"P" v Dunne

[2003] WASCA 201

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   "P" -v- DUNNE [2003] WASCA 201

CORAM:   EM HEENAN J

HEARD:   10 OCTOBER 2002

DELIVERED          :   29 AUGUST 2003

FILE NO/S:   SJA 1076 of 2002

BETWEEN:   "P"

Appellant

AND

DAVID MORGAN DUNNE
Respondent

Catchwords:

Appeal - Justices Act - Restraining Orders Act - Child "contact order" made 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" has been made in the exercise of federal jurisdiction - Obligations on parties affected by "contact order" - Inconsistency -  Protective bail condition - Inconsistency with contact order - Application of contact order under bail conditions - Matter arising under Constitution - Section 78B Judiciary Act (1903) Notices - Submissions by Attorneys General - Relationship of Bail Act to Family Law Act

Legislation:

Bail Act 1982 (WA)

Constitution, s 109
Family Law Act (1975) (Clth)
Guardianship Act 1987 (NSW)
Judiciary Act1903, s 78B
Restraining Orders Act 1997 (WA)

Sentencing Act 1995

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr R Bathurst

Solicitors:

Appellant:     In person

Respondent:     State Crown Solicitor

Case(s) referred to in judgment(s):

AMS v AIF (1999) 199 CLR 160

Attorney General (Commonwealth) v Schmidt (1961) 105 CLR 361

B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 451

Bank of NSW v The Commonwealth (1948) 76 CLR 1

De Angelis v De Angelis [2000] VSC 409; (2000) 158 FLR 331

Grannell v Marrickville Margarine Pty Ltd (1955) 93 CLR 55

In the Marriage of Filipovic (1997) FLC 90‑266

In the Marriage of N and H (1982) 45 ALR 419

In the Marriage of Stavros (1984) 9 Fam LR 1025; (1984) 75 FLR 323

In the Marriage of Stevenson and Hughes (1993) 112 FLR 415; 16 Fam LR 443

M v M (1988) 166 CLR 69

Macleod v ASIC [2002] HCA 37; (2002) 191 ALR 543

P v P (1994) 181 CLR 583

P v P [2002] FCWA 28

Re Z (1996) 134 FLR 40

Wragg v State of New South Wales (1953) 88 CLR 353

Case(s) also cited:

Grove v Gage [2000] WASCA 70

Lurssen v Williams, unreported; SCt of WA (Murray J); Library No 950015; 20 January 1995

Re Macks; ex parte Saint (2000) 204 CLR 158

Vrisakis v Australian Securities Commission (1993) 9 WAR 395

1. EM HEENAN J:  This is an appeal against four convictions of [P] in the Court of Petty Sessions at Katanning in May 2002 following a trial, before his Worship Mr R M McM Glynn SM, of four complaints made by the respondent.  These complaints advanced three charges of breaches of a Misconduct Restraining Order and one charge alleging a breach of protective bail conditions.  In respect of the three convictions for breaching the terms of the Misconduct Restraining Order, the learned Magistrate imposed 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 the bail undertaking, the learned Magistrate imposed a second conditional release order in the form of a good behaviour bond for 12 months in the sum of $200.  In addition, the appellant was ordered to pay the costs of the proceedings.

2. Leave to appeal from these convictions and orders was granted by McKechnie J on 23 July 2002, on the following grounds:

   "(A)The learned magistrate erred at law in finding the appellant 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."

   Each of the five grounds of appeal is supported by lengthy and diffuse statements of particulars.  Although due to his efforts, the submissions made by the appellant eventually became clear at the hearing, the form of these 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.  I have no doubt that the learned Magistrate who conducted the trial must have experienced similar difficulties.

3. To appreciate the contentions of the appellant it is, in my view, necessary at first, to put to one side the disputes which arose at the hearing and the issues argued at the appeal and to go back and establish the setting from which those contentions arise.  This involves a somewhat laborious gleaning of scraps of information scattered throughout the appeal book and in the exhibits which were tendered at the trial but, from these, a mosaic of the background becomes quite evident.

4. [P] was born on in 1958.  He met [G] (born in 1967) some time in 1993 and over the years which followed developed an association with her.  They began living together in 1996 and were married in April 1997.  At the time they were married [G] had two children of an earlier relationship.  She had two more children by [P].  The children in order of birth are:

   •[C] - born 1989

   •[S] - born 1991

   •[J] - born 1996

   •[L] - born 1997

5. There is a long history of marital differences between the couple dating, at the latest, from a separation in February 1998.  These differences have also resulted in frequent recourse to the courts, both to the Family Court and to Courts of Petty Sessions both for temporary and substantial relief.  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.

6. Proceedings were then commenced between the husband and wife under the provisions of the Family Law Act (1975) (Clth) 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 CPS – 27 July 1998

1. These included an order of the Court of Petty Sessions, under the provisions of the Family Law Act (1975), made on 27 July 1998 which dealt with the care, welfare and development of the four children, directed that they should reside with the wife at most times (except that [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, par 13, which appears to be the genesis of a later similar obligation central to the complaints which led to the convictions, as follows:

   "13.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."

   All the provisions of the order of 27 July 1998 were later suspended by an order of 4 July 2000, but other significant events occurred before then.

Reconciliations

1. Despite these marital differences and the problems which led to the orders made by the various Courts of Petty Sessions, the appellant and his wife became reconciled in October 1998 and resumed co‑habitation.  The appellant said in evidence that the co‑habitation continued for about six months, but a closer examination of the appeal book suggests that after co‑habiting for about six months there was another separation, followed by another reconciliation and that this pattern of separation and reconciliation was repeated on four or five occasions over time until a final separation occurred on 24 May 2000.  These various resumptions of co‑habitation took place notwithstanding the terms of the misconduct restraining order of 22 April 1998 and the terms of the orders made under the Family Law Act on 22 July 1998 variously prohibiting contact or communication between husband and wife.  No doubt the resumptions of co‑habitation and the normal course of contact and communication between the parties which these reconciliations involved were consensual.

