P v Dunne

[2006] HCATrans 253

[2006] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P38 of 2005

B e t w e e n -

P

Applicant

and

DAVID MORGAN DUNNE

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 MAY 2006, AT 11.20 AM

Copyright in the High Court of Australia

P appeared in person.

MR R.J. MEADOWS, QC, Solicitor‑General of the State of Western Australia:   If the Court pleases, I appear with my friend, MS K.H. GLANCY, for the respondent.  (instructed by State Solicitor’s Office)

KIRBY J:   We have your written submissions and we have read those and we have read the judgments of the Full Court.  What do you have to say in elaboration of what you have already said in your written submissions?

P:   Your Honours, all I really – I had Mr McCusker, QC, to represent me but the thing is he has been - it is a short time from when the application book was filed last month and now.  He expected it would be October before it would be heard and he is booked out with other matters all this month so I had to turn up myself.

KIRBY J:   You need a little time extension, do you not?  Is there any problem with that?

P:   No, it is all right, your Honour.  But you have already read everything, obviously, and you people are very intelligent.  I am not, but I can see something when it is wrong and all I would like to do, if anything, is just elaborate on the respondent’s – they claim on page 131 at about No 10 to 20 – now, they are saying that – sorry, if you start at the first paragraph.

KIRBY J:   Yes.

P:   They are saying that my book does not represent what the magistrate and the judge found – sorry, Chief Justice Malcolm and the magistrate, but if you read page No 1 which is really the end of the submissions in the Magistrates Court, paragraph 3 which is No 10, I did tell the magistrate quite clearly that the only reason that I asked for that, which is a phone contact order with her to phone me so the kids could talk to me was made so that – because she would not give me a phone number, and I did say that here, if you read that.

KIRBY J:   Yes.

P:   I said it quite clearly.  Now, if the magistrate misinterpreted that, what I had said, Justice Heenan ‑ ‑ ‑

KIRBY J:   But there was another way you could have contacted her and that is through the solicitors.  You could have ‑ ‑ ‑

P:   No, this is for phone contact with the children.

KIRBY J:   I realise you wanted contact with the children but you were under the specific order not to telephone her and yet you did so.  I realise you say you did so because of the fact that she had phoned you and you were responding.  I understand that is what you were doing, in order to have the contact with your children but it is still ‑ ‑ ‑

P:   I was ringing the children, yes.

KIRBY J:   It still specifically involved a breach of the order that had been made under the order restricting your contact with your former wife.

P:   That was a misconduct restraining order but that was subject to Family Court orders.  Now, the Family Court order was for the children to have contact with me and then at the end I said, “Well, hang on, I don’t know her number” so they tacked on at the end with her to phone the husband.  It did not prevent me from phoning the wife.  In fact, if you go to the Full Court – Mr Le Miere ‑ ‑ ‑

KIRBY J:   Would you lift the microphone a little so that it is pointing to your mouth?  Just lift it up.

P:   A bit closer.  Is that better?

KIRBY J:   It is very hard to hear you over here.  Very well.

P:   Is that better?

KIRBY J:   It is a bit better, yes.  Speak up and proceed with what your submissions are.

P:   Justice Le Miere accepted that I was not prevented from contacting my wife under the Family Court order.  He said it was silent on that.  So, therefore, he said the restraining order overrode.  Well, that is not true because the Family Court order is a federal order and why was the order made?  It was for the children’s benefit, not for my benefit.  It was made for them.  That is why the Family Court is there, it is for children.

KIRBY J:   Yes.  We understand that submission.

P:   Yes.

KIRBY J:   Is there anything else ‑ ‑ ‑

P:   Their factual contentions are actually misled a little bit because I did say, as you can see on page No 1 of the application book that the reason why it had on the end of the Family Court order, it was tacked on with the wife to phone the husband.  So I do know that the Full Court – the way…..was written…..the Full Court by the respondent, they more or less made out that the wife to phone the husband was the first part of the order made when in fact it was not.  It was the last part.  The order was for the children to have contact.

