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The problem in this judgment is the judge has made some serious errors of fact which are not obvious from his ruling. There is an appeal happening in this case.
Not mentioned in the judgment is that there were 18 original "charges". Half were dropped by the father due to it being clear he was not identified as originally claimed by him (in circumstances where he knew they were not about him and therefore vexatious of him to claim they were). About another half dozen were dismissed at the start by the judge. All up, that's only 2 out of the 16 original "charges" related to facebook posts that the judge decided were contraventions.
Some of the errors the trial judge made are:
"The Mother has contravened parenting orders by posting on Facebook domestic violence and narcissist material that were an implied reference about the father."
Error of Fact - the posts were not about the father. For the privacy of the mother I won't go into detail but the mother showed evidence that the facebook posts were about other people. The judge ignored this.
"The mother was required to prove to the court there was reasonable excuse for contravention. The mother was relying on the grounds there was a lack of understanding of her obligation that made her breach the orders."
Error of (?) Fact. This is not the argument the mother made at all. The mother made the argument that there was no contravention of orders in the first place because the posts were not about the father, and it can be shown this by the fact that the posts didn't identify the father (it's not clear in the judgement I don't think, but the mother was previously married to another a violent man and most things were written about her first husband, as proven to the judge by showing identical facebook posts from throughout her second marriage, and many from even before she met her second husband).
That is, there was no contravention in the first place to have to "excuse". This is one of the big things that the mother is arguing in her appeal. To need to find a "reasonable excuse" means that there has to be contravention in the first place which there was not.
"The mother believes denigrating did not occur because she was speaking the ‘truth’ about the father on social media, although she also concedes that calling the father a “vile human being” could be denigrating. The mother claims she did not identify the father on social media."
That's not what the mother argued at all. When discussing the legal definition of what "denigration" is, the mother argued that it should be legally defined similar to "defamation" which means that truth is a valid defense. The judge did not agree, but this was not the mother's argument as to why denigration did not occur. As mentioned, the mother's argument was that the posts did not refer to the father.
The "vile human being" comment was said in a private conversation (as in a one to one, entirely private message) to a friend of the mother's, which the father got a copy of that conversation of through taking advantage of the friend being attracted to the father. The father led the friend on to try to get the friend to entrap the mother into saying something negative. Being a private conversation, the mother still argues that it does not contravene the non-denigration order. The mother apologised (genuinely to the father) but made it clear when she did it that she was sorry for saying, but that it was NOT a contravention of the orders.
And the same judge's other ruling that day on an interim custody matter actually states:
(70) While raising matters with third parties may harm the reputation of the parties, restraint also deprives the parties from being able to properly use support from third parties. If they cannot discuss what is going on with third parties it is difficult to envisage how they will obtain support. The two-edged nature of such an injunction tells against its appropriateness.
(71) It is different however in relation to what might be said to or in the presence of the children. It is not in the children’s interests to discuss proceedings with either of them, or to say negative things about the other parent in their presence or to suffer or allow third parties to do so. A restraint will be imposed in relation to this.
TBC...
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A question and a response.
Is publishing anonymous stuff like above considered a breach of s121? Isn't it considered acceptable to publish information anonymously?
In regards to whether it's a breach of s121, my understand is that it applies to discussions about the proceedings that identify the parties. The facebook posts and even the private conversations don't publish anything about the proceedings at all. The father already tried to go down that route and even his money hungry lawyer talked him out of that.
Plus the father really doesn't want to go down that route, because while the mother has talked about the abuse to family and friends (which by the way, the judge modified the orders to make sure there was no further debate over the circumstances the order applies in, so now it only applies to "denigrating" the father to the child), she has not talked about the proceedings at all, while the mother on the other hand has recordings of the father and paternal grandparents discussing the proceedings with the older child of the proceedings and not being truthful about what happened in the proceedings.
That is, the mother has proof the father has:
- discussed fine details of the proceedings with his parents
- he and his parents have then discussed this with an underage child party to the proceedings
- lied about what occurred.
- oh and the most recent incident was a concerted effort to get the child to drop her report to the police about the father (who is not the older child's father) assaulting her.
So with recordings of both the father and paternal grandmother breaching s121 repeatedly in this way, if the father makes a claim the mother breached s121, the mother will produce those recordings of the father and his mother breaching s121 and to a child of the proceedings.
Also, (something I might talk more on), the mother's parents are parties to the proceedings and therefore privy to everything, so the mother can freely discuss what she wants with her parents about the case, the father has decided it's "his right" to discuss everything with his own parents who are NOT party to the proceedings, including sensitive details of the mother's health conditions etc that are in subpoenaed material, all the details of the proceedings, and various other breaches of s121.
This is why in the other judgment it says
- In order to make a restraint it must be justified as being in the child's well-being. I note that subpoenaed material cannot be used outside of proceedings without the leave of the Court and that it constitutes a potential contempt of court, if it is. This means there is no utility in the orders relating to the subpoenaed material.
- Aside from this the need for a further restraint on communication of the proceedings does not appear to be necessary.
The mother had applied to the court to ask that the father be restrained from discussing the proceedings further with his parents, the mother and father's shared employer (where he has also been bad mouthing the mother, but due to the nature of their employment, subpoenaing the people at their work who the father has bad mouthed the mother to is not possible, I cannot say why, even on an anonymous board) and several others that the father has not only breached the non-denigration order to, but also breached s121 to.
The mother has sat on recordings of the father and his parents discussing the proceedings with the child (and not being truthful about what occurred) and denigrating the mother to the child (including telling the child the mother deserved the assaults committed by the father) since just days after the non-denigration order was made nearly two years ago. The mother doesn't want the father to get in trouble or be fined, or have a finding that could carry a jail term, or anything else that could jeopardise the father's employment (eg the father would be terminated instantly if given a jail term), as his job is the only thing protecting the mother and children from the father doing more serious things than minor assaults.
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Dragonfly,
I think you have confused yourself even further.
It is very clear already that you are misunderstanding the law on this issue.
I would suggest you re-read the judgment and comments here in the post.
If you still have a doubt in your mind please post a question in the QNA section or if it is a general discussion on a subject (eg: s.121 please put up a Discussion post on that subject). -
Danny yes I don't understand. All this legal stuff seems illogical nonsense to me and I don't think all the explanations in the world are going to help sadly.