2. After the final separation in May 2000 [G] obtained a series of orders under the Family Law Act.

The Order of CPS – 4 July 2000

1. These included orders made in the Court of Petty Sessions at Perth in proceedings concerning the marriage on 4 July 2000.  Those orders suspended the provisions of the consent orders made on 27 July 1998 which, as described, 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 the husband and wife, was ordered.

The Order of CPS – 4 September 2000

1. A further order was made under the Family Law Act on 4 September 2000 dealing with the ownership and upkeep of two motor vehicles and other items of personal property and which also directed a conciliation conference to be held in relation to child issues.  Significantly, this order of 4 September 2000 included provisions allowing the appellant 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 the husband should have telephone contact with the wife (on the basis that she should contact the husband) each Tuesday and Friday between the hours of 6 pm to 6.30 pm (obviously to discuss arrangements for the husband to exercise his rights of supervised contact with his two boys).  These orders included provision that the father have liberty to post letters and gifts to the children to be addressed care of the wife's solicitors.  One reason for these orders was to minimise communications between the appellant and his wife.

MRO of Albany CPS – 19 February 2001

1. Next, the appellant says that his wife sought and obtained an ex parte VRO against him in the Court of Petty Sessions at Albany on 1 December 2000.  There is evidence of an undated application for a VRO by the wife 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 (No AL2107/00) and it is the terms of this order which were the basis of the charges and convictions against the appellant from which he now appeals.  After identifying the parties, that order provides:-

   "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."

   This order was due to expire on 22 February 2002 - by virtue of s 37(2) of the Restraining Orders Act 1997.

2. Accordingly, it is apparent that the MRO of 19 February 2001, by its terms, did not restrict communication between the appellant and his wife insofar as that was authorised or required by any order of a Court of Petty Sessions made under the Family Law Act 1975 then applying.  Two such orders were then current, namely the orders of 4 July and 4 September 2000.  As noted, it was the latter which provided for the wife to telephone the husband between 6 pm and 6.30 pm on Tuesday and Friday evenings with a view to arrange the exercise of the father's weekend contact with the children which the order allowed.  It is that procedure by which [G] was to telephone the appellant at a pre‑arranged time to allow him to speak to the children or to discuss contact arrangements which has led to the charges and convictions now under appeal.

Background Facts

1. I will give a fuller account of the facts later but, in essence, the procedure ordered by the Court was designed to prevent the appellant 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 the appellant, 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 the appellant being arrested and charged with breaches of the MRO. Following his arrest and charge on 29 June 2001, the appellant 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."

2. On 20 July 2001 the appellant 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 the appellant 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 Four Complaints

1. The actual complaints containing the charges resulting in the convictions can now be described.  They are:

   "KT 333/01 made 3 July 2001:

   That on 12th day of June 2001 at Katanning [P] having been personally served with a misconduct restraining order No AL2107/00 breached that order by communicating with the person protected, [G], by telephone - section 61(2) Restraining Orders Act 1997.

   KT 334/01 made 3 July 2001:

   That on 22nd May 2001 at Katanning [P] having been personally served with a misconduct restraining order, No AL2107/00 breached that order by communicating with the person protected [G] by telephone - section 61(2) Restraining Orders Act 1997.

   KT 386/01 made 8 August 2001:

   That on 20 July 2001 at Katanning [P] having been personally served with a misconduct restraining order No AL2107/00 breached that order by communicating with the person protected [G] by telephone - section 61(2) Restraining Orders Act 1997.

   KT 387/01 made 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 Clause (2) or (d) of Part D of Schedule 1 of the Bail Act, by contacting [G] - section 51(2a) Bail Act."

   As already mentioned, these charges were heard before the learned Magistrate in Katanning in May 2002 and the appellant was convicted of each of the charges, whereupon he was placed on the two good behaviour bonds as set out above.

Other Proceedings

1. However, that is not all the litigation between the appellant and [G].  The proceedings pending in the Family Court of Western Australia under the Family Law Act 1975 resulted in a trial before Holden CJ in the Family Court at Perth on 25 and 27 February 2002 and the decision of the learned Chief Judge was given on 19 April 2002 (P v P [2002] FCWA 28) which, although not reproduced in full in the appeal book, comprised exhibit "L" in the proceedings before the Court of Petty Sessions at Katanning and part of the record transmitted to this Court for the hearing of this appeal. That decision deals with issues including the residence of the four children and entitlements for the appellant, as father, to contact the children under supervised conditions. It also makes provision for child support and deals with property and maintenance issues. In pars 11 ‑ 23 and pars 37 ‑ 62 Holden CJ sets out a more comprehensive description of the dealings between the appellant, [G] and the children and the circumstances which led to the May 2000 separation and to other disputes.

2. Further, 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 of Western Australia.  Those actual orders, however, are not in evidence.  Nevertheless, 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 subsequently 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 learned Chief Judge adopted those recommendations realising that paternal contact would be on consecutive days of the weekend with the husband staying overnight in Albany on those weekends and that the contact regime would be monitored by a nominated psychologist attached to the Family and Children's Services Department in Albany.

Relationship between "contact orders" under federal Family Law Act with restraining orders of State jurisdiction

1. It is necessary to note and record the details of these contact arrangements ordered or authorised by the Family Court of Western Australia from time to time because the appellant has submitted that the terms of any contact orders made or approved by the Family Court prevail over any Family Violence Order which may be inconsistent with them.  The Family Law Act which applied at the time of the alleged offences were those of 4 July and 4 September 2000, as previously noted.

