BRADBURY & LANDER
[2019] FamCA 22
•24 January 2019
FAMILY COURT OF AUSTRALIA
| BRADBURY & LANDER | [2019] FamCA 22 |
| FAMILY LAW – ORDERS – Alleged Contravention of Parenting Orders – Where contravention application made under Division 13A – meaning of “intentionally” in relation to a contravention – sufficient that conduct contravening the Order is engaged in intentionally – not necessary that a person knows that the conduct constitutes a contravention – distinction between finding a contravention and finding a reasonable excuse for a contravention – reasonable excuse for a contravention – failure to understand obligations – whether the Respondent should be excused for the contravention. FAMILY LAW – CHILDREN – Non-Denigration Orders – Where orders made restraining a party from “insulting or denigrating the other parent” – meaning of “denigrate” considered by the Court. |
| Family Law Act 1975 (Cth) - ss 70NAC, 70NAE |
| Metcash Trading Ltd v Bunn (No. 5) [2009] FCA 16 Ongal v Materns (2015) 54 Fam LR 86 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Mr Bradbury |
| RESPONDENT: | Ms Lander |
| INDEPENDENT CHILDREN’S LAWYER: | Yeend & Associates |
| FILE NUMBER: | CAC | 239 | of | 2017 |
| DATE DELIVERED: | 24 January 2019 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 22 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J Haddock |
| SOLICITOR FOR THE APPLICANT: | Infinity Legal |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms M Burgess |
Orders
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 25 April 2017.
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 27 April 2017.
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 25 November 2017.
The Respondent is found to be in contravention of Order 6 of the Orders of Judge Tonkin of 24 April 2017 on 10 January 2018
The proceedings are adjourned to 14 March 2019 at 10am for the determination of the consequences of the contraventions and any costs application.
The Applicant is directed to file any further material he intends to rely upon for the purpose of that determination by no later than 21 February 2019.
The Respondent is directed to file any further material she intends to rely upon for the purpose of that determination by no later than 7 March 2019.
The material referred to in the immediately preceding orders is directed to be limited to matters relevant to determining the consequences of the contraventions and any costs application.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradbury & Lander has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 239 of 2017
| Mr Bradbury |
Applicant
And
| Ms Lander |
Respondent
REASONS FOR JUDGMENT
The Father filed a Contravention Application on 22 June 2018 alleging that the Mother had, on eighteen occasions, breached Order 6 of the Orders made by Consent by Judge Tonkin dated 24 April 2017. On 10 September 2018 Orders were made that the Father was to advise the Court what counts he intended to continue with at the hearing which was listed for 22 November 2018. By the Applicant Father’s Outline of Case Document, dated 21 November 2018, the Father indicated that he would press eight counts of alleged contraventions. They are set out below.
Contraventions
The Father alleges that the Mother breached Order 6 of the Orders made by Consent of Judge Tonkin dated 24 April 2017. Order 6 is as follows:
6.That the parties be restrained and an injunction be hereby granted restraining the parties from:-
a. [NOT MADE]
b.Insulting or denigrating the other parent or from allowing any other party to do so, including on social media, or from discussing these proceedings with the children.
c.[NOT MADE]
The eight alleged contraventions pressed by the Father involved the Mother making posts on Facebook or sending messages to third parties and are set out below, along with the Mother’s responses. At [8] of her Affidavit of 15 November 2018 the Mother admitted that she had made the Facebook posts and sent the messages. She did not accept that the conduct was in contravention of the non-denigration order.
The meaning of denigrate
In the context of contempt proceedings, which these are not, Finn J in Metcash Trading Ltd v Bunn (No. 5) [2009] FCA 16 helpfully set out principles for contempt, some of which have application in this statutory context of contravention proceedings under Part 13A, as follows:
These are not in issue and can be stated shortly. First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40]. Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at [19]. Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at [6]. Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534.
These principles yield to the particular characteristics of the statutory scheme. The statutory scheme is not a scheme for contempt, and not all of what Finn J said has application. What is particularly useful are his comments in relation to the construction and meaning of the Orders alleged to have been breached.
In this case, where much turns upon the construction to be placed upon the relevant order, and the meaning and scope of the term “denigrate” it is important to note what his Honour said, that the order the subject of the alleged breach must be “clear and unambiguous”, and that the proper construction of an order is not a matter of fact but a question of law.
