Dunne v P - [2004] WASCA 239

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
AMS v AIF (1999) 199 CLR 160
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 Judge ordered:
"(a)that this appeal be allowed;
(b)the three convictions of the appellant for breach of the Misconduct Restraining Order, and the further conviction for a breach of the protective bail condition, entered in the Court of Petty Sessions at Katanning in May 2002 be quashed; and
(c)the two good behaviour bonds entered into by the appellant on the terms ordered by the Court of Petty Sessions and as a result of those convictions be cancelled and the orders made by the Court of Petty Sessions for the payment of the costs and proceedings in that court be set aside."
It was also directed that the appellant was entitled to recover from the respondent any costs payable pursuant to those orders.
The decision of the learned Judge is reported as "P" v Dunne (2003) 27 WAR 528.
On 18 September 2003, Heenan J granted the appellant leave to appeal against his decision on the following grounds:
"A.The learned Judge erred in fact and law in finding that the conduct of the [respondent] in telephoning [G] on 22 May 2001, 12 June 2001 and 20 July 2001 was authorised under the terms of the order of the Family Court of Western Australia of 4 September 2000
([2003] WASCA 201 at [54]); and
B.The learned Judge erred in law in finding that the condition of the respondent's bail undertaking that he was:
"not to contact or attempt to contact [G] by whatever means";
was invalid and inoperative and that no offence had been committed because the [respondent's] conduct was, otherwise, authorised under the provisions of the order of 4 September 2000 made by the Family Court of Western Australia in the exercise of federal jurisdiction
([2003] WASCA 201 at [76])."

Proceedings in the Court of Petty Sessions

The appeal was against four convictions of P after a trial before his Worship Mr R M McM Glynn SM of four complaints made by the appellant who is a police officer. The complaints alleged three breaches of a Misconduct Restraining Order and a breach of protective bail conditions. In respect of the three convictions for breaching the terms of the Misconduct Restraining Order, P was sentenced to a conditional release order in the form of a good behaviour bond for 12 months in the sum of $450. In respect of the conviction for the breach of bail undertaking, his Worship imposed a second conditional release order in the form of a good behaviour bond for 12 months in the sum of $200. In addition, P was ordered to pay the costs of the proceedings.

Leave to Appeal

P was granted leave to appeal from the decision of the Magistrate by McKechnie J on 23 July 2002 on the following grounds:
"(A) The learned magistrate erred at law in finding [P] guilty of 3 counts of breaching the restraining order.
(B)The learned magistrate erred at law in his finding 'that the whole of the consent orders of 27th July 1998 were suspended by the Family Court'.
(C)The learned magistrate erred by wrongly interpreting that 'matters to do with the welfare of the children' could not possibly be interpreted to include them exercising court ordered phone contact.
(D)The learned magistrate erred at law by failing to dismiss the charge of breaching bail protective conditions.
(E)The learned magistrate erred at law by not dismissing the wife's misconduct restraining order."
The learned Judge noted that each of the five grounds of appeal was supported by lengthy and diffuse statements of particulars. The learned Judge also noted that although due to his efforts, the submissions made by the appellant eventually became clear at the hearing, the form of the particulars and the variety of papers contained in the appeal book initially made it "somewhat difficult to identify the material issues which arose in the proceedings before the Court of Petty Sessions at Katanning and on the appeal".

Background

P was born in 1958. He met his wife G, who was born in 1967, some time in 1993. P developed an association with her. They began living together in 1996 and were married in April 1997. At that time, G had two children of an earlier relationship. She had two more children by P. The children in order of birth were:
•C - born 1989
•S - born 1991
•J - born 1996
•L - born 1997
As the learned Judge recounted, there was a long history of marital differences between P and G dating at least from a separation in February 1998. These differences resulted in frequent litigation both in the Family Court and in Courts of Petty Sessions both for temporary and substantial relief. As the learned Judge stated in his reasons at par [5]:
"It is by no means clear that all the various cases or hearings in different courts were referred to in the evidence in these proceedings but it will be necessary to notice many of those that were. After the separation in February 1998 the wife, [G], obtained a Violence Restraining Order ('VRO') in the Court of Petty Sessions at Narrogin, initially ex parte on 20 February 1998 and which was later extended after a hearing on 18 March 1998. At a date which is not established in the evidence, the appellant was convicted, on his plea of guilty, of a breach of that VRO but he has since asserted that he had a good defence to the charge in that his wife had consented to his communication with her which was the basis of the charge. Nothing turns on that assertion now. Later, on 22 April 1998, the wife obtained a Misconduct Restraining Order ('MRO'), against the appellant in the Court of Petty Sessions at Katanning.
Proceedings were then commenced between the husband and wife under the provisions of the Family Law Act 1975 (Cth) resulting in a series of orders by the Court of Petty Sessions at Perth made in relation to the marriage and the four children."

The Order of Court of Petty Sessions – 27 July 1998

On 27 July 1998, an order was made in the Court of Petty Sessions under the Family Law Act dealing with the care, welfare and development of the four children. It was directed that they should reside with the wife at most times, except that by par 5 of the order it was directed that the boys J and L should reside with the husband on certain days of the week, for some of the school holidays and on anniversaries, birthdays and special holidays. This order also imposed injunctions against the consumption of alcohol by the parents during the times when the children were resident with them and appointed a Court counsellor to supervise the orders for residence in relation to J and L. This order included a provision in par 13 which his Honour commented "appears to be the genesis of a later similar obligation central to the complaints which led to the convictions", namely:
"The husband and the wife be restrained by injunction from telephoning the other save and except in the case of an emergency or matters affecting the welfare of the children."
Paragraph 5 of the order of 27 July 1998 was later suspended by an order of 4 July 2000, but other significant events occurred before then.

Reconciliations

Despite their marital differences and the problems giving rise to the various orders to which I have referred, P and G reconciled in October 1998 and resumed co‑habitation. After about six months, there was another separation, followed by another reconciliation and this pattern was repeated on four or five occasions over time until a final separation on 24 May 2000. The various resumptions of co‑habitation took place notwithstanding the terms of the misconduct restraining order of 22 April 1998 and the terms of orders made under the Family Law Act on 22 July 1998 variously prohibiting contact or communication between husband and wife. The learned Judge concluded in par [8] of his reasons that:
"No doubt the resumptions of co-habitation and the normal course of contact and communication between the parties which these reconciliations involved were consensual."
After the final separation in May 2000, G obtained a series of orders under the Family Law Act. These included orders made in the Court of Petty Sessions at Perth in proceedings concerning the marriage on 4 July 2000. The provisions of the consent orders made on 27 July 1998 were suspended. These had provided for J and L to live at certain times with their father. Separate legal representation for the four children in the proceedings between P and G was ordered. There was a further order made under the Family Law Act on 4 September 2000 which dealt with the ownership and maintenance of two motor vehicles and other items of personal property. The order also directed a conciliation conference to be held in relation to issues concerning the children. This order also allowed P to have supervised contact with his two boys for a period of three hours per week each weekend at Katanning, or as agreed between the parties, and provided that P should have telephone contact with G on the basis that she should contact P each Tuesday and Friday between the hours of 6 pm and 6.30 pm to discuss arrangements for P to exercise his rights of supervised contact with his two boys. These orders included provision for P to have liberty to post letters and gifts to the children to be addressed care of the wife's solicitors. One reason for this was to minimise communications between P and G.

VRO 19 February 2001

P said that G sought and obtained an ex parte violence restraining order ["VRO"] against him in the Court of Petty Sessions at Albany on 1 December 2000. The learned Judge commented that there was evidence of an undated application for a VRO by G at about that time, but no evidence of an order actually being made. However, the Court of Petty Sessions in Albany did make a misconduct restraining order ("MRO") on 19 February 2001. It was the terms of this order which were the basis of the charges and convictions against the appellant from which he appealed. After identifying the parties, that order provided that:
"THE RESPONDENT SHALL NOT:
behave in an intimidatory or offensive manner towards the person protected,
behave in a manner likely to lead to a breach of the peace,
AND, SAVE AND EXCEPT:
through a properly instructed legal representative acting on behalf of the protected person or the respondent; or
during the actual conduct of conciliations or counselling conferences or hearings for the purposes of Family Law Proceedings; or
as is authorised or required by an order of a court exercising Family Law jurisdiction or is agreed between the parties in writing,
THE RESPONDENT SHALL NOT OTHERWISE:
communicate or attempt to communicate by whatever means with the person protected by this order,
enter upon any other premises where the person protected lives or works."
By virtue of s 37(2) of the Restraining Orders Act 1997 (WA), this order was due to expire on 22 February 2002.
In respect of this order the learned Judge found the following background facts in pars [14] and [15] of his reasons as follows:
"I will give a fuller account of the facts later but, in essence, the procedure ordered by the Court was designed to prevent [P] from learning the telephone number of [G] and from telephoning her repeatedly or at odd hours to engage in conversations which, in the past, had resulted in arguments, threats and harassment. According to [P], however, there were occasions when [G] would ring outside the appointed time or, if she rang within the appointed time, he had missed the call because he was out of the house, pre-occupied with some other activity or did not reach the telephone in time before the incoming call stopped. After one of these occasions, when he had missed the call, he used the new 'last unanswered call' service now available on the telephone system, to identify the number of the missed call and to ring back. In doing so, he reached [G] or one of the children on several occasions, some without mishap and some involving arguments and disagreements. This led to [G] making complaints about breaches of the MRO. This happened on two occasions, 22 May and 12 June 2001 resulting in [P] being arrested and charged with breaches of the MRO. Following his arrest and charge on 29 June 2001, [P] was released on bail after entering into a bail undertaking under s 28(2) of the Bail Act 1982. This bail undertaking included a special protective bail condition in the following terms:
'Not to contact or attempt to contact .. [G] ... by whatever means.'
On 20 July 2001 [P] again contacted [G] by telephone, ostensibly in order to speak to the children but, so it was alleged, in breach of the MRO and of the special protective condition in the bail undertaking. This resulted in him being re‑arrested on 8 August 2001 and charged, on complaint, with a breach of the bail undertaking and a further breach of the MRO. Therefore, the offence relating to the breach of a bail undertaking arose out of the same facts and circumstances as the third offence of breaching the terms of the MRO by the same telephone conversation of 20 July 2001. The potential consequences of the two offences and convictions arising from the same facts and circumstances namely that [P] should not have been sentenced for the second offence (s 11 Sentencing Act (1995)), do not appear to have been addressed either at the trial or on the appeal."

