Did you know that hiring a private investigator to conduct surveillance when there is a family violence order in place, could be a criminal offense?
Many people who are named as a respondent in a protection order mistakenly believe that if they aren’t conducting the surveillance personally, they aren’t breaching the order. This is a dangerously erroneous assumption.
Cloak Investigations was recently contacted by an individual who was concerned that his ex-wife was misrepresenting her earnings for child support purposes. He asked us to conduct surveillance to obtain evidence that his ex-wife was working full time so that he could apply for a change of assessment through the Child Support Agency. It was a seemingly reasonable request, and one we get almost every week from parents seeking fairness in child support matters.
Before accepting the job, we asked our standard question in these cases; ‘is there a Family Violence Order in place?’ At first, the client told us ‘no’ but, thankfully, before we commenced the operation, he admitted that an intervention order was indeed in place. We asked him to send the Order to us so that we could establish whether surveillance would constitute a breach of the order. The order very clearly stated that the client could not engage in surveillance of any kind – even via a third party. If we had conducted surveillance, the ex-wife could have filed a complaint with police for a breach of the order and our client could have ended up with a criminal charge and possibly jail time.
Every state has different legislation covering family violence (protection) orders and in every state, these orders are called something different. For the purpose of this article, we’ll simply deal with Victoria, New South Wales and Queensland.
Victims of domestic and family violence in Victoria are covered by the Family Violence Protection Act 2008. Under the act, people affected by domestic violence can apply to the Magistrates court for a Family Violence Intervention Order (FVO).
In Victoria, surveillance using digital devices, such as cameras, is considered to fall under the definition of technology-facilitated stalking and abuse. If an FVO specifically mentions the word ‘surveillance’, it’s a pretty sure bet that any form of surveillance is prohibited even if it is for a justified purpose and conducted by a licensed professional.
New South Wales
Domestic and family violence in NSW is governed by the Crimes (Domestic and Personal) Violence Act 2007.
Under the Act, victims can apply to the local court of NSW for an Apprehended Domestic Violence Order (ADVO).
In NSW surveillance can fall under the definition of ‘intimidation’ which is defined in section 7 of the Act and ‘stalking’ which is defined in section 8.
Stalking is defined as:
1. Following another person about
2. Watching or frequenting the vicinity of, or approaching a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.
The act of stalking and intimidation is considered an offense and, as such, attracts a penalty of 5 years imprisonment or 50 penalty units or both.
In Queensland, victims can apply to the Magistrates court for a Domestic Violence Order (DVO). These orders are legislated under the Domestic and Family Violence Protection Act 2012.
On September 17, 2015 new domestic violence legislation will be introduced in response to the death of two women due to violence. The legislation is designed to encourage tougher penalties for offenders while affording greater protection to victims.
As with Victoria and New South Wales, conducting unauthorised surveillance whilst a DVO is in place could be an offense under the Act and, if a history of domestic violence exists, a respondent keeping an aggrieved person under surveillance could also be committing an offense under Qld’s anti-stalking laws.
Under the recent amendments to the Act, the maximum penalty for breaching a Domestic Violence Order in Queensland is 2 years imprisonment or 60 penalty units ($6000).
Lesson to be learned
The bottom line is, if there is a domestic and family violence order in place naming you as the Respondent, don’t be tempted to conduct any form of surveillance even through a reputable licensed investigator if you don’t want to risk a criminal conviction.
Most reputable investigators take very seriously their duty of care toward victims of domestic violence and will ask if a DVO is in place. Whilst you may be tempted to lie to avoid embarrassment or because you want the job done, it is wise to be up front with the investigator and allow them to look at the provisions contained in the order to determine whether surveillance or other investigative activities will be possible without leaving you vulnerable to criminal charges. Let’s get this in perspective, a criminal record is a much higher price to pay than a few extra dollars in child support. Don’t risk it.