MB v SG

1. [1]

   HER HONOUR: At the outset of these proceedings, Campbell J made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that: (a) information tending to identify the parties to these proceedings; and (b) the evidence in the proceedings and information about that evidence are not to be published except to a party’s confidential legal advisor. The ground for that order was that it was necessary to prevent prejudice to the proper administration of justice. Accordingly, this judgment is not to be published except to the parties or as required by law.

2. [2]

   As the proceedings concern matters addressed in proceedings between the same parties in the Family Court, the names of the parties have also been anonymised in order to give effect to the restriction on publication of such proceedings imposed by s 121 of the Family Law Act 1975 (Cth).

3. [3]

   The plaintiff (a male) and the defendant (a female) were married in 1995 and separated in 2011. They have been involved in contested Family Court proceedings since their separation. The defendant's experience of those proceedings prompted her to post an online petition calling for a Royal Commission into the suffering of victims of Family Courts and the conduct of "corrupt legal practitioners". The petition was undoubtedly defamatory of the plaintiff, who commenced these proceedings to restrain the defamation.

4. [4]

   At the outset of the proceedings, an interlocutory injunction was granted by Campbell J restraining the defendant from publishing certain imputations concerning the plaintiff. The plaintiff contends that the defendant has breached that injunction on a number of occasions. The defendant has made partial admissions in respect of the breaches alleged. Accordingly, it is necessary to determine the extent and nature of the breaches and to deal with the defendant accordingly.

Circumstances in which the proceedings were brought

1. [5]

   The defendant's petition was posted on the website, “Change.org” in late July 2016. It came to the attention of the plaintiff in late October 2016 after the defendant placed a link to it on her Facebook page. The petition included the following:

2. [6]

   The plaintiff made an urgent application for an interlocutory injunction which came before Campbell J. On 7 November 2016, his Honour made the following order:

3. [7]

   As already noted, his Honour also made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting the publication of information tending to identify the parties, the evidence in the proceedings and information about that evidence.

4. [8]

   The defendant was present when those orders were made. She was also given notice of the injunction in a letter sent to her by the plaintiff’s solicitor the following day. The letter was sent as an attachment to an email. The defendant must have received the email because she replied to it. Curiously, however, the effect of her response was to seek confirmation of the interim orders (even though they were set out in the letter attached to the email). Accordingly, it is not clear whether she attended to the terms of the letter at that time.

5. [9]

   A sealed copy of the orders was sent to the defendant as an attachment to a further email on 9 November 2016. The defendant responded to that email on 10 November 2016 stating that she had changed the petition. The modified petition remained available between 8 and 11 November 2016. The plaintiff maintained that the petition as modified remained in breach of the injunction granted by Campbell J on 7 November 2016 in that it carried all of the prohibited imputations.

6. [10]

   On 11 November 2016, the defendant further modified the petition. The plaintiff maintained that the further modified petition also remained in breach of the injunction (albeit conveying only the first four of the five imputations set out above). The defendant refused to make any further changes. The further modified petition remained available until at least 15 November 2016 after which it appears it was removed.

The first contempt motion

1. [11]

   On 16 November 2016, the plaintiff filed two notices of motion. The first was an application to have the defendant punished for contempt of the orders of Campbell J made 7 November 2016. That motion was accompanied by a statement of charge specifying the alleged contempt, as required by r 55.7 of the Supreme Court Rules 1970 (NSW). The second motion filed on that date was an ancillary motion seeking a mandatory interlocutory injunction requiring the defendant to cease publication of the material she continued to publish in breach of the order of Campbell J.

2. [12]

   The motions came before Davies J on 23 November 2016. On that date, the defendant was represented by counsel. An affidavit was put before the Court in which the defendant acknowledged that she had acted in breach of the orders of Campbell J and consented to the further injunctions sought in the ancillary motion. In light of those concessions, the plaintiff did not move on the first contempt motion and it was adjourned by consent. Justice Davies stood the proceedings into the defamation list where the matter was to proceed on pleadings.

