VIC 'Publishing on the Internet' - Breach of Intervention Order?

[GlassHalfFull]

So... If you, the respondent were to email the protected person, you are in breach anyway so no need to establish whether or not 'publication' occurred.... If you, the respondent email ANYBODY else, be it a 'private' email or not, with ANY material relating to the protected person, that meets the definition of publish, because any person, is a member of the public (section of the public) The exception may be to your legal rep

Are you sure you are right that 'a section of the public' can be a single person? To me, it sounds like it should be interpreted as a group or category of people, but I'm happy to stand corrected if there's an established definition. If indeed a 'section of the public' can be literally any single person, then a 'private' person cannot really exist in this context. Once again, the wording seems unnecessarily difficult.

Also, generally speaking, how does the law address conflicting sections within an order? For example, an IVO says the respondent cannot "communicate with the protected person *by any means*". But then it later says "The respondent may.. . negotiate child arrangements by letter, email or text message". I understand that the intention is for child arrangements to be an exception, but a literal reading of both doesn't make it clear which one has primacy over the other. If you are ORDERED not to communicate by any means, you are likely to be rather wary about doing so regarding child arrangements even if the order does imply that an exception has been made for it. Is there actually an established legal rule about how to interpret conflicts like that? Or are we at the mercy of trying to follow "common sense" as Sammy keeps insisting we do? When there's a threat of arrest for breaching the orders, I feel like they should make it a damn sight more clear and unambiguous than it is.

 

[sammy01]

Wait a second.... (nope I am funny).

Glasshalfful - mate chill. Seriously, just chill. Story time. I used to withdraw $20 every time I went past an atm. I did some crazy stuff to be able to 'prove' that my ex was lying when she made complaints to the cops about me breaching the avo. She'd lose her car keys.... Hmm Sammy must have broken in, better call the cops... Eventually, the cops stopped asking me to come to the cop shop for a chat every time she made a complaint, they'd just call me so they could be seen to be investigating her concerns. But I was a nutter, like you are. Overwhelmed with all this stuff, I was looking for faults where they don't exist. Doing crazy stuff like racking up transaction fees at ATM's thinking the cops would do something IF I could 'prove' her complaints were vexatious.

Now I have solutions.
1. I'm not going near the 1 second stupidity.... Forget it. That really is common sense.
2. Is publishing a breach? Technically, yes. So I put up some photos of my kids and me on my private facebook page that I share with my family. Somehow the ex finds out and goes to the cops. As with the case above, they'll investigate, a good common sense (oh not that one again) police officer is gonna tell the ex to go away. A crazy copper might charge me. I would then hope my luck changes and the magistrate isn't as crazy.
So I found this link

Legal Aid NSW | Home

Legal Aid NSW is collective to get legal help, free advice to disadvantaged people about legal issues affecting them and to see fact sheets and resources to help you with your problem.

www.lawaccess.nsw.gov.au

It talks about accidental breaches. So I reckon magistrate won't be interested in my facebook page. I could defend it on the "I didn't know that publishing included private correspondence" and based on the heat of the debate on that topic here I reckon that is plausible.... HOWEVER - if my facebook page is called "i'm gonna thump my ex at 12.00.01 when the avo expires" well magistrate might be less inclined.

3. Common sense... No communication. Sadly, this is where solicitors make their money... And maybe, just maybe, that is good this time. So back in the day, I asked solicitor about that and he said all communication to go through him (for a while). See common sense can be hard to find sometimes, like when you haven't seen your kids for a while and the ex is accusing you of violence. But communicate via letter, text message or email is common sense. Good policy. WHY? Well the proof is there. Indisputable and the magistrate can determine if it was one parent asking to see the kids OR was it harassment.... AVO's are not there to stop one person seeing their kids for up to 5 years. HELL no. So there needs to be accomodations made. 20 text messages a day = harassment. Common sense.

So Glasshalffull wants to know if there is an actual rule. NOPE. The law and the dictionary can't possibly articulate rules for every possibility and if the law makers were to try it would be so bloody convoluted that the average punter would have no chance of getting close to understanding it.

Now, I've had more than my fair share of trips to the cops shop courtesy of AVO's. So I reckon I've got some credentials on this one... In the first instance, the cops spend time explaining the terms. The cops work on the premise that everyone is illiterate.


