When criminal law and family law collide
Family law proceedings and criminal law matters can often be worlds apart. They have completely different laws, procedures and court rules which will often see criminal matters finalised long before a family law matter even has its first court date.
Despite their differences though, both criminal and family matters share one thing in common: they can be high stress matters and they have the potential for long lasting effects on people’s lives.
But what about when the two collide with each other?
Well rather unsurprisingly, criminal matters can have a huge impact on family law proceedings and where there are family law proceedings going on, there can often be allegations of criminal offences thrown into the mix. This is where a criminal defence lawyer will come in to give you advice and represent you in the criminal matter. Sometimes this will also mean that your criminal defence lawyer and your family lawyer may exchange information (only with your consent, of course!).
Family and domestic violence
One of the most common examples of where criminal matters interact with family law proceedings is where accusations of family violence are made.
The term “family violence” is a family law term and has a wide meaning in family law proceedings, including non-violent acts such as controlling a spouse’s access to money. But sometimes there can an allegation of physical violence. Depending on what is alleged to have happened, the police may charge the victim’s spouse with an offence such as assault.
Regardless of whether a person is charged though, once a report of domestic violence is made to the police, it will likely result in a provisional Apprehended Domestic Violence Order (“ADVO”) being put in place. These orders can protect the victim, anyone they are in a relationship with, the victim’s children and any other named person. All ADVOs have a common condition, which is that the person it is made against, must not:
assault or threaten, or
stalk, harass, or
intimidate or intentionally or recklessly destroy or damage any property that belongs to the named person or is in their possession.
That protection also extends to any person the victim has a domestic relationship with. An ADVO can also have other conditions included.
While ADVOs play an important role in curbing domestic violence, often times, they can have a major impact on a person’s ability to see and interact with their families including their children.
From a criminal defence perspective, this can be very stressful for a person facing charges.
It’s important to note that while ADVOs often run alongside criminal charges, and are heard and finalised in criminal courts, they are not criminal orders, but civil orders. Read more information about domestic violence charges and ADVOs.
Outside of criminal law, Family Courts (being the Family Court and the Federal Circuit Court) will generally take a cautious view when there is an ADVO in the mix of a family law matter. The most important consideration for Family Courts is the question of what is in the best interests and safety of the child. The cautious approach reflects that consideration. Due to this, the Family Courts may order supervised time with the children (or no time) for a period of time.
Drug charges
Another common example of criminal matters interacting with family law proceedings is when a person is charged with a drug offence, like possession of a prohibited drug. Possession is the most common offence heard in the Local Court. Other drug offences include supply or drug drive. Read more about drug offences.
Which offence a person is charged with depends (amongst other factors) on the quantity of the particular drug and the circumstances surrounding its possession. If a person pleads guilty to a charge, for example possession, the court will have regard to the circumstances of the offence, the quantity involved, whether it was for personal use or for supply, the person’s personal circumstances including their age, criminal history (or lack of), their health and also whether the person is remorseful, when considering what the appropriate sentence is.
The way in which the Family Courts approach drug convictions (or even just an allegation of drug use) is different because there are different considerations for the Family Courts. A cautious approach will generally be taken, especially in parenting matters, until further information is brought before the court.
Are you going through family law proceedings and have been charged with a criminal offence? Need a criminal defence lawyer?
If you’ve been charged with a criminal offence (or are under investigation), our experienced and friendly team will help you navigate through your options and give you an insight into what you can expect. Click on the button below to book a telephone appointment with one of our solicitors.
The above article is general information only and does not constitute legal advice. If you’ve been charged with a criminal offence, the best thing to do is to get legal advice as soon as possible.
