PQR v Sundram
[2020] TASFC 10
•4 December 2020
[2020] TASFC 10
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | PQR v Sundram [2020] TASFC 10 |
| PARTIES: | PQR |
| v | |
| SUNDRAM, Lakshmi | |
| FILE NO: | 1509/2020 |
| JUDGMENT | |
| APPEALED FROM: | PQR v Sundram [2020] TASSC 21 |
| DELIVERED ON: | 4 December 2020 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 10 November 2020 |
| JUDGMENT OF: | Estcourt J, Pearce J, Martin AJ |
| CATCHWORDS: |
Family Law and Child Welfare – The Family Law Act 1975 (Cth) and related legislation – Children – Parenting orders generally – Interaction between Federal Circuit Court parenting orders and Tasmanian police family violence orders where possible inconsistency – Inconsistency is a question of degree.
Family Violence Act 2004 (Tas) s 33.
Family Law Act 1975 (Cth).
AA v BB [2013] VSC 120, 296 ALR 353, followed.
Aust Dig Family Law and Child Welfare [64]
Magistrates – Orders and convictions – Orders to restrain domestic, family or apprehended violence or for personal safety – Contravention and sentencing – Where police family violence order and Federal Circuit Court parenting orders – No relevant inconsistency such that police family violence orders
preventing certain conduct are incapable of operating subject to Federal Circuit Court orders for shared
parental responsibility – Appeal dismissed.
Family Violence Act 2004 (Tas) s 33.
Family Law Act 1975 (Cth).
AA v BB [2013] VSC 120, 296 ALR 353, followed.
Aust Dig Magistrates [1203]
REPRESENTATION:
Counsel:
Appellant: E Magee QC and J Dodd Respondent: S Nicholson
Solicitors:
Respondent: Director of Public Prosecutions
| Judgment Number: | [2020] TASFC 10 |
| Number of paragraphs: | 50 |
Serial No 10/2020 File No 1509/2020
PQR v LAKSHMI SUNDRAM
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J |
PEARCE J
MARTIN AJ
4 December 2020
Order of the Court
Appeal dismissed.
Serial No 10/2020 File No 1509/2020
PQR v LAKSHMI SUNDRAM
| REASONS FOR JUDGMENT | FULL COURT ESTCOURT J |
4 December 2020
1 This is an appeal against a decision of Blow CJ in PQR v Sundram [2020] TASSC 21, in which his Honour held that, since an order of the Federal Circuit Court provided for the appellant's children to spend time with him during school terms, during certain periods, and a provision of a Tasmanian police family violence order that he not go within 50 metres of the school, at which his daughter attended, purported to operate at all times, there was an inconsistency between the two orders, to the extent that the latter order might have applied during those relevant periods.
2 In the Magistrates Court the learned Chief Magistrate dismissed charges relating to the appellant coming within 50 metres of the children, but found him guilty on the charges relating to his coming within 50 metres of the school, and of one associated charge of breaching a related bail condition.
3 In reconciling the two orders the learned Chief Magistrate reasoned as follows:
"Order 11 of the Police Family Violence Order prevents Mr ... from being within 50 metres of the school. However the Police Family Violence Order does not necessarily prevent Mr ... from collecting his children from school or dropping them to
school as long as he doesn't go within 50 metres of the school, and if you can – if you
approach it in that way, in my view, the Police Family Violence Order and the Family Court orders are capable of co-existing. The Police Family Violence Order does not prevent Mr ... from spending time with his children as per the Family Court orders. The Police Family Violence Order prevents him though from going within 50 metres of the school, and it flows from that that for Mr ... to be able to facilitate picking up his children on the Thursday at 3:00 pm and dropping his children off on a Monday morning he is restricted in that he would have to maintain a distance of 50 metres from the school, and this may or may not be ideal, and there may be other consequences for Mr ..., in that he can't attend the school at all, but importantly, the Police Family Violence Order does not prevent Mr ... from spending time with his children as per the Family Court orders."
