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

[sammy01]

calm down kiddies.
We all seem to be in agreement here. Well you both are. Publishing photos on Facebook or what ever. COULD be a breach. It probably is. As you both have said. So despite being in agreement, you guys are still arguing? You should be arguing with me. WHY?

I disagree.
A photo on facebook, ESPECIALLY if it is a closed facebook page might well be a technical breach of the avo. So a photo of the kids taken and printed and sent to grandma. Is that a breach? technically, yes.. But there is this thing called common sense. No magistrate is gonna lock you up for that one. Facebook post of kid. Technical breach, but without being able to establish intent, malice etc. Boring... Facebook page with kid and some commentary about how sad the kid looks because mum is stopping dad from seeing the kid? BAD IDEA. But if it went to court the ex would need to establish that 1. There was a breach, so in this case that would require old mate to put stuff on his private facebook page and for one of his facebook friends to share that with the ex... Then for the ex to be able to prove that the intent was to harass. Not gonna happen...

Scenario. My new tablet upload photos directly to 'the cloud' via my g-mail account. Is that a breach? technically yes...

I was in and out of the cop shop a dozen times due to the ex making accusation of breaches. After a while the cops stopped asking me to come in for an interview because they worked out the ex was doing all she could to get me locked up. Common sense prevailed (unlike the approach of some posters here).

Solution? Take the photos. Wait till the avo is over. Or have a closed facebook page and the ex would never know. When I think back about the email conversations between myself and my parents about my ex. Sure, technically a breach of the avo. ABSOLUTELY... But were my parents gonna go to the cops?
Lesson?
Stress less, pick your battles and frankly don't get so caught up in crazy land about minor technical details as is the case here and that way you will live longer and be happier.

 

[GlassHalfFull]

calm down kiddies.
We all seem to be in agreement here. Well you both are. Publishing photos on Facebook or what ever. COULD be a breach. It probably is. As you both have said. So despite being in agreement, you guys are still arguing? You should be arguing with me. WHY?

I disagree.
A photo on facebook, ESPECIALLY if it is a closed facebook page might well be a technical breach of the avo. So a photo of the kids taken and printed and sent to grandma. Is that a breach? technically, yes.. But there is this thing called common sense. No magistrate is gonna lock you up for that one. Facebook post of kid. Technical breach, but without being able to establish intent, malice etc. Boring... Facebook page with kid and some commentary about how sad the kid looks because mum is stopping dad from seeing the kid? BAD IDEA. But if it went to court the ex would need to establish that 1. There was a breach, so in this case that would require old mate to put stuff on his private facebook page and for one of his facebook friends to share that with the ex... Then for the ex to be able to prove that the intent was to harass. Not gonna happen...

Scenario. My new tablet upload photos directly to 'the cloud' via my g-mail account. Is that a breach? technically yes...

I was in and out of the cop shop a dozen times due to the ex making accusation of breaches. After a while the cops stopped asking me to come in for an interview because they worked out the ex was doing all she could to get me locked up. Common sense prevailed (unlike the approach of some posters here).

Solution? Take the photos. Wait till the avo is over. Or have a closed facebook page and the ex would never know. When I think back about the email conversations between myself and my parents about my ex. Sure, technically a breach of the avo. ABSOLUTELY... But were my parents gonna go to the cops?
Lesson?
Stress less, pick your battles and frankly don't get so caught up in crazy land about minor technical details as is the case here and that way you will live longer and be happier.

Yeah, that was my problem with Complex16 Sammy. She responded, I took her advice and agreed with her and it was done, then she kept moralising and judging me and started making smarmy, self righteous personal attacks (not just here but in another thread that I had posted!).

Anyway, yeah, your point of view was one I was expecting to see a bit more of, if not as legal advice then at least how to work with the law in the real world. About how the no publishing on the internet condition might be interpreted in the real world. Of course nobody can definitively say that as long as it's not published anywhere public, you'll automatically be safe just because that's not what the condition is supposed to concern itself with. I suppose the real world is the "cover your butt because there are jobsworths out there looking for reasons to arrest you".

I mean, I guess there are two schools of thought here. One is that you should follow the law regardless of how stupid and how badly it applies to individual circumstances. Not bad advice given the consequences for not doing so I suppose. But the other is "de minimis non curat lex". Or: the law does not concern itself with the trivial. The only concern with that school of thought is we don't know exactly how trivially a magistrate is going to see it until it's tested in court, with pretty serious consequences if they don't find it as trivial as you and I do. Anyway, this is all hypothetical and I'm not saying I plan on breaking the conditions.

