Cross and Cross
[2007] FamCA 387
•3 May 2007
FAMILY COURT OF AUSTRALIA
| CROSS & CROSS | [2007] FamCA 387 |
| FAMILY LAW - INJUNCTIONS - Personal protection – Question whether there is sufficient evidence to grant an order – Definition of personal protection considered – Question of whether surveillance by a private investigator amounts to harassment |
| Family Law Act 1975 (Cth) Crimes (Family Violence) Act 1987 (Vic) |
Boughey v R (1986) 161 CLR 10
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Films Rover International Limited v Cannon Film Sales Limited [1987] 1 WLR 670
Hooper v Rogers [1975] Ch 43
In the marriage of English (1986) FLC 91-729; 10 Fam LR 808
In the marriage ofKemsley (1984) 1 FLC 91-567; 10 Fam LR 125
Kirby v Phelan [2003] VSC 43 unreported 6 February 2003 Bongiorno J.
M and DB (2006) FLC 93-293
Sieling and Sieling (1979) FLC 90-627; 4 Fam LR 713
Waugh and Waugh (2000) FLC 93-052; 27 Fam LR 63
| APPLICANT: | MRS CROSS |
| RESPONDENT: | MR CROSS |
| FILE NUMBER: | MLF | 1136 | of | 2006 |
| DATE DELIVERED: | 3 May 2007 |
| PLACE DELIVERED: | Melbourne |
| JUDGMENT OF: | CRONIN J |
| HEARING DATE: | 20 April 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Sweeney of Counsel |
| SOLICITOR FOR THE APPLICANT: | Glezer Lanteri & Associates, Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld, one of Her Majesty’s Counsel |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Wisewoulds, Solicitors |
Orders
The Application in a Case filed on 5 April 2007 be dismissed.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 1136 of 2006
| MRS CROSS |
Applicant
And
| MR CROSS |
Respondent
REASONS FOR JUDGMENT
This matter came before me on 20 April 2007 and I reserved judgment as I wanted to consider what orders to make but also because of the very limited time that I had to consider the issues. I am judge managing the matter for a trial later in the year.
The application on a Form 2 was made by the wife seeking an injunction of a personal nature against the husband. The husband denies that there is any evidence which would form the basis for that order.
I have had the benefit now of reading the respective affidavits of the parties and the material to which I was referred. Mr Sweeney of Counsel appeared on behalf of the wife seeking the order and Mr Bartfeld, one of Her Majesty’s Counsel, appeared on behalf of the husband to oppose the order.
The application of the wife seeks the following orders:
“1. That the husband, his servants and agents be restrained from:
(a)following the wife or [Mr G];
(b)hiring or appointing a private investigator or any other person to follow the wife or her boyfriend [Mr G] and/or to make either herself or [Mr G] the subject of surveillance.
2.That the husband pay the costs associated with this Application in a Case, on an indemnity basis.”
The husband simply seeks an order for the dismissal of the wife’s application.
In her affidavit in support of her application filed 5 April 2007, the wife, after setting out the historical matters, referred to the fact that at a hearing on 9 June 2006, counsel for the husband referred to the fact that the wife had been followed by a private investigator who had prepared a report.
It transpires that the wife then, through her solicitors, sought a copy of the report and there was considerable correspondence about its production.
The matter was before me on 15 March 2007 for mention as I had taken over responsibility for its management. Mr Sweeney of Counsel on that occasion indicated that despite requests for a copy of the report, it had still not been provided. It was indicated to me that in the event that agreement could not be reached, I would have to adjudicate on whether or not the report should be released.
The affidavit of the wife makes reference to those issues and then says that agreement was reached and as a consequence, on 29 March 2007, the solicitors for the wife received a copy of the investigator’s report. It seems clear that the report covered three periods of time. Those periods were November 2005, September 2006 and October 2006.
In paragraph 11 of her affidavit, the wife says:
“… I was distressed at first hearing that the husband had had me followed, I felt very much violated but given that this matter was raised before Justice Watt did not think that it would be repeated. The fact that the investigator’s report which was finally provided disclosed that I was followed, as was [Mr G] (the wife’s friend) for substantial periods in September and October of 2006 has distressed me greatly.”
Mr Bartfeld on behalf of the husband pointed out that in preparation for the hearing before Justice Watt in June 2006, the wife denied any “attachment” to Mr G and that that had been the basis for the justification for the surveillance.
Mr Sweeney observed that the surveillance went on after the concession was made by the wife in the middle of 2006 by the investigator’s involvement in September 2006 and October 2006. As he said, one could only imagine that it had some relevance to s 75(2)(m). However, there may have been some other reason of a forensic nature.
