FLAST CASE SUMMARY: Bradbury & Lander 2019: Contravention Of Orders, Posting On Social Media

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...

Sorry the rest of my post (computer crashed the other night before I could finish it).

Based on Paragraphs 70 & 71 of the judge's other ruling:

This to me implies that the judge recognises that the mother was correct in saying that what the parents say in private to their support (close family and friends) is actually quite acceptable where there is a non-denigration order in place.  This combined with the judge's mistaken view that the third parties the mother spoke to (two of the four alleged contraventions - the two private conversations that had nothing to do with social media) were the father's "supports" and not the mother's supports.

I mean, despite his other comments on this specific issue elsewhere in the judgment, based on the judge's interpretation of the orders of what constitutes denigration in the way he claims the mother has contravened the orders, even putting an affidavit into the court saying negative things about the other parent is a contravention of the non-denigration.  The judge's ruling that saying anything negative about the other parent at all, means that making a police report, putting in an affidavit with anything negative about your ex, speaking to a counsellor, a priest, even the family report writer, etc and saying anything that "blackens the other parent's name" would be a contravention.

Quite clearly, the judge's interpretation is nonsense otherwise the whole legal system falls apart if non-denigration orders means that nothing at all negative about the other parent can be said to anyone at all. 

On a side note - the controlling father sought an order to stop the mother from speaking to the pastors of her church about the abuse, and speaking to other various professionals.  If that gives you some kind of indication of the background of this case and how controlling and abusive the father is.

“The mother is an educated woman, and the court also deems her highly intelligent, moreover, the mother was also contacted by the husband’s lawyer that her conduct (that’s she fully concedes to) is a contravention of the orders and if she continues, it will be taken to court.”

In relation to this, as mentioned above, 14 out of 18 charges put in by the father’s solicitor were either dropped by the father’s barrister or dismissed by the judge.  So clearly, the solicitor was wrong about most of the accusations. 

It’s also important to mention that the judge should have realised it’s quite common for dodgy lawyers hired by violent men to try to silence battered women and in this case, the solicitor regularly makes claims in correspondence that various things are contraventions or against the family law act etc, and yet eventually the solicitor usually concedes they were “mistaken” or that their claims could not be proven.  Two solicitors on behalf of the mother have written to the father’s solicitor telling them to back off with their false claims to the mother, and the mother since starting to self-represent has multiple times as well.

“The mother was required to answer/prove specifically to the ‘lack of understanding’ this is just one example below were she may have gone awry.

[72] The Mother’s other claims, about the posts relating to domestic violence, or to her experiences in relation to domestic violence, do not explain either how they flow from a misunderstanding of the obligations attaching to the Orders, or how the posts were causally linked to such a misunderstanding.

There was insufficient evidence provided by the mother to the court that demonstrated she did not understand her obligations with social media nor that she didn’t understand the IMPLIED REFERENCE about the father, which is also covered by the prohibition against degeneration in the orders.”

As mentioned, this was not the mother’s argument.  The mother is aware of the obligations of social media.  What concerns me though is the judge’s belief that the two posts he found the mother contravened the orders in, were an “implied reference” to the father.  The mother provided evidence to the court that the posts were not about the father (the closest to “being about the father” was the mother saying some posts were  “all men suck” posts and which the judge seemed to agree that other “all men suck” posts were not an implied reference to the father and dismissed those), therefore there was no reference to the father (implied or otherwise) to be a contravention in the first place.  The mother stands by her belief that she did not contravene the orders in the first place so there is nothing to “excuse”.

How can a judge find there is an implied reference to the father in some posts (not otherwise) because the mother said basically "all men suck"?

