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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> LJ v JD [2013] EWHC 3632 (Fam) (20 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2013/3632.html Cite as: [2013] EWHC 3632 (Fam)

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IN THE SWANSEA COUNTY COURT

		Caravella House Quay West Quay Parade Swansea Wales SA1 1SP
		20th May 2013

HIS HONOUR JUDGE JOHN:

1. This is an application by the Applicant Miss LJ to show cause as to why the Respondent JD should not be committed to prison for breach of an undertaking given to this Court in circumstances I will now outline.
2. The background can be stated very simply. These parties were in a relationship for eight years or so during which their child C was born. C was four on 4^th June 2013. The parties separated July 2012. The Applicant maintains that issues arose between them in October and December 2012 which led to her making an application on what she describes as an emergency basis for injunctive relief on 23^rd January 2013. That application came before the Court without notice to the Respondent, an Order was made, a return date given in the usual way when the Respondent attended, and indicated that he contested the allegations. The matter was therefore adjourned for a final hearing on the basis that the Order should continue in the meantime.
3. As it turned out, that final hearing did not in fact proceed. The matters were compromised in a way now in which the Applicant suggests she misunderstood. The Respondent offered an undertaking to the Court. That was accepted and his undertaking was recorded in writing. It is alleged f that undertaking which now form the basis of the present notice.
4. One other consequence of that procedure is that the historical issues between the parties have never been tried and there are no findings in relation to them.
5. It is important to bear in mind the terms of the undertaking. They were as follows:

(i) not to use or threaten violence against the Applicant and not to instruct, encourage or in any way suggest that any other person should do so;

(ii) not to intimidate, harass or pester or telephone or text the Applicant LJ and not to instruct, encourage or in any way suggest that any other person should do so;

(iii) having left [address given], not to return to, enter or attempt to enter or go within a hundred metres of the property.

These undertakings were to be binding until the Applicant vacates [same address given].

6. The breaches alleged and still pursued are as follows:

(i) the Respondent attended at [same address given] on 25^th May 2013 and intimidated the Applicant by shouting and swearing at her outside the house calling her "a selfish bitch";

(ii) telephoning the Applicant using intimidating language on 31^st May 2013 causing the Applicant to fear that the Respondent was at her home and stating "thank you for phoning the fucking police";

(iii) telephoning the Applicant, using intimidating language on 1^st June 2013, shouting "she is so fucking childish".

7. The Respondent admits some breaches. He admits that he went to the property on 25^th May 2013. He accepts that he telephoned the Applicant on 1^st June 2013. He puts these admissions in a general context of developing communication between the parties in the month or so preceding the occurrence of these events. He says that there were many texts that passed between them and some telephone calls, mainly if not entirely to do with the financial arrangements arising out of their separation and the need to dispose of the home. He said that they were getting on in a way which he described as 'civil' at that time.
8. In his evidence today he admits further breaches in ways which are inconsistent with the statements that he has filed. He admits using bad language on 25^th May 2013 and he admits using bad language in the telephone conversation on 1^st June 2013, notwithstanding his previous denials and notwithstanding the evidence of his partner who was by his side on 1^st June 2013 who said she overheard no bad language being used. However, he totally denies making a telephone call on 31^st May 2013.
9. The issue before this Court, therefore, is the extent to which these alleged breaches are proved.
10. I remind myself as a matter of law that it is for the Applicant to establish the facts, prove the breach and that as these are quasi criminal proceedings, she must do so to the criminal standard, i.e. so that the Court is sure.
11. I also remind myself in the circumstances of this case and by particular reference to the second of the alleged breaches, the telephone call on 31^st May 2013, that some of the evidence is circumstantial evidence. No-one saw him making the call, although the Applicant says she recognised his voice and that it was him. Nevertheless, inferences are sought to be drawn from some of the surrounding circumstances and in relation to that alleged breach, I direct myself not to engage in speculation about it but I direct myself also that it is permissible in those circumstances to reach conclusions which are based upon established facts, i.e. to do so by drawing inferences from those facts.
12. I turn to each of the three alleged breaches.
13. Firstly, I consider that of 25^th May 2013. This arose discretely as a result of the changed circumstances relating to C's contact with his father. Ordinarily, C was returned by Mrs AD, Respondent's mother, at her home. On this occasion she had gone over to her sister's home Aunt S (as she is referred to) whose property is about seventy metres of so from where mother and C live. And so Mrs AD made a telephone call in which she asked the Applicant what should happen – was she content for C to be brought back by his father and delivered home by him, or would she (the Applicant) come round and collect him? The exact words that Mrs AD recalls and which were given in evidence before me this afternoon were these:

"Can J bring him over or will you collect him?"

To which she says the Applicant responded:

"Yes, okay."

