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

[GlassHalfFull]

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.

I disagree that I could ask for my stuff back at any time. Asking for my stuff back isn't in the list of exceptions to the IVO. The only exception relating to property is asking the police to escort me onto the property to collect it. I already tried that, and she dumped my clothes on the front doorstep but refused me entry into the garage or house to collect anything else. All communication was through the police, I had no way of contact her to discuss it.

I realise that I can't simply demand my stuff back the day the IVO expires and she can refuse if she chooses (which is bulls**t in itself - it allows an IVO to be legalised theft but that's another story for another thread I suppose). But what you need to understand about my position is that there's been a very real power imbalance at play. The IVO allows her to discuss anything she wants to discuss, while I can be arrested for responding to it. For example, she has been driving a car in my name for the last 18 months - she essentially stole it from me with the IVO. My dad loaned us the money to buy the car while we were together, then we split up a year later and she got to keep it and not pay the loan back. As the loan was a verbal agreement and there was nothing in writing, it's difficult to do anything about it, especially since my legal advice is that it would look bad on ME in the family court for my DAD to sue her for half of the loan, even if I had nothing to do with it.

So now there's a debt to my dad that I'm still liable for and meanwhile she can do what she wants with the car. The only thing she can't do is sell it because my name is on the title, not her. She's asked for me to transfer the title into her name, but I refuse to do that out of principle, ESPECIALLY while she has so much of my personal property. But of course I cannot negotiate this with her because I'd be breaching the order, and I don't want to waste my money on lawyer to lawyer negotiation. I'd like to be able to negotiate about it myself, either directly with her or with her lawyer, but apparently because of the laws regarding legal representation, because I have a family law solicitor already engaged to deal with parenting matters, it's not possible for me to contact her lawyer about property matters even though I DON'T want to engage my lawyer for property matters (it's small fry, just the car, and other minor property - no house). Meanwhile the car is devaluing, she's not paying back the loan, she's getting full use of every item of property we shared, etc. So you see how frustrating it is to be in this limbo?

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.

But the fact that you think I can communicate about property despite there being no allowance for it on the IVO shows that you're not clear about it and yet you're arguing they're pretty clear and there's no need for improvement. Also, just for the record, you're talking about AVOs, I'm talking about IVOs. I have no experience with AVOs in NSW and I'm sure they're not that dissimilar, but I wouldn't be surprised if the wording is a bit different.

 

[ruckusman]

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:

Can you read any single email that I have written to another recipient in a private capacity? NOPE

Are all private citizens members of the public, YES.
Are all members of the public the specific private citizen that is/was the private recipient of my email, NO

Like I said you cannot go from a general to a specific. It's a logical fallacy.

Go for it again, a private citizen, who is also a member of the public, commits a crime.
Are all members of the public criminals? Well no, because not all members of the public belong to that group or fulfil that requirement to be that ONE private citizen.

The email read by private citizens isn't published by virtue of them being members of the public - the reasoning doesn't work backwards.

I don't know how many ways I have to explain it to you, perhaps you got done on something like that because a strong argument wasn't advanced in your defence, but there's no way that flimsy definition and reasoning would be allowed to get past me, because you keep taking minute portions of the definition of published and asserting that qualifies merely because it was communication by electronic means.

And the definition you've chosen above relates SPECIFICALLY to communicating details about a case, which isn't what is being discussed in relation to IVO's

 

[sammy01]

so you're in Vic... I'm in NSW but I'm sure this stuff is similar
property order -
NSW legislation

Interesting - read the last bit.

Home - NSW legislation

www.legislation.nsw.gov.au

So an avo terminates a tenancy agreement? That is news to me

I like this bit too
NSW legislation
in particular
A police officer is to make a written record of the reasons for:

(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or

(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9),

So the cops can apply common sense to alleged breaches - thank Christ otherwise I'd have been locked up for half a dozen different 'breaches'. so photos to granny on facebook or google cloud are not gonna be pursued.

This is interesting...
NSW legislation \
So the usual privacy laws don't apply if the cops have reason to suspect a punter with an avo is a threat of 'serious violence'. So copper searches your computer because there is good grounds to suspect....

Now I'm not the sharpest kangaroo in the top paddock. But I fail to see how any of this is really all that complex.

But just to get back to something I missed on ruckusman - you seem to think private photos on a private facebook page is ok? I disagree. Private emails same. Breack - technically a breach everytime. But... oh no he is gonna to the common sense thing again.... It isn't gonna come to the attention of the cops unless they have reason to investigate and when they do the normal privacy laws don't apply so they will find those emails / photos... Fortunately, if they're just happy snaps of the kids - who are protected persons then no biggie - move on nothing to see here. But if anything in any of that is evidence of intent to commit violence / harass or what ever then they'll come down on you.

nearly done here folks Glasshalf full - You don't like 'The respondent may..." You want to simplify it by saying "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 think 'the respondent may' - is the more concise....