KIRBY J:   Yes.

P:   So, in other words ‑ ‑ ‑

KIRBY J:   Tell me this, all of these events are events back in the year 2001.  I assume that since that time you have had contacts with your children in the normal way without any problems, is that correct or not?

P:   Still happening.  There are still problems in the Family Court.

KIRBY J:   Yes, but this is only in relation to what happened back in the year 2001?

P:   This is a restraining order, yes, she had.

KIRBY J:   Yes.

P:   A misconduct restraining order.

KIRBY J:   Yes.

P:   That is what this is all about.

KIRBY J:   Yes, I understand that.  Now, is there anything else that you want to say?  You realise that you have to show that there is an error in the Full Court in the decision of the three judges.

P:   Well, you see – yes.  The Full Court ‑ ‑ ‑

KIRBY J:   And that it has to be an error of some importance to engage the highest Court in the country.  Now, what is the error that you point to?

P:   If you read the Full Court reasoning they did not read the full paragraph of Justice Heenan’s reasoning where Justice Heenan went on to explain that my conduct was not only just not in contravention of the 2000 order - Family Court order – but also it was justified by it and authorised by it, if you read the full paragraph.  That is on AB 130.  Hang on a second.

KIRBY J:   What page in the application book.

P:   Sorry, no, it is not on AB 130, it is actually on – I will just find it.  The judge below on page 37 of the application book said I was ringing her number.  He did not say I was ringing her.  I will just find that.

KIRBY J:   Yes, but necessarily, if you ring her number you are likely to get her.

P:   Well, the children were also using that phone, so therefore ‑ ‑ ‑

KIRBY J:   I realise that but there was another way that you could have gone about it.  You could have got in touch with the solicitors.  That was what was intended, I think, by the order of the Family Court.

P:   No, it was not.  The phone contact order for each Tuesday and Friday was for the children to talk with me.  It was not for me to discuss anything with Tracey.  It was not.  It was only for the children to have phone contact about how they were going at school or whatever they were doing in every day of their lives with me.

KIRBY J:   Yes.

P:   That is the only reason it was made.  Anyhow, he does say at 40, the last paragraph:

For the appellant 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 Family Court order which, in the end, was designed to facilitate ‑ ‑ ‑

KIRBY J:   Which paragraph is that?

P:   Paragraph – well, the last paragraph on page 37.  I will keep going:

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 . . . 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 Family Court order or some form of unauthorised contact.

That is the ground that the respondent won the Supreme Court appeal on, but if you keep reading it is quite plain – he says:

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 –

and then he keeps going on about the other one the same as that, but I will go back a little bit – that is on page 38 still.  The fourth line down:

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.

That was of the MRO.  He did not put the MRO in that but if you read back a little bit he says he did not consider it to:

constitute a breach of the Family Court order –

on the first line:

Nor do I –

and he keeps going.  So, in other words, he forgot to put in MRI but that is what he meant.  So he does justify why he gave me an appeal – he allowed my appeal.  He does justify it.  The Full Court – if they did not read that then whose fault is that if they did not read the full thing.  Before they overturn a judge they have to make satisfaction to themselves that they are doing the right thing and, basically, they have not satisfied themselves of the judge below’s reasoning because they obviously have not read it or they have misinterpreted it because he does explain fully that my conduct was – that is all ‑ ‑ ‑

KIRBY J:   You say Justice Heenan got it right and that the judges in the Full Court got it wrong?

P:   Well, they must have because that – if you read the full paragraph he did justify why.  He stated quite clearly that my actions were authorised under the terms of the Family Court order.  Now, another thing I have put in my application book is that there is nothing – no one seems to have worried about what is required by a father when the kids want to talk to their dad – would it be required for me to ring back.  Of course it is if the children ‑ ‑ ‑

KIRBY J:   You will understand that in the circumstances of the breakdown of relationships sometimes people get abusive and violent and the Family Court has to have the power and has the power to make orders limiting and controlling the contact that people have.