The second contempt motion

1. [13]

   The defendant did not file a defence within the time allowed by directions made in the defamation list. On 30 March 2017, in the course of preparing for a directions hearing the following day, the plaintiff’s solicitor discovered two further publications in breach of the injunction.

2. [14]

   When the proceedings came before the Court on 31 March 2017, the defendant did not appear. At that stage, the plaintiff foreshadowed filing a second contempt motion.

3. [15]

   The two further publications discovered by the plaintiff’s solicitor continued the campaign for a Royal Commission into the alleged failure of the Family Court to protect children. The first was posted under the defendant’s name on 9 March 2017 on a Facebook page titled "And Justice For All / Tasmania". It opened with the words “I am a mother in distress”, gave a brief description of the defendant’s allegations against the plaintiff and included what appears to have been a link to a further petition.

4. [16]

   The second further publication was in substantially the same terms as the first. It was posted on 10 March 2017 under the defendant’s name on a Facebook page titled "Upworthy".

5. [17]

   In response to that material, the plaintiff filed two further motions on 1 May 2017. The first was a second contempt motion seeking to have the defendant punished for a further contempt of the order of Campbell J. The motion was accompanied by a second statement of charge specifying the alleged contempt, as required by r 55.7. The second motion filed that date was an ancillary motion to the same effect as the first ancillary motion.

6. [18]

   The motions were made returnable on 9 June 2017. As at that date, the defendant had still not filed a defence, having twice been directed to do so. Accordingly, I listed the proceedings for the purpose of calling upon the defendant to show cause why judgment should not be entered against her. On 15 June 2017, after hearing from the defendant, I entered default judgment in the defamation action and continued the orders of Campbell J made 7 November 2016 and Davies J made 23 November 2016 on a final basis: MB v SG [2017] NSWSC 1203 (the defendant subsequently foreshadowed moving the Court to have those orders set aside but has not brought that application: see Tcpt, 17 October 2017, p 19).

7. [19]

   As to the two contempt motions, it was noted on 15 June 2017 that the conduct the subject of the first contempt motion had been admitted. As to the second contempt motion, there was the following exchange:

8. [20]

   The two contempt motions were then listed for hearing on 7 September 2017.

9. [21]

   The defendant was represented by counsel at that hearing and was present in person. On instructions, counsel indicated that the defendant admitted the conduct alleged in the two statements of charge. The admission was framed by reference to what had been said in person by the defendant on the previous occasion. Counsel said:

10. [22]

    It was made clear that the defendant was not, however, admitting criminal contempt. Counsel said:

11. [23]

    The matter was stood over to a date in November to allow the defendant to put on evidence on penalty.

Defendant’s application to vacate the penalty hearing

1. [24]

   Unfortunately, the defendant was not represented after that date. After terminating the services of the lawyers who represented her at the hearing on 7 September 2017, she filed a notice of motion seeking to vacate the penalty hearing then listed for 2 November 2017. That motion came before me on 17 October 2017. At that hearing, the defendant foreshadowed some qualification of the admissions made on her behalf on 15 June concerning the second contempt. She accepted that she had published the further material in private emails but denied that she had posted it online, saying (Tcpt, 17 October 2017, p 9(11):

2. [25]

   Later during the same hearing, the defendant suggested that it may have been the recipients of the private emails who posted the material online. She said (Tcpt, 17 October 2017, p 13(40)):

3. [26]

   I declined to vacate the hearing date but determined that there was no requirement for the defendant to serve an affidavit in advance of the hearing, indicating that she could give any evidence on penalty orally, as ordinarily occurs in proceedings on sentence.

Proceedings on penalty

1. [27]

   At the hearing on 2 November 2017, the defendant sought to withdraw her admissions in respect of the second contempt motion, stating that she had evidence that she did not post the two publications online. The application was made orally in the following exchange:

2. [28]

   I determined to proceed on the basis that, if the defendant produced evidence during the penalty hearing which traversed the plea, I would address the issue at that point.