The Complaints

There were four complaints in respect of which P was convicted. The first three complaints concerned breaches on 22 May, 12 June and 20 July 2001 that having been personally served with a misconduct restraining order, P breached that order by communicating with the person protected [G] by telephone contrary to s 61(2) of the Restraining Orders Act. There was also a further complaint made on 8 August 2001 that on 20 July 2001 at Katanning, [P] having entered into a bail undertaking on 29 June 2001 breached the conditions as mentioned in cl (2) or (d) of Pt D of Sch 1 of the Bail Act by contacting [G] contrary to s 51(2a) of the Bail Act.

Other Proceedings

There were other proceedings pending in the Family Court of Western Australia under the Family Law Act which resulted in a trial before Holden CJ on 25 and 27 February 2002. The learned Chief Judge pronounced his decision on 19 April 2002 in P v P [2002] FCWA 28. That decision was put in evidence in the proceedings before the Court of Petty Sessions at Katanning and part of the record transmitted to the Supreme Court for the hearing of the appeal by E M Heenan J. The decision dealt with issues, including the residence of the four children and entitlements for P, as the father, to contact the children under supervised conditions. It also made provision for child support and dealt with property and maintenance issues.
As a result of evidence obtained from a court‑appointed expert who assessed the parties and the children, a regime was recommended for child contact which Holden CJ approved and which was to be included in minutes of orders ultimately to be made by the Family Court. The regime proposed was as follows:
"(a) Starting every fortnightly weekend, two hours per day, one visit being Saturday and the other Sunday in Albany.
(b)After each fortnightly weekend visit, the supervised contact can be increased by one hour, thus from two hours to three hours to four hours to five hours to six hours per day by the fifth weekend visit, in Albany.
(c)If the observations from the supervisor are positive after fifth weekend visit (approximately (sic) by the 10th week), an unsupervised visit of six hours for one day, in Albany, is suggested for the next eight subsequent weekend visits. Feedback on the children's behaviour after the six hours unsupervised conduct should be obtained from an authorised organisation/counsellor/supervisor.
(d)If the feedback is positive after the 13th weekend visit - approximately up to six months and five visits supervised and eight visits unsupervised later, an increase to eight hours unsupervised, on Saturday and eight hours unsupervised on Sunday in Albany the next three fortnightly weekend visits could be considered.
(e)If the feedback is positive after the 13th weekend visit (thus five visits supervised and eight visits unsupervised), and three two-day weekend visits unsupervised) overnight visits can be considered. Before unsupervised overnight visits are allocated, it is strongly suggested a reports (sic) from Family and Children's Services is obtained with regard to [P's] physical home environment to determine if it is adequate to meet the children's' needs. It is further suggested that Family and Children's Services, or another authorised agency strictly monitor this process as well as the children's' behaviour. If this proceeds, 1 overnight visit (thus 2 days) is suggested for eight subsequent fortnightly weekend visits.
(f)If everything is in order with the feedback, after eight subsequent weekends with one sleepover per weekend, regular access can be introduced."
The Chief Judge adopted those recommendations realising that paternal contact would be on consecutive days of the weekend with P staying overnight in Albany on those weekends and the contact regime would be monitored by a nominated psychologist attached to the Family and Children's Services Department in Albany.

Contact Orders under the Family Law Act and Restraining Orders under State Jurisdiction

From time to time, contact arrangements were ordered or authorised by the Family Court of Western Australia. The details of these orders were relevant because P submitted that the terms of any contact orders made or approved by the Family Court prevailed over any family violence order inconsistent with them. The orders under the Family Law Act which applied at the time of the alleged offences were those of 4 July and 4 September 2000 to which reference has already been made.
As has been seen, the MRO of 19 February 2001 expressly excepted from the scope of its prohibition any communication or conduct authorised or required by a Court exercising Family Law jurisdiction. In addition, s 68(1) of the Family Law Act provides, among other things, 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."
A "family violence order" is defined by s 60D of the Family Law Act 1975 to mean an order (including an interim order) made under a prescribed law of a state or territory to protect a person from family violence. The orders of 27 July 1998 and 4 September 2000 made under the Family Law Act were both a "parenting order" within the meaning of s 64B(1) of the Family Law Reform Act (1995) (Cth) and a "contact order" within the meaning of that term in s 64B(2) and (4) of the Act. As such, a breach of the terms of either of the orders would expose the person in breach to proceedings brought under s 70NJ of the Family Law Act in respect of the contravention of the order within the federal jurisdiction so conferred. The learned Judge held, however, that this federal power did not exclude the jurisdiction of State courts to deal with offences under State laws. As his Honour put it:
"This is not merely because [of] the absence of any such implication by the federal law to cover the field, but, more significantly, because there is express provision in s 70NP …"
Section 70NP provides that:
"(1)   This section applies where an act or omission by a person:
(a)       constitutes a contravention of an order under this            Act affecting children; and
(b)       is also an offence against any law.
(2)If the person is prosecuted in respect of the offence, a court in which proceedings have been brought under s 70NJ in respect of the contravention of the order must:
(a)       adjourn those proceedings until the prosecution              has been completed; or
(b)       dismiss those proceedings.
(3)The person may be prosecuted for, and convicted of, the offence.
(4)Nothing in this section renders the person liable to be punished twice in respect of the same act or omission."
His Honour noted that in this case some examination was required of the interaction between contact and parenting orders made under the provisions of the Family Law Act and an MRO made under the Restraining Orders Act 1997 (WA). The interaction between the State and Federal legislation is dealt with in the provisions of Pt VII Div 11 of the Family Law Act. The legislation was designed to deal with problems faced by police or other law enforcement officers asked to enforce a family violence order, whether a VRO or an MRO, in the face of a parenting or contact order by the Family Court. Section 60D(1) of the Family Law Act defines a family violence order as an order, including an interim order, made under a prescribed law of a State or Territory to protect a person from family violence and includes a restraining order. As explained in The Laws of Australia, vol 17, Family Law par 17.5.63:
"The Family Court attempts to resolve inconsistencies between contact orders and State family violence orders to ensure that contact orders do not expose people to violence and the right of the child to have contact with both parents. In the event that the Family Court makes a contact order that is inconsistent with a State family violence order the court must ensure this is explained to the relevant parties. Where there is an inconsistency, the Family Court order will prevail and the family violence order is invalid to the extent of inconsistency. A magistrate has the power to 'make, revive, vary, discharge or suspend' a Family Court order when an application to make or vary a family violence order is in progress."
The learned authors also say at 17.7.65:
"Subject to a number of statutory conditions, a court may make a contact order which is inconsistent with a family violence order [s 68R(1)]. First, a judge who intends to make a contact order under Part VII of the Family Law Act 1975 (Cth), which conflicts with the terms of a family violence order, must explain, or arrange for another person to explain, the effect of the order to the parties to the proceedings, the person against whom the family violence order is directed, and the person protected by the family violence order [s 68R(2)]. The explanation must be conveyed in language that will be readily understood by the person to whom it is given, and must explain the purpose of the contact order and the obligations which it creates. It must also explain the consequences of non-compliance with the order, and the court's reasons for making a contact order that is inconsistent with the family violence order. The person to whom the explanation is given must also be informed of the circumstances in which she or he may apply for the contact order to be revoked or varied [s 68R(3)]. Secondly, the court must include in the contact order a detailed explanation of how the contact provided for in the order is to take place [s 68R(4)(a)]. Thirdly, within 14 days of the contact order being made, copies of it must be given to the parties to the proceedings, the person against whom the family violence order is directed, the person protected by the family violence order, the Registrar of the court that made the family violence order, and the Police Commissioner of the state or territory in which the person protected by the family violence order lives [s 68R(4)(b)]. Where a contact order is made that is inconsistent with a family violence order, it will have the effect of invalidating the family violence order to the extent of the inconsistency [s 68S(1)]. For the purposes of Pt VII, a contact order includes a recovery order, a specific issues order or any other order or injunction made under the Family Law Act which requires, or expressly or impliedly authorises, contact between a child and another person [s 68P]."
The position in Western Australia is that certain courts of summary jurisdiction have been given jurisdiction to make parenting orders, including contact orders, under s 69J of the Family Law Act. Within the Perth metropolitan area, however, this jurisdiction may only be exercised by the Court of Petty Sessions associated with the Family Court of Western Australia at 150 Terrace Road, Perth. The Court of Petty Sessions at Katanning which determined the complaints in this case, had jurisdiction under s 69 to vary the contact order at the time the MRO was sought, or later when steps were being taken to enforce it, by the subject prosecutions.
The jurisdiction to vary a contact order may be exercised by a court of summary jurisdiction proceedings where both parties consent to the court hearing and determining the matter, but where there is no such consent, the proceedings must be transferred to the Family Court of Western Australia: Family Law Act, s 69N and Commonwealth of Australia Gazette No 23 GN 16 June 1993. In such cases, the Court of Petty Sessions located at 150 Terrace Road, Perth has that jurisdiction.
In this context, the learned Judge went on to state in [25] – [27] the principles to be applied in a context such as the present as follows:
"It is important for any court considering the exercise of jurisdiction to make or to alter a restraining order which has the potential to interact with a parenting or contact order, to appreciate and acknowledge the restraints, both of principle and procedure, which apply to the enforcement of contact orders under the Family Law Act. Where there is a contact order currently made under the Family Law Act there is an obligation imposed on the parties to refrain from hindering, preventing or otherwise interfering with the contact that is to take place - s 65N. So it has been held that an order for contact imposes a positive obligation on the resident parent to encourage the contact - In the Marriage of Stevenson and Hughes (1993) 112 FLR 415; 16 Fam LR 443 - FCT. The obligations include a requirement that the resident parent take reasonable steps to deliver the child to the contact parent at the commencement of the contact period - In the Marriage of Stavros (1984) 9 Fam LR 1025; (1984) 75 FLR 323 and it is therefore the case that petty obstacles should not be placed in the way of allowing contact or in frustrating communications designed to effectuate the contact which has been ordered.
There are sanctions available for a breach of a contact order or other order made under the Family Law Act (1975), and these include fines or imprisonment or other penalties, such as an obligation to enter into a recognisance - s 112AB. A sentence of imprisonment may be for a specified period of 12 months or less but is only intended as an option of last resort where the court is satisfied that in all the circumstances it will not be appropriate to deal with the contravention by any other means - s 112AE(2). Furthermore, where there has been a contravention of a contact order resulting in the deprivation of contact to a person entitled, the court may make an order for further contact in relation to the child by way of compensation for the lost opportunity - s 112AD(2)(g), but must not do so unless the parties have received counselling or the court is satisfied that an order should be made without counselling - s 112AD(5).
These obligations include an obligation of a parent or party to inculcate a positive attitude in the child towards contact - In the Marriage of Filipovic (1997) FLC 90-266 at 76417. It is an offence for any person to hinder or prevent contact taking place in accordance with the order or to interfere with the contact which is supposed to occur under the order - s 65N(2)(a) and (b). They proceed from the general principle that it is beneficial for a child to grow up enjoying the company of both its parents, as seen from the child's perspective and not from that of a parent - M v M (1988) 166 CLR 69 at 76 and In the Marriage of N and H (1982) 45 ALR 419 at 430; 8 Fam LR 577 and because of the wider objects and principles which are expressly identified by s 60B of the Family Law Act. One of the principles underlying the legislation is that children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development except when it is or would be contrary to a child's best interests - s 60B(2)(b) and M v M (supra). It follows from this that it is important that the full benefit of a contact order should be respected, both in the interests of the child or children concerned, and in the interest of the parent or party entitled to the contact so ordered. It also follows that the resident parent or party who is ordered to afford the contact provided to the child or children must not be permitted, whether directly or indirectly, to frustrate, obstruct or impair the contact so ordered or to achieve such an end by other indirect means."
It follows that it is apparent under both the Family Law Act and the Restraining Orders Act that the Commonwealth and State legislation will operate in parallel on the basis that any inconsistencies in the terms of orders will be resolved on the basis that the federal orders prevail to the extent of any such inconsistency. Consequently, as E M Heenan J said at [28]:
"The achievement of this end requires a court exercising jurisdiction under the Restraining Orders Act to give particular recognition to any parenting or contact order in effect under the Family Law Act and to ensure that any violence or misconduct restraining order does not, directly or indirectly, encroach upon the regime established under the contact order. The best time for this to be done would seem to be when the restraining order is first made, but the jurisdiction can be exercised whenever an application for extension, variation, discharge or enforcement of a restraining order is before a court."
In the present case, the provisions of the misconduct restraining order of 19 February 2001 contained the reservation "save and except … as is authorised or required by an order of a court exercising Family Law jurisdiction". His Honour considered in par [31] that:
"… the use of such a generalised formula provides very little guidance to the parties, or to law enforcement officers who may be called upon to intervene, about what contact or communication is actually permitted by the contact order which is recognised as having precedence. Although I have not had the benefit of detailed argument on this issue at the hearing of this appeal, due no doubt to the appellant's inability to obtain legal representation, it seems that there is a strong case to conclude that a court making a restraining order in such circumstances should expressly enquire about the existence and terms of any contact or parenting order, and then recite these in the body of any restraining order which may then be made. By this means any restraining order which then issues should define the details and particulars of the communication or contact which the parent or party may exercise as of right. This is in accord with the general principles of the law, frequently encountered in the sphere of injunctions, that coercive obligations or restrictions should be stated precisely and clearly so as to avoid uncertainty or ambiguity about the scope of permitted behaviour and any limitations upon freedom of action."
His Honour made the point in par [32] that a party should not be able to obtain or enforce a restraining order to achieve an object or effect which would not be available by an attempt to enforce a co‑existing contact order. His Honour also made a point in par [33] that in any proceedings for a restraining order or its enforcement, a Court should be fully aware of, and give effect, the implicit obligations of a party affected by a contact order to facilitate, and avoid obstruction to, the benefits which that order grants, as the subject order does, an obligation to co‑operate in and encourage the provision of the contact ordered. His Honour went on to say in pars [35] and [36] that:
"In the present case, however, there are signs that the need to identify and define the rights of the appellant under the Family Law contact order, and how they could be expected to impinge upon his communications with his wife when exercising the rights conferred on the appellant under that order, were not fully explored or recognised in the prosecution before the Katanning Court of Petty Sessions on these complaints. There is nothing in the record of these proceedings to show that the court gave attention to its powers to vary or suspend the contact order while dealing with the Restraining Orders Act applications, nor that it recognised the obligations of [G] to facilitate the contact which the order provided.
It is easy to understand how a court faced with a charge involving an alleged breach of a restraining order would naturally tend to concentrate on whether the conduct alleged was forbidden by the precise terms of the restraining order but, unless this exercise is undertaken in a manner which allows simultaneous assessment of the scope and effect of [sic the] contact order under the Family Law Act, so that the complementary effects of the two orders can be kept in constant focus, there is a danger that concentration upon the terms of the restraining order may lead to a one-sided interpretation neglecting the full effects and implications of the contact order. To achieve this balance, and for reasons which I have endeavoured to explain, it will usually be necessary to keep the scope of both orders constantly in view rather than to rely upon general exception clauses, such as were incorporated into this MRO. In my opinion, the risk of an imbalance being inadvertently struck between the two orders is greater, in cases such as the present, where the benefit of the contact order may have been directly or indirectly diminished by conduct, not so much in breach of the order, but designed or likely to frustrate or obstruct the implementation of the terms of the order, for example, by difficulties developing in communications designed to secure practical arrangements by which the contact will be implemented."

