The Intersections between Criminal Law and Family Law: Insights provided by Mate Lawyers

Written By: Simran Suvarna

Our referral partners Mate Laywers, who are experienced Criminal Defence Experts and Accredited Specialists in Criminal Law, have recently brought to our attention two significant issues that often emerge across both Criminal and Family law jurisdictions. Below are important takeaways that we encourage our clients to bear in mind.

1. Disappearing messages don’t always disappear.

• Messages that have been sent using features like disappearing or vanish mode are often easily recoverable, contrary to the belief of many clients.
• Messages can also be preserved in several other ways including taking screenshots, downloading conversation history or saving messages within an app or to a drive.
• These messages are increasingly being relied upon as evidence in both criminal and family law matters, particularly in cases involving allegations of domestic violence and related offences such as stalking, intimidation and harassment.
• In NSW, police have broad powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), that permit them to seize electronic devices by way of lawful searches or under search warrants and conduct forensic analysis of those devices.
• Police can also rely on Division 4A of LEPRA, under which they can compel individuals to grant access to devices, apps, and accounts, including the provision of passwords, PINs, biometric access (Face ID/fingerprints), and multi-factor authentication details. Refusal to comply will constitute a criminal offence punishable by up to five years’ imprisonment.

The Lesson:

Messages, even when sent using disappearing or vanish mode, can be recovered and preserved in many ways. They are also a permissible form of evidence that are increasingly being used in the course of legal proceedings across both Criminal and Family Law jurisdictions. As such, it is always in a client’s best interest to communicate as though every message is permanent and could one day be produced before the Court and scrutinised.

2. There is no statute of limitations on sexual assault offences.

• This means that allegations of sexual assault can be reported to the Police several days, weeks, months or years after the alleged incident, and the elapsing of time will not prevent a criminal investigation or prosecution from occurring.
• Casual relationships or one-off sexual encounters are not exempt. You do not have to be in a long-term relationship in order for someone to bring an allegation of sexual assault against you.
• All clients, but especially young adults and parents of teenagers, should be aware of the potential legal consequences in the future, and casual sexual encounters should be approached with the same level of respect and mutual consent as more serious or long-term relationships.
• Such allegations can also have significant implications in family law, with historical allegations of sexual assault often being raised in parenting matters as evidence of child abuse, family violence or risk. These allegations, whether they resulted in criminal convictions or not, have the ability to influence the Court’s assessment of what is in the child’s best interest, and can consequently impact decisions handed down regarding parental responsibility or time spent with the children.

The Lesson:

Sexual assault allegations can be made in the Criminal Law jurisdiction at any time, no matter how much time has passed. Once made, these allegations can be given significant weight in the Family Court’s assessment of risk to any children, that is undertaken in the course of parenting disputes.  As such, clients should ensure that respect and consent are implemented in all sexual relationship and encounters, regardless of their nature.

Conclusion:

We strongly encourage our clients to recognise that any behaviours that give rise to scrutiny or prosecution in the Criminal Law jurisdiction can have lasting implications that extend into the Family Law jurisdiction, and to always conduct themselves accordingly.

We thank Mate Lawyers for their insights on these issues.