When criminal charges arise between family members, the accused person will often find themselves dealing with two separate court proceedings at the same time.
In our experience, allegations classified as family violence offending are almost always accompanied by a Family Violence Safety Notice or an interim Family Violence Intervention Order. The accused person in the criminal proceeding will usually also be the respondent in the intervention order proceeding.
Although both matters may arise from the same incident, they are governed by different laws, apply different standards of proof and can require different strategic decisions.
Managing one proceeding without considering the effect on the other can expose an accused person to unnecessary risk.
What happens when family violence charges are laid?
Where police allege that a criminal offence has been committed against a family member, they may also take immediate steps to protect the alleged victim, referred to in intervention order proceedings as the affected family member or AFM.
This may involve issuing a Family Violence Safety Notice or applying to the Magistrates’ Court for an interim intervention order.
The conditions commonly:
- exclude the accused person from the affected family member’s home, even if it is also their home
- prohibit direct and indirect contact
- prevent the accused person from approaching the affected family member
- include children as protected people
- restrict access to particular homes, workplaces or schools
These conditions remain in force unless they are varied by the court or the intervention order proceeding is finalised.
The order must be followed even if the affected family member does not support the conditions or later asks the respondent to make contact. A breach can result in further criminal charges. Our article on the legal consequences of breaching an intervention order explains why even apparently minor contact needs to be treated seriously.
The Magistrates’ Court also provides information about responding to a family violence intervention order.
Who is considered a family member?
The definition of a family member under the Family Violence Protection Act 2008 is broader than spouses, parents and children.
It can include:
- a current or former spouse or domestic partner
- a person with whom the accused has, or previously had, an intimate personal relationship
- a current or former relative
- a child who normally or regularly lives with the relevant person
- a child who previously lived with the relevant person on a normal or regular basis
- the child of a person who has or had an intimate relationship with the relevant person
- a person who is regarded as being like a family member
This final category can take into account the social, cultural and emotional circumstances of the relationship. It may include a person who is not biologically or legally related but is treated as part of the family.
The Magistrates’ Court provides further guidance on who is considered a family member and what behaviour can constitute family violence.
If the alleged victim falls within the relevant definition, criminal allegations arising from that relationship may be treated as family violence offending.
The criminal charges and intervention order are different proceedings
The criminal charges and the intervention order may rely on many of the same allegations, but they are not the same case.
The criminal proceeding determines whether the accused person committed one or more criminal offences. The intervention order proceeding determines whether an order is required to protect the affected family member from family violence.
This distinction matters because each proceeding has a different standard of proof.
The criminal standard of proof
In the criminal case, the prosecution must prove each charge beyond reasonable doubt.
This is the highest standard of proof known to law. The accused person does not have to prove their innocence and cannot be compelled to give evidence.
The prosecution must establish every element of the alleged offence. Depending on the charges, the evidence may include witness statements, police interviews, photographs, medical records, CCTV footage, text messages, social media material or recordings from electronic devices.
The intervention order standard of proof
A family violence intervention order is a civil proceeding.
The applicant must establish the relevant matters on the balance of probabilities, which is a lower standard than beyond reasonable doubt.
For a final intervention order to be made, the court will generally need to be satisfied that:
- Family violence has occurred.
- Without the protection of an order, family violence is likely to occur again.
The lower standard means that an intervention order can still be made even where the related criminal charges are withdrawn, dismissed or result in an acquittal.
It does not automatically follow that the intervention order should continue. However, the result of the criminal case does not, by itself, determine the outcome of the civil proceeding.
Galbally Parker’s intervention order lawyers represent respondents, applicants and protected people in these proceedings.
Family violence can include conduct that is not a criminal offence
Another important difference is that the definition of family violence extends beyond conduct that would ordinarily result in a criminal charge.
The definition under the Family Violence Protection Act 2008 includes behaviours such as:
- physical or sexual abuse
- verbal abuse
- emotional or psychological abuse
- economic abuse
- threatening or coercive behaviour
- behaviour that controls or dominates a family member and causes them to fear for their safety or wellbeing
- causing a child to hear, witness or otherwise be exposed to the effects of family violence
Some of this conduct may also constitute a criminal offence. Other behaviour may fall within the legal definition of family violence without being separately charged as a crime.
For example, an affected family member may make allegations of assault alongside claims of controlling finances, monitoring communications, verbal abuse or isolating them from family and friends.
Police may lay criminal charges arising from the alleged assault. The broader allegations can still be included and relied upon in the application for an intervention order.
This is one reason the intervention order proceeding may continue even after the criminal charges have been finalised.
Why do the intervention order proceedings usually wait?
Where the criminal charges and intervention order arise from the same circumstances, the intervention order application will commonly remain before the court while the criminal matter is resolved.
This protects the accused person’s right to silence.
A respondent may wish to challenge allegations made in the intervention order proceeding. To do so fully, they may need to give evidence and answer questions in court.