The Evidence at Trial

At the trial, Police Constable Bradshaw produced statements from an officer of Telstra Corporation Ltd under the provisions of s 282 of the Telecommunications Act 1997 (Cth) which established that telephone calls had been made by P to G at her number as follows:
(a)On 22 May 2001 a telephone call was made at 1832 hours for a duration of 1525 seconds (25.4 minutes).
(b)On 12 July 2001 a telephone call was made at 1839 hours for a duration of 34 seconds.
(c)On 20 July 2001 three telephone calls were made from P to G as follows:
(i)        at 1827 hours for a duration of 106 seconds;
(ii)       at 1830 hours for a duration of 95 seconds;
(iii)      at 1833 hours for a duration of 157 seconds.
The number from which the calls were made was that leased by P. The number to which the calls were made was, at all material times, the unlisted number of G.
In her evidence, G said that by reason of par [4] of the Family Court order of 4 September 2000, she had to ring P every Tuesday and Friday evening between the hours of 6 pm and 6.30 pm to allow him to contact their two boys. She said that on Tuesday, 22 May 2001 she was at home and that she telephoned her former husband at about 10 to 6 that evening. Shortly afterwards, she said that the time was about 5 to 6 or "around 6 o'clock". The actual call was evidently made by her son J, under his mother's supervision, and an answering machine cut in at P's end. G told J to "tell daddy you'll ring on Friday", which he did. G did not speak, herself, on the telephone on that occasion. Not long afterwards, G's telephone rang. She answered it and recognised P's voice. He asked to speak to the boys and she put them on. There was a lengthy conversation for "about half an hour to three‑quarters of an hour". G listened in on another extension within the house. She took exception to some of the things P said to the children towards the end of the conversation and, as a result, telephoned the police and made a report.
On Tuesday, 12 June 2001, G again attempted to telephone her husband in order to provide contact for him with the children. She said that she made the call just after 6 pm, although it appears she had one of the boys make the call under her direct supervision. There was no answer, but the answering machine responded. G told her son to "say that you'll ring on Friday" and he left a message on the answering machine to that effect in "a child's sort of way". Later that evening, at 6.39 pm, P telephoned G's number. She answered the telephone and recognised his voice. He said "Can I talk to the boys. I've been busy?". G gave evidence that she immediately hung up without speaking further.
On 29 June 2001, as a result of a complaint by G, PC Bradshaw visited the appellant at his home at Katanning at about 8.30 am. The officer accompanying PC Bradshaw informed the appellant that he had breached his MRO. He was arrested and taken to the Katanning police station. Later that morning he was released on bail on conditions which purported to prohibit communication of any kind with G. At the police station, the appellant produced to the officers a copy of the Family Court order which he said permitted him to have contact with G. The police officer noted that the order provided that G could ring P and that he was then allowed to speak to the children, but it did not say that he could actually initiate the contact.