 

[Complex16]

Yeah, that was my problem with Complex16 Sammy. She responded, I took her advice and agreed with her and it was done, then she kept moralising and judging me and started making smarmy, self righteous personal attacks (not just here but in another thread that I had posted!).

Anyway, yeah, your point of view was one I was expecting to see a bit more of, if not as legal advice then at least how to work with the law in the real world. About how the no publishing on the internet condition might be interpreted in the real world. Of course nobody can definitively say that as long as it's not published anywhere public, you'll automatically be safe just because that's not what the condition is supposed to concern itself with. I suppose the real world is the "cover your butt because there are jobsworths out there looking for reasons to arrest you".

I mean, I guess there are two schools of thought here. One is that you should follow the law regardless of how stupid and how badly it applies to individual circumstances. Not bad advice given the consequences for not doing so I suppose. But the other is "de minimis non curat lex". Or: the law does not concern itself with the trivial. The only concern with that school of thought is we don't know exactly how trivially a magistrate is going to see it until it's tested in court, with pretty serious consequences if they don't find it as trivial as you and I do. Anyway, this is all hypothetical and I'm not saying I plan on breaking the conditions.

You poor thing. I feel for you, I really do. Because you can’t see how your own thoughts and actions can and will negatively impact your kids and the mother of your children.

I have just been in court re a DV matter and been on Federal Circuit Court for 2 years. Guess what both judges have said? They’re concerned that such a basic condition in a protection order can’t be followed which leads them to think the ‘big’ ones can’t be followed and therefore a very real risk exists. And guess what they’re thinking as a result? No contact for the father...

You need a reality check stat. And a hug from the sounds of it.

 

[Complex16]

calm down kiddies.
We all seem to be in agreement here. Well you both are. Publishing photos on Facebook or what ever. COULD be a breach. It probably is. As you both have said. So despite being in agreement, you guys are still arguing? You should be arguing with me. WHY?

I disagree.
A photo on facebook, ESPECIALLY if it is a closed facebook page might well be a technical breach of the avo. So a photo of the kids taken and printed and sent to grandma. Is that a breach? technically, yes.. But there is this thing called common sense. No magistrate is gonna lock you up for that one. Facebook post of kid. Technical breach, but without being able to establish intent, malice etc. Boring... Facebook page with kid and some commentary about how sad the kid looks because mum is stopping dad from seeing the kid? BAD IDEA. But if it went to court the ex would need to establish that 1. There was a breach, so in this case that would require old mate to put stuff on his private facebook page and for one of his facebook friends to share that with the ex... Then for the ex to be able to prove that the intent was to harass. Not gonna happen...

Scenario. My new tablet upload photos directly to 'the cloud' via my g-mail account. Is that a breach? technically yes...

I was in and out of the cop shop a dozen times due to the ex making accusation of breaches. After a while the cops stopped asking me to come in for an interview because they worked out the ex was doing all she could to get me locked up. Common sense prevailed (unlike the approach of some posters here).

Solution? Take the photos. Wait till the avo is over. Or have a closed facebook page and the ex would never know. When I think back about the email conversations between myself and my parents about my ex. Sure, technically a breach of the avo. ABSOLUTELY... But were my parents gonna go to the cops?
Lesson?
Stress less, pick your battles and frankly don't get so caught up in crazy land about minor technical details as is the case here and that way you will live longer and be happier.

Sammy I have just sat in and witnessed a magistrate tell the other party that if they can’t follow such a simple order, how can they follow others?

This order was not requested, it was imposed by the magistrate at the time. Breached over 30 times. Now court really concerned re compliance in future.

Common sense may be a factor here. But common sense also backs up what the magistrate has said.

Sorry but this poster has major issues and needs to acknowledge his own role and behaviour. It’s someone else’s fault, right?

 

[GlassHalfFull]

You know what I find ironic Complex16? That you're lecturing me, with the implication that I am going to breach my order conditions when I have made it very clear that I am not intending to do so and I take them seriously, even though I don't agree with them. All the while you're showing a complete disregard for the wishes of someone you are in conflict with, and you are essentially harassing me by continuing to lecture me despite my very clear wishes that you leave me the hell alone. You know what? You need a reality check too. THAT is controlling behaviour, trying to impose your numerous judgments and opinions on me when I've made it very clear that they are not welcome. Are you really incapable of recognising that, or do you simply not care?

