Note (no.2) By Sheriff George Jamieson In The Cause J D E V S D W
| Jurisdiction | Scotland |
| Judge | Sheriff George Jamieson |
| Court | Sheriff Court |
| Date | 18 July 2014 |
| Docket Number | F32/09 |
| Published date | 05 August 2014 |
2014SCDUM32
SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES
Court Reference Number: F32/09
NOTE (No. 2)
By
SHERIFF GEORGE JAMIESON
(Regarding contempt of court by the defender)
In the cause
J. D. E PURSUER
Against
S. D. W. DEFENDER
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DUMFRIES 18 July 2014
Act: Finlayson Alt: Powell
The sheriff, having resumed consideration of the cause, and having regard to his interlocutor and accompanying Note dated 29 April 2014:
Finds in respect of the hearing on contempt of court on 29 April 2014 the following facts admitted or proved:
- The pursuer is the father and the defender the mother of J. J. E. W. born 13 October 2006.
- On 11 August 2011 the sheriff made a contact order finding the pursuer entitled to contact with J for the times stated in that order.
- On 19 September 2013 the sheriff refused the defender’s motion to reduce contact to nil. He confirmed the contact order made on 11 August 2011 subject to a variation “directing that the next two contact periods be on a non- residential basis on each alternate Saturday from 10:00 am until 4pm, thereafter reverting to the original contact arrangements, and that until further order of court”.
- On 19 December 2013 the sheriff inter alia decided that the order of 19 September 2013 was a determination of the defender’s minute to vary the contact to nil and it was not open to him to revisit that decision absent a new minute to vary by the defender based on a further intervening change of circumstances. He refused to sist proceedings in respect of the defender’s minute to vary contact to nil. The defender appealed that decision but later abandoned the appeal.
- The last time the pursuer had contact with J in consequence of the order of 11 August 2011 prior to 29 April 2014 was on the weekend from 2 to 5 August 2013. On that occasion the parties agreed to extend the contact due in terms of the order from two to three nights for that weekend.
- The defender did not permit the pursuer to have contact with J thereafter in terms of the order of 11 August 2011, the subsequent order of 19 September 2013, or by agreement of the parties.
- Nonetheless, the pursuer continued to drive from his home to the defender’s home on a number of weekends for contact after 19 September 2013. On each of these occasions he received emails saying J was not going for contact. He was not given contact with J on these occasions.
- The pursuer visited J at J’s school on 11 October 2013, two days prior to his seventh birthday. J smiled at the pursuer. He looked a little surprised the pursuer was there. The pursuer gave him a toy frog. Throughout the first half of Assembly J looked round, waved his toy in the air a few times and appeared to be quite happy and excited. The defender took J out of Assembly. As the pursuer was leaving town that day, J and his friend ran up the pursuer in the car park. The pursuer told J he had a birthday card and presents for him. J replied: “Wow” and asked they be left at home. He told the pursuer he would call his toy frog “furry froggy”.
- The pursuer thereafter saw J from a distance at J’s school’s “Comic Relief” day; and also spoke with him on the telephone on 25 December 2013.
- Apart from these three occasions, none of which were in terms of the contact orders, the pursuer did not have contact with J between 5 August 2013 and 29 April 2014.
Finds in respect of the hearing on contempt of court on 29 April 2014 it proved in fact and in law:
- The orders of the sheriff dated 11 August 2011 and 19 September 2013 have remained in force since 19 September 2013.
- The defender was aware of the terms of the contact orders dated 11 August 2011 and 19 September 2013.
- She wilfully refused to obtemper those orders from 19 September 2013 until 29 April 2014.
- She had no reasonable excuse for doing this.
- She was in contempt of court because of this.
- She was liable to be punished therefor.
Sheriff George Jamieson
NOTE
- [1]The evidence at the hearing on 29 April 2014 was recorded by short hand writer. I ordered the shorthand notes to be transcribed. That has been done. The transcript will remain in process as a record of what was said at that hearing to help avoid any disputes thereanent in the future.. My findings in fact are not verbatim accounts of what the pursuer, defender and defender’s mother said in their evidence; the parties, or the court on any later occasion, can consult the transcript for that. My findings in fact record the salient points in the witness’ evidence I accepted as credible or reliable so far as relevant to the court’s determination that the defender was in contempt of court as set out in my interlocutor of 29 April 2014. Any piece of evidence I rejected as not being credible or reliable, or for any other reason, does not and indeed cannot form the basis of any finding in fact I have made. In particular, I have not been able to make findings of fact as to what Sheriff Kelly said at the hearing before him on 19 September 2013 insofar as parties were at odds as to what he said at that hearing - because Sheriff Kelly did not prepare a Note setting out his findings and reasons for those findings on 19 September 2013 and I therefore have no reliable account of what he might have said on that occasion. I have not made findings in fact as to disputed evidence I have rejected; it is not generally appropriate to find in fact something the court has rejected ( there are exceptions, such as in relation to “reasonable excuse”); the parties, or the court on any future occasion, can take it that if I rejected any part of their evidence, it was rejected by me as not being credible or reliable unless I have given some other explanation in this Note for its rejection(such as the explanation I have just given about the pursuer’s and defender’s recollections of what Sheriff Kelly may have said on 19 September 2013).
- [2]I have not however entered into an exhaustive examination in this Note of my reasons for so finding (some brief reasons appear hereafter). But if there were disputed issues of fact, I assessed the witness’s credibility and my findings in fact reflect the position I found as the more credible. I have not generally cross-referenced my findings in fact to the transcript; exceptions include direct quotations from the witness’ evidence.References herein to my “findings in fact” include my “findings in fact and in law”
- [3]The defender’s reasons for refusing contact are set out in the transcript of her evidence. Insofar as they related to events after 19 September 2013, she said she had a discussion with J about a “meeting” with the sheriff at which she and J’s dad “thought it would be a good idea to see daddy on a Saturday” (43D-44B). J was said to have reacted “strongly” to this and to have become distressed. He told her his dad “attacks and blames. He attacks and lies about people and makes me feel like an idiot”. She said she tried again at a later time to persuade J to go for contact but J again had a “strong reaction”, telling her “to give him a chance and similar things he had said the day before” (45E). In October (2013) she had a “discussion” with J and asked him how do “we” get “daddy to promise he would stop talking badly about mummy and granddad”. She said to him: “how do you...
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