G also gave evidence that on 20 July 2001, a Friday, she telephoned P's number at about 6.10 pm. Again, an answering machine responded. She did not leave a message but she told her sons to do so and they did "in their childhood sort of way". Later, near 7 pm, the telephone at G's home rang and her nine‑year‑old daughter, S, answered the call which Telstra recorded as being made at 6.27 pm. According to G, her daughter came to her holding the phone with tears in her eyes and quite upset. G answered and recognised the appellant's voice, but she cut him off too quickly to know what it was that he wanted. G said she received another two or three calls that evening which she answered. On each occasion, having recognised P's voice, she immediately hung up on each occasion. The learned Judge concluded that these appeared to be the calls made at 1830 and 1833 hours noted in the Telstra records, which lasted for a little over one and a half minutes and two and a half minutes respectively. His Honour noted that this timing was not consistent with the evidence of G that she immediately hung up on her husband on the second and third calls. Constable Bradshaw again visited the appellant at his home at Katanning at about 8.30 am on 8 August 2001 in company with Constable Dunne. As a result of that visit, P was charged with the offence of breaching the bail conditions. When asked about making the call documented in the Telstra records, P answered the police officers saying, "I didn't ring my wife. I rang my son J".
P was unrepresented at his trial in the Court of Petty Sessions and also appeared in person at the hearing of his appeal. In this context, E M Heenan J observed at [43] that:
"[P] obviously has no training or background in law and appeared to find it difficult to follow a consistent line or to keep to the point. Inevitably, his evidence and submissions, and his attempt to cross-examine [Ms G] were disjointed, inconsistent and often confused with his tendency to make statements as if they were evidence. It was therefore difficult for the learned Magistrate to follow the issues which were presented by the arguments of the appellant and to identify other issues relevant to the jurisdiction being exercised. Nevertheless, several additional material points did emerge from the cross-examination by the appellant and from his own evidence. In particular, [Ms G] agreed that on a number of times during April 2002 she had failed to ring the appellant in order to allow him telephone contact with the two boys as had been ordered by the Family Court. She said that this was due to her obligations to be in Perth to attend a trial in the District Court and also because of the admission of one of the boys to Princess Margaret Hospital in Perth for over two weeks. This was during the period from 9 April 2002 to the end of that month."
G also acknowledged that following the grant of the VRO of 22 April 1998, there was a reconciliation between herself and P in October 1998 when the restraining order was still in force. They lived together after that on various occasions until the separation in May 2000, despite the mutual contact then occurring apparently being in breach of the express terms of the VRO. G explained that she actually called the police to enquire whether anything needed to be done about the restraining order in the light of the reconciliation. She was told "not to worry about it". In the result, the restraining order was never varied or discharged in the light of the reconciliation until it expired by the effluxion of time after 12 months' duration. As his Honour noted:
"This was an unsatisfactory situation because, in the absence or [sic of] a variation or discharge of the restraining order, there may have been a breach of the same terms of that order by the conduct of the parties after the reconciliation."
G's evidence, while at first denying that she had previously accepted incoming calls from P, and then allowed him to speak to his sons, agreed there may have been a couple of times in February or March 2002 when the appellant had telephoned the house. G's mother had answered the telephone, accepted his calls and put the boys on to speak to their father. She maintained that there was no informal agreement or practice which she ever accepted permitting the appellant to initiate telephone calls to her home to speak to her, or to the boys or for any other reason.
P gave evidence that there had been some 12 occasions from early April to the end of June 2002 when G was supposed to call him to provide telephone contact with the two boys, but failed to do so. There was no finding of fact made by the learned Magistrate whether or not G had failed to make the calls ordered by the Family Court on the occasions alleged by P. It seems to have been the view of the Magistrate that this was irrelevant because the consequences of this could only be relied upon in further proceedings in the Family Court against G for breach of the terms of the contact order. As his Honour commented, this approach overlooked the jurisdiction of the Court to vary the terms of the contact order under s 69J of the Family Law Act.
P gave evidence that he only returned telephone calls to G's house in circumstances when she had initiated the contact by ringing shortly beforehand and that his purpose in telephoning was to have contact with his children. In particular, he said that the telephone contact which he made, allegedly in breach of the bail undertaking, was when his ex‑wife had phoned him a short time before, left a message and he phoned back. In the course of his submissions, P expressly asked the learned Magistrate to dismiss the existing MRO.
P called his two married sisters, Mrs C and Mrs M. Each gave brief evidence concerning conversations and dealings which they had with G. Neither was cross‑examined and there was no evidence adduced by the prosecution at any stage to challenge this evidence. Mrs C described how shortly after the separation between P and G in 1998, she visited G because it was then J's birthday. Mrs C gave evidence that G said that she did not wish P to see the children and that she had taken out a restraining order against him because she wanted to be nasty to him, but that she would drop the restraining order if he would agree to let her have the boys. Mrs M described how G and she had a number of telephone conversations following the separation in February 1998. G mentioned that she had a restraining order against P but would drop it if he gave her the boys. As this evidence was all unchallenged and as neither the prosecuting officer nor G offered any criticism of the evidence of the sisters, the learned Magistrate found that there was no reason why that evidence should not be accepted and a finding made that G had been opposed to the appellant having any contact with his sons.
The prosecution case was that the phone calls to G initiated by the respondent had been proved and admitted to have occurred. There was no express provision in the Family Court order of 4 September 2000 for the appellant to initiate any telephone calls to G. Consequently, it was submitted his conduct was not "authorised or required by an order of a court exercising Family Law jurisdiction" and, consequently, was not excepted from the restraints otherwise imposed by the MRO of 19 February 2001. Further, there was no consent either in writing or at all by G to any of the three calls. Accordingly, there was no basis for P to contend that he had been telephoning G on "matters affecting the welfare of the children" as contemplated under par 13 of the Family Court orders of 27 July 1998 which remained in effect, except to the extent that they were varied by the subsequent orders of 4 July and 4 September 2000. It was contended that no issue concerning the welfare of the children necessitating discussion between P and G had arisen and that the three telephone calls were made for the purpose of P having contact with his children.
P submitted that G had consented to the three calls by telephoning him shortly beforehand in order to make the contact and leaving a message on the answering machine. Further, in relation to the first call, she put the children on the line when he rang back. As to the calls on 20 July 2001, P maintained that G had telephoned him first and that he was simply ringing back. He asked the Magistrate to dismiss the charges and, although not expressly mentioned in his brief final address, he did not abandon his earlier request to the Magistrate to dismiss the restraining order itself.

The Magistrate's Decision

The learned Magistrate delivered his reasons immediately following the conclusion of the evidence and such submissions as were made. His Worship set out the history of the orders made in the Family Court and under the Restraining Orders Act, the circumstances of the telephone calls, P's first arrest, his release on bail subject to a condition which contained "an absolute prohibition against contact" and the subsequent telephone calls on 20 July 2001. The learned Magistrate accepted that the order made by Fleming SM in the Family Court on 4 July 2000 only suspended par 5 of the order of July 1998, leaving par 13 of that order in effect. His Worship was satisfied, however, that P's sole purpose in attempting to communicate with his wife on the three occasions was in order to speak to the children and that this was not justified under par 13 of the July 1998 order as being a purpose related to the welfare of the children. It was also found that G did not consent to any of the three telephone calls being made and that the third call contravened the bail condition. His Worship declined to dismiss the charges as trivial and pointed out that any redress which P wished to pursue in relation to G's earlier alleged non‑compliance with the terms of the contact orders of September 2000, or in relation to any difficulties experienced with the position generally, was restricted to an application to be made to the Family Court of Western Australia under the provisions of the Family Law Act. The convictions were then entered and the conditional release orders imposed.
The Magistrate did not deal with P's oral application to dismiss the MRO. His Worship also treated the bail undertaking as being absolute in its terms and without exception for the exercise of any rights of contact or otherwise conferred by the Family Court orders. In respect of this, E M Heenan J commented in par [51] that:
"In taking this approach his Worship has evidently considered that the only issues for his determination were whether or not there was any contravention of the express terms of the MRO and, that if there were, any inconveniences or consequences for the appellant could only be met, if at all, by independent recourse to the Family Court of Western Australia to exercise its jurisdiction under the Family Law Act to discharge, vary or enlarge its orders relating to the contact which the appellant might have with his children and how this could be arranged or secured."

Inconsistency Question under the Commonwealth Constitution

The learned Judge went on to consider the question whether, on the proper interpretation of all of the relevant legislation, the interrelationship of the Acts meant that a purpose which could not be achieved by an order under the Restraining Orders Act could be achieved by the imposition of a bail condition on a person enjoying the benefit of a contact order made under the Family Law Act. This raised an inconsistency question under s 109 of the Commonwealth Constitution. That question arose because the Family Court of Western Australia was exercising jurisdiction conferred under the Family Law Act when making the contact orders of 27 July 1998, 4 July 2000 and 4 September 2000. The scope of the rights conferred by those orders was expressly excepted and preserved from the operation of the restraining order made in the Court of Petty Sessions on 19 February 2001. His Honour considered that result was inevitable because the order made by the Court exercising federal jurisdiction under the Family Law Act would prevail over any inconsistent order made by a State Court under State law by reason of s 109 of the Commonwealth Constitution or 68S of the Family Law Act: see also s 65 of the Restraining Orders Act. In par [56], his Honour said:
"The question therefore is, whether a condition imposed on the grant of bail pursuant to s 28(2) of the Bail Act (1982) (WA) can be valid and effective if inconsistent with an order allowing contact between the parties made under the Family Law Act."
His Honour acknowledged that this question was not expressly raised in the grounds of appeal nor in the oral submissions made at the hearing of the appeal. His Honour was of the opinion, however, that it arose from the submissions which were made and so these proceedings involved matters arising under the Commonwealth Constitution, or involving is interpretation, within the meaning of s 78B of the Judiciary Act 1903 (Cth).
In the result, s 78B notices were served on the Attorneys‑General of the Commonwealth, the States and Territories and the solicitor for the respondent was asked to take the initiative in serving the relevant notices. All of the Attorneys‑General later responded stating that they did not wish to intervene, apply for removal of the cause to the High Court of Australia, or to make submissions. However, the State Crown Solicitor, who appeared for Constable Dunne on the appeal, contended that in making the September 2000 order, the Court of Petty Sessions was purporting to exercising federal jurisdiction conferred by ss 69J(1) and 64(2)(b) of the Family Law Act in relation to a matter arising under Pt VII of that Act. That conferral of jurisdiction was pursuant to ss 76(ii) and 77(iii) of the Commonwealth Constitution. The jurisdiction of the Court of Petty Sessions to make the September 2000 order is conferred by s 65D(1) of the Family Law Act. This gives the Court jurisdiction to make a "parenting order" which includes a "contact order" as defined in s 64B(b) and (4) of the Family Law Act.
The jurisdiction to grant bail in respect of the appellant's initial appearance in the Katanning Court of Petty Sessions and the power to impose conditions on the grant of bail was conferred on the relevant police officer by ss 13(1), 17(1), cl 1 of Pt A of Sch 1 and cl 2 of Pt D of Sch 1 to the Bail Act 1982 (WA). The jurisdiction to grant bail for an appearance after an adjournment and the power to impose conditions on such a grant was conferred on the Magistrate in the Court of Petty Sessions at Katanning by ss 13(1), 17(1), cl 2 of Pt A of Sch 1 and cl 2 of Pt D of Sch 1 to the Bail Act. To the extent that the grant of bail involved the exercise of judicial power, the jurisdiction was State jurisdiction conferred by the Bail Act.
By virtue of the defence sought to be raised based on s 109 and the provisions of Chapter III of the Commonwealth Constitution, this Court is, and the Court of Petty Sessions at Katanning was, likewise exercising federal jurisdiction in a matter arising under the Constitution or involving its interpretation. That jurisdiction is conferred by s 39(2) of the Judiciary Act pursuant to ss 76(i) and 77(iii) of the Constitution. The conferral of such jurisdiction carries with it appellate jurisdiction pursuant to ss 184, 185 and 206A of the Justices Act: see Macleod v ASIC (2002) 211 CLR 287 at [9] – [16] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ.

