Dixon v Director of Public Prosecutions

[2009] VSC 224

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IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION
No. 1454 of 2009

COLIN DIXON	Applicant
— v —
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE OF THE COURT:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2009
DATE OF RULING:	27 May 2009
CASE MAY BE CITED AS:	Dixon v DPP
MEDIUM NEUTRAL CITATION:	[2009] VSC 224

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CRIMINAL LAW  —  bail  —  family violence  —  application for variation of conditions  —  interaction between criminal and family law jurisdictions  —  order made by a Federal Magistrate  —  Family Violence Protection Act 2008  —  Family Law Act 1975

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Appearances:	Counsel:	Solicitors:
The applicant appeared in person
For the defendant	Mr. D. Bliss	Office of the Director of Public Prosecutions

HIS HONOUR:

1. This is an application brought by Colin Dixon, a former police officer, to vary the conditions of the bail that he entered into on 23 April 2009. The applicant was arrested that day pursuant to a warrant issued by a Registrar of the Magistrates’ Court in exercise of the power conferred by s 50 of the Family Violence Protection Act 2008.  That warrant was requested by a police officer pursuant to s 45(a) of the Act.

2. The applicant was bailed to appear on 27 April at the Moorabbin Magistrates’ Court.  On 27 April a Magistrate adjourned the application to 4 May and extended the applicant’s bail.  On 4 May the matter was further adjourned to 11 May, on which date the applicant applied to another Magistrate to vary the conditions of his bail, specifically, that his children be removed from the conditions which prohibited—and still prohibit—him from contacting or approaching his wife and those children.

3. Subsequently, the applicant made an application to the Federal Magistrates’ Court for parenting orders and other orders pursuant to the Family Law Act 1975 which application was heard, on an interim basis, by Federal Magistrate Turner on 26 May.  The Federal Magistrate made a number of orders.  Of particular relevance is order 3 which concerns the period of time that the applicant can spend with his children by way of contact.  That order is as follows:

   The husband spend time with the children for 2 hours on Sunday at McDonalds in Cheltenham or at such other location as may be agreed between the parties with the maternal grandmother to deliver the children and remain in the area for the whole time.

4. The applicant has now come before this Court, in its inherent jurisdiction, seeking the same variation of his bail conditions as was refused by the Magistrate on 11 May.  The relevant condition he sought to have removed was designated BPR1 which is in terms which prohibit him from:

   Approaching or remaining anywhere within 200 metres of the protected person(s).  Exceptions:

   (a)for the purpose of child/ren’s arrangements but only in accordance with the written arrangements referred to in this order or a family law or child protection order; or

   (b)to participate in counselling or mediation by agreement with Sonia DIXON.

5. The applicant’s children are protected persons for the purposes of the bail condition.  The effect of the order made by Federal Magistrate Turner is to permit the applicant to be with his children in compliance with that order but not otherwise.  Its operation is excepted from the bail conditions, although, of course, because of that order the applicant’s bail conditions are irrelevant.  He is permitted to see his children at the times and under the circumstances set out in the Federal Magistrate’s order.  If the bail condition was removed his situation with respect to his children would be unchanged.

6. The position that the applicant is in at this stage is that the application for an intervention order will be heard by a State Magistrate at the Moorabbin Magistrates’ Court on 22 June, at which time he will be required by his bail conditions to attend and answer bail.. That hearing will result either in an intervention order being made or it will not.  The conditions on his bail will then become irrelevant.  Whether they are repeated in the intervention order will be a matter for the Magistrate presiding over that hearing.

7. Mr. Dixon has put to this Court that the result of that hearing is a foregone conclusion, and he did so in forceful terms.  That, of course, is a submission to which no attention can be paid.  It is as offensive as it is absurd.  This Court has every confidence that the Magistrate who hears the matter on 22 June will carry out his or her duties according to law; it will be determined on its merits.

8. The Magistrates’ Court has, on one occasion already, refused the order sought by the applicant.  Although the jurisdiction of this Court is undoubted so far as questions of bail are concerned, it would require a reason of considerable gravity not only to alter the bail conditions which have already been endorsed at least once by a State Magistrate, but to alter those conditions when an order of a Federal Magistrate having jurisdiction under the Family Law Act governs his contact with his children anyway.  Nothing the applicant has put to the Court today justifies such a variation.  There are no new facts or circumstances.  The fact that the police officer that sought the warrant to arrest the applicant does not oppose the variation is insufficient, in the circumstances, to move the Court to grant the relief which the applicant seeks.

9. In the circumstances, the application to vary the conditions of the applicant’s bail is refused.

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