Jersey Unreported Judgments

[2008]JRC022

 

 

royal court

(Samedi Division)

 

18^th February 2008

 

 

 

 

Advocate R.E. Colley for the First Plaintiff

Advocate C.R.G. Davies for the Second Plaintiff

Advocate S.A Franckel for the Defendant

judgment

COMMISSIONER:

1.        The defendant applied to set aside non-molestation interim injunctions imposed on her ex parte on 17^th November, 2005 in proceedings brought by the plaintiffs which came before the Court on 25^th November, 2005 and which, by consent, were adjourned sine die upon reciprocal undertakings from the parties to appear at 48 hours notice with the interim injunctions to remain in force until further order.  The matter was argued before us on 8^th November, 2007 and 11^th January, 2008, when we announced our decision to maintain the injunctions until 1^st September, 2008.  We said we would give our reasons in a written judgment which we now do.

Background

2.        The first plaintiff ("Mr AG H") was married to the defendant ("Mrs H") on 15^th June, 1985 and they have three children.  In June 2005, Mr AG H left Mrs H to live with the second plaintiff ("Mrs KG H") who he has subsequently married.  Mrs KG H has five children of her own.

3.        The break-up of the marriage between Mr AG H and Mrs H was acrimonious and difficult.  The two families of Mr AG H and Mrs KG H were close.  Mrs H and Mrs KG H were close friends and Mrs H had a close relationship with Mrs KG H's eldest daughter.  Through the friendship between the families, Mr AG H came to know Mrs KG H well and had an affair with her, which culminated in them leaving their respective homes and partners in June, 2004 and returning a few days later.  They finally left their respective homes and partners in June, 2005 and have cohabited since that time.

4.        One of the sad consequences of the breakdown of their marriage is that the two elder children of Mr AG H (aged 21 and 17) now have no contact with him and Mr AG H has explained in a detailed statement dated 14^th November, 2005 why he declined to take any further part in court proceedings regarding contact with his youngest son (aged 8).  He is therefore estranged from all three of his children.

5.        In October 2005, Mrs H instituted judicial separation proceedings against Mr AG H, which were subsequently converted into divorce proceedings, the ancillary aspects of which took a long time to resolve.  Ultimately, the parties were able to reach an agreement which was embodied in a consent order approved by the Court on 19^th June, 2007 and which brought about a "clean break" between them.  A decree absolute was subsequently pronounced on 12^th July, 2007.

6.        At the same time as the ancillary proceedings were being finalised, Mr Franckel, acting for Mrs H, wrote to Mrs Colley, acting for Mr AG H, and Mrs Davies, acting for Mrs KG H, saying that as the injunctions had been in place for more than a year and a half, it was in his view appropriate for them to come to an end at the same time as the decree absolute was pronounced.  Mrs Colley and Mrs Davies responded in an open letter saying that they were unable to agree to the lifting of the interim injunctions.  They said that there had been a number of incidents showing that Mrs H had not come to terms with the situation and suggesting that the interim injunctions continue for a further year, following which, if there had been no further incidents, they could be reviewed.  This was not acceptable to Mrs H; hence these proceedings.

7.        The parties filed affidavits upon which they were cross-examined and we also heard evidence from CP (the plaintiffs' housekeeper) and her husband NP, Le M (the plaintiffs' building contractor) and F (Mrs H's tennis coach).

The interim injunctions

8.        The interim injunctions are currently in the following terms -

"The Defendant, her servants or agents shall be prevented from:

(a)       contacting, telephoning, communicating with or following in any way the first plaintiff save for the purpose of executing contact arrangements for their children or as otherwise agreed between their respective legal advisers.

(b)       contacting, telephoning, communicating with or following in any way the second plaintiff and/or the second plaintiff's minor children or any of them;

(c)       harming, molesting, harassing or threatening and otherwise abusing in any way the first and/or second plaintiff and/or the second plaintiff's minor children or any of them;

(d)       approaching within 100 yards of the plaintiffs' home, in the parish of Trinity, Jersey, other than in the course of travelling along the Route d'Ebenezer by car to carry out her normal daily activities and without stopping;

(e)       loitering outside or entering the first plaintiff's place of work being [ ]."

The interim injunctions contained a power of arrest which lapsed on 26^th May, 2006 and has not been renewed.

Burden and standard of proof

9.        Although this is Mrs H's application, we took the view that the burden was upon Mr AG H and Mrs KG H, as plaintiffs, to satisfy us that the continued imposition of the interim injunctions was justified.  It was agreed by all three counsel that the standard of proof was the civil standard.  It is clear that a number of incidents were either admitted to have been, or, if proved to the requisite standard (breaches of injunctions require the higher criminal standard of proof), would have been a breach of the interim injunctions.  To the extent that breaches have been committed, the plaintiffs did not want them dealt with as such as that would have been counterproductive.  In the particular circumstances of this case we were prepared to accede to this.  These were not therefore breach proceedings; the only issue before us was whether or not, having regard to the conduct of Mrs H, the interim injunctions should continue.