P:   Yes, that is true.

KIRBY J:   The problem in this case is whether or not your telephoning your former wife, as you did, was in breach of the order of the Family Court or whether it was not.  Justice Heenan felt it was not.

P:   That was not the question, though.

KIRBY J:   The Full Court felt that it was and so the question is whether or not the Full Court was authorised to interfere with the order that Justice Heenan made.

P:   That was not the question Justice Heenan faced.  He started off saying it was – but then if you keep reading, he did justify – they had an erroneous way of writing their question to – the grounds ‑ ‑ ‑

KIRBY J:   We understand what Justice Heenan did.

P:   Yes, but the grounds in the Full Court they left out half the paragraph and they said, “He didn’t explain why”.  In fact, he did explain, if you keep reading.

KIRBY J:   You have made that point.  You do not have to keep making it three times.

P:   Okay, then.  Sorry, your Honour.

KIRBY J:   As you say, we are very intelligent and we pick it up the first time.

P:   Yes, you are.  You are the most intelligent people in the country as far as legal minds go.

KIRBY J:   I do not know about that.

P:   I have seen a lot of judgments on the Internet, you know, your – and other countries.  I would say you ‑ ‑ ‑

KIRBY J:   Yes, just press on with your submissions.  Flattery will not get you anywhere, I am afraid.

P:   One thing I would like to say, in my questions I have raised, if you look at what the respondent has done, they have skirted around them all by saying there is not enough doubt, not sufficient doubt, but saying there is doubt there as a way of getting around answering some of the State versus federal issues, yes.  All they are saying is not sufficient doubt and they keep denying whether anything has to be tested but there is a doubt because if this – even Mr CJ Malcolm said that the Petty Sessions makes a Family Court order.  It is an inferior court, therefore the order is not valid, it is overridden by the State Bail Act, or ‑ ‑ ‑

KIRBY J:   It is valid until it is set aside.

P:   I beg your pardon?

KIRBY J:   It is valid until some superior court sets it aside.

P: If you read what Justice Malcolm said – I cannot remember which page it is on now, but I did mark it. Yes, it is on page 93 at No 20 to 30 and then down to 40. Now, the last line on page 93 says:

The Court of Petty Sessions –

and then you have to turn the page to 94 –

however, is a State Court of inferior jurisdiction and there is no relevant Commonwealth law providing for orders purporting to be made by such a Court to have that effect.

So the family law – what he is saying is the Court of Petty Sessions does not have the power to make Family Court orders when they are doing it – they have not had it for a long time.  That does not seem to make sense to me and if that is not sort of looked at then that will be used in future cases in the State courts all over Australia and you will have nothing but a backlog of appeals in your Court as a result.  That is all I would like to say, your Honours.  I am not skilled in this game and I am very nervous, so I am sorry.

KIRBY J:   You have done a good job and we understand your written submissions and we want to ask some questions of the Solicitor.

P:   Yes, I will stay here, then.  Yes.

KIRBY J:   Yes, thank you.  Just sit down for a moment.  Now, Solicitor, why was Justice Heenan wrong?  Why was it not open to him to reach the conclusion that when the applicant telephoned he was not doing so for the purpose of breaching the orders that had been made restraining his contact but in order to speak to his children and responding to a telephone call that he had got but which he had missed?  I must say, I think Justice Heenan

seemed to have had a rather sensible approach and the Full Court seems to have had a pretty rigid approach to the case, with respect to them.

MR MEADOWS:   Your Honours, might I start by pointing out that the original order that was made in relation to this matter on 27 July 1998 under the Family Law Act contained an injunction which was in these terms.  It was in paragraph 13 of the order.  Unfortunately, the order is not in the appeal book, but it is referred to in paragraph 10 of Chief Justice Malcolm’s judgment and paragraph 127 of Justice McLure’s judgment.  The provisions of that term of the order was:

“The husband and 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.”