2. In this regard, it is important to recall that the MRO of 19 February 2001 expressly excepted, from the scope of its prohibition, any communication or conduct authorised or required by an order of a court exercising Family Law jurisdiction (see paragraphs [12] and [13] above). Furthermore, s 68S(1) of the Family Law Act 1975 provides, in part, as follows:

   "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.

3. The orders of 27 July 1998 and 4 September 2000 made under the Family Law Act each comprise a "parenting order" within the meaning of s 64B(1) of the Family Law Act (1995) 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.  However, this federal power does not exclude the jurisdiction of State courts to deal with offences under State laws.  This is not merely because 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 which provides as follows:

   "70NP Relationship between Subdivision and other laws

   (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; and

   (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."

4. The situation in this present appeal requires some examination of the interaction between contact and parenting orders made under the provisions of the Family Law Act 1975 (Clth) and an MRO made under State legislation - the Restraining Orders Act 1997. This position is largely dealt with by Pt VII Div 11 of the Family Law Act which was introduced by the Family Law Reform Act 1995.  That legislation was specifically directed at problems faced by police and other law enforcement officers when 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.  Under the Family Law Act a family violence order means an order, including an interim order, made under a prescribed law of a State or Territory to protect a person from family violence - s 60D(1) - and includes a restraining order. The position is aptly described in "The Laws of Australia, Family Law", pars 17.5.63 as follows:

   "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 that 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 the 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."

   And, when dealing with the interaction of the contact or parenting orders with family violence orders the learned authors 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.  First, a judge who intends to make a contact order under Part VII of the Family Law Act 1975 (Clth), 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.  (Section 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.  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 purpose of Pt VII, a contact order includes a recovery order, a specific issues orders 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."

5. In Western Australia certain courts of summary jurisdiction have been conferred with jurisdiction to make parenting orders, including contact orders, under the Family Law Act 1975, s 69J. However, within Perth metropolitan area this jurisdiction may only be exercised by the court situated at 150 Terrace Road, Perth (in effect that of the Family Court of Western Australia). In the present case the Court of Petty Sessions at Katanning which determined these complaints, therefore, did have jurisdiction under s 69J, to vary the contact order at the time the MRO was sought, or later when steps were being taken to enforce it, as they were in these prosecutions.

6. This jurisdiction to vary a contact order may be exercised where the respondent consents to the terms of a parenting order which is sought in a court of summary jurisdiction, 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 Gazette (WA) No 23GN 16 June 1993. In these cases this will result in the Court of Petty Sessions located at 150 Terrace Road, Perth - Family Law Act 1975 (Clth) s 69J - being the Court of Petty Sessions having that jurisdiction.

7. 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.

8. 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).

9. 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.

Complementary application of State and Federal legislation

1. Accordingly, it is clear that both under the Family Law Act 1975 (Clth) and the Restraining Orders Act 1997 it is recognised that the federal and State legislation will operate in parallel, with any inconsistencies in the terms of orders resulting in the federal orders prevailing to the extent of the inconsistency.  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.

2. In many cases, this will require more to be done by the court exercising jurisdiction under the Restraining Orders Act than merely including some formula in the terms of its order, which excepts from the operation of the order made under the State legislation anything permitted under the federal contact order.

3. In this case, I have already mentioned the provisions of the misconduct restraining order of 19 February 2001 which contains the phrase "save and except ... as is authorised or required by an order of a court exercising Family Law jurisdiction".

4. While I can well understand the reasons which would prompt the inclusion of such a generalised exception, and can sympathise with a Magistrate dealing with a restraining order application as an urgent matter and in atmosphere often fraught with mistrust and fear by the applicant, 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.

5. A further advantage of this course is that it should ensure that a restraining order is not obtained, or unwittingly used, for the purposes of indirectly enforcing a contact order in an inflexible fashion or with a rigour which would not be possible if an attempt had been made to enforce the contact order directly under s 112D of the Family Law Act.  In other words, 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.

6. Furthermore, in any proceedings for a restraining order or its enforcement a court should be fully aware of, and give effect to, the implicit obligations of a party affected by a contact order to facilitate, and avoid obstruction to, the benefits which that order grants involving, as this does, an obligation to co‑operate in and encourage the provision of the contact ordered.  Although it may seem obvious when stated, if this is not carefully and expressly acknowledged, there appears to be an ever present risk that the rights of a child or a party under a contact order may be diluted if the predominant focus in framing a restraining order is to maximise the scope of the constraints imposed.

7. Naturally, one realises that in a situation where there is an application for a restraining order, and there is already some contact order in existence, events may have overtaken the situation which existed when the contact order was made and there may then be a real or potential risk of harm to the child or to the parent unless restraints are imposed which, in a real and practical sense, entrench upon the rights conferred by the contact order.  Perhaps such a situation will arise in practice with disturbing frequency, but when it does there seems to be every reason in justice and necessity for the court dealing with the restraining order application to exercise the jurisdiction, if it possesses it, to vary or suspend the contact order under the powers conferred upon it under the Family Law Act and to deal with contact and restraining issues simultaneously.  If the court dealing with the restraining order application does not possess the jurisdiction to vary or suspend the contact order then the occasion would seem to call for the urgent remission of proceedings to the Court of Petty Sessions at 150 Terrace Road, Perth, associated with the Family Court of Western Australia, which does have that power so that both federal and state jurisdictions can be employed to produce a result which the demands of the particular case merit.

8. 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.

9. 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 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

1. Police Constable Bradshaw produced statements from an officer of Telstra Corporation Ltd, under the provisions of s 282 of the Telecommunications Act 1997 (Clth) with details of the material telephone records.  These showed that:

   (a)On 22 May 2001 a telephone call was made from No [X] to No [Y] at 1832 hours for a duration of 1525 seconds (25.4 minutes).