When breaches happen they investigate. Now I did some research a while back, wish I could find the source… But overwhelmingly, the cops take no further action when they investigate claims of breach of avo. Common sense prevails

So lets close this thing using an example from criminal law. The self defence ‘reasonable force’. You’re attacking me. I push you away and jump in my car and lock the doors. I’ve used reasonable force, so Nope I have not committed assault. I then start the car and run you over… U’m nope. Not reasonable force. Now reasonable force is determined along the lines of what would the average punter do in the situation. The average punter OR to put it another way common sense.

 

[ruckusman]

My thoughts, & first off... I am not here to dispute the misuse of DVO's... It's rampant IMO, however ...

The actual Definition of publish contained with in the relevant legislation >>>
"publish" means disseminate or provide access to the public or a section of the public by any means, including by—


(a) publication in a book, newspaper, magazine or other written publication; or


(b) broadcast by radio or television; or


(c) public exhibition; or


(d) broadcast or electronic communication—

Source... Family Violence Protection Act

So... If you, the respondent were to email the protected person, you are in breach anyway so no need to establish whether or not 'publication' occurred.... If you, the respondent email ANYBODY else, be it a 'private' email or not, with ANY material relating to the protected person, that meets the definition of publish, because any person, is a member of the public (section of the public) The exception may be to your legal rep

Unfortunately that's just more of the sloppy language skills and poor reasoning which have caused the problems.

Direct contact is already an established breach, not sure what your point was to include it.
Then you somehow conflate the substance or content of the communications with publication.

Any particular private person (recipient of email) is a member of the public, unfortunately for your definition to work ANOTHER/OTHER members of the public would have to have access - they don't, you somehow leapt from a single recipient, a member of the public is miraculously now equivalent to a section of the public.

You've missed the word disseminate, you've missed the word access, you've missed the word exhibition, you've missed the word broadcast and gone from a specific person A, the private recipient IS a member of the public, therefore the generalisation that the Public has access is according to you somehow true - it's not, it's false and poor reasoning on your part

That's false logic 101, you cannot go from a specific to the general - more specifically recipient A is a member of the public, therefore a section of the public has access just isn't true.

A private email doesn't meet any of the means of publication in the definition(s) of publication that you yourself provided

 

[ruckusman]

Are you sure you are right that 'a section of the public' can be a single person? To me, it sounds like it should be interpreted as a group or category of people, but I'm happy to stand corrected if there's an established definition. If indeed a 'section of the public' can be literally any single person, then a 'private' person cannot really exist in this context. Once again, the wording seems unnecessarily difficult.

Also, generally speaking, how does the law address conflicting sections within an order? For example, an IVO says the respondent cannot "communicate with the protected person *by any means*". But then it later says "The respondent may.. . negotiate child arrangements by letter, email or text message". I understand that the intention is for child arrangements to be an exception, but a literal reading of both doesn't make it clear which one has primacy over the other. If you are ORDERED not to communicate by any means, you are likely to be rather wary about doing so regarding child arrangements even if the order does imply that an exception has been made for it. Is there actually an established legal rule about how to interpret conflicts like that? Or are we at the mercy of trying to follow "common sense" as Sammy keeps insisting we do? When there's a threat of arrest for breaching the orders, I feel like they should make it a damn sight more clear and unambiguous than it is.

That definition of a single private person being a section of the public was purely tortured logic with no basis whatsoever and it conveniently ignored every single portion of the definition(s) of publication just reverting back to the false claim that because person A sent an email to person B about person C it's somehow miraculously published, well because...I say so - NUH-UH

 

[sammy01]

Hang on a second.... Yep still funny.

"Unfortunately that's just more of the sloppy language skills and poor reasoning which have caused the problems."

Poor reasoning skills? You're prepared to argue with old mate about a second.

So old mate why don't you tell us? Can glasshalffull post photos of his kid on facebook on a page that has privacy settings?

Old mate also asked for real world experience. Respectfully all you've done is use words to confuse. My advice is real world.

Hey Glasshalffull - mate keen on an update... You started this thread ages ago and said you had supervised visits. Where are you up to?

 

[sammy01]

So one more thing on fuzzy logic.
You wrote
An email between private recipients is no more published that a letter sent by the tradition means of normal post is published. Says who? YOU? and old mate was asking about photos...
Then you went on with this attempt at logic
2\ many have incorrectly conflated
How many? When? I want their names and a source to back up your 'logic.' Give us a court case? anything other than your 'logic' because your 'logic' is that you're capacity to apply logic is somehow superior......