4 Section 33 of the Family Violence Act 2004 (Tas) reads as follows:
"An FVO, an interim FVO, an external family violence order and a PFVO operate
subject to any Family Court order."
5 For the purposes of the Family Violence Act, the order of the Federal Circuit Court was a "Family Court order". That term is defined in s 4 of the Family Violence Act.
6 Blow CJ, contrary to the learned magistrate's view, came to the conclusion that order 11 of the police family violence order did not operate in relation to those periods either, by virtue of s 33 of the Family Violence Act, because it was inconsistent with the orders of the Federal Circuit Court.
7 His Honour said at [13] of his reasons for decision:
"The inconsistency arises because of the purpose of the prohibition in order 11 of the police family violence order. The principal purpose of orders under the Family Violence Act is the protection of partners, former partners, and children. In this case the applicant contends that it was neither reasonable nor appropriate for any provision to be made in any order under the Family Violence Act for the protection of either of his children, but that is a matter for a magistrate to decide upon, and not something on which I should comment. However it is obvious that the maker of the police family violence order
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included provisions in relation to the children with a view to protecting them from the applicant. He must have thought that their safety and wellbeing were, or might have been, at risk if he came near them. The primary order that he made for the purpose of protecting them from the applicant was order 3, which prohibited the applicant from being within 50 metres of either of them. The order prohibiting him from being within 50 metres of the primary school was an ancillary order. When an order is made prohibiting a parent from coming within 50 metres of a school, it serves a number of purposes. If such an order is breached, the offender can be arrested before reaching the school. Also, if the restrained parent comes to the school, it might be easier to prove a sighting upon his or her approach or departure than to prove contact with the child. If the child is likely to become fearful or upset upon seeing the parent in question at a distance, a prohibition on that person coming within 50 metres of the school will obviate that risk. In the circumstances of this case, it is clear that order 11 was made as an adjunct to order 3, insofar as it related to the children."
8 For the reasons that he gave, the learned primary judge allowed the appellant's motion to review, quashed his convictions on complaints 11737/18 and 1286/19, dismissed counts 1, 3, 5, 7 and 9 on complaint 11737/18 and counts 2, 4, 5 and 7 on complaint 1286/19, and set aside the consequential orders of the learned Chief Magistrate, by which she ordered the applicant to pay a fine and costs.
9 In his Honour's view however, the respondent was rightly convicted on complaint 7354/18, which related to his visit to the school on 24 July 2018, a day that was not during a period when the Federal Circuit Court order provided for the children to spend time with him. It is against the order in relation to that conclusion that the appellant appeals.
10 The gravamen of the appellant's appeal is that the learned Chief Justice erred in finding that the exercise of the appellant's parental responsibility did not permit him to attend at the children's school or any purpose that was not expressly stated in the Federal Circuit Court orders.
11 The appellant submits that the issue before this Court is whether the appellant's conduct in attending at the school on 24 July 2018 was permitted by the "Parenting Orders" made by the Federal Circuit Court which effectively restored the appellant his full rights as their father, including by having equal shared parental responsibility and a substantial and significant role in their lives, such that it cannot have been in breach of the police family violence order.
12 Section 61B of the Family Law Act 1975 (Cth) defines "parental responsibility" to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."
13 The learned primary judge at [17] of his reasons held that that an order prohibiting a parent from visiting their child's school is not inconsistent with that parent having all the duties, powers, responsibilities and authority in relation to that child which they have by law.
14 As to that the appellant submits as follows:
"With respect, this is patently false. For example, his Honour had already found that such a prohibition was inconsistent with [the appellant's] right to attend at the school for the purposes of spending time with his children in accordance with the Parenting Orders.
The same must be said if, for example, his daughter fell ill or injured herself and he was called as an emergency contact. In such circumstances, a parent must have the power or authority to collect their child from school in order to discharge their responsibility to ensure that appropriate medical care is administered.