 

[GlassHalfFull]

nearly done here folks Glasshalf full - You don't like 'The respondent may..." You want to simplify it by saying "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 think 'he respondent may' - is the more concise....

More concise perhaps, but more vague about how it interacts with the restrictions.

If I told you the following:
*You can't talk to me at all, for any reason, at any time
*You can talk to me on Tuesdays

Would you interpret the latter statement as overriding the former statement and therefore Tuesdays are okay, or would you see the restrictive line as the overarching requirement since it SPECIFIES "at all, for any reason, at any time"? That's kind of the dilemma that IVO respondents are faced with. Which line wins in a conflict? It might be common sense, but it's STILL NOT LOGICALLY CLEAR. It could be improved by making it clearer and less ambiguous. I don't see why this is so difficult to understand...

 

[sammy01]

Hey glasshalffull - I had a brief look at vic law - I reckon you might be right. Vic law doesn't appear to have anything about property recovery. That suxs. NSW avo law is a little bit more reasonable.

Oh on the car thing you mentioned earlier? did that come up on another thread somewhere way back when. Simple solution - cancel the registration of the car. Cease payments if it is subject to a car loan - let the thing get repossessed. Sadly mate, I do think the expiration of the avo ain't gonna make negotiating with her any easier and don't push too hard or you'll be back in avo land... Mate I did ask earlier - how is the rest of it going? Still on supervised visits? With respect, sure I've gone on the attack a bit here, but I do hope you're getting time with the kids.

As for ol mate, I'm done. Simply disagreeing with you doesn't make me wrong or illogical, it just means I disagree with you. I reckon if the cops had reason to search and had a warrant to search your computer and they found private emails that indicated intent to commit harm to the protected person the cops will submit that as evidence.

FInal thought again NSW laws. Sorry just don't know Vic law as well
NSW legislation
cops can search a detained person accused of breach of avo. AND take possession and examine any items found in the person's possession. These days we all have the internet in our pockets. Bit scary, but I reckon that could cause a punter with photos of his/her kids for example being caught up in this whole 'publish' debacle all the more than way back when a mobile phone was just a mobile phone.

 

[Atticus]

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

I think my poor reasoning may have been more around responding to your musings at all... LOL

BUT, what I did was provide you with the definition contained within the relevant section of the act, because that is what matters here rather than the broader definition... What also matters is CONTEXT, especially in law, & if you had bothered to look a bit more yourself you would have seen that also included under that definition of publication is the note ' Publication must be construed accordingly'... Which brings us back to context & how important it is..

The definition that a magistrate may apply to that word may be very different according to circumstance.... In the context of a breach of copyright for eg, the word may be given a different level of wieght than in the context of an IVO.... The later is in the context of protecting a person WITH A PROTECTION ORDER, from being harassed, intimidated, stalked or otherwise adversely affected by anything the respondent may do. To that extent, & in that context, a magistrate is highly likely to find any material regarding a protected person shared with a member of the public, that the magistrate considers may cause or even has the potential to cause upset to the protected person is in breach of the aim of the IVO....

Now while you may think yourself ever so clever, I can guarantee you that 99.9% of magistrates will have zero tolerance for your musings & smartassery .... If you come before one having had a complaint about a breach, (yes even one private email) Sh/e will determine the definition on the day & that will be the only definition that matters...

So if you reckon a respondent can send an email to someone containing material regarding a protected person, get a complaint & get hauled before a court & get away with it becuase the email was 'private' !!! ... That's nuts.... I suppose then you think you could also send 'private' emails to a dozen people & that would also be okay, .... Time to get off the hooch mate LOL..

 

[GlassHalfFull]

Oh on the car thing you mentioned earlier? did that come up on another thread somewhere way back when. Simple solution - cancel the registration of the car. Cease payments if it is subject to a car loan - let the thing get repossessed. Sadly mate, I do think the expiration of the avo ain't gonna make negotiating with her any easier and don't push too hard or you'll be back in avo land...

Yeah, I've probably mentioned most aspects of my case over time. I've tried not to be too specific about my predicament because it could be used to identify me (and then be a breach since I am "publishing on the internet [any] material about the protected person"). Plus I've also talked about legal strategies and advice and I'd prefer for my ex not to be able to use it against me.

You've misunderstood again though. The car loan is from my father to my ex and I jointly, there are no regular payments since it was a loan within the family without a specific deadline or repayment schedule. Given we don't have a contract, there'd be no straightforward legal way to have the car repossessed. Besides which, as I said, it's already been said by my legal representation that it would look very unfavourably on me if I do ANYTHING to take the car or other property (even if it were done legally) from her because she 'needs it for the children'. Never mind that I'm on limited income currently and she's on $130k a year and can bloody well afford to pay for her own car IMO.