Ground A: The September 2000 Order

The question raised by ground A is whether the telephone contact by P, which was the subject of the breach of restraining order complaints, was authorised by the September 2000 order. If it was, by reason of the qualification to the injunction contained in the MRO, there was no breach of that order. As was contended by counsel for the appellant, the purpose and effect of the September 2000 order was clear from its terms and context. It made provision for telephone contact by the respondent with his children. That contact was not to be initiated by P, but G was required to telephone him at the stated times. As has been seen, the arrangement was supplemented by an order that P have liberty to post letters and gifts to his wife's solicitors rather than to G personally. The September order did not authorise P to contact G by telephone or otherwise.
It was submitted that E M Heenan J addressed the wrong issue when he inquired whether P's conduct was in contravention of the September 2000 order or constituted a breach of that order at par [54] of his Honour's reasons. In my opinion, the question was not whether the contact contravened the September 2000 order, but whether the contact was authorised or required by that order. In my view, while the September 2000 order authorised and required G to contact P, it did not authorise him to contact her. This conclusion is not inconsistent with the implicit obligation on G to implement and facilitate the implementation of contact between P and the children. A breach of the September 2000 order by G failing to comply with her obligation to telephone P could lead to enforcement of the obligation pursuant to Div 13A of Pt VII of the Family Law Act. In my opinion, there was nothing in the September 2000 order which gave P any authority to telephone his wife in the event that she failed to comply with her obligations to telephone him to facilitate contact with their children.
In my opinion, s 65 of the Restraining Orders Act does not affect this conclusion. Section 65 provides that:
"If a court does not have jurisdiction to adjust a family order the court is not to make a restraining order that conflicts with that family order."
As Heenan J acknowledged, the Court of Petty Sessions at Albany (which made the MRO) did have jurisdiction to adjust the September 2000 order. Section 65 of the Restraining Orders Act, however, did not speak to that Court. In any event, there is no conflict between an order requiring G to contact P and an order prohibiting P from initiating contact with G. In my opinion, ground A has been made out.

Ground B – Inconsistency of Commonwealth and State Law

Ground B contended that the learned Judge erred in finding that the condition of the respondent's bail undertaking that he was "not to contact or attempt to contact G by whatever means" was invalid and inoperative and that no offence had been committed because P's conduct was otherwise authorised under the provisions of the order of 4 September 2000 made by the Family Court of Western Australia in the exercise of federal jurisdiction.
Pt VII Div 6 of the Family Law Act deals with parenting orders. Section 64B(1) provides that:
"A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a)."
Section 64B(2) provides that:
"A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)contact between the child and another person or other persons;
…
(d)any other aspect of parental responsibility for a child."
Section 64B(4) provides that:
"To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(b), the order is a contact order."
This provision has to be read with s 65D which deals with the Court's power to make a parenting order as follows:
"(1)In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order."

Section 65N imposes obligations created by a contact order, namely:
"(1)This section applies if a contact order is in force in relation to a child.
(2)A person must not:
(a) hinder or prevent a person and the child from having contact in accordance with the order; or
(b) interfere with the contact that a person and the child are supposed to have with each other under the order."
Regulation 12BB of the Family Law Regulations 1984 (Cth) prescribes various State laws which are set out in Sch 8. The only law of Western Australia which has been prescribed is the Restraining Orders Act. Consequently, the provisions of the Bail Act dealing with protective bail conditions have not been prescribed for the purposes of that definition. As will be seen, s 68S of the Family Law Act indicates the extent to which it may be said that the latter Act covers the field to the exclusion of State law.
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.
Division 12 of the Family Law Act is concerned with proceedings and jurisdiction. Section 69A provides that:
"This Division deals with:
(a)the institution of proceedings and procedure (Subdivision B); and
(b)jurisdiction of courts (Subdivision C); and
…
(e)the places and people to which this Part extends and applies (Subdivision F)."
It is provided in s 69J in respect of jurisdiction of Courts of summary jurisdiction that:
"(1)Subject to subsection (5), each court of summary jurisdiction of each State is invested with federal jurisdiction in relation to matters arising under this Part (other than proceedings for leave under section 60G).
…
(3)The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Part may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory.
(4)Without limiting the generality of subsection (3), a Proclamation under that subsection may be expressed to apply only in relation to:
(a) proceedings of specified classes; or
(b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory.
(5)A court of summary jurisdiction must not hear and determine proceedings under this Part otherwise than in accordance with any Proclamation in force under subsection (3)."
The only proclamation applicable in the Perth metropolitan area has been made in respect of the Court of Petty Sessions at 150 Terrace Road, Perth on 1 September 1996. The Court of Petty Sessions at Albany also had the relevant jurisdiction. The consequence is that the Court of Petty Sessions at 150 Terrace Road, which made the September 2000 order, had jurisdiction under the Family Law Act. The Courts of Petty Sessions at Katanning and Albany which dealt with the misconduct restraining order application and the complaints also had that jurisdiction, but the potential for real conflict between the misconduct restraining order and a contact order was limited by the fact that the Court making the misconduct restraining order would have had jurisdiction to vary the contact order, had that been required.
Section 69ZH provides that:
"(1)Without prejudice to its effect apart from this section, this Part also has effect as provided by this section.
(2)By virtue of this subsection, Divisions 2 to 7 (inclusive) (other than Subdivisions C, D and E of Division 6 and sections 66D, 66M and 66N), Subdivisions C and E of Division 8, Divisions 9, 10 and 11 and Subdivisions B and C of Division 12 (other than section 69D) have the effect, subject to subsection (3), that they would have if:
(a)       each reference to a child were, by express               provision, confined to a child of a marriage; and
(b)       each reference to the parents of the child were, by express provision, confined to the parties to the               marriage.
(3)The provisions mentioned in subsection (2) only have effect as mentioned in that subsection so far as they make provision with respect to the parental responsibility of the parties to a marriage for a child of the marriage, including (but not being limited to):
(a)       the duties, powers, responsibilities and authority             of those parties in relation to:
(i)the maintenance of the child and the             payment of expenses in relation to the                   child; or
(ii)the residence of the child, contact between            the child and other persons and other   aspects of the care, welfare and   development of the child; and
(b)other aspects of duties, powers, responsibilities and authority in relation to the child:
(i)arising out of the marital relationship; or
(ii)in relation to concurrent, pending or             completed proceedings between those                   parties for principal relief; or
(iii)in relation to a dissolution or annulment of            that marriage, or a legal separation of the            parties to the marriage, that is effected in                accordance with the law of an overseas                jurisdiction and that is recognised as valid           in Australia under section 104.
(4)By virtue of this subsection, Division 1, Subdivisions C, D and E of Division 6, section 69D, Subdivisions D and E of Division 12 and Divisions 13 and 14 and this Subdivision, have effect according to their tenor."
It follows that the scope of s65D is confined by subs (3). Section 69ZH has the effect of confining the provisions of Pt VII in subs (2) to that which they would have if each reference to a "child" were by express provision confined to a child of the marriage, and a reference to the parents of a child were confined to the parties to a marriage. The effect of s 69ZH(3) is that the provisions in subs (2) only have effect so far as they make provision with respect to parental responsibility of the parties to a marriage or a child of the marriage, including but not limited to the various matters identified. The excepted parts of Pt VII are then dealt with in s 69ZH(4) and have effect according to their tenor. It was submitted, however, that the power contained in s 65D of the Act to make a parenting order is confined by a reference to s 69ZH(3), which is concerned with a provision about parental responsibility of the parties to a marriage to a child of the marriage.
Division 13A of the Act contains detailed provisions relating to the enforcement of orders that affect children and provides the Court with various powers in relation to what appears to be a graduated scale of defaults in compliance with those orders.
It is in this context that the issue of inconsistency between a law of the State and a law of the Commonwealth arises.

