Jersey Unreported Judgments

Breach of injunctions - allegations of contempt of Court.

[2012]JRC033

Royal Court

(Family)

13 February 2012

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Fisher and Milner.

 

Advocate C. James for the Representor.

Advocate C. M. Fogarty for the Defendant.

judgment

the Deputy bailiff:

1.        This is a matter which comes before us on the application of the representor who obtained non-molestation and non-communication injunctions by an order of justice signed by the Bailiff on 9^th November, 2011. 

2.        On 22^nd December, the matter came before the Royal Court, presided over by Commissioner Clyde-Smith, because it was alleged that there was a breach of the injunctions.  The warning given by Commissioner Clyde-Smith was in these terms:-

"In the light of the admissions we find these injunctions have been breached by the two calls made by the Defendant on 16^th December, 2011, and accordingly we admonish the Defendant for those breaches."

3.        Subsequently there have been two matters which have taken place which are in danger of introducing some confusion into the paperwork and the proceedings.  On 16^th January, 2012, before the Registrar of the Family Division, an order was made by consent as to the terms on which the defendant would have contact with his children, Child 2 and Child 3, who are the subject of some of the injunctions which have been made, and it is right now just to refer to what those injunctions are, because the injunctions were amended again by consent on 18^th January.  The first injunction is in these terms, the respondent is restrained from :-

"Assaulting, harming, molesting, threatening, harassing, following or otherwise interfering in any way with the plaintiff or the children, namely, Child 1, Child 2 and Child 3.  IT BEING NOTED AND AGREED that the Defendant shall be able to approach the plaintiff, Child 1, Child 2 and Child 3 when exercising prearranged agreed contact, or contact that is to take place by virtue of an Order of this Court"

And the second injunction which is relevant to these purposes is as follows, the defendant is restrained from:-

"Communicating with the plaintiff directly or indirectly by telephone, text, e-mail or any other means whatsoever IT BEING NOTED AND AGREED that the Defendant shall be permitted to make reasonable contact the plaintiff in order to exercise indirect contact with Child 1, Child 2 and Child 3 whether by telephone, email, text or "Skype" such contact to have been prearranged and agreed, or take place by virtue of an Order of this Court."

The background to those orders by the Registrar was that the defendant was suggesting that he would shortly be leaving the Island to go to Sierra Leone to take up employment. 

4.        The matter came before the Royal Court on 31^st January when the representor made further allegations of breaches by the defendant and at that time the Court determined to adjourn the case to give both sides the opportunity to consider their evidence in relation to whether the contempt of court was proved and, secondly, if so the facts surrounding that, which would relate to the penalty which the court would impose, and the matter was adjourned until the 9^th February, when the court would consider the allegations further.  On that day it was impossible to deal with the allegations of contempt because the defendant was intoxicated when he turned up to Court.  The Court therefore remanded the matter to today with the defendant in custody. 

5.        Today we have been presented with a Schedule of contempt allegations made by the representor, all of which have been admitted but on the basis that the defendant acted recklessly rather than intentionally in breach of the court's orders, and the explanation which has been put forward by Advocate Fogarty today is that the orders of the court had not been fully explained to the defendant and that it therefore can be understood that he himself did not fully realise that his conduct was contrary to the terms of the injunctions.  The defendant has also apologised for all of the contempts which he has committed and he apologises also to the representor in relation to these matters.  

6.        We think that there is a degree of concern which arises on the paperwork which is before us and I will return to that in just a moment because we intend to make some orders for the future which will ensure that there is no confusion about that paperwork.  However, we also think that there is absolutely no doubt about the warning which was given by the Bailiff on 31^st January, and indeed a warning which was given at a time when both Jurats sitting today were also sitting, and which it is worth repeating.  The question for the Court on that occasion was whether to remand the respondent in custody pending the hearing on the 9^th February and the Bailiff said this:-

"We have decided to allow him out but that is on the basis that he undertakes not to go online in any way and that has been clarified now as meaning not going onto facebook, emails, any other form of communication through the internet, whether that is on a computer, a telephone or any other form of electronic equipment.  That is to ensure there is no repetition of this sort of conduct so far as either the children or the Representor is concerned."

And then later on in the same judgment the Bailiff asks the defendant to stand up and said:-

"This injunction has to be obeyed.   We are deferring our decision on [the breach]..."