   (b)On 12 July 2001 a telephone call was made from No [X] to No [Y] at 1839 hours for a duration of 34 seconds.

   (c)On 20 July 2001 three telephone calls were made from No [X] to No [Y] 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 [X] had been leased by [P].  The number [Y] had been leased by Telstra Prepay Homezip.  There was no dispute that the latter number, at all material times, was the unlisted number of [G].  Accordingly, it was established that on each of the three dates which were the subject of the complaints telephone calls were made from the appellant's number to [G's] number at the times and for the durations stated.  Indeed, the appellant always admitted that he had made those calls.

1. In evidence, [G] said that by reason of par 4 of the Family Court order of 4 September 2000 she had to ring her ex‑husband 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 six o'clock".  The actual call was evidently made by her son [J], under his mother's supervision, and an answering machine cut in at the appellant's end.  She told [J] to "tell Daddy you'll ring on Friday", which he evidently did.  [G] did not speak herself on the telephone at all on that occasion.  Some time later, not long afterwards, [G's] telephone rang.  She answered it and it was the appellant whose voice she recognised.  He asked to speak to the boys and she put them on and 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 the appellant said to the children towards the end of the conversation and, as a result, telephoned the police and made a report.

2. Next, on Tuesday 12 June 2001 [G] again attempted to telephone her husband in order to provide contact for him with the children.  She says that she made the call just after 6 pm, although it appears that she had one of the boys make the call under her direct supervision.  There was no answer from her husband but again an answering machine responded.  She 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 (1839 hours from the Telecom records) the appellant telephoned his wife's number.  She answered the phone and recognised his voice.  He said: "Can I talk to the boys.  I've been busy?", [Ms G] testified that she thereupon hung up without speaking further.

3. As a result of complaints from [G], PC Bradshaw visited the appellant at his home at Katanning at about 8.30 am on 29 June 2001.  The officer accompanying PC Bradshaw informed the appellant that he had breached his MRO and placed him under arrest and the two officers conveyed him to the Katanning police station.  Later that morning he was released on bail under the bail conditions already mentioned which purported to prohibit communication of any kind with his ex‑wife.  At the police station the appellant produced to the officers a copy of the Family Court Order which he claimed permitted him to have contact with his wife.  The police officer observed that the order provided that the wife could ring the appellant and that then he was allowed to speak to the children, but that it did not say that he could actually initiate the contact.

4. With regard to the events of 20 July 2001 - a Friday – [Ms G] gave evidence that she telephoned her husband'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 that evening, somewhere near 7 pm, the telephone at [Ms G's] home rang and her 9‑year‑old daughter [S] answered (according to the Telstra records this call was made at 1827 hours).  According to [Ms G], her daughter came to her holding the phone with tears in her eyes and quite upset.  The mother answered and recognised the appellant's voice but she cut him off too quickly to know what it was that he wanted.  [Ms G] also said that she received another two or three calls that evening which she answered, on each occasion recognising her ex‑husband's voice and that she immediately hung up on those other occasions.  These would appear to be calls made at 1830 hours 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.  This timing is not consistent with the evidence of [Ms G] that she immediately hung up on her husband on the second and third calls.

5. 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 the appellant was charged with the offence of breaching the bail condition.  When asked about making the call documented in the Telstra records, the appellant answered the police officers saying:  "I didn't ring my wife.  I rang my son [J]".

6. The appellant appeared unrepresented before the learned Magistrate at his trial and he again appeared in person at the hearing of this appeal.  He 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.

7. [Ms G] also acknowledged that, following the grant of the VRO of 22 April 1998, a reconciliation took place between herself and the appellant in October of that year while that restraining order was still in force.  The two lived together from then, on various occasions, until the separation in May 2000 and despite the mutual contact then occurring apparently being in breach of the express terms of the VRO.  [Ms 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 but was told "not to worry about it".  Consequently, that restraining order was never varied or discharged in the light of the reconciliation until it expired by effluxion of time after 12 months duration. This was an unsatisfactory situation because, in the absence or 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.

8. [Ms G], while at first denying that she had, on previous occasions, accepted incoming calls from the appellant and had then allowed him to speak to his sons, agreed that there may have been a couple of times in February or March 2002 when the appellant had telephoned the house, [Ms G's] mother had answered the phone, accepted his call and put the boys on to speak to their father. But 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. In his evidence, the appellant said that there had been some 12 occasions from early April to the end of June 2002 when [Ms G] was supposed to call him to provide telephone contact with the two boys but when she failed to do so. There was no finding of fact made by the learned Magistrate about whether or not the mother had failed to make the calls ordered by the Family Court on the occasions alleged by the husband, as it seems to have been the view in that court that this was an irrelevant issue because the consequences of this could only be relied upon in further proceedings in the Family Court which might be taken against [Ms G] for breach of the terms of the contact order. This approach overlooks the jurisdiction of the court to vary the terms of the contact order under s 69J of the Family Law Act.

9. On his own behalf, the appellant 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 (t/s 52), the appellant expressly asked the learned Magistrate to dismiss the existing MRO.  The significance of this submission will be addressed later in these reasons.

10. The appellant also adduced evidence from two other witnesses, his married sisters, [Mrs C] and [Mrs M].  Each gave brief evidence concerning conversations and dealings which they had had with [Ms G] in the past.  Neither was cross‑examined and there was no evidence adduced by the respondent, either initially or in rebuttal, to challenge their testimony.  [Mrs C] described how, shortly after the separation between the appellant and his wife which took place in 1998, she was visiting [Ms G] because it was then [J's] birthday.  In the course of a conversation between the two women, [Mrs C] related that [G] had said that she did not wish the appellant to be able 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 [Ms G] and she had a number of telephone conversations following the separation in February 1998 and that in the course of these conversations [Ms G] mentioned that she had a restraining order against the appellant but would drop it if he gave her the boys.  As this evidence was all unchallenged, and as neither the respondent nor [Ms G] offered any criticism against the two married sisters of the appellant, there does not seem to be any reason why that evidence should not be accepted and a finding made that [Ms G] had been opposed to the appellant having any contact with his sons.

