PQR v Sundram

[2020] TASSC 21

[2020] TASSC 21

COURT:  SUPREME COURT OF TASMANIA

CITATION:                PQR v Sundram [2020] TASSC 21

PARTIES:  PQR
  v
  SUNDRAM, Lakshmi

FILE NO:  3338/2019
DELIVERED ON:  2 June 2020
DELIVERED AT:  Hobart
HEARING DATE:  20 May 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Particular offences – Offences against peace and public order – Miscellaneous offences and other matters – Other matters – Breach of police family violence order – Order "subject to" parenting order under Family Law Act – Extent of inconsistency between two orders.

Family Violence Act 2004 (Tas), s 33.
Aust Dig Criminal Law [2609]

REPRESENTATION:

Counsel:
             Applicant:  E N Magee QC, J L Dodd
             Respondent:  S Nicholson
Solicitors:
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2020] TASSC 21
Number of paragraphs:  19

Serial No 21/2020

File No 3338/2019

PQR v LAKSHMI SUNDRAM

REASONS FOR JUDGMENT  BLOW CJ

2 June 2020

1. This is a motion for the review of nine convictions imposed by the Chief Magistrate, Ms C Geason, on charges of breaching a police family violence order and breaching a bail condition.  The central question is whether there was an inconsistency between a provision in a police family violence order made in July 2018 and parenting orders made under the Family Law Act 1975 (Cth) in the Federal Circuit Court of Australia in July 2014.

2. The applicant ("PQR") and his former partner have two children.  There was litigation between the couple in the Federal Circuit Court as to the arrangements for those children. That litigation concluded in July 2014 when Judge Baker made a series of orders.  The relevant orders were expressed as follows:

   "1   The parents ['the mother' and 'the father'] have equal shared parental responsibility for [the children].

   2   Save as otherwise provided for in these orders the children live with the mother.

   Time with the father

   3   The children spend time with the father as follows:

   ...

   School term time

   9   Thereafter during school term time each fortnight from 3.00pm Thursday until 9.00am Monday (or 9.00am Tuesday if Monday is a non-school day) as follows:

   a.the father will collect the children from school at 3.00pm each Thursday;

   b.the father will return the children each Monday (or Tuesday if Monday is a non-school day) in time for the commencement of school.

   ...

   Changeover

   13 Changeovers occur at school on school days. ...

   ...

   22 Either party may attend the children's sporting or otherwise extra-curricular events regardless of where the children are living as long as the other party does not unreasonably interfere with the relevant party's time with the children."

3. There were further difficulties between the parties. As a result, on 3 July 2018 a police sergeant made a police family violence order against the applicant, for the protection of his former partner. That document contained 14 orders, of which two are relevant to these proceedings. By order 3, the applicant was prohibited from being within 50 metres of his former partner and each of the children, and from contacting them, subject to a number of exceptions. Under order 3(c), there was an exception in relation to him being within 50 metres or contacting them "in accordance with ... an order of a court of competent jurisdiction". Order 11 provided that the applicant must:

   "Not be within 50 metres of ... Primary School ... where [the younger child] and [the older child] may be present from time to time."

4. On a number of occasions, beginning on 24 July 2018 and ending on 12 February 2019, the applicant went to the specified school while the younger child was there.  He was charged on several counts alleging that he breached the family violence order by going within 50 metres of that child, and on several other counts alleging that he breached the family violence order by going within 50 metres of the school.  Only the younger child, a daughter, attended that school.

5. On 17 January 2019 he was granted bail on charges which were then pending, subject to a bail condition that required him to abide by the police family violence order.  On three occasions in February 2019 he went within 50 metres of the school.  As a result, he was charged with three counts of breaching a bail condition, as well as more counts of breaching the police family violence order.

6. The charges were heard by the learned Chief Magistrate in October 2019. The facts were agreed, but the applicant contended that all the charges should be dismissed because of inconsistencies between the police family violence order and the orders of the Federal Circuit Court. He relied on s 33 of the Family Violence Act 2004. That section reads as follows:

   "An FVO, an interim FVO, an external family violence order and a PFVO operate subject to any Family Court order."

7. 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.

8. In a reserved decision delivered on 28 November 2019, the learned Chief Magistrate dismissed the charges relating to the applicant 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 one associated charge of breaching the bail condition.  In giving reasons for her decision, she said the following:

   "So a key issue in this matter is whether the orders of the Police Family Violence Order made on the 3^rd of July 2018, and the Family Court orders made on the 4^th of July 2014 can co-exist. It's the Prosecution's position that the existence of the Family Court orders does not affect the validity of the Police Family Violence Order, and that the Court could be satisfied beyond reasonable doubt that each of the charges are proved. It's the Defence position that the Police Family Violence Order is inconsistent with the Family Court orders and the Family Court orders must prevail. The Family Court orders facilitate Mr ... spending time with his children. ... Given the provision of section 33 of the Family Violence Act, order 11 of the Police Family Violence Order that Mr ... is not to be within 50 metres of the school potentially creates an inconsistency with order 9 of the Family Court orders, that is that he spend time with the children during that window.