KIRBY J:   That second exception is of some significance in the facts of this case, is it not, that he had the right to speak to his children and he was trying to exercise that right when he telephoned his wife?

MR MEADOWS:   He certainly had a right to have contact with his children and that is reflected in the subsequent order of 4 September 2000 which is the one which is in question which contained a variation of the original order which was in the terms that the applicant has already briefly outlined to you but specifically it provided that:

“The … [respondent] have telephone contact –

obviously, that is contact with his children –

with the wife to contact the … [respondent] each Tuesday and Friday between the hours of 6 pm to 6.30 pm.”

What transpired was that the applicant called back to his wife’s telephone number after a call had been made by her and had not been answered.

KIRBY J:   It had not been answered because I understand he missed it, he was not there, he was late and therefore he missed it, but he was only making the contact in order to make contact with his children in answer to the phone call from the wife so why should that be a breach of the order of the Family Court?

MR MEADOWS:   The point that follows, your Honour, explains - or provides the answer, if I could put it that way.  The wife then sought a misconduct restraining order based on the fact that these telephone calls had been made.  In making that order the magistrate had regard to the orders that had been made under the Family Law Act as he was required to do by section 35(1)(e) of the Restraining Orders Act.  He imposed a restraining order in these terms:

AND, SAVE AND EXCEPT:

…

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 –

There was an order made under the Restraining Orders Act which prohibited the applicant from communicating or attempting to communicate by whatever means, except as authorised or required by an order made under the Family Law Act.  It was in respect of a breach of that order or breaches of that order that he was prosecuted.  It was in respect of those breaches that he was admitted to bail on an undertaking which provided that he was not to contact his wife by whatever means that he was subsequently convicted.

KIRBY J:   But what were the circumstances of his breach of that order that led Justice Heenan to believe that the breach was explicable in the circumstances and the Full Court to reverse that decision, because it is a natural thing that he should try to contact his children and respond to calls to him saying, “We’re ready for the phone call now”.

MR MEADOWS:   The question was, given that the applicant was prohibited by the misconduct restraining order and also by the bail undertaking, the question was whether the exception to the restraining order was applicable, that is, whether the contact was authorised or required by the order of the Family Court.  The Full Court concluded that on its proper construction the order of the Family Court did not authorise or require the applicant to telephone his wife.  So there was no inconsistency between the operation of the Family Court order and that imposed under the Restraining Orders Act and pursuant to the bail condition.

KIRBY J:   I know that is what they did, but what was the error that they found in what Justice Heenan had done?

MR MEADOWS:   I was about to take your Honours to that.  If I could just take your Honours to what was said by Chief Justice Malcolm in paragraphs 54 and 55 of his judgment, which you will find at page 76 of the

application book.  You will see he explains there why he considered that Justice Heenan was in error.

HAYNE J:   Does it come to this, Mr Solicitor?  Justice Heenan asked whether what the applicant had done contravened the September 2000 order.  The Full Court said, no, that is not the right question.  The bail undertaking was an absolute prohibition on contact.  That bail undertaking, an absolute prohibition on contact, might be read as arguably inconsistent with a federal order if the federal order authorised or permitted contact.  The federal order did not authorise and did not permit contact.  That being so there was no intersection between the two orders.  The bail order operated according to its terms.  End of question.

MR MEADOWS:   That, I think, summarises the approach that was taken by both the Chief Justice and Justice McLure.

HAYNE J:   We see Justice McLure particularly at paragraph 141, page 101, last two lines over to 142 at line 12.

MR MEADOWS:   Quite so, your Honour.  We submit that the conclusions reached by the Full Court were correct and certainly that they are not attended by sufficient doubt to warrant the granting of special leave.

HAYNE J:   Their Honours’ conclusions about the intersection between federal and State orders are conclusions that may or may not require further consideration, I would have thought, Mr Solicitor, but the premise for them arising would be, as I understand your case, only if the federal orders permitted that which the State order prohibited.

