Fanning and Wilkinson (No 2)

[2009] FamCA 1322

FAMILY COURT OF AUSTRALIA

FANNING & WILKINSON (NO. 2) [2009] FamCA 1322

FAMILY LAW – CHILDREN – CONTEMPT – Contravention of Court Order – HELD – Respondent ordered to enter into a bond

Evidence Act 1995 (Cth) ss 140(1), 140(2), 141(1)
Family Law Act 1975 (Cth) ss 70NEB(1), 70NEC

Briginshaw v Briginshaw [1938] 60 CLR 336

APPLICANT: Ms Fanning

RESPONDENT: Mr Wilkinson

FILE NUMBER: CAC 1857 of 2007

DATE DELIVERED: 1 December 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 1 December 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self represented litigant

SOLICITOR FOR THE RESPONDENT: Ms K. Feeley, Williams Phillips O’Keefe Lawyers

Orders

In relation to the application filed by the mother on 27 October 2009 that the father be dealt with for contravention of an order I make the following orders:

IT IS ORDERED THAT:

1. a.     The allegation that the father was in breach of Order 20 of the orders made by me on 15 July 2009 is not made out and is dismissed.

   b.The allegation the father was in breach of Order 22 made by me on 15 July 2009 is found proved and I require that pursuant to the terms of the Family Law Act 1975 (Cth) the father enter into a bond before a Registrar of this Court acknowledging that he will be bound to owe the Commonwealth of Australia the sum of $500 to be levied on his lands, goods and chattels if he should fail to comply with the conditions that are set out in the bond.

   c.      The conditions are that he complies with all orders binding him in this matter that are still applying. 

   d.      The period of the bond is to be for six months and may be entered into before a Registrar of this Court anytime before 12 noon on Friday 4 December 2009. 

2. The application is otherwise dismissed; all other existing applications are dismissed.

3. The matter is removed from the pending cases list. 

IT IS NOTED that publication of this judgment under the pseudonym Fanning & Wilkinson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1857 of 2007

MS FANNING

Applicant

And

MR WILKINSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before the Court arise from an application that the father be dealt with for contravention of two orders made by me on 15 July 2009.  The allegations are that he was in breach of orders 20 and 22.  In order 20 the order reads:

   Pursuant to s 68B of the Family Law Act 1975 (Cth) with the Commonwealth the father be and is hereby restrained from approaching or contacting the mother or her partner, [Mr G], except by use of the communications book or through the contact handover supervisor and is restrained from sending any text messages, emails, or SMS messages to either party, and is further restrained from attending at the place of residence or the place of work of either the mother or [Mr G].

   Order 22 reads:

   Each of the parents be and is hereby restrained from saying unkind, unpleasant, or derogatory things about the other parent in the presence of [the child], or permitting any other person to do so in the presence of [the child].  

2. The facts in this matter, so far as the evidence is concerned, are within a relatively narrow compass.  The mother, in support of her application, filed an affidavit of a number of paragraphs, almost all of which were inadmissible for a variety of reasons, particularly in proceedings of this kind which are of a quasi-criminal sort.  I will return to the question of the standard of proof required and the onus of proof. 

The alleged incident

1. It suffices to say, for these purposes, that the incident that gave rise to this application occurred on 7 October 2009.  It appears that the mother and her fiancé and her brother and her two daughters were walking down a street in Canberra city and turned a corner and found the father in front of them.  What happened after that is not entirely a matter of agreement.  It seems clear that the original meeting is accepted by both parties as being coincidental. 

2. The evidence of the applicant, which is the primary evidence and upon which I found there is a prima facie case, was that the father began yelling, she says, “That is my daughter, that is my daughter!” The father asserts that he said the child’s name and waited for her to acknowledge him. The mother says that her fiancée turned with the child and it seems, from so far as I can determine from the evidence, that he began to move off. She asserts that the father then said, “That is my daughter in your arms, you fucking cunt!” and she says somewhat coyly in her affidavit, “I believe [Mr G] may have told [the father] to ‘fuck off’ or go away.” Either of those comments, if made, would contravene the terms of the order 22 on either part. And, to some extent on her part, on the basis of permitting Mr G to say what he was believed by her to have said, and on the father’s part, if I accept the evidence, that would constitute a derogatory comment or an unkind and unpleasant comment.

3. For his part, the father says that Mr G said to him, “Fuck off, fuck off!” which is probably, coincidentally (or not coincidentally) consistent with what the mother has said. He then began to run away. The father says he called out after him, “You fuck off! You run mate! That is my daughter in your arms!” I will come back to whether or not that might be said to constitute a breach of order 22 in any event.

The evidence of the mother

1. The evidence of the mother, and the only evidence, of a breach of order 20 which is asserted are the words in paragraph 12 of her affidavit, following upon the claim of the first coincidental meeting that, as her fiancée moved away, the father “continued to advance on us.”  Then it is asserted by her that the father said, “That is my daughter in your arms” et cetera.  The father gave no evidence about that part of the situation at all, and no question was asked of the mother about her evidence in relation to that.