3. [29]

   In light of that exchange, I took steps to confirm the defendant’s position concerning each particular in the two statements of charge. In respect of the first contempt motion, the defendant confirmed that she admits that each of the three versions of the petition was published as a result of an act of hers. She further indicated that she had an explanation in relation to that conduct (Tcpt, 2 November 2017, pp 6(5) - 7(26)). In respect of the two publications the subject of the second contempt motion, the defendant said that she did not recall publishing that material and that she did not believe she did. She stated that she thought the plaintiff had accessed her computer and posted that material.

4. [30]

   The defendant then addressed the Court as to both contempt motions. She did not read any affidavit and did not seek to give evidence. I stood the proceedings over to deal with her for both charges of contempt at the end of November.

Defendant’s application to re-open her case

1. [31]

   The defendant subsequently wrote to my Associate in terms indicating that she wished to place further material before the Court. The burden of that communication was that she had been under the impression that she would be able to cross-examine the plaintiff’s solicitor in respect of the contempt allegations (since he had sworn affidavits in support of the notices of motion) and that she had issued a subpoena in aid of the proposed cross-examination. She was informed that, if she wished to place further material before the Court, it would be necessary to make an application to re-open her case.

2. [32]

   When the matter next came before the Court (on 24 November 2017), the defendant confirmed that she wished to place additional material before the Court including cross-examination of the plaintiff’s solicitor and documents the defendant anticipated obtaining in response to the subpoena issued to that solicitor. Although I had understood the defendant to have put her case at the previous hearing, upon review of the transcript I became concerned that she may have misunderstood the process. Having regard to the seriousness of the plaintiff’s allegations, I considered it appropriate to consider the further material sought to be tendered.

3. [33]

   The subpoena (marked MFI 1) sought billing records and time sheets in respect of legal services provided by the solicitor to the plaintiff. In response to the defendant’s application, the plaintiff’s solicitor indicated that he wished to move to have the subpoena set aside on the basis that the documents sought were irrelevant to any issue raised by the contempt motions.

4. [34]

   The relevance of the documents sought was not well explained. In short, as I understood the position, the defendant sought to establish, by cross-examination of the solicitor and by the production of his cost records, that she has been subjected to a campaign of aggressive litigation by the plaintiff. The contention appeared to be that, taking that evidence in combination with her denial of having published the material the subject of the second contempt motion, the Court would be satisfied that it was the plaintiff who published that material by accessing the defendant's computer, or would at least not be satisfied beyond reasonable doubt that the defendant published that material.

5. [35]

   I was not persuaded that the records sought were sufficiently relevant to any issue in the proceedings. Accordingly, I set the subpoena aside.

6. [36]

   As to why she should be permitted to withdraw her earlier admission concerning the second contempt, the defendant said (Tcpt, 24 November 2017, p 13(44)):

7. [37]

   In the discussion that followed, the defendant indicated that she believed someone must have hacked into her Facebook account and gained access to her private messages. Based on her prior dealings with the plaintiff and his campaign of litigation against her, she believed it must have been the plaintiff who did that. I was not persuaded that there was any rational basis for those beliefs. Accordingly, I declined to grant leave to the defendant to withdraw the admission concerning the two Facebook publications made by the defendant through her counsel on 7 September. I have nonetheless given separate consideration to whether the contempt is proved beyond reasonable doubt. That issue is considered below.

8. [38]

   The defendant also sought to tender a bundle of additional documents. I granted leave to her to reopen her case on sentence to tender that material (Exhibit 1). I then granted leave to the plaintiff to tender a small bundle of documents in reply (Exhibit B).

Material relied upon by the defendant

1. [39]

   The additional documents tendered by the defendant (exhibit 1) consisted of a large bundle of disparate documents. The contents of the bundle may be summarised as follows (following the order in which they appear in the bundle).

2. [40]

   First, there were documents from the Family Court and documents relating to the proceedings in that Court. I understood that material to be tendered for the purpose of establishing that the plaintiff has brought an aggressive and expensive campaign of litigation against the defendant. That in turn was relied upon to support an inference that the plaintiff hacked into the defendant’s Facebook account and posted the two publications the subject of the second contempt motion. As already indicated, I do not think that is a rational inference and I am not satisfied that is what occurred. However, the material is also relevant to establish the very considerable stress under which the defendant has been labouring since her separation from her husband, which is relevant in assessing her moral culpability for the contempt. I accept that the Family Court proceedings would have contributed to that stress.