The wife’s affidavit filed on 5 April 2007 goes on to point out that after the hearing before me on 15 March 2007, the solicitors for the wife sought an “undertaking” from the husband that he would not have her “followed” at any time in the future. The wife also sought confirmation that surveillance had not occurred since 9 October 2006.
On 2 April 2007, the solicitors for the husband responded:
“Our client instructs that he does not intend to retain the private investigator for any further surveillance of your client.”
The statement of the husband was not sufficient for the wife because the wife wanted an undertaking that the husband would not have her “followed”.
Thereafter followed a dispute between the parties as to:
(a)The undertaking sought by the wife; and
(b)A statement by the husband that he did not “at this time” intend to use the surveillance.
This gave rise to paragraph 16 of the wife’s affidavit in which she says:
“The fact that the husband continues to state that he had no intention of retaining the private investigator for further surveillance causes me grave concern. My concern is that the husband can change his mind at any time and will not be deemed to have breached any Court Order or undertaking in so doing. I am very stressed and concerned at what the husband has done in the past which concern is only heightened by his refusal to provide the undertaking sought. I feel extremely exposed to the husband and cannot get out of my mind the possibility that I am being followed and photographed at any given time of the night or day. The stress brought about by this fear is having an impact on my health generally.”
In submissions, Mr Sweeney said that the wife had a belief that the surveillance was still continuing but that she did not know whether that was correct. He asserted that it was harassment. He said that that was sufficient to justify making the order.
Mr Bartfeld, however, said that the wife did not get to first base because she did not demonstrate any evil that the order was expected to overcome.
He highlighted the belief of the wife and said that that was not a basis for an injunction. He said that the husband could not be held responsible for the apprehension and fears of the wife.
Surprisingly, there are no authorities specifically on the issue of the personal protection of a party to the marriage. There have been a number of cases over the years relating to the jurisdiction of courts to make orders but most related to property matters.
Section 114 of the Family Law Act 1975 (Cth) (“the Act”) reads:
“(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a)an injunction for the personal protection of a party to the marriage;
(b)an injunction restraining a party to the marriage from entering or remaining in the matrimonial home or the premises in which the other party to the marriage resides, or restraining a party to the marriage from entering or remaining in a specified area, being an area in which the matrimonial home is, or the premises in which the other party to the marriage resides are, situated;
(c)an injunction restraining a party to the marriage from entering the place of work of the other party to the marriage;
(d) an injunction for the protection of the marital relationship;
(e)an injunction in relation to the property of a party to the marriage; or
(f)an injunction relating to the use or occupancy of the matrimonial home.
…
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate. …”
It is important therefore to see whether the evidence justifies making an order which is proper in respect of the personal protection of the wife.
In the marriage ofKemsley[1] the Court held that the words “personal protection” do not only refer to physical protection but also include such matters as the protection of the right of the party to lead their life without undue interference from the other party. Similarly, “personal protection” covers intimidation and harassment.
[1] (1984) FLC 91-567; 10 FamLR 125
All of these terms refer to one person’s infringement on the right of privacy of the other.
Most injunctions are prohibitory injunctions involving an order of the court exercising equitable jurisdiction which is directed at restraining the commission or continuance of a wrongful act. The wrongful act must generally be one of defiance of a recognised legal or equitable right[2]. The recognised right of the wife in this case is to live her life free from harassment and not have her privacy invaded.
[2] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 395
In Sieling and Sieling[3] the Full Court was dealing with an application to make an order restraining the husband from selling or encumbering a matrimonial home. The Full Court looked at the provisions of s 114 of the Act and said:
“There are a number of such rights, including those to seek:
·Injunctions for the personal protection of a party to the marriage or a child of the marriage;
·Injunctions in relation to the property of a party to the marriage;
·Injunctions relating to the use or occupancy of the matrimonial home.
…
The common factor is that the applicant must establish a present entitlement to the order.”
[3] (1979) FLC 90-627; 4 Fam LR 713
In this case, I am not asked to make any findings about whether the use of a private investigator amounts to intimidation, harassment or the infringement on the privacy of the wife. The argument about the use of private investigators as a forensic tool is a matter for another day. Evidence being gathered by a private investigator of little or no probative value could hardly be anything other than intimidating, harassing or the invasion of the privacy of an individual. That is not the case here. The argument is that the surveillance has been completed according to the husband. He says that at this time he does not propose to use the investigator again but the wife wants an enforceable undertaking that he will not have her followed.
As I pointed out, apart from Kemsley[4] there are no authorities to assist.
[4] op cit n 1, p 4
It is interesting to note that at State level, the Crimes (Family Violence) Act 1987 (Vic), s 4 reads:
“(1) The Court may make an intervention order in respect of a person if satisfied on the balance of probabilities that –
(a)…
(b)…
(c)the person has harassed or molested a family member or has behaved in an offensive manner towards a family member and is likely to do so again.
