MERRICK & YARDLEY - [2012] FamCA 652

FAMILY COURT OF AUSTRALIA

MERRICK & YARDLEY

[2012] FamCA 652

FAMILY LAW – CHILDREN - Contravention - Allegation of denigration - Meaning of denigration considered.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Merrick

RESPONDENT:

Mr Yardley

FILE NUMBER:

MLC

4486

2011

DATE DELIVERED:

31 July 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

31 July 2012

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

That the application for contravention filed 26 June 2012 is dismissed.
That the case assessment conference fixed for the property proceedings on 27 August 2012 is vacated.
That all outstanding applications are adjourned to 10.00 am on 3 December 2012 before me.
That by 4.00 pm on 17 August 2012, the husband file and serve an amended application for final orders both as to property and in the event that he wishes to alter the existing parenting orders, those orders that he proposes to seek relating to the children.
That by 4.00 pm on 10 September 2012, the wife file and serve a response to the property orders sought by the husband together with any proposed orders that she may seek in relation to altering the existing parenting orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Merrick & Yardley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4486 of 2011

Ms Merrick

Applicant

And

Mr Yardley

Respondent

REASONS FOR JUDGMENT

This is a contravention application was filed by Ms Merrick, who for my convenience I shall refer to as “the wife”, against Mr Yardley, who again for my convenience I shall refer to as “the husband”.
There are three children in this marriage. They are in a war zone. I queried earlier this morning why this application which was filed on 26 June 2012 was in this Court. Final orders were made by Turner FM on 29 February 2012. Up until that stage, these proceedings had never been in this court.
The answer became evident when I found in the file an initiating application seeking property orders sought by Mr Yardley whose previous lawyers filed it on 20 June. That application does not comply with the Court’s rules. It does not set out with particularity what orders he is seeking. Litigants may be excused from particularising their claim but it is hard to imagine how that could not occur where the pool of assets is as small as it is here. I propose to vacate the hearing on 27 August 2012 because Mr Yardley has now told me that he is no longer represented by the lawyers. I propose to list the matter later in the year when I can have a careful look at it.
The application before me today has 25 allegations of contravention. Twenty five allegations in relation to orders that were only made in February gives one a very clear impression of a serious problem here. In relation to those 25 allegations, in the course of trying to work out what they were about, I struck out quite a significant portion of them. That left about 10 allegations, all of which brought denials from the husband. In essence, the dispute is about ongoing communication between the parties in a variety of written forms, usually by text message or emails.
The application was accompanied by an affidavit that set out a lot of those text messages and emails. The order made on 29 February has a provision in it that reads as follows:
Both parties are restrained by themselves, their servants and agents from denigrating the other party, or the other party’s family members or friends in the presence of, or hearing of the children, or otherwise publishing on the internet, or by email, or other electronic communications information denigrating the other party.
Attached to the affidavit of the wife are a number of appendices, and it is in those appendices that she relies for her complaints. For example, on Monday 9 April 2012 at 3.39 pm the husband sent the wife and copied in her solicitor the following:
From 4.30 Sunday 1 April to 4.30 Monday 9^th is exactly eight days and eight nights. Don’t you know how to count?
That is asserted to be denigratory. On 30 April, in a very long email, the husband sent to the wife a whole raft of things that seemed to me to be negotiating some form of property settlement, and then this:
But instead of just signing the agreements any time in the last two years, you choiced (sic) to drag this divorce, abuse me further and further every single day with all the tricks, misleading, manipulations, lies, and caused endless, unjustifiable negatives for my children.
That too is asserted as denigratory.
A little later a text message which reads:
You are losing it day with all this psayco (sic) games
which but it is understood between the parties as a reference to the word “psycho”.
On 19 April 2012, a text message was sent by the husband to the wife in which he refers to a document that had not been completed, and the 11 year old son was distressed about something to do with schooling. None of that is relevant, but what is relevant was in that text message. It reads:
Any further if I have to, and if my children allow me, I will have you too (sic) locked in jail or mental hospital. I hope it does not come to that point.
That founds another allegation of the contravention of the order. There are number of other allegations relating to breaches of the orders relating to negotiation about what extra time these children spend in a scouting club.