Mate I did ask earlier - how is the rest of it going? Still on supervised visits? With respect, sure I've gone on the attack a bit here, but I do hope you're getting time with the kids.

Thanks for asking, if you did, I must have missed it - that's what this is really all about despite our disagreements. Thankfully things have moved on considerably, all the worst of the allegations have been dismissed as unfounded and I've had unsupervised access for the last 9 months or so. It's been great and I've been able to re-establish my relationship with my kids. I had a very favourable family report last year which recommended 3 days a week of 6 hours to help recover the damaged relationship, but two of those days were weekdays (they're in daycare - it's not affecting their education) so it's been pretty limiting for my ability to work. I'm now at a point where I'm hoping to move to overnight time so I can get on with my life and find full time work.

 

[sammy01]

sorry mate - missed the bit that the car was loaned off your dad. Nothing stopping you cancelling the rego. But again, I'm nsw centric. No idea how car rego's work in other states and i suspect she could pay the rego. I hope you're not paying the annual rego (assuming that is how it happens in Vic.)

BTW - I do get the angst over the avo... Been there but I reckon you're suffering a bit of stress over the thing and over thinking it.

Clearly the NSW avo laws that permit property recovery order to be requested is better legislation than in Vic.

Atticus seems to agree with me, the nature of any stuff posted via electronic medium - just a long way of saying the internet will be contextualised and dealt with by those punters at the front of the court house and those folks are not interested in seeing punters locked up for sending a photo to granny via the internet, which was the crux of this thread when you first started it.

 

[GlassHalfFull]

There's nothing stopping me from cancelling the rego, you're right. But my lawyer specifically told me that it would affect my parenting case in the family court, because it would be seen to be not acting in the children's best interests. Basically any attempt to take possession of my property or otherwise negatively affect my ex in any way will automatically be seen that way as she as the majority care of the children. Messed up logic, but there you go. And yes, as of the last rego renewal, she has taken over the payments of it so it would be rather cheeky of my to cancel it (I could even have the balance refunded to my account - possibly?).

And yeah I definitely agree that NSW legislation has adopted a more sensible approach to property. The idea that you can evict someone and keep their property is extremely unfair and unreasonable. In no other aspect of law would that sort of thing be so easy to accomplish and so damaging for the poor victim (whether they have committed family violence or not, they should not be stripped of human rights). Most other areas of law have the principles of innocent until proven guilty and the burden of proof being on the accuser. Not family violence.

I haven't really been arguing about the ins and outs of publishing things on the internet since this thread was resurrected. That was all Ruckusman - although I do share his view that it's open to interpretation and overly broad in scope. At the very least it should be specified that anything 'published' should actually be abusive or nasty. Given how much communication between friends and family happens online these days, it's stupid, unfair and draconian to prohibit someone from even being able to TALK about the IVO and separation to anyone online. It gives your ex complete freedom to badmouth you as much as you want and you have to literally say nothing to everyone. You can't even speak factually about what happened if someone asks! And yes, common sense might prevail, but I'd rather the law addressed this sensibly in the first place, instead of relying on the cops taking the sensible approach.

 

[sammy01]

hey - I agree. My ex was all over facebook telling lies about having to testify. I do reckon the laws are pretty good and well intentioned. Just like the rules around family tax and child support. Well intentioned. The problem is with the application when one party is intent on wreaking havoc with their ex... The other thing that really shits me is the industry of welfare workers created by this stuff. So the first link below from QLD legal aid assumes males perpetrators and females victims. I found this particularily useless when I was trawling the net looking for help when my wife was emotionally, financially and physically abusing me. Marriage counselling was the recommendation because of a denial that men can be victims.

AND in that whole document about AVO's there are 2 dot points about defending against vexatious allegations. It works on an assuption of guilt.

The second document is called "Making your avo work for you" It basically teaches the respondent how to make sure the cops charge the accused, rather than just letting them investigage and make a call based on the info provided. Sad...

On a happier note I do think the second doco does a bit of good in explaining that parenting orders superscede AVO's and explaining the jargon attached. But there is still a fair bit in there that is teaching the respondent 'how to make their avo work for them". Govt funded material on how manipulate the system to screw over the ex.

https://communitylegalqld.org.au/si...sisting_respondents_in_dv_matters_-_final.pdf

http://www.sl.nsw.gov.au/sites/default/files/just_piece_paper.pdf

Final thought - mate I think you're solicitor is right. The best way to win in this system is to suck it up and be reasonable even in a tirade of unreasonableness. By insisting on supervised visits your ex is trying to make the case that you're a danger and if that can't be substantiated her credibility with the court suffers.