   In my view, it's important to note that the Police Family Violence Order intended that there be an exception to order 3 of the Police Family Violence Order; that is that Mr ... was not to be within 50 metres or contact his children except in accordance with an order of a court of competent jurisdiction, and that related to his children. 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."

9. Her Honour was required to decide whether, in any relevant respects, there was an inconsistency between conduct that the order of the Federal Circuit Court permitted or required and conduct that the police family violence order prohibited.  Clearly there was an inconsistency, at least to the extent that the police family violence order prohibited the applicant from being within 50 metres of his children at times when the parenting order provided for them to spend time with him.  The applicant contends that the inconsistency went further than that, and that he was acting in accordance with the parenting orders at all material times when he went to the school or within 50 metres of it.

10. The charges that the learned Chief Magistrate found proven, and the agreed facts in relation to each of them, can be summarised as follows:

    ·     Complaint 7354/18.  On Tuesday 24 July 2018 the applicant went to the school, spoke to the principal in his office, showed him the police family violence order and the parenting orders, had a conversation with him, and left without seeing his daughter.  However he put some gifts in his daughter's backpack.  That Tuesday was during a school term, and did not follow a non-school day.

    ·     Count 1 on complaint 11737/18.  On Friday 16 November 2018 the applicant attended the school and spoke with the principal.  The principal facilitated a meeting between him and his daughter.  He gave her some small gifts. 

    ·     Count 3 on complaint 11737/18.  On Friday 30 November 2018 the applicant attended the school and spoke to the principal.  His daughter was at the school but there was no suggestion that he saw her during that visit.

    ·     Count 5 on complaint 11737/18.  On Friday 14 December 2018 the applicant went to the school during the lunch period, spoke to the principal, met his daughter, and gave her some small gifts.

    ·     Count 7 on complaint 11737/18.  On that same day at 2.55pm the applicant returned to the school and escorted his daughter to the bus stop with the principal.

    ·     Count 9 on complaint 11737/18.  On that same afternoon, the applicant returned from the bus stop to the school grounds and had a meeting with his daughter's teachers.  His daughter was not at the school.

    ·     Count 2 on complaint 1286/19.  At around 3.25pm on Thursday 7 February 2019, the applicant was seen within 50 metres of the school.  He walked with his daughter to the bus stop. 

    ·     Counts 4 and 5 on complaint 1286/19.  On Friday 8 February 2019 at around 3pm the applicant was seen at a point about 46 metres from the school.  Count 4 alleged that he breached the police family violence order by being within 50 metres of the school.  Count 5 alleged that he breached a condition of his bail by breaching the family violence order.  His daughter had been collected by her mother earlier that afternoon.  She was not at the school at the time.

    ·     Count 7 on complaint 1286/19.  On Tuesday 12 February 2019, which was the day after a public holiday, the applicant went to the school at about 8.10am, spoke to the principal and his daughter's teacher, and crossed paths with his daughter while leaving the premises at about 8.25am. The principal facilitated the meeting between him and his daughter.

11. A quantity of documents were tendered by consent at the hearing in the court below.  They included statutory declarations from the school principal and the children's mother.  It appears that on or before 2018 the child in question became unwilling to spend time with the applicant on alternate weekends in accordance with the parenting orders.  Apart from the first charge, which relates to a Tuesday, all of the charges relate to conduct consistent with the applicant seeing his daughter, or trying to see her, at times when the parenting order provided for her to spend time with him.  Order 9 provided for her to spend time with him from 3pm on alternate Thursdays until 9am on the following Monday, or the Tuesday if the Monday was not a school day.  The charges on complaints 11737/18 and 1286/19 relate to a Thursday afternoon, a series of Fridays, and the Tuesday morning after a long weekend.

12. The learned Chief Magistrate was quite correct in reaching a conclusion to the effect that order 3 of the police family violence order did not operate to prohibit the applicant from being within 50 metres of the children, or contacting them, during the fortnightly periods during school terms commencing at 3pm on Thursdays, as provided for in order 9 of the Federal Circuit Court orders. Counsel for the respondent did not contend otherwise. However, contrary to her Honour's conclusion, I have come 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.

13. 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 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.

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.

16. Furthermore, three of the charges on those complaints related to times during those fortnightly periods when neither of the children was at the school. Order 11 of the police family violence order, when it prohibited the applicant from being within 50 metres of the school, was subject to a qualification expressed in the words "where [the younger daughter] and [the older child] may be present from time to time". At the time to which count 9 on complaint 11737/18 relates, the younger child had caught a bus to go home to her mother, and the applicant returned to the school to speak to some teachers. At the time to which counts 4 and 5 on complaint 1286/19 relate, that child had been collected from the school early by her mother, and the applicant was waiting for her about 46 metres from the school. Regardless of any inconsistency between the police family violence order and the Federal Circuit Court order, those three charges should have been dismissed on the basis that the relevant provision of the police family violence order did not apply when neither of the children was at the school.

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.

18. For these reasons, I have decided to allow the motion to review, quash the applicant's convictions on complaints 11737/18 and 1286/19, dismiss 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.

19. I will hear counsel as to resentencing on complaint 7354/18.