Similarly, a parent must have the power and authority to meet with teachers and attend parent-teacher conferences in order to make informed decisions about their child's education, or to meet with the principal to discuss important matters relating to their child's health or disciplinary issues. All of these are circumstances in which a prohibition on attending at the school was fundamentally inconsistent with [the appellant's] rights as a parent and his exercise of parental responsibility.
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In this case, [the appellant] had a responsibility to his daughters to ensure that the Parenting Orders were administered appropriately. The Federal Circuit Court had already held that the terms of those orders, including the provisions relating to [the appellant] spending time with them, were in his daughters' best interests.
[The appellant] had a right and a responsibility to ensure that the school did not interfere with those orders, as it ultimately did, by notifying the police and having him arrested and charged every time he attended at the school. Accordingly, it was within his power and authority to attend at the school on 24 July 2018 for that purpose."
15 I reject that submission and accept the respondent's submission that the Federal Circuit Court orders "specified the conditions in which the appellant's shared parental responsibility could be exercised". The police family violence order on the other hand prohibited the appellant from attending within 50 metres of the school, and that prohibition applied to the appellant, except to the extent that it was inconsistent with the Federal Circuit Court orders.
16 As the learned primary judge explained, correctly, in my view, in the impugned passage of his
reasons at [17]:
"17 In my view however, the applicant was rightly convicted on complaint 7354/18, which relates to his visit to the school on Tuesday 24 July 2018 when he spoke to the principal and left without seeing his daughter. That visit did not occur during a period when the Federal Circuit Court order provided for the children to spend time with him. In relation to that charge, the only relevant submission by the applicant's counsel was to the effect that the prohibition on his being within 50 metres of the school was inconsistent with the Federal Circuit Court order because order 1 thereof gave him and his former partner shared parental responsibility for the children. By virtue of s 61B of the Family Law Act, 'parental responsibility' means 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. In my view an order prohibiting a parent from visiting a school attended by one of his or her
children is not inconsistent with that parent having, in relation to that child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Such an order might create an impediment to communication with teachers and school authorities, but such an impediment does not detract from a parent's duties,
powers, responsibilities and authority." (My emphasis.)
17 The learned primary judge might have used a word other than "detract" in the passage set out above. The police family violence orders might "detract" from the appellant's unqualified "parental responsibility" by limiting the means by which the appellant might communicate with teachers at times when his children might ordinarily be expected to be in attendance at the school. However, those orders do not abrogate or nullify the appellant's parental responsibilities and it cannot be said that there is any relevant inconsistency between them and the Federal Circuit Court orders or that the police family violence orders are incapable of operating "subject to" the Federal Circuit Court orders as mandated by s 33 of the Family Violence Act.
18 I have also had the very considerable advantage of reading the reasons of Martin AJ in draft form and for the reasons his Honour gives, with which I fully concur. I too am of the view that no error in the reasoning and conclusions of the learned primary judge has been made out by the appellant.
19 I would dismiss the appeal.
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File No 1509/2020
PQR v LAKSHMI SUNDRAM
| REASONS FOR JUDGMENT | FULL COURT PEARCE J 4 December 2020 |
20 I agree with Martin AJ and would also dismiss the appeal.
5 No 10/2020
File No 1509/2020
PQR v LAKSHMI SUNDRAM
| REASONS FOR JUDGMENT | FULL COURT MARTIN AJ 4 December 2020 |
| Introduction |
21 The appellant was convicted by the learned Chief Magistrate, Ms C Geason, of a number of breaches of a police family violence order made under the Family Violence Act 2004 (Tas), and of breaching a condition of bail. The facts involved the interaction between the family violence order and parenting orders made under the Family Law Act 1975 (Cth) in the Federal Circuit Court of Australia (parenting orders).
22 On appeal [PQR v Sundram [2020] TASSC 21], Blow CJ quashed all convictions, and dismissed all but one charge which was based upon a breach of the family violence order. In respect of that charge, without recording a conviction, his Honour imposed a fine of $50 and ordered that the offence be recorded on the appellant's criminal record as a family violence offence.
