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Presenter: Michael Hovane, Managing Solicitor

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1 Presenter: Michael Hovane, Managing Solicitor
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 1

2 Women’s Council for DFV Services (WA) Training Session 17 October Technology, Stalking and VROs 2. DFV and Immigration Presenter: Michael Hovane, Managing Solicitor Domestic Violence Legal Unit, Legal Aid WA 1

3 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 2

4 New Technologies Increase in use of new technologies by DV abusers to threaten/harass/abuse/stalk/track: SMS Facebook Twitter Hacking into , 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 2

5 New Technologies Software/apps on mobiles and computers can:
Track location by GPS Get copies of SMS and s 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 2

6 Stalking Section 61A Restraining Orders Act 1997
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 Section 61A Restraining Orders Act 1997 2

7 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. 2

8 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 2

9 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 2

10 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 2

11 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 2

12 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…” 2

13 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): s (use service to menace, harass or offend) s (use service to threat to kill or serious harm) “service” includes internet, phone, - similar offences for mail Threat offences under Criminal Code (WA): Threat to harm/kill/damage property s338B Threat to cause detriment/prevent/compel s338A 2

14 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) 2

15 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. 2

16 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 2

17 Work visa 457 457 allows skilled workers who are nominated and sponsored by Aust business to work here No FV provision Where 457 and FV Needs to be permanent visa (rare) Sponsor/primary applicant need right to stay permanently in Australia. Spouse on partners visa while in relationship Family Court DOES have jurisdiction. Refer to Immigration agent/lawyer 2

18 Introduce myself & Mary
My name is Katia Nadalin. I am a solicitor at Legal Aid in the DVLU, but I’ve also been working with our Legal Resource and Content team on the When Separating project. I am very proud to be here today to talk to you about the When Separating resource package.

19 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 Why is When Separating Important? It can help you direct families going through a separating to good information about some of the common issues they may face. It will help put separation issues into a little bit more perspective It will help separate the legal issues from social and emotional issues and offer sound referrals for both sets of issues 19

20 Where can I access the When Separating materials?
Legal Aid WA website YouTube – When Separating WA Family Court of WA website The When Separating DVD 20

21 Getting help and advice
Online resources Advice + Information serves as a useful starting guide for further information about issues related to separating after watching the Videos. Includes information sheets and worksheets (best used in combination), as well as referrals to many other helpful services. The resources presented here are not exhaustive: there are many other services and websites which may prove helpful to your clients.   Point to ones on screen, specific to DV, i.e. helplines, safety packs, etc Categories: Support for you (resources from RA, Department of Human Services, etc) Support for children (resources specifically for kids – activity book for early primary school aged kids, computer games for older primary school aged kids, a guide for teens, etc FDV (helpline details, safety kits, etc) Finances and property (moneysmart website; referral to financial counsellors; property checklist; spreadsheet of assets and liabilities, etc) Making plans and agreements (FDR, CLCs, Information sheets: how to use a family lawyer, how to prepare for a meeting with a family lawyer; consent orders kit) Conflict and communication (FRC managing conflict fact sheet, Centrecare top 10 tips, RA & Anglicare resources – Mums and Dad Forever) Agencies – advice and support (Anglicare, Centrecare, RA, Mensline, Beyond Blue, Lifeline, Youth Beyond Blue, Kids Helpline) Agencies – information (FRC’s, CLC’s, Child Support Agency; Lawstuff – information about child laws in kid-friendly language) Parenting (Parenting WA line; other resources)

22 Family and domestic violence
This chapter introduces Ben and Jess and the impact that family and domestic violence has on themselves and their family Divided into two halves – the first half is Jess’s story (as the victim), the second is Ben’s (as the perpetrator) It shows the many forms that violence can take within a family, and focuses on how someone can access help, support and legal advice if their safety is at risk. It also demonstrates the perpetrator seeking help (though by no means is it a Hollywood story, where Ben is miraculously “cured” by the end, and they end up living happily ever after – just shows that there are options – he can seek help, but it will be a long road ahead) PLAY OPENING SCENE: 00:29 TO 03:00 Lots of really vital things for clients to take from this video, for example: Victim: Opening scene: very effective example of DV that isn’t a physical assault (just to let everyone know: the child playing Reagan was NOT present when that scene was filmed!) There is also another scene in the chapter that clearly demonstrates an example of financial control

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