Inconsistency of Commonwealth and State Law

Section 109 of the Commonwealth Constitution provides that:
"When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid."
Ground B raises the question whether ss 13(1) and 17(1) and cl 2 of Pt D of Sch 1 of the Bail Act, to the extent that they authorised the imposition of a condition that P not contact G by whatever means, were inconsistent with s 64B(2) and (4) as well as s 65D of the Family Law Act, in the context of the 4 September 2000 order which has been made.
The ground also raises the question whether 51(2a) of the Bail Act, to the extent that it prohibited P from contacting G by whatever means, was also inconsistent with s 64(2)(b) and (4) of the Family Law Act in the circumstances in which the September 2000 order had been made. In this context, the learned Judge expressed his conclusion in terms of an inconsistency between the bail condition and the order of 4 September 2000, and the invalidity of the bail condition, rather than the inconsistency of the Bail Act of the State and the Family Law Act of the Commonwealth as contemplated by s 109 of the Commonwealth Constitution.
In Ex parte McLean (1930) 43 CLR 472 there was found to be an inconsistency between a provision in s 4 of the Masters and Servants Act 1902 (NSW) which created an offence. The same conduct by the same persons was also an offence, albeit punishable somewhat differently, under s 44 of the Commonwealth Conciliation and Arbitration Act 1904-1928. It was held that the State Act was invalid by virtue of s 109 of the Constitution. It followed that the matter was not one which involved any question regarding the limitations inter se of the Commonwealth and the State within ss 39A and 40A of the Judiciary Act 1903, but did arise under ss 39A and 40A of the Judiciary Act. Dixon J (as he then was) said at 483:
"When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and sec. 109 applies. That this is so is settled, at least when the sanctions they impose are diverse (Hume v Palmer [(1926) 38 CLR 441]). But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or inflicting different penalties. The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter."
In that case at 483 – 484, Dixon J held that the conduct which the State law prescribed, namely, the performance of contracts of service was a matter with which the Commonwealth had not attempted to deal. As his Honour put it following the passage to which I have referred at 483 ‑ 484:
"Although neglect by a shearer to perform such a contract constitutes an offence against Federal law, this does not arise from any statement by the Federal Legislature of what the law shall be upon that subject. The conduct which the Federal statute penalises is the breach of industrial awards. There is no collision between an intention to deal exclusively with disobedience of awards and a law for the punishment of breach of contract."
His Honour went on to say at 485:
"If a Federal statute forbids a particular act or omission and means to state what shall be the law upon that specific matter, any State law which dealt with the same act or omission would become inoperative, and it would probably be of no importance whether each Legislature was directing its attention to the same general topic or had dealt with the same act or omission in the process of legislating upon two entirely different subjects."
His Honour also made the point at 485 – 486 that:
" … The Commonwealth Constitution and Arbitration Act in giving force and effect to awards necessarily confines their exclusive authority to the regulation of industrial relations and, moreover, to the regulation of industrial relations which are in dispute. It may perhaps follow from this rule that, while the arbitrator can make his award the exclusive measure of industrial rights and duties between the disputants, the laws of a State which do not regulate industry at all are not inconsistent with the exclusive authority which the Commonwealth statute gives to the award merely because they deal with specific conduct which, as between the disputants, is dealt with by the award. For example, if the award in this case expressly forbad shearers to injure sheep when shearing, it would not be a necessary consequence that a shearer who unlawfully and maliciously wounded a sheep he was shearing could not be prosecuted under the State criminal law for unlawfully and maliciously wounding an animal. It is not, however, necessary to determine whether this distinction in the application of the doctrine is valid. It may be assumed that provisions of State law which prohibit acts or omissions irrespective of the relation of employer and employed, and without regard to any other industrial relation or matter, are not superseded under sec. 109 merely because it happens that in their industrial aspect the same acts or omissions by parties to a dispute are forbidden by Federal award and by this means made punishable under the Federal statute. But, in this case, the State law, sec. 4 of the Masters and Servants Act 1902, deals directly with the relation of employer and employed, and in virtue of that industrial relation makes penal the very default which the Federal law punishes somewhat differently in the regulation of the same relation."
On this basis it would seem to follow that a criminal law enacted by the State in relation to family violence which empowered a Court to impose as a condition of bail a prohibition on contact with a particular person or persons, including a child, would not be inconsistent, in the relevant sense with a provision in a Commonwealth statute dealing with family law generally, including the provision of access to a child of a marriage.
This approach differed somewhat from the more simplistic approach which the High Court had earlier adopted in the Engineers Case – Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. It was then held that s 109 of the Commonwealth Constitution gave supremacy to every Commonwealth Act over every State Act, whether passed under a concurrent or exclusive legislative power, if any of the two conflict. At the same time, the decision of D'Emden v Pedder (1903) 1 CLR 91 was approved insofar as it was held at 111 by Griffith CJ, Barton and O'Connor JJ that:
"… when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, when expressly authorised by the Constitution is to that extent invalid and inoperative."
In other words, a Commonwealth law and a State law would be inconsistent only if it were not possible to obey both laws. There had to be a direct form of inconsistency.
Later, in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 a third form of inconsistency was identified, namely, what has been described as an indirect form of inconsistency where the law enacted by the Commonwealth is one intended to "cover the field". In that case, it was held by Knox CJ, Isaacs, Gavan Duffy, Rich and Starke JJ that the possibility of obeying a law of the Commonwealth and a law of State without disobeying either was not an appropriate test of inconsistency between the two laws. The test formulated by Isaacs J at 489 – 490 was as follows:
"If, however, a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field. This was the opinion in Whybrow's Case of Griffith C.J. [(1910) 10 C.L.R., at p.286] and of myself [(1910) 10 C.L.R., at p.330]. The principle was repeated by Griffith C.J. in Cullis v. Ahen [(1914) 18 C.L.R. 540, at p. 543] with the concurrence of my brother Powers and myself. It is the principle adopted by the Privy Council with reference to the Canadian Constitution in such cases as Grand Trunk Railway Co. of Canada v. Attorney-General of Canada [(1907) A.C. 65], to which I shall refer later. It stands on the basis of natural common sense and does not depend necessarily on express words (see Story on the Constitution, vol. ii., sec. 1837). If such a position as I have postulated be in fact established, the inconsistency is demonstrated, not by comparison of detailed provisions, but by the mere existence of the two sets of provisions. Where that wholesale inconsistency does not occur, but the field is partly open, then it is necessary to inquire further and possibly to examine and contrast particular provisions. If one enactment makes or acts upon as lawful that which the other makes unlawful, or if one enactment makes unlawful that which the other makes or acts upon as lawful, the two are to that extent inconsistent. It is plain that it may be quite possible to obey both simply by not doing what is declared by either to be unlawful and yet there is palpable inconsistency. In the present case there is inconsistency in both of the senses I have described."

For these reasons, I would allow the appeal, set aside the orders made by the learned Judge and reinstate the convictions on 22 May 2002 in the Court of Petty Sessions at Katanning, namely, the conviction on Charge Nos KT333/01, breach of restraining order No AL2107/00 on 12 June 2001 contrary to s 61(2) of the Restraining Orders Act1997 by communicating with the person protected, [G], by telephone; KT334/01 on 20 July 2001, breach of restraining order No AL2107/00 by communicating with the person protected by telephone contrary to s 61(2) of the said Act); and KT386/01 on 20 July 2001, breach of a misconduct restraining order by communicating with the person protected by telephone.
MCLURE J: This is an appeal from a decision of E M Heenan J allowing the respondent's appeal from his conviction after trial in the Katanning Court of Petty Sessions of four offences, three of breach of a misconduct restraining order and one of breach of a bail condition. Counsel for the appellant also appeared for the Attorney‑General of Western Australia who intervened under s 78A of the Judiciary Act 1903 (Cth). The respondent was not legally represented in the appeal or in the hearings below.

Background

On 4 September 2000 the Court of Petty Sessions at 150 Terrace Road, Perth, exercising federal jurisdiction under the Family Law Act1975 (Cth) in proceedings between the respondent and his wife, made orders for contact of the children of that marriage, including a consent order that:
"The … [respondent] have telephone contact with the wife to contact the … [respondent] each Tuesday and Friday between the hours of 6.00 pm to 6.30 pm."
("the September 2000 order").
On 19 February 2001 the Court of Petty Sessions at Albany made a misconduct restraining order in terms that:
"THE RESPONDENT SHALL NOT:

behave in an intimidatory or offensive manner towards the person protected, behave in a manner likely to lead to a breach of the peace,
AND, SAVE AND EXCEPT:
through a properly instructed legal representative acting on behalf of the protected person or the respondent; or
during the actual conduct of conciliations or counselling conferences or hearings for the purposes of Family Law Proceedings; or
as is authorised or required by an order of a court exercising Family Law jurisdiction or is agreed between the parties in writing,
THE RESPONDENT SHALL NOT OTHERWISE:
communicate or attempt to communicate by whatever means with the person protected by this order,
enter upon any other premises where the person protected lives or works."

The person protected by the misconduct restraining order was the respondent's wife. There is little information as to the circumstances which led to the order being made. At 6.32 pm on 22 May 2001 and 6.39 pm on 12 June 2001 the respondent contacted his wife by making a telephone call to her unlisted number. Following his being charged with breaching the misconduct restraining order, the respondent entered into a bail undertaking which was subject to a condition that he was "… not to contact … [his wife] by whatever means" ("the bail condition").
The respondent again contacted his wife by telephoning her at 6.27 pm, 6.30 pm and 6.33 pm on 20 July 2001.
The respondent was charged with three counts of breaching the misconduct restraining order in respect of the telephone contact with his wife on 22 May, 12 June and 20 July 2001, contrary to s 61(2) of the Restraining Orders Act 1997 (WA). He was also charged with breaching the bail condition in respect of the telephone contact with his wife on 20 July 2001, contrary to s 51(2a) of the Bail Act 1982 (WA).

Issues in the Appeal

The issues in the appeal are whether Heenan J erred in finding that:
(1)the respondent's conduct in telephoning his wife on 22 May 2001, 12 June 2001 and 20 July 2001 was authorised under the terms of the September 2000 order;
(2)the condition of the respondent's bail undertaking was invalid and inoperative because the respondent's conduct was authorised under the … [September 2000 order] made by the Family Court of Western Australia in the exercise of federal jurisdiction.
The second issue arises from the respondent's defence to the breach of bail charge based on inconsistency under s 109 of the Commonwealth Constitution.

Facts

The extensive turbulent history between the respondent and his wife is set out in detail in the reasons of the Chief Justice. It is unnecessary to repeat it here. I confine myself to the facts directly relevant to the charges. The respondent and his wife had two (male) children of their marriage.
The Family Court had made orders on 27 July 1998, one of which, order 13, is relevant. Order 13 provides:
"The husband and the wife be restrained by injunction from telephoning the other save and except in the case of an emergency or matters affecting the welfare of the children."
It is common cause that the September 2000 order provided for the appellant to have telephone contact with his two children at the specified times, with the telephone contact to be initiated by his wife.
In purported compliance with the September 2000 order, the respondent's son, under the direction and supervision of the wife, telephoned the respondent at about 10 minutes to 6 pm on Tuesday, 22 May 2001. An answering machine responded. On the wife's instruction, her son left a message to the effect that he would ring on Friday. At 6.32 pm on the same day the respondent, using the telephone's last number redial facility, telephoned his wife's unlisted number and she answered the telephone call. The respondent asked to speak to the boys and she put them on. A lengthy conversation with the children ensued.
Just after 6 pm on Tuesday, 12 June 2001, one of the respondent's children, again under the direction and supervision of his wife, telephoned the appellant. The answering machine responded. The respondent's son left a message to the effect that he would ring on the following Friday. At 6.30 pm on the same day the respondent telephoned his wife's number and she answered the telephone. He asked to speak to the boys. She hung up.
On 3 July 2001 the respondent was charged with breaching the misconduct restraining order in respect of the telephone calls on 22 May and 12 June 2001. He was released to bail on, inter alia, the bail condition.
On Friday, 20 July 2001 the respondent's wife telephoned her husband at 6.10 pm. The answering machine responded. One of her sons left a message. The respondent called the wife's number at 6.27 pm on the same day. Her daughter answered the phone and handed it to her mother who hung up. The respondent's wife received two further calls from the respondent that evening (at 6.30 pm and 6.33 pm). She hung up on both occasions.
The learned Magistrate concluded that order 13 made by the Family Court on 27 July 1998 remained in force at the relevant time. He found that the respondent's sole purpose in attempting to communicate with his wife on the occasions the subject of the charges was in order to speak to the children and that this was not justified under order 13 as a purpose affecting the welfare of the children. He also found that the respondent's wife had not consented to the respondent making the telephone contact with her. Accordingly, the Magistrate found the complaints proven.