3. [41]

   The bundle also included a copy of the affidavit sworn by the defendant on 23 November 2016 explaining the first contempt. That explanation is considered below.

4. [42]

   The bundle also included what appear to be screenshots of a computer with a pop-up message stating "another device on the network is using your computer's IP address". That evidence goes to the defendant’s application for leave to withdraw her admissions (which I rejected, for the reasons already explained).

5. [43]

   The bundle also included a number of health records relating to the defendant which confirm that she suffered from a number of medical conditions at various times. I accept that the various accidents and illnesses she suffered would have added considerably to the stress the defendant was suffering during the Family Court and other proceedings.

6. [44]

   The bundle also included a copy of two emails dated 12 August 2004 and 30 July 2004 evidently printed from an email address in the name of the plaintiff. Those emails lie at the heart of the animosity between the plaintiff and the defendant. They purport to be emails from a child porn website and include attachments with extremely distressing photographs of child pornography, including photographs of children engaging in sexual acts. The emails state:

7. [45]

   The emails invite the recipient to join the website.

8. [46]

   The defendant has relied upon that material in the Family Court proceedings to establish that the plaintiff is a paedophile. It is clear from her conduct that she genuinely believes the plaintiff solicited that material. Any person who did solicit such material would fairly be described as a paedophile. If that person was the father of a woman's children, she would be rightly terrified at the prospect of his having any further contact with their children.

9. [47]

   It would appear that, in the proceedings in the Family Court, the Court accepted evidence from the plaintiff (including expert evidence) that the emails were spam emails and were not in fact solicited by him. Within that tragic conflict of beliefs lies the explanation for these extraordinary proceedings. The emails are relevant on penalty because they explain the state of belief with which the defendant embarked upon her campaign against the Family Court explained in her online petition.

10. [48]

    The bundle also included records of legal fees confirming the ongoing, expensive litigation between the plaintiff and the defendant in other courts. It also includes records of documents in other courts including proceedings in the Federal Circuit Court for bankruptcy evidently brought against the defendant by the owners of a strata plan and naming the plaintiff as supporting creditor; a certificate of appointment of trustee to the estate of the defendant as bankrupt (dated 9 February 2017); documents relating to proceedings for possession of the matrimonial property brought by the plaintiff against the defendant; documents in proceedings brought by the owners of the strata plan against both the plaintiff and the defendant; a lengthy exchange of correspondence about the strata fees; and documents from the Local Court recording that the defendant was acquitted of two charges of larceny brought against her on the complaint of the plaintiff including the transcript or extracts of the transcript of the magistrate's judgment dismissing the charges.

11. [49]

    That material amply corroborates the defendant’s contention that there has been a substantial amount of litigation brought against her by the plaintiff. This Court is not in a position to judge the merits of that litigation. Wherever the merits lie, I accept that the defendant must necessarily have been under a great deal of stress during that period, no doubt amplified by her belief (however irrational) that the pornography emails were not spam.

12. [50]

    The bundle also included a medical report concerning the plaintiff by a consultant psychiatrist recording his treatment for recurrent depressive symptoms and positing the possibility of a diagnosis of Bipolar II disorder. That report, dated 30 October 2007, includes the following statement:

13. [51]

    Again, it is not possible for this Court to judge the merit of the conflicting accounts recorded by the psychiatrist in those remarks. However, the report confirms at least that there is a history of conflict between the defendant and the plaintiff and that their relationship has at times placed her under stress.

Material relied upon by the plaintiff in reply

1. [52]

   In response to the defendant’s tender of the two emails from the child porn website, the plaintiff tendered a copy of the expert report relied upon by him in the Family Court proceedings (exhibit B). In summary, the expert found:

2. [53]

   The expert gave lengthy reasons for those opinions.