The way you are acting here, chasing conflict with someone who doesn't want anything to do with you, is very much in line with the kind of behaviour that judges are also concerned with in a DV context. Leave it alone. Are you incapable of just shutting up at this point when requested to do so? Or are you going to argue that it's a public forum so you can continue to say whatever you want?

 

[sammy01]

I think I told you two to calm down... I'll put you both on the naughty chair if you keep this up.
Story time.. I went mad. I could not walk past an ATM without pulling out $20 so I'd have a reciept to show that I was at the bank. Just in case the ex accused me of driving past her place, or what ever... I even tried to find out which ATM's have security cameras to prove that it was me taking out the $$$. Just one example of mad. WHY did I do this? in the hope that I could catch her out. Prove 100% that she was lying when she went to the cops to make another complaints about me breeching the AVO. STUPIDITY. No one cared. And I paid lots of bank fees and had a wallet full of bank withdrawl statements. MADNESS.

Mate, you're at risk of going mad too. You'e overthing thinking this whole things and getting your brain cells all tied up.
Your response to Complex 16 is kinda similar. You promised you were no longer gonna respond to her. TRUE? But it took you less than 10 minutes to respond to her. And yes, Complex is well and truly within her rights express her view (which strangely enough is exactly the same as your point of view) because it is a public forum.

Complex - your ex breaching an order over 30 times and a bloke wondering if he can put up a few pictures (hypothetically) on a private social media account are not in the same ball park. They are not even the same sport.

As I have already said. You are both right. WHY because you both agree that posting images on social media has the potential to be a technical breach of AVO. You guys have so much in common, you ought to catch up for a coffee... What is perfectly strange is that two people who appear to be in complete agreement are arguing. I'll leave you guys to work that one out...

 

[GlassHalfFull]

You promised you were no longer gonna respond to her.

Not exactly. I said that was my last reply and said good night. I don't think that's a 'promise', that was a statement, and I was referring to last night.

And yes, Complex is well and truly within her rights express her view

Yeah, I already acknowledged yesterday that she is. But I also asked her to leave it alone. So there are two competing issues here. One is the 'right' to do or say anything in a public forum. And the other is my request for her to stick to the legal rather than moral side of things, and if she is not able to do that, then just stop engaging with me. I can't force her. It's a request that I am hoping she will respect. But clearly not, she feels that she is the moral arbiter who needs to tell everyone else their faults.

What is perfectly strange is that two people who appear to be in complete agreement are arguing

We're not really in complete agreement, it's become a lot more than just whether one can take photos and upload them to iCloud or email them privately to a family member. She believes I'm a controlling, selfish dick who wants to make my ex suffer and not do what's in the best interests of my children. I completely disagree with that assessment and the irony is that she is exhibiting many of the character traits that she is accusing me (and her ex, I guess) of.

 

[GlassHalfFull]

Just in case the ex accused me of driving past her place, or what ever

Also, most smartphones track your location at all times. With Google Maps on my phone, I can see where I was at any time in the past, which has proven handy in researching some of the things I was accused of. Sure, I guess someone could argue that you left your phone at home and went out stalking, but likewise you could give someone your bank card to use as an alibi while you went stalking. So just like with DV, it's a lot harder to prove you DIDN'T do something than it is to accuse someone of doing something.

 

[Tangent Runner]

So I would like a specific answer - rather than a moral lecture - about how posting something privately - such that it is not shared with the general public - can be found by a court of law to be "Publishing". I have been charged re same, and when they served the IVO. I took legal advice that was to the effect - the bit about "publishing" was to do with denigrating the X such that I was saying nasty things about her, to damage her reputation - in public.

I specifically asked - a barrister - if sharing info that was not abusive, privately among a few friends, on Facebook, would be a breach - and he said "probably not - common sense applies" - however, the Victoria Police no longer seem to possess any common sense - and since becoming subservient to the radical feminist agenda - they seem to charge someone, whenever she complains, and if he complains - their policy says - treat it as if the perpetrator of violence is trying to blame the victim.... I have googled the term "publish to the internet" and there is no clear explanations as to what it means.

And as per other posts - seems the State now wants to prohibit you from even mentioning your own child's name - in a private email - (Yes, I was charged for that too...)

So - if one follows the "reasoning" of some of the legal eagles here - one may not talk about the family problems, X or the children, when accessing things like mental health services online - because that too would be a breach of the order.....