In discussion, I made it very clear that I found it very confusing as to how the parents would work out their parenting issues. Paragraph 20.3 of the orders of February 2012 sets up a regime where no more than three times per year during which the husband would spend with the children, the wife can elect to take the children to scouting club activities, providing she pays all the costs, but that is also provided the activities are not organised on special occasions which presumably mean “special occasions of the husband”. To do this exercise, the wife is to provide the husband with two months notice, and then make up time “to be agreed”. How on earth anyone could work out a solution without negotiation is hard to imagine. In this case, it is common ground between the parties that they cannot negotiate. That is despite the fact that they agreed, and the order was made in February, that they have equal shared parental responsibility.
Section 65DAC of the Act requires when such an order is made, that the parties consult with one another and come to an agreement about decisions of a long term nature relating to their children. That is just not possible between these parties.
The applicant brought the application. As such, she bears the onus of proving each and every one of the allegations made. I have struck out about 15 of the allegations on the basis that I cannot see a breach having occurred.
Section 70NAC of the Act provides that a person is taken to have contravened an order if they are bound by the order and intentionally fail to comply with it.
I have heard the explanations of the husband about why he sent the emails that he did, and, contextually, it is probably understandable. The question that remains in relation to the denigration orders is whether or not those sorts of statements amount to denigration. The Concise Oxford Dictionary describes “denigration” in the following terms:
To defame, or blacken someone’s name -
“Defame” is defined in the same dictionary as:
Attacking the good reputation of, or speaking ill of –
One of the ways that these parties have negotiated with each other over the last few years is by use of quite vivid language. The wife takes offence at it. She told me that she obtained an undertaking from the husband at the intervention order hearing because she was told that she would not succeed in getting an intervention order itself, and since that time things have calmed down.
Can I be satisfied therefore that the husband has breached the orders in relation to denigration? Having regard to the reference to “defamation” and the blackening of someone’s name, I doubt very much whether that was what the husband intended or that it had that effect. I am not satisfied on the balance of probabilities that is what he was doing nor that anyone else including the children knew of it. I think he has learned by the lesson that he needs to be a bit more temperate with his language. On the basis of that finding, I would dismiss all of the allegations of breaches of the order relating to denigration.
The other allegation related to involving the children in the proceedings or in any issue in dispute. There was to be an overseas trip with the husband taking the children. He sought their passports. The wife refused because she wanted certain conditions fulfilled. It transpired that the husband then sent a message to the children saying to bring their clothing and their passport. The wife took offence of that because she said that that was involving the children in the dispute.
When the husband produced the SMS, the wife acknowledged that the children came to speak to her, and she told them that she would not agree to them having the passport until she had the itinerary. That seems to me to be exactly the complaint that she was making about the husband involving the children in the dispute. These children are teenagers, so they must clearly understand that their parents cannot agree on the time of day. I could not be satisfied on the evidence of the husband that he deliberately involved the children. I accept that what he was simply saying to them was that the trip was on, and they needed to have certain things including their passports.
All of the other issues fall into the same category. The orders are confusing, and they require communication which is just not possible. On the basis of all of those matters, and bearing in mind that the onus falls on the wife, I propose to dismiss all allegations.
That activates Part VII of the Family Law Act 1975 (Cth). In this case, the parties have a problem which is going to fester unless the court intervenes in some way. There is clearly an extant application for a property settlement which is at least deficient, if not badly drawn. I propose to adjourn this to a first day before me in December 2012 at 10 am, and to order the parties to file and serve an amended application and an amended response encapsulating not only the property proceedings, but also what they seek in terms of orders, to vary the orders made in February 2012.

I certify that the preceding Twenty Two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 31 July 2012.

Associate:

Date: 9 August 2012