for over eight years before moving to defence. We act in the Hills, Hornsby, the Hawkesbury and across greater Sydney.
There are now three contravene offences
Until 2024 there was one. Amendments that year added two more, aimed at breaches intended to cause harm and at repeated breaching. Which one you face makes a substantial difference.
| Offence | What it adds | Maximum penalty |
|---|---|---|
| Contravene AVO | Knowingly contravening a prohibition or restriction in the order. Applies to both apprehended domestic violence orders and apprehended personal violence orders | 2 years, or 50 penalty units, or both |
| Contravene ADVO with intent to cause harm or fear | The same breach, done with the intention of causing the protected person physical or mental harm, or fear for their safety or another’s. The prosecution does not have to prove the harm or fear was actually caused | 3 years, or 100 penalty units, or both |
| Persistently contravene an ADVO | Repeated breaching over a period, rather than a single incident | 5 years, or 150 penalty units, or both |
An attempt to contravene an order is punished as though the contravention had been committed.
The order does not have to be a final one. Provisional and interim orders are enforceable from the moment they take effect, and breaching one is the same offence as breaching a final order. Nor does it matter that you never agreed to it. An order made without your consent, or in your absence, binds you exactly the same way. More on the consequences of agreeing to an AVO.
What counts as a breach
Any conduct falling outside what the order permits, whether or not it was hostile and whether or not anyone was harmed. The conditions people most often fall foul of are not the violence ones.
- Sending a message, calling, or contacting through social media where contact is prohibited
- Passing a message through a friend or family member, which is still contact
- Going to the home, workplace or school named in the order, including to collect belongings
- Being at the same venue or event, where a distance condition applies
- Attending while affected by alcohol or drugs, where that condition is in place
- Possessing a firearm or prohibited weapon, where that condition is in place
- Attempting to locate the protected person
The mandatory condition on every order prohibits assaulting or threatening, stalking, harassing or intimidating, and deliberately or recklessly damaging property belonging to the protected person, and extends to anyone they have a domestic relationship with. Additional conditions vary from order to order, which is why the terms of your particular order matter more than any general description of them. More on AVOs and their conditions.
What the prosecution must prove
- That an order was in force against you at the time
- That you contravened a prohibition or restriction in it
- That you did so knowingly, meaning you knew of the condition and knew what you were doing. An accidental or inadvertent breach is not this offence
Service is an element, not a technicality
You cannot be guilty where you were not served with a copy of the order and were not present in court when it was made. Where the order was not made by a court, such as a provisional order, you cannot be guilty unless you were served with it. This matters more often than people expect, particularly with provisional orders made at short notice and orders varied after the original was served.
Two statutory exceptions
You are not guilty where the contravention was necessary in order to attend mediation, or was done in compliance with the terms of a property recovery order. Those are complete answers to the charge rather than matters of mitigation.
Defences and issues
You were not served
As above. Check what you were actually served with and when, particularly where the order has been varied since.
Not knowing
The breach has to be knowing. Where you did not know of the condition, or the conduct was genuinely inadvertent, the element is not made out.
No contravention on the terms of the order
Orders are specific documents and the conduct alleged does not always fall within the condition relied on. The wording of your order is where this is resolved.
Duress and necessity
Where you were compelled by threats of immediate harm, or the contravention was necessary to prevent greater harm, such as responding to a medical emergency.
Self-defence
Available where the conduct constituting the breach was defending yourself or another person.
The order is invalid
An order that was not validly made, or had expired, cannot be contravened.
Contravene charges frequently arrive with others: assault, intimidation or stalking, damage to property, or using a carriage service to menace or harass. They should be looked at together, because the same evidence usually answers all of them.
The imprisonment provision
This is the provision that makes these charges more serious than their two year maximum suggests.
Where a person is convicted of contravening an order and the act constituting the offence was an act of violence against a person, the court must sentence them to a term of imprisonment unless it orders otherwise. If it decides not to impose imprisonment, it must give its reasons for that decision. The provision does not apply where the person was under 18 at the time.
It does not apply to every breach. A text message, or turning up somewhere, is not an act of violence. But where the breach involved violence, the starting point is imprisonment, and the work is in persuading the court to depart from it. That is not a submission to make unprepared.
If the protected person made contact first
This is the single most common way people end up charged, and the answer surprises them.
The order binds you, not them. If the protected person calls you, invites you over, or asks you to come and collect your things, responding is still a breach. Their consent is not a defence, and it does not matter that the contact was welcome or that you were getting on well at the time.