MR MEADOWS:   Yes, your Honour.  We say that there is no clash between the operation of the respective orders and, absent that, section 109 does not have any role to play.

KIRBY J:   Yes.

MR MEADOWS:   I do not think I have anything useful to add to that, your Honours.

KIRBY J:   Yes, very well.  We will come back to the applicant, then.  What do you have to say in answer to that exchange?

P:   Yes, your Honours.  The problem – I have raised it before – is that ground A forgot to let half the paragraph in of Justice Heenan’s judgment and he did actually explain why my conduct was authorised by the federal order and it was authorised – I am sorry, by the Family Court order.  He did explain that.  If you read ground A on page 76 of the Full Court it does not – they were also – at number 10 – now they are saying:

That contact was not to be initiated by –

me, but I never initiated it.  It was my wife that initiated it and I rang back.  Justice Heenan found that as well because the intent of the Family Court order was for the children to speak to their father.  So he did explain everything quite clearly and yet they are saying here that, no.  But, you see, that is not enough reason for a discretionary decision of Justice Heenan to overturn his decision.  Where was he wrong at law and where was he wrong in principle.  If anything, the Full Court was wrong in principle.

KIRBY J:   The suggestion is that when the orders were made ultimately restraining you under the Bail Act they were absolutely strict and clear in their conditions and that ‑ ‑ ‑

P:   But they had to first consider getting a restraining order under the Act – Bail Act.  Justice Heenan went right through all that and they did not do that.  A restraining order could not have not impinged upon the little kids speaking to their father who they were missing.  Obviously, they would have been missing me and they used to talk to me, you know. Whenever she answered the phone, or – I am sorry, whenever she rang, which was very rarely, sometimes, but anyhow, she rang, I rang back and it was in the timeframe of the Family Court order for them to have contact.

As a parent surely she must expect a husband or an ex husband to phone her sometimes about the children.  There was no complaint ever made about me abusing her or anything.  I mean, that never happened.  She did it to spite me, I think.  It is that simple.  Why would a policeman arrest someone for ringing his kids back, because I had been acquitted of an indecent dealing concoction which the High Court has already – P15/2003 was it not, I think – Mr Giudice – that was already before the Court but that is why the police did all this.

KIRBY J:   That is not relevant to the matter we are considering.

P:   I am just explaining something.  Why would a policeman arrest somebody two months after this person was acquitted of an indecent dealing charge that had been trumped up by the ex wife.  That is all I am trying to say here.  There is always a reason for an action and that is what it is.  That is all I have to say.

KIRBY J:   I think your time is up now.  Thank you very much.

P:   Thank you.

KIRBY J:   We are not to be taken as necessarily agreeing with everything that was said by the judges constituting the Full Court of the Supreme Court of Western Australia in this matter concerning the intersection of the Family Law Act 1975 (Cth) and the Bail Act 1982 (WA). In particular, we are not convinced that the manner in which the Full Court disposed of the intersection of the suggested federal and State court orders was necessarily correct.

However, we are also not convinced that the application enjoys reasonable prospects of success were special leave to be granted to the applicant.  Nor do we believe that the interests of justice in this case necessitate or suggest the need for the grant of special leave.  Special leave is therefore refused.

MR MEADOWS:   If it please the Court, I seek an order for costs.

KIRBY J:   Is this not a criminal mater?  Is this not a matter where the appeal was against orders which were a burden on the applicant because they were criminal in nature and therefore he was seeking to be relieved of that burden?

MR MEADOWS:   Certainly, in a sense, they were criminal in character, although it is not an appeal from the conviction, as such.

KIRBY J:   No, it is not, but the character of the application is, I think criminal, is it not?

MR MEADOWS:   It is certainly for breach of – the bail undertaking?

KIRBY J:   Yes.  I think we would be disposed not to make an order for costs in this application.

MR MEADOWS:   May it please the Court.

AT 11.54 AM THE MATTER WAS CONCLUDED