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      The Overlap Between Family and Criminal Law

      The Overlap Between Family and Criminal Law

      The Overlap Between Family and Criminal Law 1000 668 Dorter

      While family law proceedings and criminal law matters operate in separate jurisdictions, with unique laws governing their processes and procedures, there can be considerable overlap between the two. Both family and criminal law matters have the capacity to cause long-term and hugely significant change in people’s lives, often bringing with them high levels of stress and uncertainty for the parties involved.

      Criminal law matters can have significant impacts on family law proceedings, especially when children are involved, and it is not uncommon to see allegations of a variety of criminal behaviour in family law matters. If you have a family law matter on foot, and are also accused of a criminal offence, you may need a separate criminal defence lawyer to give you advice about how to best handle those proceedings.

      Family Violence

      The most frequent interaction between family law and criminal law is where allegations are made of family and domestic violence. ‘Family violence’ can cover a variety of behaviour, including physical abuse, as well as financial and emotional manipulation. It is possible that once a report of domestic violence is made to the police, a provisional Apprehended Domestic Violence Order (“ADVO”) will be put in place, regardless of whether that person is actually charged by the police.

      The purpose of an ADVO may be to protect the alleged victim of the violence, their child(ren), anyone the victim might be in a relationship with, and/or any other named person.  This can have the effect of prohibiting contact between parents or between an accused person and their child. Most commonly, ADVOs require the accused person to refrain from assaulting, threatening, stalking or harassing any of the persons named on the ADVO, though further conditions may also be included. However, an ADVO can also prevent a person from contacting another unless through a lawyer, attending a location (including the matrimonial home), and putting in place restrictions on their behaviour, such as not spending time with a child within 12 hours of drinking alcohol.

      NSW has also recently passed laws to criminalise coercive controlling behaviour, which is likely to come into effect in July 2024. ‘Coercive control’ occurs in a relationship where one party engages in behaviour designed to coerce or control the other person, which may include but is not limited to:

      • Threats to harm another person or child;
      • Economic or financial abuse, like withholding or preventing access to finances;
      • Behaviour designed to isolate the victim from their family or friends;
      • Behaviour that unreasonably controls or regulates a person’s day-to-day activities, including in relation to personal, social or sexual autonomy; and
      • Behaviour that injures or causes death to an animal, or makes use of an animal to threaten a person.

      Regardless of the circumstances of any particular matter, the Federal Circuit and Family Court of Australia (“FCFCOA”) in parenting proceedings must make orders that are in the best interest of the child(ren). When determining this, the Court will consider the need to protect the child from being subjected to physical or mental harm. Given this, the Court will normally take a cautious approach where ADVOs or criminal charges are involved, which may include making orders for the child(ren) to temporarily spend supervised time with the parent subject to the ADVO or charges.

      Drug Charges

      Criminal law and family law might also intersect where one party is facing charges for a drug offence, like possession of a prohibited drug.  

      Within family law proceedings, it may be the case that one party faces allegations of drug and alcohol abuse from the other party. In parenting matters, these allegations are dealt with by assessing the risk to the child with respect to that party’s ability to care for and parent the child(ren). The FCFCOA may make orders for a party to undergo drug and/or alcohol testing, attend a rehabilitation program, or may make an order for the child(ren) to spend supervised time with the parent in question. Similar to circumstances involving ADVOs, Courts will often take a cautious approach where drug use or offences are concerned, particularly in parenting matters.

      Section 128 Certificates

      Section 128 Certificates are awarded under the Evidence Act 1995 (NSW) and protect the person against self-incrimination by preventing a witness’s potentially incriminating evidence being used against them in any other proceedings. These certificates can become quite important if, during the course of proceedings, a person is required to give evidence that would suggest they have broken the law. While a Section 128 Certificate does not create an ‘immunity’ from being prosecuted, it could, for example, allow a party to give evidence in their family law matter without fear of that evidence being used in any concurrent or future criminal proceeding.

      For a Section 128 Certificate to be granted, the following must apply:

      1. The party compelled to give evidence must object to providing the evidence sought, and the objection must have reasonable grounds;
      2. The evidence to be given would prove the commission of an offence;
      3. The interest of justice requires that party to give evidence; and
      4. The party agrees to give the evidence, provided a Section 128 Certificate is issued.

      As set out below, section 128 Certificates are an important part of Family Law proceedings, as the Court has the power to refer matters with suspected breaches of the law to external regulatory bodies (such as the Police).

      Powers of Referral

      Despite the protection offered by Section 128, the Court retains its powers to refer matters to appropriate agencies or departments, where it considers an investigation may be warranted, including to the Director of Public Prosecutions (“DPP”), Australian Tax Office (“ATO”), Centrelink and, for legal practitioners, the Office of the Legal Services Commissioner (“OLSC”).

      The Court in Vasilias & Vasilias [2008] FamCA 34 referred the matter to Centrelink, notwithstanding the issuance of Section 128 Certificates, due to concerns over wrongful Centrelink benefits obtained by the parties and a fear the Commonwealth would be prevented from recovering those funds. Similarly, the Court may refer the parties of a family law matter to the ATO if there are findings made of undeclared income tax avoidance or evasion that are of sufficient concern. Parties referred to the ATO for investigation could also be accountable for any ATO penalties imposed and interest on any tax repayments to be made.

      Talk to our experiences legal team

      Our expert family lawyers at Dorter Family Lawyers and Mediators can help you understand all of your options and resolve your family law dispute, despite any possible criminal issues, in a timely and effective manner. Contact our office on (02) 9929 8840 or book in a consultation with us here.