23 The appellant appeals against the finding of guilt on the basis that there was an inconsistency between the family violence orders and the parenting orders made in the Federal Circuit Court and, as a consequence, the orders of the Federal Circuit Court prevailed to the exclusion of the family violence order which underpinned the finding of guilt.
24 For the reasons that follow, in my opinion the appeal should be dismissed.
| Facts |
25 The appellant and his former wife (the mother) lived together from about December 2002 until they separated on 31 January 2010. There are two children of the relationship.
26 In September 2011 the mother applied for parenting orders under the Family Law Act. Consent orders were made, but subsequent events resulted in contested proceedings in the Federal Circuit Court, at the conclusion of which the learned trial judge made a number of orders which included the following:
• The mother and the appellant "have equal shared parental responsibility" for the two children. • Subject to provision in the orders, the children live with the mother. • After an initial period following the making of the order, the children spend time with their father during school term time each fortnight from 3pm Thursday until 9am Monday (or 9am Tuesday if Monday was a non-school day). • The appellant collect the children from school at 3pm each Thursday, and return the children each Monday (or Tuesday if Monday was a non-school day) in time for the commencement of school. • Provisions for holiday periods and other matters relating to the welfare of the children. 27 The Federal Circuit Court order was made on 4 July 2014. Four years later, on 3 July 2018, police issued and served on the appellant the family violence order which included the following orders:
"1 Not stalk [the mother and children] 2
Not directly or indirectly threaten, harass, abuse or assault [the mother and children]
6 No 10/2020
3 Not be within 50 metres of or contact [the mother and children] directly or indirectly (including by any form of electronic or other communication) except:
a ONLY for the purpose of discussing matters arising out of their relationship,
including related to [the children] by:
letter or facsimile;
email;
electronic message;
electronic message or social media (such as Facebook);
telephone;
an agreed third person (adult), nullb to attend counselling, family dispute resolution, mediation or meetings conducted by a Court-appointed expert. Such meetings to be by consent and arranged by:
letter or facsimile;
email;
electronic message;
electronic message or social media (such as Facebook);
telephone;an agreed third person (adult), null
c In accordance with a current contact agreement reached as above or an order
of a court of competent jurisdiction relation to [the children].d during an appearance in court proceedings involving the parties, or discussions in the court precincts for the purpose of those proceedings and consented to by both parties. 4 Not enter the premises at [address] where [the mother and children] are presently living or any other place where the said person/s may be staying from time to time.
5 Not go within 50 metres of the boundary of the premises at [address] or the boundary premises where the said [the mother and children] may be staying or living from time to time.
6 Not enter the place of employment of [the mother], being NPFA or any other place at which the said [the mother] may be working from time to time save for any bona fide attendance not connected with the applicant.
8 Not damage the premises at [address] or any furniture, household effects or other items which are there.
10 Not damage any personal or other property owned or possessed by [the mother and children]
11 Not be within 50 metres of [school] or NFPA where [the children] may be present from time to time.
…"
28 For present purposes, of significance is par 3 of the family violence order which prohibited the appellant from being within 50 metres of the children, but that prohibition was subject to par 3(c) which
provided an exception if being within 50 metres of the children was "in accordance with … an order of
a court of competent jurisdiction …". Paragraph 11 contained a blanket prohibition, without exception,
against being within 50 metres of the children's primary school where the children "may be present from time to time". In substance, between July 2018 and February 2019, the appellant attended at the school while the younger child was present, and was charged with breaching the family violence order by going within 50 metres of the child. On other occasions he was charged with breaching the family violence order by going within 50 metres of the school.
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29 The learned Chief Magistrate dismissed the charges based on the appellant coming within 50 metres of the children because, by reason of par 3(c), the family violence order did not prevent the appellant from spending time with his children in accordance with the parenting orders. However, her Honour found that by attending within 50 metres of the school, the appellant was in breach of par 11 of the family violence order which, in her Honour's view, continued to operate independently of the parenting orders.