Decision in the Court of Petty Sessions

1. The submissions made for the respondent at the end of the evidence were simplicity itself.  The respondent's case was that phone calls to [Ms G] initiated by the respondent had been proved and admitted to have occurred.  On the face of the Family Court order of 4 September 2000 there was no express provision for the appellant to initiate any telephone calls to [Ms G] and therefore 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.  Furthermore, on the respondent's case, there had been no consent either in writing or at all by [Ms G] to any of the three calls.  On this argument, there was no basis for the appellant to contend that he had been telephoning [Ms G] on "matters affecting the welfare of the children" as contemplated under par 13 of the orders of the Family Court of 27 July 1998 which, to the extent that they were not varied by the subsequent orders of 4 July and 4 September 2000, remained in effect.  The basis of this submission was that no issue concerning the welfare of the children necessitating discussion between the appellant and [Ms G] had arisen and that the three telephone calls were made for the purpose of the father having contact with his children.

2. The appellant submitted that his ex‑wife had consented to the three calls, in the first place by telephoning him shortly beforehand in order to make the contact and leaving a message on the answering machine, and then, in relation to the first call, by putting the children on the line when he rang back.  In relation to the calls of 20 July 2001, the appellant maintained that [Ms G] had telephoned him first and he was simply ringing back.  He asked the Magistrate to dismiss the charges and, although he did not expressly mention the matter in his brief final address, the appellant did not abandon his earlier request for the learned Magistrate to dismiss the restraining order itself.

3. In oral reasons for decision delivered immediately following the end of the evidence, the learned Magistrate set out the history of orders made in the Family Court and under the Restraining Orders Act, the circumstances of the telephone calls, the appellant's first arrest, his release on bail subject to a condition which contained "an absolute prohibition against contact" and the subsequent telephone calls of 20 July 2001.  His Worship accepted that the order made by Magistrate 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.  However, his Worship was satisfied that the appellant's sole purpose in attempting to communicate with his wife on the three occasions which were the subject of these charges, 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.  His Worship also found that there was no consent by [Ms G] 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 because he did not consider them to be trivial and pointed out that any redress which the appellant wished to pursue in relation to [Ms G's] earlier alleged non‑compliance with the terms of the contact orders of September 2000, or in relation to difficulties being 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.

4. It will be noticed that the learned Magistrate did not address, and certainly did not grant, the appellant's oral application to dismiss the MRO.  Further, his Worship treated the bail undertaking as being absolute in its terms and without exceptions for the exercise of any rights of contact or otherwise conferred by the Family Court orders.  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.

5. One consequence of this approach, admittedly not addressed below, is that a prosecution for breaches of a restraining order in circumstances where the scope of the restraining order is affected by orders made by a court exercising federal jurisdiction under the Family Law Act granting contact with children or other similar rights derived from orders of court made in the exercise of federal jurisdiction, can often, but not necessarily will, become an indirect means of enforcing the order of the court made under the federal jurisdiction.  If and when this occurs the indirect enforcement takes place in circumstances where the procedural safeguards and restraints upon enforcement proceedings for the breach of Family Court orders may not seem to apply.  (See the discussion of s 112AB, s 112AE and s 112AD of the Family Law Act at paragraph [26] above.)  However, as has been seen, contact and parenting orders made under the Family Law Act contemplate that there may be a concurrent exercise of jurisdiction under provisions such as the Restraining Orders Act and other State laws, so there ordinarily should be no direct inconsistency which would attract the operation of s 109 of the Constitution to render invalid or inoperative provisions of the State law or orders made pursuant to them.  Nevertheless, it is still a matter of importance to identify the true scope and effect of the contact order, and to have regard not only to its express terms but also to the obligation which it imposes to facilitate the implementation of the order.

6. In the present case, I have concluded that [G] was under an obligation to implement and to facilitate the implementation of the contact order which had been made by the Family Court on 4 September 2000 by telephoning her ex‑husband within the periods appointed by the court and making effective practical arrangements for him to speak to the children.  According to her evidence, the phone call which she made on 22 May 2001 was made before 6 pm and missed reaching the husband.  On the evidence of the Telstra records, the three phone calls which he made, and which are the subject of the charges, were made at 6.39 pm on 12 June, at 6.32 pm on 22 May and at 6.27 pm on 20 July.  That is, within or very soon after the half hour period for contact which was the subject of Order 4 of the orders of 4 September 2000.  Further, in each case the calls were made in response to an initiating call from [G] which had involved leaving a record of her call on the appellant's answering machine.

7. 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 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 Family Court order or some form of unauthorised contact.  Nor do I consider that these calls, prompted as they were by approaches from [G], 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.  This third telephone call, however, raises the additional question of the effect of the "absolute prohibition" in the bail undertaking.  This requires separate consideration.

8. It has already been noted that the Family Court of Western Australia, was exercising jurisdiction conferred under the Family Law Act (1975) 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 State Court of Petty Sessions on 19 February 2001.  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 a State law by reason of s 109 of the Constitution or s 68S of the Family Law Act. (See also s 65 of the Restraining Orders Act 1997.)

Judiciary Act – s 78B Notices

1. 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.

