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Why FVIOs and Criminal Charges Must Be Managed Together
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Separate Legal Proceedings
A single incident can result in two separate legal proceedings. Police may charge a person with a criminal offence. At the same time, there may be an application for a Family Violence Intervention Order. These are not the same case. But treating them as though they have nothing to do with each other can create serious strategic problems.
At Emma Turnbull Lawyers, our criminal law background is particularly important in FVIO matters because we look at the intervention order as part of the whole legal picture.
At Emma Turnbull Lawyers, our criminal law background is particularly important in FVIO matters because we look at the intervention order as part of the whole legal picture.
How can both proceedings arise from the same incident?
An alleged family-violence incident might lead to criminal allegations such as assault, property damage, threats or other offences. The same events may also form the basis of an FVIO application. Police may bring the intervention-order application even where the person being protected later says they no longer want the proceeding to continue.
That can leave the respondent facing a criminal prosecution and a civil intervention-order proceeding at the same time.
Why does that create strategic issues?
The underlying facts may overlap. The same messages, witnesses, photographs, CCTV, police statements and alleged incidents may feature in both proceedings.
What is said, conceded or disputed in one context may need to be considered against the broader case.
This is why decisions in the FVIO matter should not necessarily be made without considering the criminal case.
Should I consent to the FVIO if criminal charges are pending?
There is no automatic answer. It may sometimes be possible to consent to an FVIO without admitting the allegations. In other cases, the proceeding may need to be contested or the proposed conditions negotiated.
Before deciding, we consider:
- what the criminal allegations are
- what evidence exists
- what conditions are sought
- whether the intervention-order resolution could affect the broader strategy
- what the client needs to achieve
- whether the proposed outcome is practically workable
The point is not that every respondent facing criminal charges should contest an FVIO. It is that the decision should be informed. Read more in our previous article on when you should consent to an FVIO.
What about bail conditions?
A person facing criminal charges may also be subject to bail conditions. That can create another layer of restrictions around:
- residence
- residence
- contact
- attendance at particular locations
- communication with alleged victims or witnesses
The FVIO conditions and bail position therefore need to be considered together.
A client needs to understand all the orders affecting what they can and cannot do.
What evidence matters?
In a contested FVIO proceeding, preparation may involve:
- identifying precisely what conduct is alleged
- obtaining further particulars if necessary
- collecting documentary and electronic evidence
- identifying witnesses
- considering the related criminal case
- preparing the client to give evidence
- preparing cross-examination
- ultimately presenting evidence and submissions to the Court
That work should be undertaken with awareness of the criminal proceeding. For more information on preserving evidence, read our guide here.
Why criminal-law expertise matters
Intervention-order work is civil, but the consequences can intersect heavily with criminal law. Breaching an FVIO can itself result in criminal charges.
The original alleged conduct may also already be the subject of a prosecution. That is why Emma Turnbull Lawyers does not look at the intervention order in isolation.
We consider, what is happening in the criminal case? What evidence overlaps?
What are the bail conditions? What can safely be said or agreed in the FVIO proceeding? What resolution best protects the client's overall legal position?
A good strategy should deal with the entire problem, not just the next court date.
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This article provides general information only and does not constitute legal advice. Intervention order and criminal proceedings depend upon the individual circumstances of each case.
This article provides general information only and does not constitute legal advice. Intervention order and criminal proceedings depend upon the individual circumstances of each case.
