Private investigator on the job
The evidence concerning the current application
- On 6 May 2016, Ms S, the husband’s solicitor filed an affidavit. In this affidavit, Ms S deposed that she had been instructed by Mr Mansfield, on 2 March 2016, to engage a private investigator to surveil Ms Mansfield in (omitted) between 18 March 2016 and 24 March 2016. The private investigator concerned is one Mr J.
- Mr J was instructed to investigate Ms Mansfield’s current drinking habits. He was directed to surveil her for 15 hours per day and engage in random bin raids at night time. The cost of his initial retainer was $5,000.00 and he was to be paid $80.00 per hour for his services.
- In his report, Mr J confirms that he observed Ms Mansfield for 99 hours of surveillance between 18 and 24 March 2016. He produced a 50 page report, including numerous photographs. Observing current bureaucratic processes, Mr J chose to summarise his activities in one section of his report headed key findings & recommendations. This aspect of his report is as follows:
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“You will know from our investigations that the Subject was observed to attend the bottle shop at the (omitted) on four occasions and purchase at least two bottles [of] wines and a six pack of UDL Scotch & Coke on each occasion. We also note that no visitors were seen to arrive at the subject’s premises throughout this surveillance.”
- This summary is not entirely consistent with Mr J’s report. A closer reading of the report indicates that he observed Ms Mansfield for seven days, on four of which she purchased alcohol. On Saturday 19 March 2016, she is alleged to have purchased two bottles of wine and a six pack; on the following Sunday one bottle of wine and a six pack; on Monday 21 March 2016 two bottles of wine and a six pack; and on Thursday 24 March 2016 (Maundy Thursday) a further two bottles of wine and a further six pack.
- On 25 July 2016, Mr Mansfield filed an affidavit in support of his application to restrain Ms Mansfield from consuming alcohol. His evidence in support of this application can be summarised as follows:
- During the marriage, the wife would regularly drink 10 alcoholic drinks each evening and over the weekend approximately 40 drinks;
- He would regularly return home from work to find the wife smelling of alcohol and slurring her speech;
- An SMS message, available to him, indicates that in 2012, the wife left her employment at a (employer omitted) under a cloud due to her alcohol consumption;
- He continually found empty wine bottles around the former family home which was a large rural property;
- On 13 November 2014, X reported to him that Ms Mansfield was drinking wine out of a coffee cup rather than a wine glass;
- On 10 February 2016, an acquaintance of Mr Mansfield who is employed by (employer omitted), observed Ms Mansfield purchasing a bottle of wine from a (omitted) hotel at 11:00am;
- On 13 May 2016, he observed Ms Mansfield at the (omitted) to be under the influence of alcohol such that she was unsteady on her feet and fell into a marquee;
- On 13 June 2016, X reported that her mother had removed money from her [X’s] piggy bank so that she [Ms Mansfield] could go to the pub.
- In addition, Mr Mansfield has obtained copies of Ms Mansfield’s bank statements for the period from 27 April 2015 to 22 January 2016. Ms S has summarised the transactions, which occurred on licensed premises in a letter sent to Ms Mansfield’s solicitors on 22 April 2016. There are 59 such transactions over a period of approximately 270 days. In total, the amount concerned comes to $1,844.42.
- Mr Mansfield relies on the report of Mr J; his experience of Ms Mansfield prior to separation; the level of bank card usage at licensed premises; his personal observation of her at the (omitted); and X’s report of the use of her piggy bank moneys; to support the injunction. It is his position that these various incidents are not consistent with a person whose alcohol use is under control, as Ms Mansfield reported to Ms A and which Ms A apparently accepted, albeit provisionally.
- In response, Ms Mansfield concedes that prior to separation she had significant issues with her personal consumption of alcohol which she attributes to Mr Mansfield’s coercive and controlling behaviour towards her. In particular, she alleges that he monitored her text messages and emails; destroyed items of her personal property; and restricted her access to the financial resources of the marriage. In these circumstances, she asserts that she turned to alcohol to deal with what she characterised to be daily abuse emanating from Mr Mansfield.
- It is her evidence that she has sought assistance from various medical practitioners in (omitted), to assist her with issues relating to self-confidence and self-esteem as well as her alcohol use. I have not been provided with any evidence from these therapeutic or medical sources. She denies that she has consumed alcohol to excess since the parties separated. As such, she denies that her current consumption of alcohol affects her ability to parent or to work as a (occupation omitted).
- Ms Mansfield deposes as follows:
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“I do not consume alcohol to the extent suggested by the father.
I do not have a problem with alcohol.
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My consumption of alcohol does not in any way effect my ability to parent or work.
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There is no evidence before the Court to suggest that I am deficient in any aspect of my parenting or work responsibilities.
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There is no evidence before the Court to suggest that my consumption of alcohol has had any impact on the care I provide to the children or that the children are at risk at any time while in my care.
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I say that the father has no basis whatsoever to restrain me from consuming alcohol either before or while I have the care of the children.”
- In her affidavit material, the wife provides details as to the level of care which she provides to X and Y. From this evidence, she contends that she is a competent and involved parent who engages with the children’s school and extramural activities openly and efficiently. In this context, she points to the fact that Mr Mansfield is unable to point to any incident which has caused him specific concern for the wellbeing of the children.
- It is her case that the husband has grossly exaggerated the extent of her difficulties with alcohol during the marriage and has illegally accessed information relating to the circumstances in which she left her employment at the (employer omitted) from her telephone. It is her contention that this conduct is indicative of the degree of control to which she was previously subject. In any event, it is her positon that these allegations are now historical in nature.
- It is the submission of Mr Jordan, counsel for Ms Mansfield that Mr J’s efforts have not revealed any evidence on which it would be reasonable for the court to act at this interim stage. In particular, Mr J is not able to depose as to what the wife did with the alcohol said to have been purchased by her or to provide any evidence in which Ms Mansfield appeared to him to be alcohol affected. In these circumstances, Mr Jordan categorises the evidence of Mr J as being highly speculative and inflammatory.
- In addition, Mr Jordan contends that when independent analysis is applied to the wife’s banking records, it indicates a monthly expenditure on alcohol of approximately $200.00. In Mr Jordan’s submission, this cannot be an amount which should concern the court and authorise its intervention in curtailing the wife’s personal entitlements to lead her life, as she sees fit, independently of Mr Mansfield.
- Ms Mansfield has deposed that she has been rendered anxious upon learning that Mr Mansfield has had her surreptitiously watched. She deposes that she has felt teary and depressed since she learnt about Mr J’s activities and anxious about leaving her home. In respect of the surveillance, she deposes as follows:
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“… I feel it is a complete invasion of my privacy and further evidence of the father’s continued attempts to control and intimidate me.”
- Ms Mansfield is further aggrieved that Mr Mansfield has paid approximately $14,000.00 to retain Mr J, when the Registrar of the Child Support Agency has attributed a child support income of $32,828.00 to Mr Mansfield, which results in Ms Mansfield receiving a weekly payment of child support of $32.27 per week. It is her case that she struggles to support the children financially.
- Ms Mansfield acknowledges that she did attend the (omitted). She denies that she was unsteady on her feet or staggering. In any event, the children were not in her care the weekend of the (omitted). Ms Mansfield further denies that she has ever purloined any moneys from X’s piggy bank.
- Ms Mansfield attributes malign motives to Mr Mansfield for pursuing these proceedings. She asserts that he has inaugurated the application in a case in order to intimidate her and to cause her legal fees to escalate so that she will be compelled to abandon her application for relocation, which she believes to be in the best interests of the children and likely to be beneficial to her personally.