1. This question was not expressly raised in the grounds of appeal nor in the oral submissions made at the hearing of the appeal.  However, it inevitably arises from the submissions which were made and so these proceedings involve matters arising under the Constitution, or involving its interpretation, within the meaning of s 78B of the Judiciary Act 1903. I brought this matter to the attention of the parties by a written notification of 9 May 2003 pointing out the need for s 78B Notices to be given to the Attorneys‑General of the Commonwealth, the States and the Territories and inviting the solicitor for the respondent to take the initiative in drafting and distributing appropriate notices in the light of the appellant's lack of legal training. I am pleased to note that the solicitor for the respondent accepted this responsibility and notices of a constitutional matter under s 78B of the Judiciary Act were sent to each of the Attorneys‑General on 12 June 2003. Copies of those Notices have since been filed in the court and I am satisfied that the requirements of the section have been complied with. All the Attorneys‑General later responded, each stating that he 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 appearing for the respondent advised that the respondent desired to make submissions addressing the constitutional issues raised by the s 78B Notices.

2. Written submissions from the respondent's solicitor were received on 10 July 2003. Copies of the s 78B Notices and of the written submissions made for the respondent were served upon the appellant by post and [P] has exercised his right to make further written submissions in response. These were received on 18 July 2003. All these further submissions have been considered in addition to the submissions made by the parties at the hearing of the appeal.

3. The s 78B Notices which were served on the Attorneys‑General identified, in this respect, the issues which arose as follows:

   (a)whether s 28 of the Bail Act, read with cl 2 Pt D of Sch 1 of the Bail Act, which authorised the bail undertaking which the appellant entered into, is inconsistent with Pt VII of the Family Law Act, which provided the jurisdiction for the issuing of the contact order, and is, therefore, invalid to the extent of the inconsistency by operation of s 109 of the Constitution; and

   (b)whether s 28 of the Bail Act, read with cl 2 of Pt D of Sch 1 of the Bail Act, insofar as it allows a bail undertaking which purports to modify, vary or restrict the effect of a contact order made by a State court exercising federal jurisdiction, is repugnant with Ch III of the Constitution.

4. Bail undertakings, as imposed under s 28(2) of the Bail Act (1982) can be enforced under s 51 and s 57 of that Act and the form of the conditions or undertakings which may be imposed are those contained in Pt D of Sch 1 to the Act. The condition imposed on the appellant under the bail undertaking of 29 June 2001 was termed a "protective bail condition" (being a condition imposed for the purpose mentioned in cl 2(2)(c) or (d) of Pt D of Sch 1 of the Bail Act) not to contact or attempt to contact [G] by whatever means.

5. Clause (2a) of Sch 1 of the Bail Act provides that before imposing a condition on a grant of bail for such a 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 and whether, in the case of a judicial officer, to exercise the power in s 63 of that Act or, in the case of an authorised officer, to make a telephone application under that Act. Had resort to that alternative been made when this bail condition was imposed, the ensuing restraining order could not have imposed a condition or restriction inconsistent with the provisions of the contact order made by the Family Court of Western Australia on 4 September 2000 because of the operations of the Family Law Act and because of s 65 of the Restraining Orders Act 1997.

Operation and effect of a Family Law "Contact Order" and undertakings imposed under the Bail Act

1. When the Courts of Petty Sessions made the contact orders of 27 July 1998 and 4 September 2000 those courts were exercising powers conferred by s 65D(1) of the Family Law Act to make a "parenting order" including a "contact order" – see s 64B(2)(b) and (4) of the Family Law Act.  The power of the Court of Petty Sessions to make such orders is to be found in s 68B and s 114 of the Family Law Act. In doing so, the Courts of Petty Sessions were exercising federal jurisdiction conferred by s 69J(1) of the Family Law Act in relation to a matter arising under Pt VII of that Act. The conferral of such federal jurisdiction on a State court is pursuant to s 77(iii) of the Constitution. Consequently, the issue now arising, based on s 109 of the Constitution means that this Court, and the Court of Petty Sessions at Katanning, where the appellant was convicted of these offences, exercised federal jurisdiction because of the controversy which has arisen as to the scope of the MRO of the Albany Court of Petty Sessions of 19 February 2001 and the later bail undertaking of 29 June 2001 in the light of the provisions of the contact order of the Court of Petty Sessions of 4 September 2000 – see Macleod v ASIC [2002] HCA 37 at [9] – [16]; (2002) 191 ALR 543 at 546 – 547.

2. When the appellant was arrested on 29 June 2001 on a charge of an alleged breach of the MRO of 4 September 2000, the arresting officers were under an obligation to consider his entitlement to bail – Bail Act 1982, s 13(1) and s 17(1). The power to impose conditions on the grant of bail, and the types of conditions which might be imposed, are to be found in cl 1 of Pt A, Sch 1 and cl 2 of Pt D, Sch 1 to the Bail Act. Similarly, jurisdiction to grant bail for the appellant's appearance after an adjournment, and the power to impose conditions on that grant of bail, is conferred on the Magistrate sitting in the Court of Petty Sessions by s 13(1), s 17(1), cl 2 of Pt A of Sch 1 and cl 2 of Pt D of Sch 1 to the Bail Act.

3. It is submitted by the respondent, and I accept, that an exercise of the power to grant bail, whether by the arresting officers or by any other judicial officer or authorised officer so specified under s 13(1) of that Act was the exercise of a State power or jurisdiction. Nevertheless, immediately upon the appellant asserting that he was authorised to communicate with [Ms G] under the terms of the contact order of 4 September 2000, in the exercise of rights arising from an order of a court made in the exercise of federal jurisdiction, a question of federal jurisdiction arose. For reasons already explained, this means that the present appeal also involves the exercise of federal jurisdiction by this Court.