Findings as to the second contempt

1. [54]

   I am satisfied beyond reasonable doubt that the defendant published the two Facebook publications the subject of the second contempt charge. Her admission to that effect (through counsel) reflected an obvious conclusion and should be accepted as reflecting the fact. As set out above, the defendant admits sending such material in a form she believed was a private email or private Facebook message. She initially accepted that, since it was there, she must have posted it on Facebook but later reasoned otherwise.

2. [55]

   The two theories suggested by her as to how the material came to be on Facebook are that someone to whom she sent a private email or private Facebook message re-posted it or that the plaintiff hacked her Facebook account and posted it himself. I do not think it is reasonably possible that the posts were made by some other person re-posting a private Facebook message, for the obvious reason that the posts are in the defendant’s name. Further, the language and content of the publications is not in the nature of a private message to one person but is rather in the nature of an open plea to an unknown audience. Both posts apparently include links to a petition. In the very stressed state the defendant was in during that period, it is inherently plausible that she would again resort to making a public plea in those terms.

3. [56]

   The recent assertion that it must have been the plaintiff who published that material is inherently implausible and may be dismissed as fanciful. The plaintiff has put on evidence describing in compelling terms his extreme distress at the publication of these allegations. The first time he learned of them he became physically ill. I do not think there is any reasonable possibility that he would post such allegations on the internet himself.

Nature of the contempt

1. [57]

   As noted above, when she admitted the contempt, the defendant did not admit that her conduct was criminal.

2. [58]

   The terms of the admission invoked the distinction that has traditionally been drawn between civil and criminal contempt. The historical rational for the distinction was explained by the High Court in Australasian Meat Industry Employees Union Ltd v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 as follows (at 106; [15] per Gibbs CJ, Mason, Wilson and Deane JJ):

3. [59]

   The Court went on to observe at 108-109; [20]:

4. [60]

   The Court of Appeal considered those remarks concerning the unsatisfactory nature of the distinction in Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69. The main judgment in that case was given by Beazley JA (as her Honour then was). Her Honour considered (at [68]-[71]) that, although problematic, the distinction is of critical importance in this State because it determines whether the Court has jurisdiction to hear an appeal, citing the decision of the High Court in Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. As I read the separate judgment of Lindgren AJA, his Honour does not appear to have agreed with that analysis: at [168]-[171]. However, the third member of the bench, McColl JA, agreed with both (at [137]) and it may be that I have misunderstood the burden of his Honour’s reasoning.

5. [61]

   Justice Lindgren explained at [171] that the language used in Hearne v Street is explained by the fact that the issue being addressed was a jurisdictional issue raised by provisions which refer to "proceedings that relate to" civil contempt or criminal contempt, as the case may be. His Honour continued at [172]-[173]:

6. [62]

   I would respectfully agree with those remarks. Leaving aside the apparent difference in analysis of the role of the distinction (between civil and criminal contempt) for the purpose of determining whether an appeal lies, they are not inconsistent with the reasons of Beazley JA.

7. [63]

   The statements of charge in the present case contended only that, in publishing the relevant publications, the defendant breached the order of Campbell J and was “guilty of contempt of the Supreme Court of New South Wales”. That statement did not serve to indicate that the charge was of criminal contempt: Pang at [144]. However, the plaintiff’s written submissions asserted that the defendant’s breaches involved “either deliberate defiance or contumacious disregard” of the order of Campbell J. Accordingly, it is necessary to making a finding as to whether that was the case.

8. [64]

   Whether it is asserted that the contempt was civil or criminal, the contempt must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; [1995] HCA 3 at 542; [19] applied in Pang at [72], [101], [179].