But he went on to say:-

"   you must understand that if there is any breach at all, however minor, between now and when this matter comes back before the Court, then the Court is only going to do one thing, it is going to lock you up until the hearing, do you understand?  We are allowing you out but you must stick by the injunction absolutely, your advocate will explain it to you, Ms Fogarty, on what exactly is involved and you must stick by it.  So the only contact you can have between now and the hearing is by the prearranged telephone contact with the children, do you understand that?  No other contact with them or with the Plaintiff and then we will consider matters further when it comes back to Court.  Be warned B, you must understand the seriousness of what is involved here."

7.        So although the admission before us is made on the basis of recklessness and not any form of intention, it seems to us that the conduct which is admitted by Facebook entries on 3^rd February, the text messages on 3^rd February, the 5^th February, the 6^th February and 7^th February are the clearest possible breach of orders which the Bailiff made on 31^st January and he made them in terms which really did not permit anyone to misunderstand them.  It could not have been clearer and we do not accept that the B did not understand the Bailiff's warning on 31^st January. 

8.        Accordingly, we are going to reflect the contempt of the Bailiff's order on that day by a sentence of 2 weeks' imprisonment for the breaches of the orders made on that day and which are reflected in the Schedule of conduct admitted by the representor on 3^rd, 5^th, 6^th and 7^th February. 

9.        You are therefore sentenced to 2 weeks' imprisonment for your contempt of Court on that occasion. 

10.      Two weeks' imprisonment is the sentence imposed for the contempt as I have just described.  Things will escalate, that means they will get worse, if you carry on breaching the Court's orders it will not be a sentence measured in weeks, it will be a sentence measured in months.  I just want to be absolutely clear you understand that.  The Court's orders are not to be ignored.  That is the first thing.  The second thing is this; this Court understands, because we see it quite regularly, that when emotions get involved people sometimes have difficulty in controlling the way they behave but that is something you must get past and you will have to learn to control what you do and you will have to perform the orders which the Court makes.  And if you want to have, as certainly seems to be the case, an ongoing relationship with your children then you need to regulate the way you behave, to change your conduct towards their mother.  You need to do that or that contact is not going to be adequate or satisfactory and that clearly will not be in your best interests but actually not in their best interests either, because certainly the two younger children, who are your children, need to know who their father is and to have a relationship with them.  So the penalty that we impose today is because you disregard orders of the Court, but it is a penalty which you must understand in your mind requires you to change your attitude towards the mother as well.  I hope you understand that because if you do not, things are going to get worse. 

11.      Miss James, I am not satisfied with the terms of the orders which have been obtained at the moment, as will be apparent from the way in which I was asking you questions on the orders of 16^th and 18^th January.  It seems to me that the injunctions, particularly paragraph A(ii) of the injunction could usefully be amended because one starts from the premise that the contact proceedings are in one box and make arrangements by which the defendant has contact with children who are not in his care, and that can happen by any form of agreement or court order and does frequently.  In the second box is the question of the injunctions from the court which restrain him from doing things and the present content of the injunctions does not, to my mind, apart from the Bailiff's order of 31^st January which was an interim order, the present injunction does not extend to communication with the children which might be used in a way of causing distress and stress to the representor, and Ms Fogarty if you too could turn up your copy of the Act of the Court of the 18^th January which is at tab 8.  It seems to the Court that the Facebook entries and some of the messages that we have been shown, are capable of being read in code as intending to cause distress to the representor.  Some of that is within the representor's control because she can put blocks on the Facebook accounts and so on but nonetheless the injunction that we have in mind that we ought to amend would read as follows:-

"Communicating with the plaintiff or the children directly or indirectly by telephone, text, the internet, email or any other means whatsoever other than pursuant to an order of the Court for contact."

I do not really feel the rest of the addition on the 18^th January adds very much because that language appears in the Court's order for contact on 16^th January.  The way that then works is that there is a quite clear restriction on the papers which prevents the defendant from communicating with his children except pursuant to an order for contact.  And we make those orders today. 

12.      B, the order that we are just making is you will have contact with your children in accordance with orders of the Court and you are not to contact them at all except in accordance with those orders.  That means that if you want to change the basis of contact you will have to go back to Ms Fogarty and speak to her about how she goes about doing that for you. 

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