A criminal charge, not a civil one

Alleged breach of an order

An apprehended violence order is a civil order. Contravening one is a criminal offence under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and it is dealt with as a criminal charge in its own right.

General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.

Who this page is for

Charged, or worried that something you did was a breach

A breach charge is not only about violence. Contact can be the basis of one: a phone call, a message, turning up at an address, sending something through a friend, a reply to a message the other person sent first. What governs it is the exact conditions on your order: where a condition prohibits contact, contact of that kind can lead to a breach allegation. Read the conditions you are actually under, and get advice about what they allow.

If you have already been charged, read the order and the court attendance notice before you do anything else, and keep following every condition in the order. A second alleged breach while the first is before the court makes everything harder, and nothing about being charged suspends the order.

If you think something you did might have been a breach but nobody has said anything, that is worth advice rather than silence, and it is worth it before you take any further step. Do not contact the protected person to check, to explain or to apologise. That conversation can itself be a further breach.

If the conditions are impossible to live with — you cannot collect your belongings, you cannot see your children, the exclusion covers the place you work — the answer is an application to vary the order, not a decision on your own that this part of it cannot have been meant seriously. Variations explains what that involves.

How we help

What the work actually is

Reading the order against what is alleged

The first question is always which condition is said to have been contravened and what the order actually says, word for word. Orders differ. An order that prohibits approaching a place is not the same as one that prohibits all contact, and the charge has to match the condition.

Testing what the prosecution can prove

A contravention has to be proved beyond reasonable doubt, by evidence. Whether the act happened, whether it was you, whether it fell within the condition and whether the contravention was knowing are separate questions, and the answer to one is not the answer to the others.

Service, knowledge and what you were told

Whether you knew of the order and its terms matters. So does how and when you were served, and whether you were in court when the order was made. Those are facts to establish from the court file rather than from memory.

Advice on plea, before you enter one

A plea of guilty is a decision that cannot easily be taken back and it decides the rest of the matter. We tell you what is likely to follow either way, in plain terms, before you are asked to say anything in a courtroom.

The breach charge and the order together

The AVO proceedings and the criminal charge often run at the same time, sometimes on the same day. Decisions in one affect the other, and they should be made as one set of decisions rather than separately.

Sentencing, and what a conviction carries

Where a matter proceeds to sentence, what the court is told about you matters. So does what a conviction would mean beyond the court: for a firearms licence, for a working with children check, for employment and for immigration status. Those consequences are worked out before, not after.

Questions

Questions people ask first

They contacted me first. Is that a defence?

No. If a condition prohibits you from contacting the protected person, it binds you regardless of who started it and regardless of whether they agreed. The condition is an order, not an arrangement between the two of you, and it is not lifted by agreement. Changing it means applying through the proper route for your order.

The protected person wants to drop it. Can they?

Not once police have charged you. A contravention charge is a criminal prosecution brought by police, and it continues or not according to their decision and the prosecution’s. What the protected person says can matter to the evidence, but it is not a withdrawal and it should never be relied on as one.

Does a breach give me a criminal record?

The apprehended violence order itself does not. It is a civil order and it is not a criminal conviction. A conviction for contravening an order is a criminal conviction and does go on your record. That is the difference the charge makes, and it is why a breach charge deserves advice even where the order was consented to without admissions.

What if I never received the order?

Then say so early and say it to a lawyer rather than to police. Section 14 is directed at a knowing contravention, and the Act deals specifically with a person who was not served with the order and was not present in court when it was made. Whether that applies to you depends on the court file and on what you were told, which is why it is checked rather than assumed.

I need to collect my things from the house.

Do not go there on your own initiative if a condition prohibits it. There are proper ways to arrange collection, including through police or through your lawyer, and in some cases through an application to vary the order. Arranging it properly takes longer than turning up and it is the difference between an inconvenience and a charge.

The condition is impossible to comply with. What do I do?

Ask the court to change it. An order can be varied on application, and a condition that stops you working, housing yourself or seeing your children is exactly the kind of thing a court can be asked about. What you must not do is decide for yourself that a condition cannot have been meant. Until it is varied it binds you. See variations.

Will this affect my firearms licence or my job?

It can. Under the Firearms Act 1996 (NSW) a licence is automatically suspended when an interim order is made and automatically revoked when a final order is made, and firearms must be surrendered. A criminal conviction has consequences of its own for some occupations and for a working with children check. Raise your occupation at the start, not after the matter is finished.

What to bring

A breach matter is decided on documents and dates. Almost every early question is answered from the papers rather than from memory.

The apprehended violence order itself, every page, including any interim or provisional order.
The court attendance notice or charge, and the date and court on it.
The police facts sheet, if you have been given one.
Anything that shows when you were served with the order, or that you were in court when it was made.
The messages, call logs or records that relate to what is alleged, including the ones that do not help you.
Any bail undertaking or bail conditions you have been given.
Any application to vary the order that has been made, by you or by anyone else.
Whether you hold a firearms licence, a working with children check or a visa, and what you do for work.