(2) The order may impose any restrictions or prohibitions on the persons that appear necessary or desirable in the circumstances to the Court.”
The pursuit of an intervention order is a two step process whereby the applicant has to show historically a basis for harassment or molestation and that there is evidence that it is likely to occur again. The Court’s powers are extremely wide.
I think there are similarities between the provisions set out above and s 114 of the Act.
The Full Court in Sieling and Sieling[5] further said at 78,264:
“The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order, and frame its orders in such a way as to impose no further restriction that is necessary to achieve the protection of the applicant’s interest.”
[5] (1979) FLC 90-627; 4 Fam LR 713
In the civil jurisdiction in respect of quia timet type injunctions, the principle has always been that it is not sufficient for the plaintiff merely to express a fear of threatened harm. However, the courts have said that there can be no absolute standard or degree of probability of future injury[6]. It comes back to a matter of discretion.
[6] Hooper v Rogers [1975] Ch 43, Russell LJ at page 50.
On the second limb of the State test, the word “likely” has been examined[7]. The general consensus of cases appears to be that the word “likely” means “probable” not “possible” but that is generally used in the criminal law sense.
[7] see Kirby v Phelan [2003] VSC 43 unreported 6 February 2003 Bongiorno J, Boughey v R (1986) 161 CLR 10.
In Films Rover International Limited v Cannon Film Sales Limited[8] Hoffman J said:
“The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunction are derived from this principle.”
[8] [1987] 1 WLR 670 at 678
Of course, in civil cases, the interlocutory injunction is intended generally only to cover the period until the final trial to ensure that the very issue for determination does not become pointless. In a family law case, the personal protection issue is normally a substantive issue in its own right and quite separate from other trial issues. The unusual situation here however is that it would appear from the perspective of both parties that it relates to matters associated with the preparation for the forthcoming trial. If it were not, I would take a different view. Here, I am dealing with the husband’s use of an investigator to gather material for the trial. If that was not the case, then I would repeat what I said in the third sentence of paragraph 28 above.
The cases relating to property and financial matters concerning s 114 are not particularly helpful. However, some guidance is obtained from the Full Court decision in Waugh[9] .That decision was about whether or not there was any evidence of a particular intention that would give rise to the necessity for making the order. As the Full Court said[10]:
“In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order.”
[9] (2000) FLC 93-052; 27 Fam LR 63
[10] par 49
I have the evidence of the husband that he is not currently using the investigator and hence, not following the wife. The wife’s main reaction was to pursue an undertaking that he not do something that he said he was not doing. The objective risk of a repetition in my view, is low on the material filed.
In discussing risks, I am conscious that the wife sought an undertaking and the husband declined. The Full Court in M and DB[11] sat as an appeal from a Federal Magistrate who had dismissed the husband’s application for a Mareva injunction against the wife. The wife was overseas and therefore able to dispose of the proceeds of the sale of a home beyond the jurisdiction of the Court. The husband sought an undertaking from the wife which the wife failed to give. The Federal Magistrate said that the failure to give an undertaking upon request might demonstrate a potential risk of asset dissipation but it also might demonstrate a reluctance to give anything away until an application for interim orders was actually filed. The Full Court’s response to that was to say that failure of the wife to proffer an undertaking may well be relevant to the degree of risk. There are certain parallels between that sort of financial situation and this application for personal protection, however I suspect that the difference is that in the case of the financial matter, it may be much harder to undo the damage if the threatened behaviour is carried out. In the event that the husband, in this case, did resume the surveillance for no relevant purpose or some other conduct of a similar nature as feared by the wife, there would be little defence to the making of an order.
[11] (2006) FLC 93-293
Ultimately, the decision comes down to the question of whether there is sufficient evidence which would make it proper to make an order of the nature sought.
It is a serious step to take to make an order if the consequences that flow are that sanctions would apply if a breach occurred. That is particularly so in a situation in which the parties have to come into close proximity of one another for a variety of reasons. It is important that the Court avoid making orders which carry elements of subjectivity such that it would be very difficult to predict beforehand the conduct that would constitute a breach.[12]
[12] See In the marriage of English (1986) FLC 91-729; 10 Fam LR 808
In this case, the evidence is clear that it is the wife’s fear that she is being followed and/or kept under surveillance. The husband says that it is not occurring.
Based on the time since the last admitted surveillance, and the fact that there has been no subsequent allegation by the wife of surveillance nor conduct by the husband which would amount to some form of harassment, in my view, it would not be proper to make an order that might give rise to sanctions. Thus, endeavouring to take the course which carries the lower risk of injustice if it turned out to be wrong, on this evidence, I decline to make the order.
Accordingly, the application of wife is dismissed.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 3 May 2007
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