 

[ruckusman]

Correction old mate was prepared to argue with me about a second, what gave it away was the use of the term midnight, like I said midnight is a full 24 hours after 12:00 morning on the day of the date of expiration

Don't misquote me, and don't misrepresent me, it's flat out dishonest

If you can fault my reasoning I suggest you do so

Nowhere did I say posting photos on facebook with privacy settings or otherwise would be acceptable IF the children were applicants, i.e. protected persons on the IVO, and I mean nowhere.

Question for you, since you seem intent on having it out, do you regard a private email as published?

If so, provide the argument in full

That's what I was addressing in my responses

 

[ruckusman]

So one more thing on fuzzy logic.
You wrote
An email between private recipients is no more published that a letter sent by the tradition means of normal post is published. Says who? YOU? and old mate was asking about photos...
Then you went on with this attempt at logic
2\ many have incorrectly conflated
How many? When? I want their names and a source to back up your 'logic.' Give us a court case? anything other than your 'logic' because your 'logic' is that you're capacity to apply logic is somehow superior......

Let's go one step further, you give me on single piece of case law which finds that a piece of private correspondence, electronic or otherwise is found to have been published solely by virtue of having been sent to the intended private recipient or recipients

Your turn to stump up on the demands you make of others

 

[GlassHalfFull]

Yeah, Sammy I have to agree with Ruckasman here. You're not following the nuances of the conversation here and you're lecturing us from a position of ignorance on some points. Like he just said, we were debating whether that 1 second subtraction from midnight actually had the effect of making it 24 hours LATER, since 11:59:59pm is the very end of, for example, today the 6th of March. However, 12:00am (what most people call midnight, although it's also been suggested that technically midnight is a point of transition between days and doesn't actually have a time or date) is arguably the START of the 6th of March and therefore would be 23 hours, 59 minutes and 59 seconds EARLIER. 24 hours makes a big difference.
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And like I said, I'm not talking about waiting til the IVO expires to assault anyone. That's a silly assumption. I'm waiting until my IVO expires so that I can start doing the things I should have been able to do all along. Like discuss the return of my property that has been legally withheld from me by the IVO. Yes, waiting 24 hours more is sensible. But you know what would be even more sensible? Writing the law that affects so many people's lives with fewer ambiguous and contradictory lines. You might have the benefit of a sanguine attitude to IVOs, having come out the other side with a favourable time sharing arrangement with your ex. But some of us are still living the injustice.

Story time. I used to withdraw $20 every time I went past an atm. I did some crazy stuff to be able to 'prove' that my ex was lying when she made complaints to the cops about me breaching the avo. She'd lose her car keys.... Hmm Sammy must have broken in, better call the cops... Eventually, the cops stopped asking me to come to the cop shop for a chat every time she made a complaint, they'd just call me so they could be seen to be investigating her concerns. But I was a nutter, like you are. Overwhelmed with all this stuff, I was looking for faults where they don't exist. Doing crazy stuff like racking up transaction fees at ATM's thinking the cops would do something IF I could 'prove' her complaints were vexatious.

You've told me all these stories a few times already. I know. And yes, hopefully the cops are sensible and don't take action over stupid claims. I took my IVO all the way to a contested hearing but on the day, I agreed to consent without admission for 6 months because I decided that with a tricky family court case afoot, I couldn't risk losing the IVO case despite the fact that I had a pretty strong chance of winning. On the day I turned up and discussed the consent without admission to the police prosecutor, he actually told me he knew my ex had a very weak case (She actually admitted to hitting me first) and that this was not what IVOs are supposed to be for. But of course he only told me that knowing that he no longer had to be her advocate. She had even left the court by the time I spoke to the prosecutor (I suspect he had given her a bit of a reality check, reading between the lines), so if I had decided not to consent without admission, I probably would have been in the driver's seat to win my case... But I didn't know that at the time. So the reality is that the police WILL try to f**k you over because it's essentially their job to do so when faced with claims of DV. It's only once they're no longer 'on the job' that they can be honest and tell you you were essentially never in the wrong all along but their hands were tied by DV laws and standard police operating procedure.

So Glasshalffull wants to know if there is an actual rule. NOPE. The law and the dictionary can't possibly articulate rules for every possibility and if the law makers were to try it would be so bloody convoluted that the average punter would have no chance of getting close to understanding it.
Now, I've had more than my fair share of trips to the cops shop courtesy of AVO's. So I reckon I've got some credentials on this one... In the first instance, the cops spend time explaining the terms. The cops work on the premise that everyone is illiterate.