The Law

10.      In granting non-molestation orders, the Court is exercising its inherent jurisdiction.  Whilst there is Jersey authority on the granting of interim injunctions generally (see T.A. Picot (C.I.) Limited and another v Creative Window & Conservatory Co. Limited and another - Royal Court June 23^rd 1997), there is no Jersey authority setting out the grounds upon which non-molestation orders should be granted or continued.  Counsel recommended that the Court should have regard to the criteria adopted under the English statutory regime, which provides that the Court should have regard to all the circumstances, including the need to secure the health, safety and well-being of the applicant and should consider three principles when deciding whether to grant any non-molestation order:-

(i)        there must be evidence of molestation;

(ii)       the applicant must need protection; and

(iii)      the Court must be satisfied on the balance of probabilities that judicial intervention is required to control the behaviour which is the subject of the complaint.

(Section 42(5) of the Family Law Act 1996).

We agree that these criteria are helpful.

11.      Mr Franckel thought it was arguable (although he did not argue) that the interim injunctions in this case should have been lifted when the decree was made absolute.  Under English law, non-molestation orders are dealt with by the same division of the High Court that deals with all Family Law matters, namely the Family Division and under the same statutory regime.  In this case the interim injunctions have been imposed under the Court's inherent jurisdiction in proceedings issued in the Samedi division, which proceedings refer to but are not expressed as being ancillary to, the divorce proceedings.

12.      Under English law, non-molestation orders are usually granted for a fixed period with any power of arrest being co-terminus.  It is only in exceptional cases that such orders are made "until further order".  In Jersey, non-molestation orders are often granted on an interim basis and adjourned for an indefinite period although any power of arrest must state the period of its duration (article 3 of the Powers of Arrest (Injunctions)(Jersey) Law 1998).  In the context of Family Law proceedings both in England and Jersey, the object of non-molestation orders is generally designed to give a breathing space for the parties (see M v W (Non-Molestation Order: Duration) [2000] 1 FLR 107) and in our view, should be for a specified period of time, whether given as an interim order or confirmed as a final order, unless there are exceptional or unusual circumstances.  If this course is not taken and many years go by, a party may find himself or herself in breach of an order made many years previously when much as since changed and the original order has lost the substance of its main purpose.

The grounds for continuing the injunctions

13.      Mr Franckel argued that the Court should ignore the grounds upon which the interim injunctions were originally granted and continued by consent and look only at the more recent incidents which the plaintiffs allege have taken place.  In other words, we should regard this as if it was an entirely fresh application for the imposition of interim injunctions.  Whilst we agree that we are determining whether or not these interim injunctions should continue as of today, if we are to have a proper understanding of the parties before us and the likelihood of there being ongoing conduct justifying judicial intervention, we must have regard to the nature and seriousness of the conduct which led to the orders being imposed in the first place as well as to the more recent conduct.  "All of the circumstances" referred to in the criteria above must in our view include the circumstances in which the orders were originally imposed.

14.      We are not going to set out in this judgment all of the allegations and counter allegations which were aired before us, but in relation to the alleged conduct of Mrs H upon which the interim injunctions were originally imposed in November 2005, we would refer to the following:-

(i)        Mrs H admitted that she had threatened to kill Mrs KG H before a Relate counsellor that she and Mr AG H attended in November 2004.

(ii)       In late 2004, Mrs H came face-to-face with Mrs KG H at Marks & Spencer's.  Mrs H admitted that she intentionally approached Mrs KG H (in public) and called her "a gold digger, a whore and a pathetic prostitute" and said that she had had affairs before.

(iii)      In early 2005, Mrs H came into Mr AG H's study with a photograph of Mrs KG H and a carving knife and gouged out Mrs KG H's eyes in the photo, saying words to the effect that that is what she wanted to do to her.  Mrs H admitted attacking the photograph with a knife and that she may have said that she wanted to kill her, but not specifically gouging out the eyes.

(iv)      On 12^th November, 2005, after Mr AG H had finally left Mrs H, they met outside Haute Croix store in order that Mr AG H could hand over his younger son to Mrs H.  Events leading up to this meeting had made both parties angry, but it was not disputed that Mrs H emerged from her car and in the presence of their child hit Mr AG H on the face.  She then followed him by car (she admits unwisely) to his rented home, where Mrs KG H was waiting with two of her young children.  She parked her car so that their exit was blocked and caused what was clearly a very unpleasant confrontation, carried out at least in part in front of three young children.  Mrs KG H called the police and following their arrival, Mrs H left.  The police advised her to keep away from Mr AG H and Mrs KG H.