The law does protect them from prosecution: a protected person cannot be found guilty of aiding, abetting, counselling or procuring a breach of an order made for their protection. So the consequences fall on you alone.
Where the arrangement no longer reflects what either of you wants, the order can be varied or revoked on application to the court. That is the mechanism, and it exists precisely for this situation. More on varying or revoking an AVO.
Orders made in another state
They are enforceable here. Under the national recognition scheme, domestic violence orders made anywhere in Australia on or after 25 November 2017, including provisional and interim orders, are automatically recognised and enforceable in every state and territory. For orders made before that date, an application to register the order can be made in the state where the person now lives.
The names differ between jurisdictions. Family violence orders, intervention orders, protection orders, violence restraining orders and domestic violence orders all describe the same kind of order, and breaching one in New South Wales is prosecuted here as a contravention.
Sentencing options in NSW
Get advice before pleading guilty to anything. The court can impose any of the following, and a well-prepared sentencing is what produces the best available outcome.
Dismissal without conviction
No conviction recorded and no further penalty. The matter is finalised as you leave court.
Conditional release order
A bond, available with or without a conviction, supervised or unsupervised. The standard conditions are to commit no further offence and to appear if called on, and further conditions can include rehabilitation, abstinence, curfews and non-association or place restriction orders.
Conviction with no other penalty
A conviction is recorded but nothing further is imposed.
Fine
Can be imposed alone or with a bond, and is a conviction. Usually payable within 28 days, though the registry can extend the time or arrange a plan. Non-payment leads to enforcement, which can include licence and registration suspension.
Community correction order
More serious than a conditional release order, for up to three years, supervised or unsupervised, with conditions that can include community service, curfews, abstinence and rehabilitation.
Intensive correction order
A sentence of imprisonment served in the community under strict supervision, which can include home detention, electronic monitoring and curfews. It is not available for some offences. Breaches go to the State Parole Authority rather than the court and often result in serving the balance in custody.
A word on written pleas of guilty. Police sometimes hand you a form allowing you to plead guilty in writing without attending. It looks convenient and it is usually a mistake. On a written plea the magistrate has only the police fact sheet and your record, and knows nothing about you, your circumstances or anything mitigating. The penalty is often heavier as a result. It is also important that you agree with what the fact sheet says before it is tendered, because the court sentences on that document.
Common questions
She contacted me first. How can I be the one charged?
Because the order restrains you, not her. Responding to contact she initiated is still a breach, her consent is not a defence, and she cannot be prosecuted for encouraging it. If the order no longer suits either of you, the way to change that is an application to vary or revoke it, not an informal understanding.
I only sent a text. Is that really a criminal offence?
Yes, where contact is prohibited. The content does not have to be threatening and it does not matter that it was a single message. It is a breach of a court order, and that is how it is treated. It will not attract the imprisonment provision, which applies only where the breach involved an act of violence.
I never received the order. Where does that leave me?
Potentially with a complete answer to the charge. You cannot be guilty if you were not served and were not in court when the order was made. Service is worth checking carefully, particularly where the order has been varied since it was first served on you.
Will I go to gaol?
Where the breach involved an act of violence, imprisonment is the starting point and the court must give reasons for not imposing it. Where it did not, a range of other outcomes is available, and many of these matters resolve without custody. Repeat breaches change the picture considerably.
Can I get a non-conviction?
It is possible at the lower end, particularly for a first breach that involved no violence, though courts are conscious that the offence is a breach of a court order and are more reluctant here than on many charges. How the matter is prepared and presented is what decides it.
The AVO was made interstate. Does it apply here?
Yes. Orders made anywhere in Australia since late 2017 are automatically recognised and enforceable in New South Wales, and breaching one here is prosecuted here.
Can I ask for the order to be changed instead?
Yes. Either party can apply to vary or revoke an order, and where circumstances have genuinely changed that is the proper course. It is a separate application and it should be dealt with before, not after, the conditions become a problem.
What should I bring to the first appointment?
A copy of the AVO, the court attendance notice, the police fact sheet, any bail conditions, and any messages or records relevant to the alleged breach. If you have none of it, come anyway.
Get advice before the first mention
These charges carry consequences well beyond the maximum penalty, and the service and knowledge requirements are answered more often than people assume. We act in the criminal charge, the AVO and any family law consequences together, rather than leaving you to run them through separate firms.
Alicia Catron 0407 171 626 or Michelle Simmons 0407 534 594. Suite 3.13, 33 Lexington Drive, Bella Vista NSW 2153. Courts we appear in.