9. [65]

   For the purpose of assessing the nature of the contempt, a range of seriousness has been recognised. They were summarised by Kirby P in Registrar of the Court of Appeal v Maniam (No 2) (1992) 26 NSWLR 309 at 314-315 as follows (citations omitted):

10. [66]

    In order to understand what Kirby P meant in referring to contempts which are “more than technical and which, although wilful, are not found to have been deliberate” it is instructive to have regard to the example his Honour gave. It was the case of Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650, a case concerning a detective who participated in a media conference and identified a suspect in a murder investigation in such a way as to interfere with his right to a fair trial. The Court accepted that the detective had not intended to interfere in the fair trial of the suspect. That was not an answer to the charge but the Court did not consider it necessary to impose any penalty “beyond that which he will have suffered by the fact that the proceedings have been brought, the court has found him guilty of contempt and he will be ordered to bear their cost” (at 659E per Gleeson CJ, Kirby P and Priestley JA). In parting with the case, the Court emphasised its acceptance of the fact that “in the stresses he was under at the time the opponent did not have in his mind that what he was saying amounted to contempt.”

Nature of the first contempt

1. [67]

   The objective evidence is that, after the injunction was granted by Campbell J, the defendant modified the petition a number of times before the hearing on 23 November 2016. The statement of charge alleges that the breach continued in various forms until at least 15 November 2016. The defendant admits that those publications breached the injunction. I am satisfied that they did.

2. [68]

   The more difficult question is whether those breaches involved “either deliberate defiance or contumacious disregard” of the order of Campbell J. The plaintiff submitted that the defendant’s contumacy is proved by the fact that the petition, in all its forms, included material the publication of which was “obviously prohibited” by the order of Campbell J. That asserts an objective proposition which may be accepted but it does not resolve the question whether the defendant acted in deliberate defiance of the order of the Court. I am not satisfied that she did.

3. [69]

   It is appropriate to set out the defendant’s explanation for the first contempt in full (from her affidavit sworn 23 November 2016). She said:

4. [70]

   The explanation is in some respects unsatisfactory but I accept that it is sincere. The source of the defendant’s understanding that she was obliged to replace certain imputations with different defamatory imputations is not explained. It must reflect a misconception as to what happened at the hearing before Campbell J. However, in the absence of any evidence as to what occurred at that hearing, it is impossible to judge the merit of the defendant’s position. Without representation, and noting the stress under which she evidently labours, it is reasonably possible that she did not fully understand or follow the proceedings. Certainly, that has been my experience of her during appearances before me.

5. [71]

   I do not regard the contempt as merely technical or inadvertent. It is clear from the correspondence that the defendant was deliberate in her modification of the petition. However, I am not persuaded that, in making the modifications she did, she acted in deliberate or contumelious defiance of the injunction. On the contrary, I am satisfied that she made a misconceived attempt (without the benefit of legal advice) to comply with her understanding of the injunction. In doing so, it is clear that she also sought to maintain her campaign against the Family Court and, incidentally, against her ex-husband. Her interpretation was tendentious and in most respects unreasonable. That is a factor that increases the seriousness of the contempt in some measure. However, I cannot exclude the reasonable possibility that, within the framework of her sometimes disordered thinking, she was attempting to respond to the plaintiff’s complaints in a manner she thought was not prohibited by the Court’s order.

6. [72]

   In summary, I would assess the first contempt to be more than technical but not in deliberate defiance of the order of the Court. I would assess the objective seriousness of the first contempt to be relatively low. Taken alone, I would regard that contempt to fall within the class of contempt for which it would be appropriate for the Court to accept the defendant’s apology and order her to pay the costs of the first contempt motion.

Nature of the second contempt

1. [73]

   As to the second contempt, the defendant denies making the posts in question and accordingly has put no explanation before the Court. She stated from the Bar table that she has no recollection of having made those posts and that she does not believe she did. However, as explained above, she admitted making publications in those terms as private emails, saying that she did not understand the meaning of the word “publish” in the context of the law of defamation. I took that explanation to mean that she did not appreciate that the injunction prohibited her from sending a private message carrying the imputations specified.

2. [74]

   The explanation does not assist because the two publications addressed in the second contempt motion are not private messages. They are posts placed on Facebook pages which were accessible to the plaintiff’s solicitor upon searching the name of the defendant and the word “paedophile”.