(v)       On 13^th November, 2005, Mrs H met Mr AG H and Mrs KG H shopping at Marks & Spencer at Red Houses.  Notwithstanding the warnings from the police, she accepted that she followed Mr AG H and Mrs KG H out of what was admittedly the only exit and then followed them across the parking forecourt so closely that her shopping bags hit those being carried by Mr AG H.  Mrs H denies doing this intentionally, but in our view, her conduct was intentional and was intimidating.

15.      In describing these incidents in summary form, as time constraints dictate that we must, it is not easy to make their true impact clear.  It is the case, without wishing any disrespect to Mrs H, that she is tall and well built, certainly compared to Mrs KG H.  We are satisfied, having heard the witnesses, that both Mr AG H and Mrs KG H in particular were then (and still are) in genuine fear of Mrs H.

16.      In relation to the alleged conduct of Mrs H after the imposition of the interim injunctions -

(i)        On 1^st February, 2006, to the embarrassment of Mr AG H, an agent of Mrs H left a pile of black bin liners in the reception of the company of which Mr AG H is chairman containing his remaining clothes and labelled with his name.

(ii)       On 16^th March 2006, the parties met at the Country Living Fair in London.  Mr AG H and Mrs KG H were very suspicious that Mrs H had followed them there, but there is no evidence to that effect and we accept that the meeting was coincidental.  However, Mrs H admits saying to Mr AGH - "Hello Tony, what are you doing here?  Spending all our money?  Injunctions don't count here". Mrs KG H alleged that while she did not witness this confrontation, she heard Mrs H say "Tart, tart" above the crowd as she moved away.  Mrs H denies making any such comment but it is clear that Mrs KG H was sufficiently distressed by this incident to call the security officers at the fair, who insisted on calling the local police, who attended and searched unsuccessfully for Mrs H.

(iii)      On 3^rd October, 2006, Mrs H sent an e-mail directly to Mr AG H's professional e-mail address at his company, making a direct plea (in breach of the interim injunctions) in relation to the children of their marriage.

(iv)      On 9^th October, 2006, an advertisement was placed in the Jersey Evening Post purportedly from Mr AG H's three sons, wishing him a happy 50^th birthday.  Whilst Mrs H did not deal with this allegation in her own affidavits and was not cross-examined over it, we regard it as unlikely that this would have been done without her participation at least.  Bearing in mind Mr AG H's relationship with his children, it is unlikely that all three would have taken what we regard as such an unusual course and we agree with Mr AG H that the motivation in part must have been to embarrass and undermine him.

(v)       During the Christmas holidays in 2006, Mrs H, who was with her middle son (aged 16), admitted approaching Mr AG H in Marks & Spencer because she said she had been asked by her son to do so.  Mr AG H was with Mrs KG H's youngest child (aged 7).  Although Mrs H did not raise her voice or act in an aggressive manner, Mr AG H was so fearful of a confrontation that he dropped his shopping bags and hurriedly left the shop with Mrs KG H's child.  This admitted approach was, of course, a breach of the interim injunction.

(vi)      At some stage in 2007, Mrs H changed her usual route to take the younger two children to Victoria College by driving via Route d'Ebenezer where the rented home of Mr AG H, is situated.  Whilst the interim injunctions specifically permit Mrs H to travel along this route to carry out her normal daily activities, we found the explanations of Mrs H as to why she had done this unconvincing and agree that it was done intentionally to antagonise Mr AG H and Mrs KG H.

(vii)     Under the terms of the consent order dealing with ancillary matters, Mrs H was ordered to return to Mr AG H two mantle clocks, a grandfather clock and a piano.  They were returned in a damaged state.  For example, glue had been tipped into the winder keyholes and over the moving mechanism of the grandfather clock and A4 images of the children had been pasted to its inside.  Mrs H accepted that she was aware of the images pasted to the interior of the grandfather clock before it was delivered.  Under cross-examination, she said this had been done by their middle son who was also responsible, possibly with his girlfriend, for the other damage which she later learned had been caused.  Even though their middle son would have been 16 at the time, we take the view that Mrs H must bear some responsibility for the pasting of the photographs which we accept caused Mr AG H emotional upset.