I suspect many cops know less than you give them credit for. And I totally disagree that the law, at least when it comes to IVOs, couldn't be made far more clear. All it takes is a few extra words like instead of simply saying "the respondent may:", it could say "There are exceptions to the above restrictions (the things you cannot do). As long as you do not commit family violence at any time, you are permitted to do any of the following:".

I know it might seem like it's the essentially same thing, it does actually give a bit more context and explains in simple terms how to interpret the contradictions and conflicts in the list of things you can and cannot do. And like you said, let's face it, while you, I and most of the participants here are pretty intelligent people, not everyone with an IVO is, and those extra words will make it a bit easier to interpret. And yes cops might work on the assumption that everyone is illiterate and that's probably a good assumption to work with, but I know in my case, even though the cops DID explain the IVO to me, I was a bit shellshocked that I even HAD an IVO that my head was spinning and I was thinking more about how ridiculous it was. It was only in the following days that I actually began to sit down and look at the terms and try to figure out how to work with them, particularly since my children were named on the order and I wasn't sure how to proceed. It took me weeks to even build up the courage to contact her and ask for a written arrangement to see the children (predictably she refused anyway, and I had to get a lawyer and take it to the family court). That's a real world example of a perfectly literate person being very unsure about how to interpret the order, and being fearful of making a bad situation worse by making contact. The terms really should be clearer. I can't stress that enough.

 

[sammy01]

Hey glasshalffull - mate I just re-read your post. Mate you don't have to wait for the avo to expire to ask for your stuff back. Avo's allow for that to be done (Kinda). But if she refuses, she refuses....

With the expiration of the avo, nothing really changes. Sure you can ask for your stuff back, but it doesn't change the fact that she doesn't have to give it to you. Technically, you can go back to your residence if you're still on the title / lease. BUT oh no.... wait for it - common sense tells us that it is a bad idea because if you go to the house or harass her for your stuff she'll have the cops on you and another avo will be on its way. Mate I've been there. The pool cue my mates bought me for my 18th, my bike. Photos of my trip to Europe when I was 20 - all of it gone. Good life lesson - It is just stuff.


GGRRR -do you regard a private email as published? YES every time (almost) but there is this thing called common sense.

To prove my point lets look at the legislation. now I grant this is family law. NOT criminal law / avo. But let's look at how precise the definitive the legislation is around publication of court proceedings is. I don't think it leaves any wriggle room. The various state laws on avo resonate with the same gusto and then some. Publishing family court stuff can see you go away for 1 year. Breach avo in NSW comes with maximum 2 years.

121 Restriction on publication of court proceedings - .

(1) A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:

(a) a party to the proceedings;

(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or

(c) a witness in the proceedings;

commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.

That is far reaching. the word OR X 6. the word any X 5...

So nope not case law but the legislation is pretty clear. YES. Every time. But my argument has been the same all along. Common sense. The emails I sent to my parents when I had an avo, the photo's on a private facebook, The correspondence to solicitor, nope probably not... Client privilege and all that... But none of it came to the attention of the cops and if it did, the cops would have used that whole common sense thing (which seems to be lacking) and as I never said / wrote expressed any intention to harm - I'd be off the hook...

Sadly, very sadly, there have been cases where the person with the avo has committed violent crimes against the protected persons. Let me give you a multiple choice question do you reckon the police in their investigations of those crimes checked the accused person's electronic devices for evidence?
A) Yes
B) NO
So I"m not gonna waste my time on what is basically common sense. If you're intent on dis-proving the legislation and common sense go and find me a case where electronic means of communication was deemed in-admissible.

Glasshalffull - I disagree mate. I do think the stuff written on AVO's is pretty clear. No communication, not unless about kids stuff. No going near the protected persons or any place you might reasonably assume they might be. It might not be the way you want it worded - but I do think that it is.... Oh no.... Wait for it... Common sense.

On that note - take this bit of advice - waiting until the day after the avo expires to contact the ex for your stuff isn't a good idea, she'll be back at the cops shop in no time and the fact that there is a history of an avo on file (note I didn't say a history of dv) But that is how the cops will read it, they will be onto you in no time.

Please read the first bit of this post about how you could have sought your stuff back ages ago. But the reality is AVO or not, sure you can ask, but legally, she has no obligation to give you the stuff.