LJ v JD

In quasi-criminal committal proceedings for breach of a family undertaking, the applicant bears the burden of proving each breach to the criminal standard. The court may rely on circumstantial evidence and draw reasonable inferences from established facts, but must avoid speculation. The historical allegations underlying an undertaking are not determined where the parties compromised proceedings without findings. Breach remains serious even where the underlying dispute concerns finances, property or child contact. In sentencing, the court may impose concurrent custodial terms and suspend them where personal circumstances, the absence of further misconduct and the impact on a child justify suspension.

The applicant sought the respondent’s committal for breach of undertakings given in earlier family proceedings. The undertakings prohibited violence, intimidation, harassment, pestering and contact, and prohibited the respondent from entering or approaching the applicant’s property. The earlier allegations had not been tried because the proceedings were compromised.

Three alleged breaches were pursued: attendance at the property accompanied by abusive and intimidating language, an intimidating telephone call, and a further telephone call involving abusive language. The respondent admitted some conduct but disputed the telephone call. The central issues were whether the breaches were proved and, if so, the appropriate sentence.

1. The applicant was required to establish each alleged breach to the criminal standard, namely so that the court was sure. The proceedings were quasi-criminal in character.

2. Circumstantial evidence could establish a breach. The court could draw inferences from established facts, but was required to avoid speculation. Applying that approach, the court was sure that the respondent made the disputed telephone call, relying on voice recognition, the timing of the call, its content, the contemporaneous police involvement and the reliability of the supporting witnesses.

3. The court found all three breaches proved to the extent described. It found that the respondent attended the property and used abusive language, made the telephone call referring sarcastically to the police and being in the house, and made the later call using abusive language. The historical allegations between the parties had no independent status because they had never been tried and no findings had been made.

4. The underlying disputes about property, finances and child contact were background only. Undertakings given to the court had to be obeyed and could not be selectively disregarded. The breaches therefore required a custodial sentence, although the court took account of the limited intimidation proved in relation to some incidents, the absence of further misconduct, the respondent’s employment and the potential effect on the child.

5. The respondent was sentenced to 14 days’ imprisonment on each of the three counts, concurrently, with the terms suspended. The court also indicated that an order under section 42 of the Family Law Act 1996, in substantially the same terms as the relevant undertaking, would be made.

First-instance committal proceedings. No appellate history is stated in the judgment.