14. Whether or not that corresponds entirely with what the Applicant says is secondary to a particular point that arises in this situation, which is that it was Mrs AD who was responsible for whatever was conveyed to the Respondent. She legitimised what happened by telling him or allowing him to believe that this is what mother had meant by saying "Yes, okay." Even so, Mrs AD then appears to have taken up a position in her sister's garden where she had a vantage point of what was happening and the Respondent's current partner took up a position at the end of the road fifty metres or so away, clearly for fear of something transpiring out of this.
15. The evidence by the Applicant and on her behalf from her sister, is that she grabbed her shoe and left. The Respondent makes the point that that cannot have been right because it would have taken him and C some time to come from Aunt S's home and in that time the Applicant would have been well out of the house. There is very little in that point because even on the basis of an assumed slow walking pace of even a couple of miles an hour, in a minute or two a significant distance would have been covered. I see no probative significance or value in that point. The accounts given are that the conversation outside the gate that ensued between them took five to ten minutes. The Respondent says ten minutes, supported by the Applicant's own sister. What the Respondent says is that there was an uncontroversial conversation about the prospect of contact the next day and that as he was leaving, having accepted what the Applicant said about that, she engaged him in conversation about the house which then developed over the ten minutes and resulted in them shouting and swearing at each other.
16. There are clearly on-going issues in this case; issues about finance and the emotional issues are still raw. However, the Respondent made a significant shift in his position and this is, in my mind, is of significant effect in terms of his general credibility about this. He said:

"We did get into an argument."

He says they were shouting at each other, swearing at each other and that he did say she was"fucking childish." The denial of shouting and swearing in his statement to this Court does not square with that account freely given today. Even if the point is taken that the words in his statement are conjunctive, shouting and swearing, not disjunctive, shouting or swearing, and even if he then took the point that by admitting that he was swearing he did not admit that he was shouting and swearing, it goes nowhere because by omission his statement is just as misleading. Nowhere in that statement does he say "I swore at her". Nowhere does he say in his statement "Not only was I there under the mistaken apprehension that I was invited there, but I did call her 'fucking childish'." At best, that statement is not the whole truth. I am sure that it is an untruth and that he lied about that. I am sure that he swore at the Respondent, called her "fucking childish" and called her "a selfish fucking bitch" and that the account given by her is right and on my assessment of the evidence of a whole, it is established to an extent that I am sure that it went beyond that and that the admission given today is one piece of evidence at the end of that exchange, and that her account of it having happened with other things being said as well is true.

17. I make these further observations about that. It is not proved on the evidence before me that he went there deliberately in breach. There is too much confusion about what he was told by his mother about it and what she understood about it. It is clear as well on the evidence before the Court that the only conclusions open to the Court is that this went on for ten minutes or so, that in terms of her reaction to it, the Applicant never left the scene. Notwithstanding that they were divided by a wall throughout, there is no evidence to suggest that she could not have done so. She told the police at one stage as recorded in the relevant PPD1, that there was no problem. Today she said that she meant that there was no problem in the sense that he was going to hit or strike her.
18. It is also the case that this has to be seen in a context. I accept that it followed the communication which had indeed been regular between them throughout May 2013.
19. I turn to the 31^st of May 2013. The account by the Applicant and three witnesses from whom I have heard today were that the call was made whilst they were in the course of having a meal together in a restaurant. The Respondent's denial is a bare denial; it never happened.
20. The first question is whether I am sure that there was phone call in the first place. Was there any phone call from any source at all? I am sure that there was. This is not a hugely sophisticated malicious (because that is what it would be) ploy on the part of the Applicant and these witnesses to fabricate an account of this phone call having come through in the way they all described on her telephone at 9:34 in the evening, and of responding by leaving suddenly, bringing their meal to a hastened end, getting the bill and driving back to [name of place given]. It happened.
21. The second question is whether or not it was the Respondent who made the call. I am sure in my mind it was the Respondent, for these reasons.
22. Firstly, apart from issues over voice recognition on the other witnesses' parts and what they would or could have overheard, it is beyond any question in my mind that after their relationship over so many years the applicant would know for sure who she was talking to on the phone. I have no doubt about that.
23. Secondly, the words used here were clear - clear in the sense that whichever version you apply according to the different accounts there are in some respects, they constitute a reference to the police being called and to the caller being in the house "having a few beers." They were at best a sarcastic or ironic response to something to do with the police having been called.
24. Thirdly, that is exactly what had happened that night. Though the logs do not record the precise details, the evidence from Miss JJ is that the police were there between 9:30 to 9:45. We know that on the basis of the photograph that was made and which I accept was made by the Applicant from her phone, that this call came in at 9:34. It would indeed be the most extraordinary coincidence of vanishingly unlikely proportions that on this occasion somebody with mischief in mind phoned and relayed this message at the very time that it is now established that the police had in fact visited the Respondent in response to the events of 25^th May 2013. It all fits; the police and the response, the angry reaction to the police being involved in this disputed account of 25^th May 2013 and a call being made which is after all again exactly what had been happening between them throughout May.
25. Fourthly, in terms of corroboration, I found the other witnesses reliable as well. This was not a version off pat; it did not show any indication whatsoever of them having 'put their heads together' on this to come up with a consistent version. Indeed, their versions are not consistent; they are not word for word. Miss O's evidence was very balanced on this, declining to say she could recollect any specific words. The others were qualified as well, fairly so in my view, about what they could hear. But all were sure that, having heard the voice in the circumstances they described, that it was him.
26. Fifthly, on 1^st June 2013 the Respondent admits having made the call. He now admits having sworn. He now admits saying to AR that mother was "fucking childish". Again, that has to be contrasted with what is said in his statement because it has an immediate issue on credibility. The Respondent said in his statement that he did not swear at all. He puts that down to oversight but it cannot be down to oversight because it was an issue specifically addressed in and not omitted from his statement. It is not something that he did not think about. His statement clearly indicated that he did think about what he had said and whether he had sworn and concluded that he had not sworn. But he had and that affects his credibility in relation to this issue. He also said again that the Applicant was "fucking childish" and he also said, I am sure, "I know where he [i.e. C] is and I'm going to fucking get him." I found AR to be a highly reliable witness and source of evidence about this, bearing in mind particularly her crucial role as go-between on this occasion in an otherwise febrile situation. Her objectivity is something which I find I can rely on safely and I am sure that she was telling me the truth about that. It happened.
27. What is not clear on the evidence, and therefore is not established, is whether the Respondent knew at that point about this text that had come through in the early hours of the morning between the Applicant and Mrs AD, whether he knew that C was not going to be being brought to contact that day or whether he was genuinely concerned for his welfare on the basis that he had not turned up.
28. Further, AR's evidence which I record now confirmed that:

"L did not appear threatened or scared."

She was, in her fair objective assessment of the Respondent, equivocal about the issue of anger. She said:

"It was more frustration rather than anger, maybe angry is the wrong word."

Undoubtedly to my mind, that is the right interpretation of what was going on here. In the wake of recent communications between these parties, it represented a growing sense of frustration between them over issues relating to a four year-old child but which nevertheless should not have been dealt with in this way.

29. The three breaches are established to the extent and in the way that I have described in this judgment.

End of judgment

SENTENCING REMARKS 20^th May 2013

HIS HONOUR JUDGE JOHN:

30. JD, you appear for sentence now for three breaches of an undertaking given to this Court, breaches which I have found proved for the reasons I gave earlier and which your counsel has said are understood.
31. It is clear to me that the on-going issues that gave rise to these breaches are those related to finance, to the property, mortgage arrears, the need to dispose of it and as well to the issue of contact between C and yourself. All of those have or had associated frustrations which lay at the source of these breaches.
32. The merits of that in the sense of whether the Applicant was being reasonable or unreasonable in relation the property, whether she was being reasonable or unreasonable in relation to the financial issues and indeed the issues of contact between C and yourself are background only to the issue which is before me. You are before this Court because of the breaches of the undertakings and that is the fundamental issue that I have to grapple with.
33. I am sure you acknowledge and understand that undertakings and Court Orders do not carry with them the option of whether they are to be complied with or broken. They cannot be complied with in part and broken with impunity when we feel like it. To approach the Court on that basis is to attack the judicial system itself. That is the very same judicial system that you are relying on now to obtain a form of justice from this Court, and that surely but simply spells out why the Court cannot stand back and take lightly open and knowing defiance of its Orders.
34. There can be some mitigation in some circumstances but there is no avoiding the fundamental effect of breach of Court Orders and the Court has to take on board what has happened. You would have had it in this case that it was a purely innocent liaison by invitation and it clearly was not. There was more to it than that and you know, and you know that the phone call on 31^st May 2013 had more in it by way of implication than the version you advanced on either 1^st June 2013 or 31^st May 2013.
35. This general explanation I am giving as to why the Court has to take this so very very seriously is magnified here by the fact that there are three breaches.
36. I acknowledge the mitigation here. I have already made observations about the 25^th of May and the extent to which there can be justifiable reservations in the mind of the Court about how intimidated the Applicant was by that, given what I have already said about it. The phone call on 31^st of May was an empty assertion. It aroused fears, so the Applicant says, in her mind which were generated by no specific threats. All you said sarcastically was "I'm in the house having a few beers." Her attitude towards that and her belief about you was what generated most of the reaction and the anxiety about Likewise the basis of what happened on the 1^st of June is reliably accounted for AR, which differs markedly, I have to say, from what the Applicant says. To that extent, her case has not been proven.
37. I acknowledge that there has been nothing else that has happened since. I acknowledge that you are in employment and I acknowledge that C is just four and as you are his father, he would be affected indirectly and possibly directly by the sentence imposed upon you.
38. I believe that the Court can reliably accept your promise and assurance and that the Applicant can put that much trust in you. But three breaches denied on false grounds to some extent amount to a serous attack upon the integrity of this Court's jurisdiction. It must be marked by a custodial sentence, the minimum of which will be fourteen days imprisonment on each count concurrently, but which I suspend and I suspend it because of your personal circumstances in relation to your occupation and for my concerns about the direct effect upon the child as the unwitting victim in all of this.
39. The term of suspension I will link to another Order which I am going to make, which will be an Order under Section 42 of the Family Law Act 1996 in I think (unless there is submission upon it) exactly the same terms as the undertaking at paragraphs 1 and 2.

End of sentencing remarks