Ground 1

The learned Judge set out the statutory framework within which the issues had to be determined. In making the September 2000 order, the Court of Petty Sessions was exercising federal jurisdiction conferred by s 69J(1), s 64B(2)(b) and (4) of the Family Law Act in relation to a matter arising under Pt VII of that Act. Part VII concerns children and one of the principles underlying the objective of this Part is that children have a right of contact with both parents (s 60B(2)(b)).
The power of the Court of Petty Sessions to make the September 2000 order is contained in s 65D(1) of the Family Law Act which gives the Court the power to make a "parenting order", which includes a "contact order" (as defined in s 64B(2)(b) and (4) of the Family Law Act). A breach of the September 2000 order would expose the person in breach to proceedings under s 70NJ of the Family Law Act. However, where the act or omission constitutes a contravention of an order and is also an offence against any law and the person is prosecuted for the offence, any s 70NJ proceedings must be adjourned until the completion of the prosecution or dismissed: s 70NP of the Family Law Act.
In the event a contact order made under the Family Law Act is inconsistent with a family violence order, which includes an order under the Restraining Orders Act, the contact order will prevail and the family violence order is invalid to the extent of the inconsistency: s 68S(1) of the Family Law Act. There is no suggestion that the misconduct restraining order is, in terms or effect, inconsistent with the September 2000 order. No issue of inconsistency arose in this case because the misconduct restraining order expressly excluded conduct authorised or required by orders of a court exercising Family Law jurisdiction. The only issue was whether the respondent's conduct was "authorised or required" by the September 2000 order.
On that subject, the Judge confined his consideration to the September 2000 order and concluded as follows:
"For the … [respondent] to ring his ex‑wife's number in those circumstances shortly after she had telephoned him in order to provide contact with the children but had missed him, does not appear to me to be in contravention of the … [September 2000] order which, in the end, was designed to facilitate controlled contact between the father and the children. Any number of examples could be supposed where a telephone call was made resulting in contact between father and children in the appointed manner and during the designated period but where the connection was lost, by a fault or accident, and where the father might immediately ring back to complete the contact. I could not envisage that a response of that kind would constitute a breach of the … [September 2000] order or some form of unauthorised contact. Nor do I consider that these calls, prompted as they were by approaches from … [the appellant's wife], and in the first instance resulting in her answering the phone and putting the children on to speak to their father should be characterised as breaches either. In other words, I conclude that the conduct of the appellant in telephoning as he did on 22 May and 12 June 2001 was authorised under the terms of the order of the Family Court of 4 September 2000. For the same reasons I consider that the telephone call of 20 July 2001 was also authorised, in the circumstances, upon the proper interpretation of the scope of that order of the Family Court."
Other relevant orders made by the Family Court on 4 September 2000 included that the respondent have supervised contact with his two children for three hours each week on either a Saturday or Sunday and that the respondent "have liberty to post letters and gifts to the children care of the wife's solicitors".
The issue is whether the telephone contact initiated by the respondent with his wife was authorised or required by the September 2000 order. There is no suggestion that the September 2000 order required him to initiate contact. The only issue is whether it authorised him to do so. The Judge reasoned that, as the respondent had not contravened the September 2000 order, the respondent's contact with the wife was authorised. The Judge does not explain why the respondent, in contacting his wife, had not contravened the September 2000 order. There are two possibilities. Either the conduct was outside the scope of that order or it was prohibited by that order, but the respondent had a defence of reasonable excuse under Div 13A of Pt VII. Either way, it does not follow that because the respondent had not contravened the September 2000 order, his conduct was authorised by it. For the sake of completeness, I note it is not suggested that a family violence order will be inconsistent with a contact order for the purposes of s 68S if there is, or is the potential for, a different answer to the question whether there has been an actionable contravention because of a failure to comply with the orders.
The September 2000 order gives to the respondent an entitlement to have telephone contact with his children at specified times and imposes upon his wife an obligation to initiate contact at the specified times. The September 2000 order does not expressly prohibit or expressly authorise the respondent to initiate telephone contact. The question is whether the September 2000 order impliedly prohibits or, alternatively, impliedly authorises the respondent to initiate telephone contact. What indications there are in the orders, in particular the arrangement for letters and gifts to be sent to the wife's solicitors, suggests that the September 2000 order is intended to cover the field and impliedly prohibits such conduct. However, I would be reluctant to imply such a prohibition in the absence of a clearly stated intention. In my opinion, the better view is that the September 2000 order does not impliedly prohibit or impliedly authorise the appellant to initiate telephone contact with his wife. It is silent on the issue. That being the case, the misconduct restraining order applies.
The analysis applies notwithstanding any breach on the part of the wife of an obligation to implement or facilitate the implementation of contact with the children. A breach of the September 2000 order by the wife might lead to enforcement measures under Div 13A of Pt VII of the Family Law Act. However, neither the September 2000 order nor the Family Law Act expressly or impliedly authorised the respondent to have telephone contact with his wife.
It should be noted that the Judge proceeded on the basis that order 13 of the orders made by the Family Court on 27 July 1998 were suspended by order of the Court on 4 July 2000. That conclusion is inconsistent with the Magistrate's conclusion and the evidence, being a transcript of the hearing on 4 July 2000 and the extracted order. It appears only order 5 was suspended. If regard is had to order 13, it, when read with the September 2000 order, prohibits the respondent from initiating telephone contact with his wife. However, the appellant did not contend that the Judge erred in disregarding order 13 of the orders made on 27 July 1998.
For these reasons I would uphold the first ground of appeal.

Ground 2

The Judge concluded that the bail condition was inconsistent with the September 2000 order made by the Family Court in the exercise of federal jurisdiction and, in those circumstances, was invalid and inoperative.
This issue of invalidity only arises if there is an inconsistency between the September 2000 order and the bail condition. For the reasons I have given, the September 2000 order does not authorise the respondent to initiate contact with his wife. However, it expressly contemplates that the respondent have contact with his wife, albeit to be initiated by her. I am not persuaded that the bail condition, on its proper construction, prohibits all contact between the respondent and his wife. I am satisfied that the bail condition goes no further than preventing the respondent from initiating contact with his wife. Accordingly, there is no inconsistency between the September 2000 order and the bail condition and no issue of constitutionally sourced invalidity arises. However, the matter was determined below and, as I may have interpreted the bail condition too narrowly, I propose to deal with it.

The Statutory Framework

The respondent was released to bail on the bail condition by a police officer. The jurisdiction to grant bail for the appellant's initial appearance in the Katanning Court of Petty Sessions, and the power to impose conditions on the grant of bail, is conferred on an authorised police officer by s 13(1), s 17(1), cl 1 of Pt A of Sch 1 and cl 2 of Pt D of Sch 1 to the Bail Act.
An authorised police officer may impose conditions if he considers that it is desirable for any purpose mentioned in cl 2 of Pt D of Sch 1 of the Bail Act. In particular, a condition may be imposed to ensure that a defendant, inter alia, does not: while on bail commit an offence; endanger the safety, welfare or property of any person; or interfere with witnesses. However, before imposing a condition to ensure that a defendant does not endanger the safety, welfare or property of any person or interfere with witnesses (a "protective purpose"):
"… a judicial officer or authorised officer is to consider whether that purpose would be better served, or could be better assisted, by a restraining order made under the Restraining Orders Act 1997 …".
The Judge noted that the bail condition was designed to ensure the respondent did not endanger the safety, welfare or property of his wife. It is implicit in the Judge's reasons that he accepts that, save for the inconsistency issue, the grant of bail on the bail condition was otherwise a valid exercise of discretion.
A defendant whose bail undertaking includes any condition imposed for a protective purpose who fails to comply with the condition, commits an offence (s 51(2a) of the Bail Act).
The September 2000 order is a "parenting order", which includes a "contact order", made by the Court of Petty Sessions exercising federal jurisdiction and power conferred by ss 69J(1), 64D(2)(b) and (4) and 65D(1) of the Family Law Act.
Parenting orders (which includes contact orders) are dealt with in Div 5 and Div 6 of Pt VII of the Family Law Act. Division 11 of Pt VII deals with the relationship between a contact order and a family violence order. A "family violence order" is defined by s 60D of the Family Law Act to mean an order made under a prescribed law of a State or Territory to protect a person from family violence. The Restraining Orders Act is a prescribed law (reg 12BB and Sch 8 to the Family Law Regulations 1984 (Cth)). The Bail Act is not. Accordingly, the misconduct restraining order made on 19 February 2001 is a family violence order. If a contact order is inconsistent with a family violence order, the contact order prevails and the family violence order is invalid to the extent of the inconsistency: s 68S(1) of the Family Law Act.
In limited circumstances, a State court that has jurisdiction in relation to matters arising under Pt VII of the Family Law Act, may in the course of proceedings for the making or variation of a family violence order make, revive, vary, discharge or suspend a contact order: s 68T of the Family Law Act. Otherwise, a State court with jurisdiction under s 69J has (limited) power to make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order: ss 65D(2) and 69N.
The Judge's analysis and conclusion is expressed in terms of whether there was an inconsistency between the September 2000 order and the bail condition. That is a correct starting point. If there is no inconsistency in their terms or effect, a s 109 inconsistency issue does not arise.
The Judge proceeded on the basis that the scope of the bail condition was inconsistent with the September 2000 order. In concluding that the bail condition was invalid, he attached significant weight to the fact that the alternative of a restraining order under the Restraining Orders Act would not prevail over an inconsistent contact order and to the power of the Court of Petty Sessions to vary or suspend such a contact order. Heenan J said (at [75]):
"In view of the legislative importance attached to contact orders made under the Family Law Act and the special regime established under that Act for their enforcement, I consider that there is a strong indication that rights conferred by such orders are not lightly to be overridden or diminished. Clearly, if a person were to be arrested and imprisoned for some unrelated offence under a State criminal law it could not be suggested that the existence of rights or benefits contained in a contact order would be inconsistent with his imprisonment under State law. Many other like examples can be supposed. But the question here is whether or not while on bail pending the trial or determination of a charge for a State offence, a condition can be imposed on a defendant which is inconsistent with rights under a contact order where one of the alternatives to the imposition of a bail condition expressly acknowledges that no such restriction could be imposed. I have concluded that there is an inconsistency in this situation where a condition imposed on bail and forming part of a bail undertaking significantly entrenches upon rights conferred by a contact order. This appears to me to follow from the interpretation of the statutory provisions themselves but is significantly reinforced, in my view, by the provisions which the legislation contain to allow applications to be made to vary or suspend such contact order by direct and expeditious means …".