4. The Bail Act (1982) expressly acknowledges the Restraining Orders Act and directs that, in certain circumstances, consideration should be given by a judicial officer or other authorised officer exercising the power to grant bail or impose conditions on a bail undertaking, utilising the powers under the Restraining Orders Act.  It follows from this, in my view, that the Bail Act and the Restraining Orders Act are to be interpreted in a manner which provides for them to have complementary effect and to avoid inconsistency between them. Significantly, it is provided by Sch 1, Pt D, cl 2(2a) as follows:

   "(2a)  Before imposing a condition on a grant of bail for a purpose mentioned in sub‑clause (2)(c) or (d) 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 and whether, in the case of a judicial officer, to exercise the power in section 63 of that Act or, in the case of an authorised officer, to make a telephone application under that Act."

   The conditions on the grant of bail for a purpose mentioned in sub‑cl (2)(c) or (d) of Sch 1, Pt D are conditions to ensure that a defendant:

   "(c)does not endanger the safety, welfare or property of any person; and

   (b)does not interfere with a witness or otherwise obstruct the course of justice, whether in relation to himself or any other person;"

   In the present case it is obvious that the conditions set by the bail undertaking imposed on the appellant on 29 July 2001 were designed to ensure that he did not endanger the safety, welfare or property of [G] and that, therefore, the obligations on the judicial officer or authorised officer granting bail or imposing conditions set out in cl (2a) of Sch 1, Pt D applied.

5. The reference to s 63 of the Restraining Orders Act as a means of better serving or better assisting the purpose of ensuring that a defendant bailed does not endanger the safety, welfare or property of any other person is a reference to the power of the court, including a judicial officer considering a case for bail, to make a restraining order against a person during other proceedings. In particular, s 63(2) of the Restraining Orders Act 1997 provides:

   "63(2)  A court hearing proceedings under the Family Court Act 1997 or the Family Law Act (1975) of the Commonwealth may make a restraining order against a party to the proceedings or any other person who gives evidence in the proceedings."

6. It follows that in relation to the limited purposes of ensuring that a person to be bailed does not endanger the safety, welfare or property of any person, or does not interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person (Sch 1, Pt D, cl (2) of the Bail Act) there is a positive obligation upon the judicial officer or authorised officer dealing with the bail application to consider the possibility of an order or orders under the Restraining Orders Act.  This possibility necessarily includes the limitations inherent upon any order under the Restraining Orders Act such as those imposed by s 65 of that Act which prevent a court which does not have jurisdiction to adjust a family order from making a restraining order that conflicts with the family order.

7. In the circumstances of this case an order under the Restraining Orders Act, to achieve the purposes sought to be achieved by the bail conditions, could have been sought from the Court of Petty Sessions at Katanning whether by application in the ordinary manner or by telephone application under Pt II, Div 2 of that Act.  Had that procedure been utilised then it would not have been possible for any such restraining order to restrict or modify the rights of the appellant under the contact order of 4 September 2000 unless that contact order had been expressly varied under powers conferred by the Family Law Act (1975) itself.  It has already been shown that the Court of Petty Sessions at Katanning had the jurisdiction to vary the contact order and could have done so in the exercise of that conferred federal jurisdiction.

8. Accordingly, the vital question in the present case becomes apparent. It is: in the event that a judicial officer or authorised officer dealing with an application for bail or the imposition of conditions to be included in a bail undertaking, having decided that the purpose of ensuring that the defendant does not endanger the safety, welfare or property of any other person could not be better served or better assisted by a restraining order made under s 63 of the Restraining Orders Act and Sch 1, Pt D, cl (2a) of the Bail Act, can he or she then impose, as a condition of bail, an obligation which could not be imposed by a court making an order under the Restraining Orders Act?

9. Before addressing that question in detail, it is also necessary again to recall that the scheme imposed by the Family Law Act for the enforcement of contact orders is very detailed (Family Law Act (1975) – Div 6 – s 65A to s 65U).  These provisions reveal a legislative policy which places the priority on achieving compliance with the contact orders without the use of imprisonment or other direct coercive measures except as a last resort.  It is also necessary to consider the principle that it is not permissible to do indirectly what is prohibited directly.  It has been acknowledged that, in the application of this principle, the adoption of a circuitous device with a view to avoiding the need to comply with a constitutional requirement will be of no avail:  Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 349 – 350; Grannell v Marrickville Margarine Pty Ltd (1955) 93 CLR 55 at 78; Wragg v State of New South Wales (1953) 88 CLR 353 at 387 – 388 and Attorney General (Commonwealth) v Schmidt (1961) 105 CLR 361 at 371.

10. The important issue, therefore, is whether, on the proper interpretation of all the relevant legislation, the interrelationship of the Acts means that a purpose which could not be achieved by an order under the Restraining Orders Act can 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.

Constitution s 109 - Inconsistency

1. The manner in which a s 109 inconsistency may arise in this case can be seen from the joint judgment of Mason CJ, Deane, Toohey and Gaudron JJ in P v P (1994) 181 CLR 583 at 601. In that case the court was dealing with the validity of an order made by the Family Court of Australia for the sterilisation of an intellectually disabled child, under the court's general guardianship jurisdiction, in circumstances where the power of a court to authorise such an operation was prohibited by the Guardianship Act (1987) (NSW). In upholding the validity of the order of the Family Court, which prevailed by operation of s 109 over the inconsistent State law, the court was required to address the scope and effect of general powers conferred upon the Family Court in circumstances where it might be supposed that they were to operate in conjunction with the general law of a State whether in regard to guardianship of children, criminal law and procedure or other related matters. In the joint judgment at 601 ‑ 602 is the following passage:

   "If the Commonwealth law confers jurisdiction in terms which convey a legislative intent that its exercise is not to be confined or constrained by the prohibition or requirements of State laws, a question might arise about the extent to which s 109 can give paramountcy to the Commonwealth law over State laws which are not directly related to the relevant head or heads of Commonwealth legislative power - see eg Ex parte McLean (1930) 43 CLR 472 at pp 485 ‑ 486; Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980), 142 CLR 237 at pp 279 ‑ 280; and cf Colvin v Bradley Brothers Pty Ltd (1943) 68 CLR 151 at 158. Subject to that question, s 109 of the Constitution will, in such a case, invalidate any State law to the extent that it would directly or indirectly (eg by conferring authority on a State court, instrumentality or officer) preclude, override or render ineffective the exercise by the federal court of the jurisdiction so conferred. Conversely, if the terms of the Commonwealth law conferring jurisdiction or power convey a legislative intent that the jurisdictional power must be exercised conformably with applicable prohibitions and requirements of State law, the jurisdiction will, as a matter of construction, be accordingly confined with the result that there is no inconsistency for the purposes of s 109.

