Michael Hovane has been the Manager of the Domestic Violence Unit at Legal Aid WA for the past 14 years. In addition to managing the Unit and being responsible for family violence response across Legal Aid services, he conducts VRO hearings and appeals, as well as family law and child protection matters as a family lawyer, independent children’s lawyer and mediator. Michael has provided expert law reform advice on family violence related matters to the State Government and Law Reform Commission and has run sessions on family violence and the legal system for Magistrates, lawyers, students, health professionals, social workers, community agencies and Government Departments.
Presenter: Michael Hovane, Managing Solicitor Domestic Violence Legal Unit, Legal Aid WA
[email protected]
Women’s Council for DFV Services (WA) Training Session 17 October 2014
1. Technology, Stalking and VROs 2. DFV and Immigration Presenter: Michael Hovane, Managing Solicitor Domestic Violence Legal Unit, Legal Aid WA
[email protected]
Aims • Be aware of technologies and how they might be used in FDV situations • Be aware when use of these technologies can be the crime of stalking, or other criminal offences, or grounds for a VRO • Be aware of recent changes in law and practice for the DV provisions of visas for immigrants
New Technologies • Increase in use of new technologies by DV abusers to threaten/harass/abuse/stalk/track: • • • • • • • • •
Email SMS Facebook Twitter Hacking into email, Facebook and other accounts Tracking by GPS apps/software on mobiles and computers Tracking by Facebook, GPS in photos Tracking devices on car, personal property etc Threats to release sex tapes to fam/fds/Internet
New Technologies • Software/apps on mobiles and computers can: Track location by GPS Get copies of SMS and emails sent or received Voice record calls sent or received Get record of websites visited Turn on and use voice recorders and video cameras to act as a “bug” or “surveillance camera” • Monitor and control apps installed • Access Calendar and Contacts • • • • •
• GPS trackers can be placed in car/on person • Cheap, accessible and relatively invisible
Stalking • Criminal offence, s338E Criminal Code (WA) • (1)“Pursue someone with intent to intimidate”; or • (2)“Pursue someone in a manner that could reasonably be expected to intimidate, and does in fact intimidate”
• Pursue is repeatedly: • Communicate (directly or indirectly, not just words) • Follow • “Beset” (watch or be near) where live, work or happen to be • Cause to receive unasked for things eg gifts, flowers
• Pursue doesn’t have to be repeatedly where there is already VRO or bail conditions in place
Stalking • “Intimidate” means: • Cause physical or mental harm • Cause apprehension or fear • Prevent from doing an act or compel to do an act
• Awareness and use of stalking charges by Police increasing (template letter/FPCs) • Recent court successes – • Mr Wheeler: communication by Facebook (wldnt accept relationship over), gifts, coming to home. Guilty and large fine.
Stalking • Behaviours that are grounds for VRO may also be the criminal offence of stalking • Advantages of criminal charges v VRO • • • • •
Police run case, only a witness, no need for lawyer No cost Bail conditions same as VRO Police will not withdraw if sufficient evidence If guilty, proof for VRO or Family Court
• Disadvantages: • Police discretion whether to charge • Higher standard of proof • Bail conditions finish when charge finalised
VROs - Legal Test • Other person likely to, or reasonable to fear that they will: • • • • • •
Be violent damage property or kidnap/deprive of liberty or threaten to do any of these Stalk Act in an ongoing intimidating, offensive or emotionally abusive
• Contact by new technologies can be stalking, threats to be violent/damage property/kidnap or ongoing intimidating, offensive or emotionally abusive behaviour, ie grounds for a VRO
VROs - Legal Test • Fairly recent Sup Ct Appeal decision in Baron v Walsh [2014] WASCA 124 • Overturned conservative District Court appeal decision • Facts: • Very short relationship. Male sent series of voice and SMS messages calling his ex- “slag” “cunt” “garbage” • Threatened to “make pay” unless dropped VRO • Made complaints to Police, Nurses Board, debt action • Entered yard, moved things, left “karma” message in letterbox
• Magistrate found offensive. On appeal District Court said “normal fallout” from end of relnship
VROs - Legal Test • Appeal overturned by Sup Ct who said: • “excuses given by the …judge for the …behaviour…underscore the failure to recognise the impropriety of the respondent’s conduct”
• Case supports offensive or repeated unwanted e-communication, can be grounds for VRO, without need for threats of violence • Also says complaints and legal proceedings, can be acts of abuse for a VRO, where for a collateral purpose/pressure a person
Practical issues • Communication by client to other person will be scrutinised
• Cease and desist letter or communication can help set boundaries and lay a platform for VRO or stalking charge • New template term for VROs RO7 “you must not …cause to be posted on any social networking site any message or image that depicts/refers…”
Other offences re technologies • Breach of the Surveillance Devices Act 1998 (WA): • Using a tracking device without permission s7 • Video or audio recording without permission s5, s6
• Breach of the Criminal Code Act 1995 (Cth): • s474.17 (use service to menace, harass or offend) • s474.15 (use service to threat to kill or serious harm) “service” includes internet, phone, email - similar offences for mail
• Threat offences under Criminal Code (WA): • Threat to harm/kill/damage property s338B • Threat to cause detriment/prevent/compel s338A
Immigration and FV • 3 ways to get PR/Citizenship (sponsored partner): • Death of Spouse • Prove Family Violence • Have child of the relationship with sponsor
• Which visas do FV provisions apply to? • Spouse/Partner 309>100 & 820>801 • Relationships 310>110 & 826>814 • Prospective Marriage 300 (MUST be Married)
What is FV for Immigration? • If your partner has conducted themselves, in a way whether actual or threatened towards: • • • •
you your child OR the partners child a member of your family OR your partner’s family your property OR property belonging to a member of you or your partner’s family
• that causes you to reasonably fear for, or be apprehensive about your wellbeing or safety.
How to prove FV for Immigration? • • • • •
Family Court Injunction (on evidence) Final Violence Restraining Order Criminal conviction Two (or more) documents of specified evidence Eg: med report, stat dec by DCP, Refuge, Psych, Social Worker, Principal, counsellor, Police. Undertaking • Recent trend find not genuine relationship and not look at FV - always appeal to MRT, hearing de novo, better understanding of FV
How to get the most out of the resources
Eight video chapters
Online resources Information and worksheets in combination Referrals to other services and resources The workshop www.whenseparating.legalaid.wa.gov.au 19
Where can I access the When Separating materials?
» Legal Aid WA website whenseparating.legalaid.wa.gov.au » YouTube – When Separating WA » Family Court of WA website » The When Separating DVD
20
Getting help and advice
21
Family and domestic violence
22