The question of what is meant by denigrate was raised with the parties, along with a number of relevant definitions taken from the Macquarie Dictionary:
a)Denigrate –
i)To sully; deface
ii)to blacken
b)Sully –
i)To soil, stain or tarnish
ii)To mar the purity or lustre or; defile
c)Defame –
i)to attack the good name or reputation of, as by uttering or publishing maliciously anything injurious; slander; libel; calumniate
ii)to disgrace
d)Calumniate –
i)to make false and malicious statements about; slander
e)Libel –
i)Anything defamatory, or that maliciously or damagingly misrepresents
ii)to misrepresent damagingly
f)Slander –
i)Defamation; calumny
ii)a malicious, false and defamatory statement or report
Noting that there is some circularity in the use of these definitions, the key concept of “denigrate” is of blackening the name of a person. While this raised questions over whether such a breadth of definition excluded, by virtue of the injunction, the ability of a party to make criticism of the other to the police, or even to the Court, it should be recognised that the mere fact that criticism is made is insufficient. The relevant conduct is that which does reputational damage to a person of such significance as to blacken or mar the reputation.
While falsehood or malice might bring something clearly within the definition, neither is a necessary ingredient of “denigrate.”
While there might be uncertainty whether conduct will fall into this category (a question to be determined on the circumstances of each case), the meaning of blackening a person’s name is certain.
While the meaning has the scope to cover a wide range of behaviour, attracting potentially unexpected consequences (hence the question whether it would cover a complaint to the police), such extreme consequences are not the subject of the current complaint and do not require resolution here on a hypothetical basis. The potential for such consequences might call for a use of different terminology that adopts plain language. This is not said as any implied criticism of the judicial officer who used the term. “Denigrate” is a term that has regular use in orders. It is a term I have regularly used. It was a term selected by the parties in providing consent terms to her Honour. The course of these proceedings throws light on the question of the ongoing wisdom of the use of a term that is not in regular use in the community, and might not be in the regular vocabulary of those the subject of such orders.
The pressed contraventions
25 April 2017
Paragraph 7 of the Contravention Application refers to an incident that occurred on 25 April 2017 at 12.28-3.09am as follows:[1]
On 26 (sic) April 2017, the mother denigrated the father twice by publishing posts on Facebook which refer to him as a “violent abuser” and calling him “cunning and manipulative”.
[1] Father’s Affidavit filed 22 June 2018, Annexure B
The post appears at Annexure B of the Father’s affidavit of 22 June 2018. While the post, in referring to spouses, contains the terms “abusers” and “cunning and manipulative” it does not contain the term “violent abuser.”
The Mother’s initial response to this post was that it had already been dealt with by Judge Tonkin. No such contravention was dealt with by Judge Tonkin.
The post is a comment made by the Mother in response to an earlier post made by her described as a memory from 5 years ago. The Mother initially accepted that the earlier post was in relation to the Father, but then added it was also about her previous husband, Mr Balsdon. The Mother asserted that the post was about spouses and the male population more generally, noting that a friend had recently suffered her spouse gambling away their savings. The Mother said that the trigger for her in making the post was as to how disgusted she was in married men at the time.
The Mother says that this post does not identify the Father, and noted that she has been married previously to another person who was violent.
The Mother accepted that she regards the Father as cunning and manipulative.
The Mother points to a number of reasons for the post. However, the context, in particular the context of the “memory” relating to the Father, the context of the legal proceedings with the Father, and the reflection of the Mother’s view of the Father in the post sufficiently supports an inference that the Father was targeted in the description “cunning and manipulative.”
The Mother further defends the post as not being denigration of the Father by asserting that the description “cunning and manipulative” is truthful.
However, even if that is the case, untruth is not an essential ingredient in denigration, although untruth may render it easier to attract the description as denigration. The description of the Father as “cunning and manipulative on a Facebook post blackens or tarnishes the father and is properly described as denigrating him. The breach is clear and unambiguous.
27 April 2017
Paragraph 11 of the Contravention Application refers to an incident that occurred on 27 April 2017 at 10.23pm as follows: [2]
On 27 and 28 April 2017, the mother denigrated the father by sending a number of Facebook messages to a friend of the father’s alleging that the father had abused her, alleging that the father has mental health issues, personality disorders, anger issues and alleging that the father is acting spitefully.