3. [75]

   As already indicated, I am satisfied beyond reasonable doubt that the plaintiff posted that material on the two Facebook pages. I am further satisfied that, at some level, those must be regarded as deliberate acts committed in the knowledge that they were prohibited by the order of the Court. However, it is difficult to assess the defendant’s moral culpability for those acts. I have no doubt that she was labouring under extreme stress at that time. Although I accept, from the nature of her acts, that they must have been intentional acts, I am not satisfied beyond reasonable doubt that her disobedience to the injunction involved a conscious defiance of the authority of the Court. Rather, I am satisfied that the defendant was probably in a very fragile mental state at that time. It is reasonably possible that, in that state, her thinking was disordered to such an extent as to preclude her from attending to the importance of adhering to the injunction. I do not think I can place her in the category of, for example, the doctor in Maniam who refused to attend court in response to a subpoena.

4. [76]

   I accept that, by the time of the hearing before me, the defendant had no recollection of having made the two Facebook posts some eight months earlier and that she formed a genuine belief that her computer must have been accessed by another person. Further, having regard to the extremely acrimonious history of litigation between these parties and other indications of the defendant’s sometimes fragile mental state, I accept that she now genuinely believes it was the plaintiff who did so, for the purpose (as she would perceive it) of further persecuting her. Those features of her defence of these proceedings are, in my assessment, further indications of the fragile mental state that led her to post the petition in the first place. I have also already indicated my acceptance that the defendant genuinely believes that the plaintiff is in fact a paedophile who deliberately searched for child pornography of the most distressing kind. It is likely that that belief has contributed significantly to her stressed mental state.

5. [77]

   For those reasons, I am satisfied that the second contempt consisted of two deliberate acts of posting material on Facebook in breach of the injunction. Although the defendant must be taken to have been aware of the injunction at that time, it is reasonably possible that the defendant was labouring under such stress that she did not bring the terms of the injunction to mind when she did so. For that reason, I am not satisfied that the second contempt was contumacious in the sense that the defendant intended to defy the authority of the Court. Even so, I would regard the second contempt as being more serious than the first. That follows from the fact that it is the second breach. The defendant’s apology and further promise to the Court following the first breach indicate that, at some level, she understood the importance of avoiding a further breach.

6. [78]

   The plaintiff is extremely distressed by the defendant’s repeated breaches. The extent of his distress was addressed in a powerful affidavit setting out the impact these events have had on him.

Penalties that may be imposed

1. [79]

   Rule 55.13 of the Supreme Court Rules provides:

2. [80]

   The rule is declaratory of the Court’s power of punishment and does not exhaust it: Maniam (No 2) at 314.

3. [81]

   In Pang at [70], Beazley JA noted that the rule does not distinguish between civil and criminal contempt. It appears to be accepted on that basis that the Court may punish contempt regardless of whether it is characterised as civil or criminal. That is consistent with the approach taken in Dean where, having excluded contumely, the Court nonetheless considered it appropriate to make a declaration that the opponent was guilty of contempt and proceeded to consider whether to impose a fine.

4. [82]

   The plaintiff submitted that the sentencing task is governed by the Crimes (Sentencing Procedure) Act 1999 (NSW). In support of that proposition, senior counsel referred only to the reference in the Bench Book to the decision of the Court of Appeal in Principal Registrar of the Supreme Court v Jando (2001) 53 NSWLR 527; [2001] NSWSC 969. That decision probably stands only for the narrower proposition that the Act applies when the Court determines that a person convicted of contempt should be sentenced to imprisonment. The plaintiff acknowledged that should not be the penalty in the present case. However, although limited in terms to the position where a term of imprisonment is to be imposed, the reasoning in Jando particularly at [42]-[45] equally supports the proposition that any offence of contempt should be dealt with in accordance with the provisions of the Crimes (Sentencing Procedure) Act. In my view, that is the correct approach but, at the very least, if that is wrong, it may comfortably be concluded that this Court has authority to make orders in the nature of the orders permitted under that Act.

5. [83]

   The penalties that may be imposed are addressed in Part 2 of the Act. Relevantly for present purposes, they include custodial sentences (which are taken to include intensive correction orders), non-custodial alternatives (which include community correction orders, conditional release orders, dismissal of the charges under s 10 or conditional release under that section) and fines.