(viii)    CP is the housekeeper living at the new home of Mr AG H and Mrs KG H in St Peter (which is in the course of refurbishment) and she and her husband gave evidence that on Sunday 5^th August 2007, when Mr AG H and Mrs KG H were still away on their honeymoon, they saw Mrs H and two other persons in the lane (which is a dead end) adjoining the gable end of the property between 12.30 and 1.30 p.m.  CP said they stopped in front of the main house and started laughing.  She had been warned by the plaintiffs about Mrs H but did not know her by sight.  She found the presence of these three persons suspicious and reported it to the plaintiffs.  She identified Mrs H as one of the three persons from a montage of some 26 photographs set on a piece of paper the size of a postcard which she said under cross-examination she had been shown by the plaintiffs some eight days later.  A few days after that she was shown a larger photograph.  Mrs H denies that she was there.  She said that she had had a late breakfast that Sunday at Big Verne's and had invited a friend and her husband and children around for Sunday lunch - they had arrived at approximately 1.30 p.m.  She did not call her friend or her husband as witnesses or procure a letter from them.  Mr Franckel drew our attention to the Turnbull Guidelines, admittedly applicable to criminal cases, but which he said provided useful guidance to the Court about the need for caution when relying on the correctness of identification.  This is not a criminal case but we do have concerns about the identification process and applying the civil test, we are not satisfied on the balance of probabilities that Mrs H was one of the three persons seen by CP and her husband.  This is not to say that CP and her husband are not genuine in their belief or that they did not give their evidence honestly - it is simply that the allegation has not been proved.

(ix)      LeM, the plaintiffs' building contractor, gave evidence that he saw a car apparently stationary outside the plaintiffs' rented home.  It was a BMW (the make of car driven by Mrs H) with a "biggish" lady driver.  He took the number of the car and informed Mr AG H immediately.  He was certain both as to the date and the time of the incident, namely 12^th September, 2007 between 11.00 and 11.15.  Under cross-examination, he accepted that it was possible that the car was moving slowly.  F gave evidence that on that day Mrs H was late for a 10.00 a.m. tennis lesson, arriving at 10.30 a.m.  She stayed on some 10 minutes after the 30 minute lesson and could have left no earlier than 11.10 a.m.  Mrs H denied that it was her car that had been seen outside the property on this date, but we are satisfied that it was.  The evidence of Le M as to the number of the car was absolutely clear and in our view the evidence on timings made it perfectly possible for Mrs H to have left her tennis lesson and to have driven to the property where she was seen by Le M.

17.      Mrs H informed us that one of the reasons why she had not contested the interim injunctions in November 2005 is that she had assumed they would not interfere with her life in any way but that she had been wrong in that assumption.  Whilst she was not aware of the involvement of the police at the Country Fair in March 2006, after the incident on 12^th September, 2007 referred to above, Mr AG H had called the police who attended at the home of Mrs H, which was upsetting both for her and her youngest child who was present.  She feels, with some justification in our view, that Mr AG H is paranoid about her actions and that if he is to inform the police every time he sees her, something which cannot be avoided in a small island, alleging a breach of the interim injunctions, her life will be unbearable.

18.      Mrs H told us in evidence that she was no longer angry with the plaintiffs over the break-up of her marriage and wanted to get on with her life.  She said she would never harm the plaintiffs or Mrs KG H's children and cannot understand why Mrs KG H is afraid of her.  She did not want to have anything to do with either of the plaintiffs and there was therefore no need for any ongoing injunctions.  We are satisfied both from the incidents referred to above, to the extent that they were proved to our satisfaction or had been admitted, and from her demeanour when giving evidence, that this is not the case.

19.      Mrs Davies told us that the first rule in Family Law matters is to do no further harm and that this case was about limiting or preventing harm.  Applying the criteria referred to above, we concluded that there had been molestation, that the plaintiffs, and in particular Mrs KG H, needed further protection and that continued judicial intervention was required to control the behaviour of Mrs H, but that it should be for a limited and finite period.  We therefore confirmed the interim injunctions (subject to variations that are not relevant for the purposes of this judgment), which will remain in force until 1^st September, 2008, at which point the proceedings will terminate and the injunctions will cease to be of effect.  We expressed the hope that thereafter the parties would be able to get on with their lives in peace.

Postscript

We wish to comment on the statement made by Mrs H at the Country Fair in London that the injunctions did not count there.  These injunctions, which are not expressed as being subject to any geographical limitations, are binding on the person of Mrs H who is within the power of the court and she is bound by them wherever she may travel from time to time.  We refer to the following extract from Halsbury's Laws of England Fourth Edition paragraph 812 which in our view  reflects the position under Jersey law:-

"In granting an injunction, the court acts in personam, meaning that its jurisdiction is grounded on the fact that the party on whom the order is made is within the power of the court. It will not suffer anyone within its reach to do what is contrary to its notions of equity merely because the act to be done may be, in point of locality, outside the jurisdiction."

It would be unfortunate, in our view, for parties within the power of this Court to have the impression that personal orders of this kind can be ignored the moment they set foot out of the Island.

Authorities

T.A. Picot (C.I.) Limited and another v Creative Window & Conservatory Co. Limited and another - Royal Court June 23^rd 1997.

Family Law Act 1996.

Powers of Arrest (Injunctions) (Jersey) Law 1998. 

M v W (Non-Molestation Order: Duration) [2000] 1 FLR 107.

Turnbull Guidelines

Halsbury's Laws of England 4th Ed'n p. 812.