30 In respect of the charges based on the appellant being within 50 metres of the school, on a number of occasions the appellant's attendance related to "conduct consistent with the [appellant] seeing his daughter, or trying to see her, at times when the parenting order provided for her to spend time with him". In the Chief Justice's view, in respect of those attendances, par 11 of the family violence order did not operate because it was inconsistent with the parenting orders. His Honour found:
"14 Since order 9 of the Federal Circuit Court orders provided for the children to spend time with the applicant during school terms, during periods commencing at 3pm on alternate Thursdays, and order 11 of the police family violence order purported to operate at all times, it is clear that there was an inconsistency between the two orders, but only to the extent that the latter order might have applied during those fortnightly periods. 15 It follows that the police family violence order, being 'subject to' the order of the Federal Circuit Court, did not operate to prohibit the applicant from being within 50 metres of the school during those fortnightly periods. It follows that the charges on complaints 11737/18 and 1286/19, all of which related to times during those fortnightly periods, should have been dismissed."
31 Three charges were based on occasions when the children were not present at the school. The Chief Justice found that these charges should have been dismissed because the prohibition in par 11 "did not apply when neither of the children was at school".
32 As to a visit by the appellant to the school on Tuesday 24 July 2018 (the Tuesday visit), an occasion when a child was at the school but the appellant spoke to the principal and left without seeing his daughter, the Chief Justice correctly found that the visit "did not occur during a period when the Federal Circuit Court order provided for the children to spend time with [the appellant]." In those circumstances, the visit did not come within the exception found in par 3(c) of the family violence order because the visit was not in accordance with the parenting orders as it was outside the times specified in the parenting orders. On that basis, although the Chief Justice set aside the conviction, his Honour found the charge proven and imposed the fine without recording a conviction.
33 In finding the charge proven, the Chief Justice rejected the appellant's submission that the Tuesday visit was in accordance with the parenting orders because the appellant was exercising his "parental responsibility". The Chief Justice expressed his view in the following passage:
"That visit did not occur during a period when the Federal Circuit Court order provided for the children to spend time with him. In relation to that charge, the only relevant submission by the applicant's counsel was to the effect that the prohibition on his being within 50 metres of the school was inconsistent with the Federal Circuit Court order because order 1 thereof gave him and his former partner shared parental responsibility for the children. By virtue of s 61B of the Family Law Act, 'parental responsibility' means 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. In my view an order prohibiting a parent from visiting a school attended by one of his or her children is not inconsistent with that parent having, in relation to that child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Such an order might create an impediment to communication with teachers and school authorities, but such an impediment does not detract from a parent's duties, powers, responsibilities and authority."
