JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: DUNNE -v- P [2004] WASCA 239
CORAM: MALCOLM CJ
MCLURE J
LE MIERE J
HEARD: 10 JUNE 2004
DELIVERED : 27 OCTOBER 2004
FILE NO/S: SJA 1076 of 2002
BETWEEN: DAVID MORGAN DUNNE
Appellant
AND
P
Respondent
Catchwords:
Appeal - Justices Act - Restraining Orders Act - Child - "Contact order" in favour of husband under Family Law Act (Cth) - Relationship between "contact order" and "misconduct restraining order" - Powers of Court of Petty Sessions on application for restraining order where a "contact order" had been made by the Court of Petty Sessions in the exercise of federal jurisdiction under the Family Law Act (Cth) - Protective bail condition under the Bail Act - Inconsistency between provisions of the Family Law Act (Cth) and Bail Act - Application of contact order under bail conditions - Matters arising under the Commonwealth Constitution s 109
Legislation:
Bail Act 1982 (WA), ss 4 51(2a), 13(1), 17(1), Sch 1, Pt A & Pt D,
Commonwealth Constitution, ss 51(xxi), (xxii), 76(ii), 77(iii), 109
Family Law Act (1975) (Cth), ss 60B(2), 60D, 60H, 64(1), (2)(b), (4), 64B(2), 65D(2), 67ZC, 68N, 68Q, 68R, 68S(1), 68T, 69A, 69J(1), 69N, 69ZH, 70NJ, 70NP
Family Law Reform Act 1995 (Cth), s 64B(1)
Family Law Regulations 1984 (Cth), reg 12BB, Sch 8
Guardianship Act 1987 (NSW), s 35
Judiciary Act 1903 (Cth), ss 39(2), 39A, 40A, 78B
Justices Act 1902 (WA), ss 184, 185, 206A
Masters and Servants Act 1902 (NSW), s 4
Restraining Orders Act 1997 (WA), ss 37(2), 61(2), 62, 63, 65
Result:
Appeal allowed
Orders of the Court of Petty Sessions and convictions reinstated
Category: A
Representation:
Counsel:
Appellant: Mr R M Mitchell
Respondent: In person
Solicitors:
Appellant: State Solicitor
Respondent: In person
Case(s) referred to in judgment(s):
"P" v Dunne (2003) 27 WAR 528
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466
Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151
D'Emden v Pedder (1903) 1 CLR 91
Ex parte McLean (1930) 43 CLR 472
Macleod v ASIC (2002) 211 CLR 287
Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 78 ALJR 737
P v P (1994) 181 CLR 583
P v P [2002] FCWA 28
Re Macks; ex parte Saint (2000) 204 CLR 158
Re Z (1996) 134 FLR 40
Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218
Case(s) also cited:
Nil
MALCOLM CJ: This is an appeal by the prosecution against a decision by E M Heenan J in this Court dated 29 August 2003 by which the learned Judge allowed an appeal by P, the husband of G, against four convictions of P in the Court of Petty Sessions at Katanning in May 2002, following the trial of four complaints. The learned…
Continue reading Dunne v P
Sign in free to access the full text
- AGLC
- Dunne v P [2004] WASCA 239
- Case
- [2004] WASCA 239
- Decision Date
CaseChat Overview and Summary
The court found that the Family Law Act provided for the resolution of inconsistencies between contact orders and family violence orders, and that the Act imposed an obligation on the Court to explain the extent to which the inconsistency arises and to deal with the issues in a way that should make it clear to the parties what their obligations are. The court also found that the Bail Act did not provide for the resolution of inconsistencies between contact orders and bail conditions. The court held that the Family Law Act prevailed over the Bail Act in cases of inconsistency, and that the contact order was valid and enforceable.
In conclusion, the court found in favour of the applicant and granted the restraining order. The court held that the Family Law Act provided for the resolution of inconsistencies between contact orders and family violence orders, and that the Act imposed an obligation on the Court to explain the extent to which the inconsistency arises and to deal with the issues in a way that should make it clear to the parties what their obligations are. The court found that the Bail Act did not provide for the resolution of inconsistencies between contact orders and bail conditions, and that the Family Law Act prevailed over the Bail Act in cases of inconsistency. The court granted the restraining order and found in favour of the applicant.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: MCLURE J
Section 67ZC, although not of direct relevance to this case, is concerned with orders relating to the welfare of children which was the subject of the decision in Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 78 ALJR 737. Section 68B deals with the power to grant injunctions. Division 11 of Pt VII which begins at s 68N is headed "Family violence". Section 68N provides that:"This Division deals with the relationship between Division 11 contact orders (as defined in section 68P) and family violence orders." The Division deals with the relationship between contact orders and family violence orders. The latter would include an order under the State Restraining Orders Act, but not an order under the State Bail Act. Section 68P is an interpretation provision. Both a Division 11 contact order and a contact order under s 68R are defined to include a contact order so that the order in the present case would not fall within these terms. Section 68Q provides that:"The purposes of this Division are:(a)to resolve inconsistencies between Division 11 contact orders and family violence orders; and(b)to ensure that Division 11 contact orders do not expose people to family violence; and(c)to respect the right of a child to have contact, on a regular basis, with both the child's parents where:(i) contact is diminished by the making or variation of a family violence order; and(ii) it is in the best interests of the child to have contact with both parents on a regular basis." Section 68R deals with the situation where a Court is making a contact order that is inconsistent with what is obviously an existing family violence order. The conflict was the reverse in the present case but, in the present circumstances, the provision imposes an obligation on the Court to explain the extent to which the inconsistency arises and to deal with the issues in a way that should make it clear to the parties what their obligations are. Section 68S(1) provides that:"If a section 68R contact order is inconsistent with a family violence order, the section 68R contact order prevails and the family violence order is invalid to the extent of the inconsistency." It was submitted that the effect is a marking out of the field covered by Commonwealth law to the exclusion of State law, or the extent to which contact orders give an authority to act despite State law, confining it by reference to the Restraining Orders Act in Western Australia. It may well have been that the Commonwealth order could not have prescribed those parts of the Bail Act that deal with protective bail conditions. The legislation does not purport to do so. The Court was asked to take this into account in the context of the question of inconsistency as between the Family Law Act and the Bail Act. Section 68T of the Family Law Act deals with the situation where a Court has before it an application for a family violence order. In such a case, it has jurisdiction under the Family Law Act and may vary the contact order, so long as it also makes a restraining order or a family violence order under the Family Law Act.