   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 authorising 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.  Of course, the nature of the jurisdiction or the matters which have historically been determined in the exercise of that or a like jurisdiction may suffice to make clear such a contrary intent.

   ...

   On the other hand, that ordinary approach to construction does not extend to the case where the State or Territory prohibition under criminal sanction is not imposed solely as a part of the ordinary criminal law, but is imposed as an integral part of a statutory scheme conferring upon a local judicial or administrative body jurisdictional powers which overlap or compete with the jurisdiction conferred by the Commonwealth law.  Nor is it applicable to a case where the State or Territory prohibition is imposed as part of a general regulatory scheme which operates within the very area which the jurisdiction validly conferred by the Commonwealth law was intended to control.  In such cases, there is no presumption that it was the intent of the Parliament that the jurisdiction conferred by the Commonwealth law should be overridden by, or subjected to, the prohibitions and requirements of the overlapping or competing State or Territory scheme."

2. Other examples of such an inconsistency resulting in invalidity of a State law because of the scope of operation of the Family Law Act 1975 occur in the decision of AMS v AIF (1999) 199 CLR 160 and Re Z (1996) 134 FLR 40 the latter being a decision of the Full Court of the Family Court of Australia.

3. For the respondent it was submitted that prohibitions contained in bail undertakings are imposed as part of the general criminal law of the State, and not as part of a welfare scheme which competes or overlaps with the provisions of the Family Law Act.  The respondent also submitted that unlike the situation in AMS v AIF (1999) 199 CLR 160, it is possible for the State law to operate in conformity with federal law, as the operation of the federal law is subject to the prohibitions and requirements of the general criminal law of the State. It can be accepted that these submissions are consistent with the decision in De Angelis v De Angelis [2000] VSC 409; (2000) 158 FLR 331 and the approach of the Full Court of the Family Court of Australia in B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 451 at [319] – [389].  The rhetorical questions posed by the respondent, namely, whether it could be concluded that it was the intention of the Family Law Act that the making of a contact order for personal contact at a particular place and time should take effect notwithstanding the provisions of a State law authorising the detention of an accused person on remand or the imprisonment of an offender, of course has only a negative answer. However, to my mind that submission puts the issue too broadly. Essentially, it is much narrower. As already explained, it is whether the achievement of a particular purpose contemplated by Sch 1, Pt D, cl 2(c) of the Bail Act, namely securing the safety, welfare or property of an individual person, when another person is about to be released on bail, should be achieved by imposing a condition, the breach of which may immediately lead to imprisonment or fine, when such a course could not be achieved under any order or variation of an order made under the Restraining Orders Act.

4. 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 which, in this case, would have allowed the contact order to have been modified on application to the Magistrate in the Court of Petty Sessions at Katanning invoking the conferred federal jurisdiction under the Family Law Act.

1. Consequently, while I accept that the evidence established that the appellant's conduct in telephoning his ex‑wife on 20 July 2001 was contrary to the condition imposed under the Bail Act, I am satisfied that that condition in the circumstances was invalid and inoperative and that no offence has been committed because his 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 the federal jurisdiction.  Again, the appellant's conduct on that occasion, although involving him telephoning [Ms G], was directly and promptly in response to a call which she had made to his number, recorded on his answering machine and one, which in the circumstances, was made in part performance of the obligation imposed on her to provide telephone contact for the appellant to his children and to co‑operate in the implementation of that order.

2. Earlier in these reasons I made reference to the oral application by the appellant to the learned Magistrate, during the course of a trial (t/s 52 ‑ vol 2 AB) to dismiss the restraining order.  That was an express appeal to the jurisdiction which the learned Magistrate in the Court of Petty Sessions at Katanning possessed and which was not acted on in any way.  The Court of Petty Sessions also had jurisdiction under the Family Law Act and could have varied or discharged the contact order of 20 September 2000 so as to have clarified the mutual obligations of the appellant and [Ms G] to facilitate the implementation of the contact order.  This could have been done by addressing any need to clarify practical arrangements for repeating or renewing telephone contact when the mother's call had missed the father, at a time when there was still an opportunity to set up the contact which the order accepted was desirable in the interests of the children and the father.  That this opportunity was not taken may be unfortunate but it has not in any way affected the ultimate outcome of these proceedings.

3. Nevertheless, this regrettable train of events seems to underscore the need for courts, when dealing with such situations, to give full recognition and effect not only to restraints imposed under the Restraining Orders Act or to any bail conditions imposed following an arrest, but to the rights and obligations conferred by a contact order under the Family Law Act which carry with them a duty on the parties affected to avoid obstructing or frustrating the implementation of such an order.  This is necessary so that, unwittingly, proceedings in State courts will not become indirect means of enforcing Family Court orders, nor an opportunity to dilute the benefits or obligations which follow from orders made under the Family Law Act.

Conclusion

1. In the circumstances I consider that, to give effect to my conclusions, the orders which should be made for the disposition of this appeal should be as follows:

   (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.

2. The appellant is entitled to recover from the respondent any costs paid pursuant to those orders.