"The establishment of contravention was done and dusted;at [15] the Mother initially accepted that yes the earlier post was in relation to the Father."
Only in the context of it could be applied to the father but covered men in general. The fact that it covered the father is well, I don't see as an admission otherwise any woman going through family court who is having a bad day and says "all men suck" (and vice versa for men who say it about women) would be guilty of violating the denigration order.
"Furthermore, at [65] the OP solicitor also warned her to stop the conduct and she intentionally continued. Moreover, at [55] the Mother then accepted that she did in fact engage in the conduct on each occasion. Intentionally engaging in conduct against current orders = contravention established."
The father's solicitor has made a lot of untrue claims in correspondence and has been asked to stop doing so. Even the ICL, has been forced multiple times to admit the father's solicitor's claims about other issues are false (and that took a LOT to get the ICL to make those admissions as it meant the ICL was initially wrong too).
Perhaps the mother, if given a chance to re-argue the case, needs to emphasize more the deceitful nature of the father's solicitor's claims in correspondence (in the other judgement of the case the judge handed down the same day, there is reference to exhibits of an email chain; where the father and his solicitor "accidentally" left off the final email from the ICL admitting the father's solicitor was "mistaken", in regards to the issue in debate that time). The mother was able to provide the last email the father's solicitor "accidentally" left out, showing the father was attempting to mislead the court, and while the judge seems to not have paid much attention to this deceit by the father and his solicitor, the important thing is the judge now knows the father engages in this tactic - unfortunately the contravention was heard a month or so before the interim custody hearing where more of the father's deceit came up.
"In relation to the mothers rebuttal that she had a reasonable excuse due to a lack of understanding that the conduct was in breach of orders which she raised at [56], the judge remarked at [73]
‘Even if I am wrong in relation to the Mother’s lack of understanding of her obligations, the responsibility still rests upon the Mother to satisfy that such ought to result in her being excused for the contraventions’."
This bit I don't get – in the hearing, I’d say at least an hour was spent debating what the order itself actually meant. With the Judge, the father's barrister (supported by the father's three solicitors) and the mother all involved in this discussion, debating as to what the order actually meant, how can the mother (with no legal background at all) have been expected to know the finer points of the meaning of the order when a learned judge and a learned barrister (and three solicitors) need to take so long debating as to what the order meant.
"The mother defends the post as not being denigration for she is being truthful. The mother bears the responsibility of proving the truth about her claims; to show there was a casual link of the misunderstanding of her obligations (70) This is where things may of went a little pear shape."
That's actually not what the mother argued (although the judge clearly thinks she did). Due to the large debate about the definition of "denigration" as applicable to family court orders, the mother suggested that the legal definition of "defamation" might be used. Not that it was her personal belief, but that it was one possible way to solve the Judge's issue of defining "denigration".
As mentioned, the mother's actual arguments were the facebook posts don't identify the father, and a general "non-denigration" order doesn't apply when speaking privately to one's own supporters (as per the judge's other judgment that day) therefore there was no contravention. The debate is over whether the father is identified or not (which is the grounds for the appeal of the first two contraventions), and which judgement the judge put out that day is correct (and these two judgments I see as completely mutually exclusive and grounds for appealing the second two).

"It doesn’t matter if it’s in a text message or email, FB etc. to one person or to 20 people, whether it’s a friend or family member, there is no such thing as a private conversation, anything you do or say may be used in court."

That is true.... but as the judge himself said, "(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. "

And this is why the mother is appealing - battered women (and men) need to be able to identify as such to help their healing journey.  It's not about about the perpetrator, it doesn't have to involve identifying the perpetrator, just the freedom to say #metoo and identify as having survived domestic violence (which is all the mother sought to do).  And battered women need to be able to reach out in private to family and friends for support, and not have to worry about bitter "frenemies" (people pretending to be friends to spy for their ex) copying and pasting their private conversations, or in the case of the second contravention involving private conversation, third parties getting copies of private emails via deceitful means.

The mother is appealing because mothers who are victims of DV are often terrorised by their violent exes through family court - because what better way to hurt a loving mother who has escaped the violence, than to take away her children and hurt them instead - your children being beaten and not being able to do anything about it, hurts far more than any beating you receive yourself.  Battered mothers have the human right to identify as DV victims publicly, as long as it doesn't name their abuser, and battered mothers have the human right to turn to their closest family and friends and share with them about the abuse in private for support (something even the judge partially acknowledge via his other judgment) as long as it's not done in front of the children.  Which is why this appeal needs to win.

Any advice to pass on as to how to do that would be much appreciated.  unfortunately as a self represented person, with no legal background, up against someone who is admittedly an extremely excellent barrister who seems to have a photographic memory for every obscure law and case precedent in Australian law, is not an easy battle.  But it's one the mother wants to fight to protect other battered women's right to speak out publicly about being victimised (in ways that don't name the abuser) and to seek support in private from family and friends.