The appellant contended that the Judge erred in focusing on: the September 2000 order and the bail condition; the Bail Act and the Restraining Orders Act (and the comparison between orders which could have been made under each); and the jurisdiction under s 69J of the Family Law Act to vary the September 2000 order. The appellant contended that the focus should be on the scope and operation of the Family Law Act.

Inconsistency under s 109 of the Constitution

Section 109 of the Constitution provides that, when any State law is inconsistent with the law of the Commonwealth, the Commonwealth law "shall prevail" and the State law "shall, to the extent of the inconsistency, be invalid". Constitutional inconsistency may result from direct or indirect inconsistency between a Commonwealth and State law. A direct inconsistency arises where simultaneous obedience to both laws is impossible or one law abrogates a right conferred by another. In the absence of a direct inconsistency, a State law will be inconsistent with a Commonwealth law that reflects a Parliamentary intention to "cover the field" the subject of the law. The intention must be for the Commonwealth law to completely, exhaustively or exclusively govern the particular conduct or matter to which its attention is directed: Ex parte McLean (1930) 43 CLR 472 at 482 per Dixon J.
The Judge, in my respectful view, correctly concluded that the Commonwealth Parliament did not intend the jurisdiction or power of courts under Pt VII of the Family Law Act to exclude the jurisdiction of State courts to deal with offences or alleged offences under State criminal laws. I proceed on the assumption that, prima facie, there is a direct inconsistency between the September 2000 order and the bail condition.
As s 109 of the Constitution is concerned with inconsistency of laws, the question is whether the relevant provisions of the Bail Act (s 13(1), s 17(1), s 51(2a) and cl 2 of Pt D of Sch 1), to the extent to which they authorise the imposition of a condition that the respondent not contact his wife by whatever means, are inconsistent with s 64B(2)(b) and (4) and s 65D of the Family Law Act, in circumstances where the September 2000 order has been made.
Section 109 is concerned with inconsistency of laws, not (directly) with the orders made under the laws. McHugh J in P v P states the position as follows (at 635):
"If a law of the State authorises a State tribunal to make an order which impairs or detracts from the operation of an order of a court that is authorised by federal law, the State law is inconsistent with the federal law for the purpose of s 109 of the Constitution. The inconsistency is between the federal law and the State law and not the order of the federal court and the State law."
There is a presumption that it is the intent of the Commonwealth Parliament that jurisdiction conferred in general terms will be exercised in the context of, and within the confines imposed by, the ordinary criminal law of the State: P v P (1994) 181 CLR 583. The majority in P v P (Mason CJ, Deane, Toohey and Gaudron JJ) said (at 602):
"A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done."
If the presumption does not apply and the State law is inconsistent with the Commonwealth law, the State law will be invalid to the extent that it authorises the making of an inconsistent order.
P v P concerned the federal jurisdiction under Pt VII of the Family Law Act to make orders in relation to the welfare of a child. The parents of a mentally incapacitated child applied to the Family Court in New South Wales under s 64(1) for an order for the child's sterilisation. Section 35 to the Guardianship Act1987 (NSW) prohibited such treatment without authorisation under the statutory scheme. One avenue of authorisation was by order of the Supreme Court of New South Wales. It was an offence under the Guardianship Act to act in breach of the prohibition. Prima facie, there was the potential for direct inconsistency.
The High Court identified the starting point for determining whether there was an inconsistency as the intended scope and operation of the Commonwealth law. If federal jurisdiction is conferred in terms which convey a legislative intent that its exercise is not to be confined or constrained by the prohibitions or requirements of State law, then (subject to issues relating to the scope of Commonwealth power) s 109 will invalidate any State law to the extent that it would directly or indirectly (such as by conferring authority on a State court or officer) preclude, override or render ineffective the exercise by the Federal Court of the jurisdiction conferred. Conversely, if the Commonwealth law conveys a legislative intent that the jurisdictional power must be exercised conformably with State law, the Commonwealth jurisdiction conferred will, as a matter of construction, be confined with the result that there is no s 109 inconsistency: P v P at 601 ‑ 602.
Section 60H of the Family Law Act makes express provision excluding Federal Court jurisdiction to make orders in specific circumstances confined to children under the control or care of a person under a child welfare law. There was no similar express exclusion that applied to the facts in issue.
The High Court held that Pt VII of the Family Law Act evinced an intention of the Commonwealth Parliament for its operation not to be subject to the prohibition in the Guardianship Act on medical and dental treatment. To the extent the State law imposed such a prohibition, it was invalid by s 109 of the Constitution. The practical effect was that the orders made by the Federal Court would prevail over the State law or orders made thereunder.
The Court in P v P characterised the prohibition under the Guardianship Act as part of an overlapping or competing statutory scheme relating to the medical welfare of children, not as part of the general criminal law.

Whether the Bail Act inconsistent with the Family Law Act

The question is whether Pt VII of the Family Law Act evinces an intention of the Commonwealth Parliament that its operation be subject to the power conferred on judicial or authorised officers under ss 13(1), 17(1) and cl 2 of Pt D of Sch 1 to the Bail Act to impose the bail condition and to render the breach of such a bail condition an offence.
The question assumes that the bail condition is otherwise a valid exercise of the power under the Bail Act and that the misconduct restraining order is a valid exercise of the power under the Restraining Orders Act.
The appellant contends that the Bail Act forms part of the criminal law of the State and, as such, it is presumed that the federal jurisdiction under Pt VII of the Family Law Act is intended to operate subject to, and within the confines of, the criminal law of the State. Further, he contends that the express provisions of the Family Law Act, in particular Div 11 of Pt VII and s 68S, support that submission. Division 11 deals with the relationship between contact orders and family violence orders.
If it was the Commonwealth Parliament's intention that exercises of power under Pt VII prevail over inconsistent exercises of power under State law relating to, for example, public order, Div 11 of Pt VII would have been unnecessary because, absent a legislative intention to be subject to State law, any orders made under the Family Law Act must by virtue of s 109 prevail over inconsistent orders made under the Restraining Orders Act. The primacy given to a prosecution over breach action under Div 13A also supports the application of the presumption. Further, the subject matter and purpose of the Commonwealth and State laws do not overlap or compete. Part VII of the Family Law Act relates to the rights and welfare of children, whereas the objective of the Bail Act is to achieve an appropriate balance between the presumption of innocence and the protection of the public and the administration of criminal justice.
The existence of the power in Pt VII for courts to vary or discharge a contact order does not reflect a legislative intent, clear or otherwise, that the federal power not be subject to the criminal law of the State. Further, I do not accept that the Commonwealth Parliament's intention, to be garnered from the scope and operation of Pt VII of the Family Law Act, is affected by the fact that in limited circumstances a judicial or authorised officer exercising power under the Bail Act is obliged to consider the alternative of making an order under the Restraining Orders Act, which order would not prevail over a contact order.
For these reasons I conclude that Pt VII of the Family Law Act evinces a Parliamentary intention that the powers in ss 64B(2)(b) and (4) and 65D be subject to the powers in ss 13(1), 17(1), Pt D of Sch 1 and s 51(2a) of the Bail Act. Accordingly, there is no inconsistency and the bail condition is a valid exercise of statutory power. I would uphold ground of appeal 2.

Other Matters

The respondent, being unrepresented, did not file a notice of contention. In the course of his submissions to the Court he raised a number of matters, only one of which was raised in his grounds of appeal from the decision of the Magistrate. The issue raised in his grounds of appeal, and which was not dealt with by the Judge, is that the Magistrate had erred in finding that his wife had not consented to the respondent making telephone contact with her.
Under s 62 of the Restraining Orders Act, it is a defence to a charge of breach of a restraining order for a defendant to satisfy the Court that he acted with the consent of the person protected by the order. Consent means a consent clearly and voluntarily given. The respondent relies on the fact that on the first occasion on which he made the contact the subject of the charges, his wife, at his request, permitted him to speak to the boys on the telephone. On all other occasions she immediately terminated the call by hanging up. The matter relied on by the respondent does not discharge his burden of proving that his wife consented to the contact made in the first or subsequent telephone contacts.
The respondent also submitted that the authorised police officer did not have the power to grant bail or impose the bail condition. He relied on s 4 of the Bail Act. That section provides:
"The operation of this Act extends to any appearance in a court for an offence -
(a)except to the extent that in this Act, or in the law creating the offence or applicable thereto, express provision is made excluding or limiting the operation of this Act in respect of that appearance;
(b)whether or not that law contains a reference to the granting of bail;
(c)however any reference in that law to the granting of bail may be expressed; and
(d)as if any reference therein to the taking of a recognizance were to a requirement that, except where bail is dispensed with under this Act, the defendant enter into a bail undertaking."

As I understand the submission, the respondent contended that the Bail Act did not apply to an offence of breach of a misconduct restraining order under s 61(2) of the Restraining Orders Act. There is nothing in the Bail Act or in the Restraining Orders Act excluding or limiting the operation of the Bail Act. The submission is without merit.
The respondent also contended that the authorised police officer did not have power to impose the bail condition. In that regard, the respondent relied on observations made by the presiding Magistrate on 21 August 2001 when the charges came before the Court again. The Magistrate removed the bail condition because there was "not said to be any abuse or threats, it's not a violence restraining order, and there appears to be a Family Court order in place".
The Magistrate's comments do not address the question in issue, namely, whether the imposition of the bail condition was an erroneous exercise of discretion or beyond power. As this matter was not raised below, it is inappropriate for it to be raised in this appeal.

Conclusion

At the end of the hearing counsel for the appellant advised the Court of the orders he would seek in the event the appeal was successful. The only orders sought by the appellant are that the appeal be allowed, the orders of Heenan J be set aside and the appeal to Heenan J be dismissed. They are the orders I would make.
LE MIERE J: I have had the advantage of reading in draft the reasons for judgment of Malcolm CJ. I would allow the appeal, set aside the orders made by the learned Judge, and reinstate the convictions on 22 May 2002 in the Court of Petty Sessions at Katanning, for the reasons stated by the Chief Justice.