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Discussion
34 In summary, the appellant's contentions in written submissions to this Court are as follows:
• In the context of findings in the Federal Circuit Court that were critical of the mother, the appellant "was to be restored his full rights as their father, including by having equal shared parental responsibility and a 'substantial and significant' role in their lives". • "Taken as a whole, in the context of the accompanying reasons, the Parenting Orders are intended to facilitate [the appellant's] role as a father and not to limit or restrict his parental rights and authority." • "Parental responsibility" is defined in s 61B of the Family Law Act to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". This definition extends parental rights and the specific matters set out in the Parenting Orders "which are facilitative rather than prescriptive". • Parents are empowered "to take reasonable steps in order to exercise their rights and responsibilities in respect of their children". The appellant should not be denied the right, as a parent, to attend the school "to discuss matters of importance with teachers and the principal". • Paragraph 11 of the family violence order, which was a blanket provision prohibiting the appellant from attending within 50 metres of the school when the children may be present, "was fundamentally inconsistent" with the appellant's rights as a parent and his exercise of parental responsibility. • The appellant "had a responsibility to his daughters to ensure that the parenting orders were administered properly", and to ensure that the school "did not interfere with those orders, as it ultimately did, by notifying the police and having him arrested and charged every time he attended at the school". • It was within the appellant's "power and authority to attend at the school on 24 July 2018 for that purpose". • The parenting orders gave the appellant the power and authority of a parent which "allows him to take reasonable steps in discharging his duties in the best interests of his [children]". • The meeting with the principal on 24 July 2018 was "for the purpose of ensuring that the school understood the interaction between the Parenting Orders and the [family violence order] and did not interfere with the Parenting Orders". This was "a reasonable attempt to ensure that the interests of the [children], as embodied in the Parenting Orders, were protected". 35 In reply to oral submissions for the respondent, junior counsel for the appellant distilled the appellant's case to the following propositions:
• Full meaning and effect must be given to the Family Court order. • Based on the Family Court order that the mother and the appellant "have equal shared parental responsibility", and applying s 61B of the Family Law Act which provides that "parental responsibility" means "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children", the appellant possessed a right as a parent to attend the school at any time in connection with the education and welfare of the children. • Any State order which restricts, in any way, the appellant's right to attend the school, at any time, amounts to an impermissible inconsistency with the Family Court order. 36 It is apparent that that the effect of the Family Court order is to constrain, to some extent, the appellant's capacity to exercise his parental responsibilities pursuant to the parenting orders. In making the order for equal shared parental responsibility, the Federal Circuit Court determined that the children should live with their mother, subject only to specified periods during which they would spend time with the appellant. Senior counsel for the appellant conceded that, in ordinary circumstances, the appellant could not spend time with his children outside the periods specified in the order.
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37 In addition, where a court orders that persons have equal shared parental responsibility, ss 65DAC and 65DAE of the Family Law Act have the effect of requiring that decisions concerning major long-term issues about the children be made jointly after consultation with each other. However, if a child is spending time with a person under a joint parenting order, that person is not required to consult with the other person who shares parental responsibility about decisions that do not involve major long-term issues. [1] It follows that while the children were with the mother, she was not obliged to consult the appellant about decisions concerning the welfare of the children unless they were decisions relating to "major long-term issues".
[1] Goode & Goode [2006] FAMCA 1346, 206 FLR 212 at [38]-[39].
38 The interaction between the Commonwealth law found in the Family Law Act, and State family violence provisions, was discussed by Bell J in AA v BB [2013] VSC 120, 296 ALR 353. His Honour was concerned with an intervention order made by a magistrate under the Family Violence Protection Act 2008 (Vic) at a time when a parenting order existed under the Family Law Act. Although the appellant had pleaded guilty to breaches of the intervention order, he appealed against his convictions on the basis that he could not in law have been convicted because the relevant clauses of the intervention order were invalid by reason of s 109 of The Constitution (Cth) by reason of inconsistency between those clauses and the provisions of the parenting order (which was made first).
39 After discussing the general principle concerned with inconsistency under s 109 of The Constitution, and the concepts of direct and indirect inconsistency, Bell J addressed the concepts and principles of the Family Law Act which he summarised as ensuring "the best interests of children in relation to their parents" [57]. His Honour observed that this purpose "overlaps with the purpose of protecting people from family violence", but added that it is different from that purpose.
40 Having referred to s 64B(2) of the Family Law Act which specified matters with which a parenting order could deal, Bell J observed that the focus of the matters identified in that section was the child, and not protecting people from family violence. His Honour then considered provisions dealing with injunctions and resolution of inconsistencies between family violence orders and orders under the Family Law Act. As his Honour noted, s 68R(1)(a) of the Family Law Act empowered the courts of States and Territories "to deal with the order or injunction of the Family Court so as to resolve any inconsistency".[2]
[2] Section 68R(1)(a) now empowers a State or Territory court, in proceedings to make or vary a family violence order, to
41 Following this review, Bell J drew the following conclusion:
"[65] Thus, under the federal and State provisions, the court dealing last in time with a relevant proceeding has the power to make orders resolving any inconsistency between State family violence protection orders and orders or injunctions of the Family Court. I cannot discern from these provisions any intention on the part of the Commonwealth Parliament that the provisions of the Family Law Act are to represent a complete statement of the law with respect to family violence involving parents and children or parenting orders in respect of conduct amounting to family violence. The regime for the resolution of inconsistencies between orders made under the Family Law Act and the Family Violence Protection Act is premised on the acceptance by the Commonwealth Parliament that orders pertaining to family violence might be made under both federal and State legislation."