[2] Father’s Affidavit filed 22 June 2018, Annexure E
The messages, sent by Facebook Messenger by the Mother to Ms O (described as a friend of the Father’s) are contained at Annexure E of the Father’s affidavit of 22 June 2018. The messages contain a number of images of injuries to the Mother that she says the Father is responsible for. She describes the Father as having been violent to her and that the images only comprise a fraction of the Father’s violence. She describes him as a “violent wife beating child abuser.” Amongst other matters she describes the father as wanting to “steal” her children, to “kick” her out of her home without giving her the chance to defend herself. She describes the Father as delusional, describes him as a “despicable abusive person” who has acted in “petty spiteful revenge”; that he has convinced people to lie for him, and describes him as a “vile human being.”
The Mother’s initial response to this post was that it had already been dealt with by Judge Tonkin. No such contravention was dealt with by Judge Tonkin.
While the Mother did not accept that the bulk of the descriptions made by her to Ms O (a person she accepted was aligned with the Father) were denigrating, she accepted that the term “vile human being” could be denigration.
The various descriptions of the Father, and the alleged conduct, formed representations about the Father that blackened or tarnished him. The messages denigrated the Father to Ms O. The breach is clear and unambiguous.
21 October 2017
Paragraph 15 of the Contravention Application refers to an incident that occurred on 21 October 2017 as follows:[3]
On 21 October 2017, the mother denigrated the father by sharing a video about battered wives, claiming herself to be a battered wife and blessed to live in a country with gun control. This implies that the father was abusive towards her.
[3] Father’s Affidavit filed 22 June 2018, Annexure G
The relevant post is contained at Annexure G, page 42 of the Father’s affidavit of 22 June 2018.
The post involves a repost of a TED talk entitled “Why Domestic Violence Victims Don’t Leave.” The Mother reposts with a comment of her own regarding knowing what it is to be like in the speaker’s shoes and noting that she is blessed to live in a country with gun control. In her oral evidence she asserted that the reference was to her previous husband. She says that she did not specifically identify the previous husband so as not to denigrate him.
The Mother says that this post does not identify the Father. As she noted elsewhere, the Mother has been married twice. In this instance that creates sufficient doubt as to whether it was her previous husband being referred to, or the Father, or both. That doubt is sufficient to mean that it is not established in the balance of probabilities that the Father was the target of the comments and hence that he was denigrated by them.
5 November 2017
Paragraph 21 of the Contravention Application refers to an incident that occurred on 5 November 2017 as follows:[4]
On 5 October (sic), the mother denigrated the father on two occasions. Firstly, the mother shared a Facebook Post about financial abuse, thereby implying that she is the victim of financial abuse.
Secondly, the mother shared a post which read “When people who know the narcissist are aware that they have been abusive to you, yet remain supportive of the narcissist, they are condoning abuse. They lack integrity, morality and are, in fact, accomplices by their failure to take a stand”. This implies that the father is abusive and narcissistic.
[4] Father’s Affidavit filed 22 June 2018, Annexure G
The Mother says that this post does not identify the Father. The relevant posts are contained at Annexure G, pages 45 and 46 of the Father’s affidavit of 22 June 2018.
Neither of the posts by the Mother contain any comment by her, nor any comment directly about the Father. In her oral evidence the Mother says that it was about all the narcissists that she knew, including the Father. The contravention is reliant upon the drawing of an inference that the comments were about the Father and sufficiently identified the Father. There is no reference to the relationship between the narcissist and the Mother (eg no reference to an “ex” or a partner or husband).
I am not satisfied that the Father is sufficiently identified as the target of the comment to constitute denigration of him.
25 November 2017
Paragraph 27 of the Contravention Application refers to an incident that occurred on 25 November 2017 as follows:[5]
On 25 November 2017, the mother sent an email to the father’s sister in which she makes a number of accusations of abuse against the father.
[5] Father’s Affidavit filed 22 June 2018, Annexure H
The Mother’s initial response to this email to the Father’s sister was that it had already been dealt with by Judge Tonkin. No such contravention was dealt with by Judge Tonkin.
The relevant email is contained at Annexure H, pages 52 to 54 of the Father’s affidavit of 22 June 2018.
In this email, the Mother includes a link to an article entitled “I’m co-parenting with a narcissist”. The Mother strongly implies that the Father is abusive in a number of different ways and later references further abusive behaviour by the Father.
