Onerous Protection Orders
Over recent days I have been involved as expert witness in an interesting District Court trial by jury. My client has given me permission to report on it and I will avoid using names and identifying details.
The man was accused on two counts of breaching a protection order, and the judge ended up offering a deal in which if he pleaded guilty and met several conditions then she would discharge him without conviction. She said several things of likely interest to this group.
Firstly, in questioning the man during the process of reaching the decision to discharge him, the judge wanted him to refrain from various activities that might extend the conflict with his ex wife that had led to the protection order and the present charges. The judge noted that the man had been supported in Court by representatives of fathers’ groups, and asked him if he intended to have any ongoing contact with groups like those who had been protesting against the Family Court. I thought it significant that a judge even in the District Court was acutely aware of the protests as well as the general movement and saw them as a serious influence.
Secondly, the judge in explaining her decision to discharge without conviction said things like “the child in this case has clearly been alienated by the mother against the father”, and “this father tried to re-establish a relationship with the child but he was not allowed to take his rightful place in the child’s life as the father, and his frustration and distress was understandable although he used inappropriate ways of responding to it”. I thought it significant that a female District Court judge acknowledged parental alienation and expressed a belief emphasizing the importance of a biological father’s role in the life of a child. Perhaps she always held such beliefs, but more likely she had been latterly influenced by argument from the fathers’ movement. I thought it strange that some Family Court judges don’t appear to have such insight, and that the legislation empowering the Family Court largely seeks to deny such principles.
There were many other interesting aspects to the case. The man had not made any attempt to contact the protected ex or child directly or indirectly since the protection order. One of his charges was due to the man’s web site on which he described something of his history and criticized several of the key players who had alienated him from his child. The website had previously contributed to the imposition of the protection order because it had included things potentially threatening to the ex. However, since the protection order he had removed such content and limited it to what seemed reasonable expression of his story and grievances. There was no longer anything on the site that could easily identify the ex or child, there was nothing that was abusive of the ex or child, nor was there anything that could possibly be seen as encouragement for any other person to identify the ex or child much less approach, hassle or abuse them. The ex had expected all reference to the family’s history to be removed so complained to the police when it wasn’t. The police saw fit to prosecute even though the protection order had specified only that the man remove psychologically abusive material from his web site. So in a nutshell, this man was considered by the police to have breached a protection order by writing non-abusive stuff on his website, even though the protected persons had to make a deliberate choice to visit the web site in order to read such writing and to feel abused by it. Huh?
The second charge resulted from the man corresponding on an internet message board that operated as a chat room. Only paid subscribers to the relevant internet service had access to any of this correspondence. Someone “chatting” on the site had asked him about his family etc and he had described some of the history without naming his ex or child. He corresponded under a user name and not his real name. He named and used quite rude words about a school, a teacher and the F.C. judge who had imposed the protection order. He gave some critical opinion about his un-named ex but this was restrained, mild and could not reasonably be described as abusive or even rude. Unfortunately, one of the paid subsribers who happened to be following the net dialogue was a parent of another child at the mentioned school, took a copy of the postings to the principal who figured out who the writer probably was and sent the copy to the ex’s lawyer who then sent it to the ex who then complained to the police about it. So it seems that you are deemed to breach a protection order if something you do can get back to and upset the protected person(s) through any convoluted route even though there is no accusation that you had any intention or reasonable cause to expect this would happen. That means that if you talk to a freind at the pub about your sad case and some total stranger overhears one comment and tells your ex who feels upset about what you said, then you may have breached the protection order. In fact, if you walk down a street in another town and someone who sees you tells the protected person who then feels upset to hear your name, you may well have breached the protection order by walking down the street! More relevant to readers, anything you post on a members-only group could be seen by police as breaching a protection order even though you had no reasonable cause to expect that some unknown person might pass it on to the protected person, or that the protected person might voluntarily and anonymously have subscribed to the group.
These matters still need to be considered in a non-jury trial at some stage before they are clarified and become case law. Outrageous if that ever happens, but then it was outrageous that the police would prosecute in this case and that the guy should be expected to plead guilty. The Domestic Violence Act was sold to the public as a way of protecting vulnerable people against beatings and other forms of serious violence but is mostly used to persecute men for completely non-violent actions. Breaches have typically involved such heinous crimes as waving to your children when you happen to see them in town after being denied contact with them for two years. Now we find that breaches can include activities that involve absolutely no intention of contacting or affecting the protected persons. Thus a protection order now removes all rights to free speech and movement.