In the criminal proceeding, however, an accused person cannot be compelled to give evidence. They may choose to rely on the prosecution’s inability to prove the charges beyond reasonable doubt without entering the witness box themselves.
If a contested intervention order hearing were conducted first, the respondent could be placed in a difficult position. They may need to give evidence to defend the intervention order application, knowing that what they say could then be relied upon in the criminal case.
This could undermine the practical protection provided by the right to silence.
Allowing the criminal matter to proceed first means the accused person can defend the charges without being forced to reveal their evidence or defence strategy through the intervention order proceeding.
The order still applies while the criminal case continues
Although the intervention order hearing may be delayed, the interim conditions ordinarily remain in force.
This is one of the most difficult practical features of managing the two proceedings together.
A criminal matter may take months to resolve. During that period, the respondent may remain excluded from the family home or prevented from communicating with the affected family member and children.
The respondent must continue to comply with the precise wording of the order, even where:
- the affected family member initiates contact
- both parties want to reconcile
- they need to discuss children or finances
- personal property remains in the shared home
- the criminal charges appear likely to be withdrawn
- the affected family member says they no longer want the order
A private agreement between the parties does not vary an order made by the court.
The Magistrates’ Court explains that a family violence intervention order is a civil order, but breaking its conditions can result in criminal charges.
Where the conditions are unworkable, the appropriate course may be to apply to vary them rather than risk an alleged breach.
How can the criminal trial affect the intervention order?
The way the criminal matter is conducted can have a significant effect on the intervention order application.
Our experience is that the court may allow more robust cross-examination of an alleged victim in a criminal trial, where the consequences for the accused can be severe, than in a civil intervention order hearing.
The purpose of the questioning is not simply to attack the witness. It may test:
- inconsistencies between different accounts
- changes made to the allegations over time
- whether objective evidence supports the account
- the context surrounding particular messages or recordings
- the witness’s ability to observe or remember events
- whether parts of the account are implausible or contradicted
If the alleged victim’s credibility is significantly damaged during the criminal proceeding, this may affect whether police continue to pursue the intervention order application.
In some cases, a police application may be withdrawn after the criminal trial. In others, police may continue to seek an order based on allegations that were not criminal charges or evidence that remains available despite the result.
This is why the two proceedings should be managed as part of one overall legal strategy rather than treated as unrelated court cases.
What if the criminal charges are withdrawn or dismissed?
The end of the criminal case does not automatically end the intervention order proceeding.
The charges may have dealt with only part of the alleged conduct. The intervention order application may contain additional allegations of non-criminal family violence, including emotional, economic or controlling behaviour.
The different standards of proof also remain relevant. A court may find that a criminal allegation was not proved beyond reasonable doubt but still consider whether family violence has been established on the balance of probabilities.
The respondent may therefore need advice about:
- whether the intervention order application should be contested
- which allegations remain in dispute
- whether any conditions can be negotiated
- whether an order can be made without admissions
- how giving evidence may affect any remaining criminal, family law or regulatory issues
- the practical effect of accepting a final order
An intervention order does not itself amount to a criminal conviction. However, its conditions can have significant consequences for housing, children, employment, firearms and future contact between the parties.
Accepting an order without understanding those consequences can create problems later.
Early legal advice helps coordinate both matters
When criminal charges and an intervention order arise together, decisions made in one proceeding can affect the other.
A person in this position should obtain advice before:
- participating in a police interview
- contacting the affected family member
- agreeing to interim or final conditions
- giving evidence in the intervention order proceeding
- negotiating the criminal charges
- deciding whether to plead guilty or proceed to trial
Our criminal defence lawyer’s guide to speaking with police explains why advice should be obtained before answering questions about an alleged offence.
The legal team should consider both proceedings from the outset, including the evidence relied upon, the allegations that overlap, the allegations unique to the intervention order and the client’s practical circumstances.
A strategy must account for both proceedings
There is no single approach that will be appropriate in every matter.
In some cases, the priority may be defending serious criminal charges. In others, urgent attention may also need to be given to contact with children, access to the home or conditions that affect the respondent’s employment.
The appropriate strategy will depend on:
- the nature and seriousness of the criminal charges
- the conditions of the interim intervention order
- whether the allegations are denied in full or in part
- whether the intervention order includes allegations that are not criminal offences
- the evidence available to each party
- whether family law proceedings are also underway
- the likely effect of giving evidence
- the client’s immediate housing, family and employment needs
Galbally Parker’s family violence lawyers regularly represent clients facing criminal charges and intervention order proceedings arising from the same circumstances.
We understand that navigating two areas of law at the same time can be confusing, particularly when the cases involve the same people, evidence and allegations but follow different legal rules.
If you have been charged with a family violence offence and are also responding to an intervention order application, obtain advice early so both matters can be managed through a coordinated strategy.