The email to the sister blackens and tarnishes the Father. It forms an instance of denigration. It is clear and unambiguous.
21 December 2017
Paragraph 29 of the Contravention Application refers to an incident that occurred on 21 December 2017 as follows:[6]
On 21 December 2017, the mother denigrated the father by sharing a Facebook post which states “many children will wake up this Christmas missing their protective parent”. In doing this, the mother implied that the father is a risk to the child.
[6] Father’s Affidavit filed 22 June 2018, Annexure J
The relevant post is contained at Annexure J, page 59 of the Father’s affidavit of 22 June 2018. The video in the post shared by the Mother contains a link to “helpfamilylaw.net”, and its description includes the sentence: “This Christmas so many children will miss their parents, due to the Courts and Child protection.”
The Mother says that this post does not identify the Father. No comment is made by her.
The post is insufficient to establish that the target of the comment was the Father. This does not constitute an instance of denigration.
26 December 2017
Paragraph 31 of the Contravention Application refers to an incident that occurred on 26 December 2017 as follows:[7]
On 26 December 2017, the mother denigrated the father by shared a post about toxic and controlling people, thereby implying that the father is, or was, toxic and/or controlling.
[7] Father’s Affidavit filed 22 June 2018, Annexure J
The Mother says that this post does not identify the Father.
The relevant post is contained at Annexure J, page 60 of the Father’s affidavit of 22 June 2018. The comment by the Mother is: “Unfortunately there are a lot of control freaks out there.” The quote in the post she shares is: “Quote: When a toxic person can no longer control you, they will try to control how others see you. The misinformation will feel unfair, but stay above it, trusting that other people will eventually see the TRUTH, just like you did!” (Original emphasis kept).
The Mother accepted that the Father is one of the people that she was referring to. The question remains as to whether he is sufficiently identified as the object of the comment. If he is, then it constitutes denigration.
It is not clear that the post is a reference to the Father. Absent this link it does not constitute denigration.
10 January 2018
Paragraph 33 of the Contravention Application refers to an incident that occurred on 10 January 2018 as follows.[8]
On 10 January 2017 (sic), the mother denigrated the father by shared a post about sexual harassment and added a comment “Same with reporting domestic violence. Plus all the fun of nasty people who support your violent ex”. This states that the father is violent.
[8] Father’s Affidavit filed 22 June 2018, Annexure J
The relevant post is contained at Annexure J, page 61 of the Father’s affidavit of 22 June 2018. There are a series of comments by the Mother and another individual on the post. The implication is that the Mother has suffered domestic violence at the hands of her “violent ex.”
The Mother says that this post does not identify the Father. The Mother accepted that the comments that she made covered the Father. The reference to violent ex, with the concession that the comments covered the Father sufficiently identified the Father. The posts denigrated him. The breach is clear and unambiguous.
Do the instances of denigration constitute contraventions of the order?
The meaning of “contravened an order” is set out at s 70NAC:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order--he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)otherwise--he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
In this case what is required is that the mother intentionally engaged in conduct that contravened the order. Although she denied that she understood the comments to be in contravention, that is not the point in establishing whether or not a contravention has taken place. What must be intentional is the engaging in conduct (or in relevant cases intentionally failing to engage in conduct) that is not compliant with the obligations imposed by the order. That this is so is reinforced by the terms of s 70NAE as it deals with reasonable excuse for contravention (a matter that can only be considered once a contravention is established).
Relevantly s 70NAE(2) is as follows:
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
That is, a lack of understanding that the conduct constitutes a breach is a consideration in determining whether there is a reasonable excuse for a contravention, rather than in determining whether there has been a contravention.
The Mother accepted that she engaged in the conduct on each occasion. On each occasion there was an intentional posting to Facebook or sending of an email. What was contained in the communications made by the Mother on 25 April 2017, 27 April 2017, 25 November 2017 and 10 January 2018 were denigrating of the Father. The communications were not compliant with the obligation cast upon the Mother in the orders of 24 April 2017. The Mother is in contravention of those orders on those four occasions.
Does the mother have a reasonable excuse for contravening the orders?
The Mother raised the question of whether the circumstances of the contraventions demonstrated a reasonable excuse for the contravention. The issue of reasonable excuse appeared to be centred on the Mother’s assertions of a lack of understanding that the conduct engaged in was in breach of the Orders.