One may not email your own lawyer, to discuss the issues, and given your phone often sends it's information, via the internet - you may not ring anyone and talk about any of that stuff either.... Following this nonsense to it's extreme - if one talks about your children near a smart TV - that captures your voice - and sends it to a server somewhere - to see if you are trying to turn your tv on or off - you just breached the order - and given they say it's "strict liability" - it matters not, if you knew or not.... Which illustrates how fantastically irrational and unjust the law in Victoria has become - as currently applied....if the legal advice in this thread so far - is in fact correct....

So to sum up my question...

Exactly what defines the difference between publishing - and private communication - on the internet..?

Case law - or legislation please - not moral lectures about showing my subservient obedience to arrogant dishonest magistrates who think it is fine to accept blatant lies as a good reason to erase my children from my life...

 

[sammy01]

oh dear.... here we go again...

I think the legal advice here is accurate, but I don't think it shows that the law in Victoria is irrational or unjust.


Mate don't bother with the ant-feminist tirade. WHY? Well, it is moralising, which is exactly what you're telling us not to do. true?? AND half of the posters here are probably women, so they're not gonna respond nicely to the suggestion that the system is sexist..... Common sense so far. And the other half that are blokes, well some of 'em are gonna be like me. See I think there is something to this feminist stuff. Not all of it... but let's move on, like you said no need to give moral lectures...


http://www.austlii.edu.au/au/journals/NSWBOCSARLES/1997/11.pdf


Interesting read - go to page 58... 70% of reported breaches led to no further action from the cops. So that goes along with my common sense theory... Which, u'm is common sense. So overwhelmingly the cops seem to be of the opinion that reports of breaches do not necessitate charging the accused.


So make sure you give that article a good read... I tell ya what though... the stuff on page 61 makes for interesting reading. See apparently only 5% of applicants for AVO's perceived the main benefit of these suckers to be to stop the abuse. I'd have thought that was the single most important benefit, after all that is what they're all about true? BUT -the main perception of the benefit is the no contact order. So basically, it is a convenient way to end a relationship. I know you told no moralising. BUT i think this does go to show that the whole AVO thing has gone a little bit crazy and innocent punters are getting screwed over as a result... oops, no moralising. Got it..


So let's assume the cops choose to charge. Well there is a solid likelihood that the magistrate would kick it outa court WHY? here is your answer

Consequences of breaching an AVO


So while technically a breach, one would like to think the magistrate would see it as frivolous and kick it out a court as an accidental breach as outlined in the link above. Granted the link above is NSW and AVO's are state based, but I'd like to think Victorian magistrates have common sense too.


Now as far as emailing solicitor's goes, I think you need to read the bit further up the thread where I mentioned I went mad... You too have gone mad.... I know you told me not to lecture, but seriously mate. Talking infront of a tv.... You need to read 1984. It has been a while since I was in this crazy world, but I do recall there being something on the avo about communication for the purposes of family law. So that is the stuff about emailing solicitor dealt with....


So o'l mate. You're not gonna get anything particularly more definitive than that. If your only breach of avo is mentioning your kid's name in an email I reckon you ought to be right... But I don't have all the details. What concerns me most is how the cops came to have this private email? I guess what I'm getting at is the how and why you've come to be breached???? Are there other charges? Frankly, if all you've done is mention the kid in an email I fail to see the reason for charges... So I'm wondering what the back story is here?


So I think maybe the question should not be about the meaning of the word 'publish'. Rather it has to do with the content / purpose. I'm confident that a breach will only lead to a conviction if the magistrate is satisfied that:

1. There was intent. So a facebook post - big deal. A face book post of the child every day with a comment about how long it has been since you've been able to see the kids... Well, there is a difference there isn't there?

2. That the protected person genuinely felt that your intention was to harass when you chose to hit 'enter' on the keyboard to upload images or send emails.


But again, what I'm at a loss here in your case is how the emails / facebook posts came to the attention of the cops if they were private? So a facebook page which includes your sister in law as a friend? Or you wrote something that the intended audience felt concerned enough to show it to the cops? I can only surmise? OR, the system isn't sexist, but you bumped onto one of those crazies from the VIC equivalent of Doc's? Mate my ex found herself some public servant fool in Doc's who basically spoon fed my ex the information needed to get an avo and then spoon fed her some nonsense about trying to get me breached. Like I said, i do not think the system is sexist. I do however, think there are some unscrupulous people out there intent of finding the cracks in the system and taking full advantage of them.


But let us know how you go with it.