2. In matters of this sort, the contravention is, in relation to this order, the first contravention, so it fits within the lower end of the category of contraventions of orders.  The proceedings are, as I have said, quasi-criminal in their nature.  That requires that the evidence that is brought before the Court is such as to satisfy me in accordance with the civil onus of the standard of proof.  There are, at law, two standards of proof in relation to the proving of matters before a Court.  In criminal matters, the standard of proof for the prosecution of a crime is establishing the defendant’s guilt beyond reasonable doubt.[1]  The civil standard, which is applicable to these proceedings, is that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[2] 

   [1] Evidence Act 1995 (Cth) s 141(1).

   [2] Evidence Act 1995 (Cth) s 140(1).

3. Proof on the balance of probabilities involves, among other things, a consideration of what is more likely to have occurred than not.  However, it has been well known for some time (and the Evidence Act1995 (Cth) provides for this[3]) that where what is being sought to be proved is a grave and serious matter, or put in more blunt terms, if what is sought to be proved might be a criminal action, then the Court must apply what has been loosely described in the past as the Briginshaw v Briginshaw[4] standard of proof.  In that decision, their Honours (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) considered whether the matter required to be proved (which related to whether adultery on the part of one of the parties had occurred or not) was to be proved on the civil standard of proof or some other standard.  In his, judgment, his Honour, Dixon J,[5] in commenting about the difficulty in making decisions in civil cases, stated:[6]

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

   [3] Evidence Act 1995 (Cth) s 140(2) refers.

   [4] Briginshaw v Briginshaw [1938] 60 CLR 336.

   [5] His Honour subsequently became Chief Justice of the High Court of Australia in 1952.

   [6] Briginshaw v Briginshaw [1938] 60 CLR 336, 361 (Dixon J).

4. That is, in part, the difficulty I face in the proceedings before me, and I will explain why below.  In addition, his Honour stated:[7]

   The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.

   [7] Ibid 362.

5. The evidence in this matter is, to say the least, scant.  The incident itself appears to have been relatively insignificant.  One wonders in looking at this matter what advantage there is in the persistence of each of the parties in bringing proceedings before this Court, simply to re-air the matters that have been brought before me so many times in the course of the proceedings between the parties.  In this matter, there is some evidence that the father approached the mother.  The evidence in itself is, however, in my opinion, inconclusive.  Although the evidence of the mother was that he continued to advance, at no point did she say, either in her affidavit, in her evidence-in-chief, or in answer to any question in cross-examination, whether he advanced towards her and that, in essence, is the nature of the allegation or the nature of the order and the nature of the prescription. 

6. The evidence of the father in its silence is scarcely very eloquent, but there is nothing that he has conceded in relation to that particular issue which would cause me to conclude that there has been any corroboration of the summary included in paragraph 12 of the applicant’s affidavit.  In my opinion, the evidence is not such as to satisfy me to the requisite extent that there has been a breach of order 20. 

7. However, so far as the evidence in relation to the language is concerned, it seems to me that if I were to accept the evidence of the applicant that the respondent said, “That is my daughter in your arms, you fucking cunt!” this would certainly constitute a breach of order (22). 

8. The evidence from the father that he concedes that he said, “You fuck off! You run mate! That is my daughter in your arms,” is perhaps less immediately clear. However, I do not accept the submission from Ms Feeley that this is normal language that would ordinarily be used in the presence of an 11-year-old, a five-year-old, or a four-month-old person. In my opinion, that language in itself, in the context in which it was spoken, as suggested by the father, even if I did not accept the mother’s evidence, is such as to constitute a breach of order 22.

Conclusion & Penalty

1. Accordingly, based in fact on the evidence given by the father rather than the evidence given by the mother, I find that there has been a contravention of order 22 by the father without reasonable excuse.

2. In this matter the appropriate penalty is, in part, to be dictated by a number of factors.  One, is the nature of the offence itself.  Two, is the nature of the fact that the application was brought in the first place to some extent, although I can imagine that the circumstances might at the time have caused each of the parents’ distress.  The sensible thing on both sides would have been to walk away from it and not to pursue it, either on the part of the father in using the language that he did or on the part of Mr G in using the language he did or in the part of the the mother in bringing this application, which quite frankly has done nothing whatsoever to increase the wellbeing of their daughter.

3. On the other hand, the language that was used suggests that the father has not yet learnt to master his self-discipline, as was pointed out in my last judgment about these matters.  It is a fairly clear and blatant contravention of the order, and, in my opinion, needs to be recognised in some way.  The appropriate way of recognising it is to require that he enter in to a bond[8] to keep the orders that I have made in these proceedings and that should apply for a period of six months and involve a penalty of $500 if he should fail to comply with the bond.  In so far as the father is concerned that there may be a difficulty with that, he may take some consolation, small though it may be, from the fact that of the two allegations that were made against him I found one of them was not proved.  In those circumstances, he might reasonably expect that if there are coincidences that they will not be visited with consequences.  On the other hand, a failure on the part of him to acknowledge the orders and to deal with them appropriately will, in fact, bring about a situation where he is obliged to make the payment that is ordered under the bond.

   [8] Family Law Act 1975 (Cth) s 70NEB(1)(d) and s 70NEC refers.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate:

Date:  2 February 2010