Section 70NAE deals with the meaning of reasonable excuse. It sets out a series of circumstances where a person is or may be taken to have a reasonable excuse for contravening an Order, but does not close the categories as to what might be considered to be a reasonable excuse.
As extracted above, s 70NAE(2) deals with reasonable excuse where the Respondent does not understand the obligations imposed by the Orders.
A consequence of such a finding is set out at s 70NAE(3) which provides that the Court has a duty to explain the obligations imposed on the party by the order and the consequences that may follow if he or she again contravenes the order.
The Full Court considered this provision in Ongal v Materns (2015) 54 Fam LR 86. As to whether the court is satisfied that the person ought to be excused, their Honours said (at [38]):
The legislation is silent on the matters a court should consider in deciding whether someone ought to be excused from a contravention pursuant to s 70NAE(2)(b) for misunderstanding an order. The discretion is therefore of considerable breadth and, to adopt the expression used in Stanford v Stanford (2012) 247 CLR 108 at [36], "it is not possible to chart its metes and bounds".
The precursor is a finding that the party did not understand the obligations under the Orders. The onus to show this is on the Mother. It is an onus to show not only a lack of understanding of the obligations but that the breach was caused by that lack of understanding.
The Mother dealt with this lack of understanding in her affidavit of 15 November 2018. She there said that she had not breached the orders as:
a)The posts did not identify the father, either by name or in any other manner;
b)The relevant posts were about the topic of domestic violence;
c)The mother posted in relation to issues of domestic violence from before her relationship with the father;
d)Posts that identified the mother were directed to her experience as a victim rather than aimed at denigrating the perpetrator;
In relation to the 25 April 2017 public post contravention, the Mother gave evidence that the post was not in breach because it did not identify the Father, and because it was true in relation to the Father.
In relation to the 27 April 2017 contravention, the Mother gave evidence that while the reference to the Father being a “vile human being” could be denigrating, the references to him as violent, despicable and the like were truthful and therefore not denigrating.
It is important to note that on 27 April 2017 the solicitor for the father wrote to the solicitor for the mother alleging breach had occurred on 25 April 2017 (the day after the making of the Orders) and threatened to take contravention proceedings should the conduct continue.
In relation to the 25 November 2017 contravention, the Mother said that the purpose of the communication to the Father’s sister was to seek solutions from her regarding the issues between the parties.
In relation to the 10 January 2018 public post contravention, the Mother accepted that the post covered the behaviour of the Father, but asserted that the post related to her previous husband.
In cross examination the Mother accepted that she had agreed, by the consent orders, not to denigrate the Father, not to denigrate him on social media, and not to denigrate him to others.
In dealing with this matter, it is important to note that the Mother, who has tertiary qualifications, is a person of intelligence. I have no hesitation in finding that the Mother understood that her communications on each of these occasions had the effect of blackening the Father’s name.
If it was the Mother’s belief that truthfulness would mean that assertions do not fall within the description of denigrate, then to establish that the contravention was causally linked to that misunderstanding, as required by s 70NAE(2), the Mother carries the onus of demonstrating the truth of the assertions. She has not done so and has, accordingly failed to discharge the onus placed upon her.
On the issue of not specifically naming the Father, I am unable to accept that the Mother believed that an implied reference to the father was not covered by the prohibition against denigration. Her evidence on this point was insufficient to discharge the onus placed upon her by s 70 NAE(2).
The Mother’s other claims, about the posts relating to domestic violence, or to her experiences in relation to domestic violence, do not explain either how they flow from a misunderstanding of the obligations attaching to the Orders, or how the posts were causally linked to such a misunderstanding.
Even if I am wrong in relation to the Mother’s lack of understanding of her obligations, the onus still rests upon the Mother to satisfy that such ought to result in her being excused for the contraventions. In the context where the obligation was well understood to be that the Mother was to refrain from denigration of the Father, and where the communications made by the Mother were highly critical of the Father, the obligation was cast on the Mother to ensure that her conduct was not in breach of the terms of the Orders. Absent evidence of such efforts, this matter does not call for excuse under s 70NAE(2).
Accordingly I do not find that the Mother has established that she had a reasonable excuse for the proven contraventions.
The matter will be listed for determination of the consequences of the contraventions.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 January 2019.
Associate:
Date: 24 January 2019
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