42 After reviewing contravention provisions in the Family Law Act, Bell J discussed the Victorian Family Violence Protection Act and observed that the main purpose of that legislation was "protection of family members from family violence", a purpose which his Honour described as a "different albeit overlapping purpose to ensuring the best interest of children in relation to their parents, which (in summary) is the purpose of Part VII of the Family Law Act". After reiterating that a court exercising
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jurisdiction under the Family Violence Protection Act could vary orders under the Family Law Act, including parenting orders, and other provisions related to apparent inconsistencies, Bell J concluded that the provisions of the Family Violence Protection Act "reflect the scheme which is present in both Acts for the resolution of potential inconsistencies between family violence protection orders under the former and parenting orders and injunctions under the latter" [92].
43 Ultimately Bell J concluded that the Commonwealth and State legislation could operate
together [99]:
"[99] In my view, the provisions of the Family Law Act do not confer liberties, defences and protections on the appellant which are abrogated by the provisions of the Family Violence Protection Act. The provisions of the Family Law Act are not intended to operate as a complete statement of the law on the subject of family violence or parenting orders as they may relate to family violence such as to remove any scope for the operation of the provisions of the Family Violence Protection Act. The Family Law Act and the Family Violence Protection Act operate compatibly together according to a common plan for their respective purposes of ensuring the best interests of children in relation to their parents and protecting people from family violence."
44 It is unnecessary to undertake a detailed review of the Tasmanian Family Violence Act. It is an Act aimed at ensuring the protection of persons subjected to family violence. Section 3 provides that in the administration of the Act, "the safety, psychological wellbeing and interests of people affected by family violence are the paramount considerations".
45 As to any interaction with Commonwealth law, s 33 provides that a family violence order, and other orders under the Act, "operate subject to any family court order".
46 It is clear that Commonwealth and State legislatures intend that the Family Law Act and State family violence provisions operate together to create a scheme aimed at achieving the best interests of children with respect to their parents, and protecting children and others in family situations from violence. Although orders under the Family Law Act prevail over inconsistent orders under State provisions, including Tasmanian provisions, as Bell J observed, the Family Law Act is "not intended to operate as a complete statement of the law on the subject of family violence or parenting orders as they may relate to family violence such as to remove any scope for the operation of the [State family violence] provisions".
47 Paragraph 11 of the Family Violence order prohibited the appellant from attending within 50 metres of the school only when the children "may be present". It follows that if the children were not present at the school, the appellant could attend at any time to discuss the education and welfare of the children with staff at the school. At times when the children were present at the school, the appellant could not attend, but he could communicate with staff by means other than face-to-face communication.
48 I reject the broad proposition that any constraint on the appellant's ability to visit the school, at any time, necessarily creates a relevant inconsistency. The scheme created by the Commonwealth and State legislation was created with the intention that the Commonwealth and State provisions, and orders under those provisions, "operate compatibly together". If significant inconsistency exists, the Commonwealth orders prevail, but minor tensions do not create relevant inconsistency. It is a question of degree.
49 In the context of the scheme created by the Commonwealth and State legislation, in my opinion the prohibition in par 11, which applies only when a child "may be present", is not relevantly inconsistent with the appellant's obligations (and rights) pursuant to the parenting order.
50 For these reasons, in my opinion, the appeal should be dismissed.
vary, discharge or suspend a parenting order to the extent to which that order provides for a child to spend time with a
person.
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3
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