6. [84]

   As already noted, the plaintiff accepted (correctly, in my view) that the circumstances of this case do not warrant the imposition of a term of imprisonment.

7. [85]

   In Wood v Staunton (No 5) (1995) 86 A Crim R 183 (cited in Jando at [17]), Dunford J listed the relevant matters for consideration in assessing the proper punishment for this type of contempt as follows (at 185):

8. [86]

   To the extent that they are relevant in the different context of these proceedings, those matters have largely been addressed above.

9. [87]

   I do not think it is appropriate to impose a fine in this case. There was no reliable evidence as to the defendant’s financial position. She has been made bankrupt but the plaintiff asserts that, in the Family Court proceedings, she is entitled to receive a substantial share of a very substantial estate. In any event, I do not think a fine is best calculated to address the present offences. The plaintiff accepts that the critical concern is to stop the publications. It was apparent during the hearing that the defendant is a person who regards herself to be of good character and who is proud of that fact. There is no suggestion that there has been any further breach of the injunction in the lengthy period since the matter was heard. That indicates that the prospect of being punished for contempt has had a salutary effect on the defendant. I consider that the appropriate penalty in all the circumstances is a conditional release order under s 10(1)(b) of the Act.

10. [88]

    In deciding whether to make such an order, s 10(3) requires the Court to have regard to the following factors:

11. [89]

    Those factors have largely been addressed above. I emphasise that I do not consider the contempts to be trivial but I do not regard them as contumacious and I have placed considerable weight on the defendant’s mental condition and the extenuating circumstances considered above. I consider it appropriate for the order to include, in addition to the standard conditions listed in s 98 of the Crimes (Sentencing Procedure) Act, a further condition pursuant to s 99A of the Act that the defendant not breach any of the injunctions by which she will now be restrained in these proceedings.

12. [90]

    The Court has attempted to contact the defendant for the purpose of publishing this judgment to the parties but, to date, has been unsuccessful. In the interests of finalising the matter the judgment will be published to the parties by email with a view to making the orders proposed at a time when the defendant attends Court.

13. [91]

    For those reasons, I propose to make the following orders. It is convenient first to address the ancillary motions. The first ancillary motion was dealt with by Davies J on 23 November 2016. In respect of the second ancillary motion, I propose to make the orders sought, as follows:

    1. (1)

       that the defendant cease or cause to cease publication of the following statement on the “And Justice for All/Tasmania” Facebook page located at https://www.facebook.com/permalink.php?story_fbid=10154655014643229&id=1420604354822978:

    2. (2)

       “...despite a pedophile bipolar father who abused them and theres a psychiatrist report that they should never spend time with him...”[sic];

    3. (3)

       that the defendant cease or cause to cease publication of the following statement on the "Upworthy" Facebook page located at https://www.facebook.com/Upworthy/posts/10154655038658229:

    4. (4)

       “...despite a pedophile bipolar father who abused them and theres a psychiatrist report that they should never spend time with him...” [sic]

14. [92]

    In respect of the first contempt motion, I find the contempt proved. I accept the defendant’s apology and propose to make the following order:

    1. (1)

       pursuant to r 55.3(d) of the Supreme Court Rules, that the contemnor be discharged.

15. [93]

    In respect of the second contempt motion, I propose to make the following orders:

    1. (1)

       a declaration that the defendant is guilty of contempt of Court in that on 9 March 2017 she breached injunctions restraining her by herself, her servants or agents from publishing to any person or entity any statement or imputation to the following effect, or not substantially different in effect to the following:

    2. (2)

       a declaration that the defendant is guilty of contempt of Court in that on 10 March 2017 she breached injunctions restraining her by herself, her servants or agents from publishing to any person or entity any statement or imputation to the following effect, or not substantially different in effect to the following:

    3. (3)

       a conditional release order for a term of 18 months commencing on [the date on which the order is made] discharging the defendant on the following conditions:

16. [94]

    I propose to order the defendant to pay at least part of the costs of the two contempt motions. However, I propose to hear the parties as to whether there should be a complete indemnity and as to why the Court should not order payment of a lump sum.