DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant brings this appeal under s 222 of the Justices Act 1886 against his conviction in the Brisbane Magistrates Court on 5 March 2014.  The appellant was convicted after a summary trial under s 177(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (“the DFVP Act”) of contravening a domestic violence protection order made on 27 September 2012 in the Sandgate Magistrates Court.  He was sentenced to a fine of $300 with no conviction recorded.

2. [2]
   This is an appeal against conviction. In his notice of appeal filed on 28 March 2014 the appellant said:

“In the event that this appeal [against conviction] is dismissed, the sentence imposed by the Magistrate is not appealed.”

3. [3]
   Neither party sought to adduce fresh evidence on the appeal. In his oral submissions the appellant said he did not challenge the learned Magistrate’s findings of fact and limited his appeal arguments to issues of law.

4. [4]
   The certificate of readiness signed by both parties identified the relevant issues upon the appeal as follows:

“ivWhether the appellant’s parental responsibility for his daughter was intact under the Family Law Act 1975 (Cth), at the time of the alleged offence.

1. v
   Interpretation and application of the relevant Family Law Act 1975 (Cth) parenting order.

1. vi
   Whether in circumstances of this matter an inconsistency exists between s 177 of the Domestic and Family Violence Protection Act 2012 (Qld) and the exercise of the appellant’s parental responsibility under the Family Law Act 1975 (Cth).

1. vii
   The resolution of any inconsistencies (as per vi) pursuant to s 109 of the Australian Constitution.”

The facts

5. [5]
   It is not in dispute that the appellant on 13 September 2013 entered a Brisbane premises at a time when a Magistrates Court Protection Order (“the Protection Order”) made under the Queensland DFVP Act prohibited him from entering premises at that address.

6. [6]
   The Protection Order made in favour of the former wife of the appellant (“the aggrieved”), relevantly reads as follows:

“(3) Respondent is prohibited from entering or attempting to enter premises or approaching to within 25 metres of the premises where the aggrieved lives or frequents namely [the workplace address of the aggrieved].

The respondent may without contravening this order attend the place of residence to have contact with the children as set out in writing between the parties or in compliance with an order of a Court.”

7. [7]
   The address named in the Protection Order was the workplace office of the aggrieved. Her residential address was in a different suburb. The Protection Order was made by consent and there was evidence the appellant was personally served with a copy in September 2012.

8. [8]
   The appellant and the aggrieved are the parents of two children. Following the breakdown of their marriage, the Family Court of Australia made orders by consent on 12 June 2011 detailing parenting arrangements (“the Parenting Order”). That order provided that the parents have equal shared parenting responsibility for major long-term issues of the children except that daily care, welfare and development of the children when living with or spending time with one parent was made the responsibility of that parent.

9. [9]
   The Parenting Order relevantly provided as follows for the children to have time with each parent:

“Time with the parents

4. (d)
   That the children are to live with, spend time with and/or communicate with the Mother and Father as agreed between the parents and if they fail to agree then as follows:

1. (i)
   each alternative weekend with the father from after school Friday until 2 p.m. Sunday;

2. (ii)
   every Tuesday night with the father from after school until after dinnertime with the father to return the children.

5. (e)
   That otherwise, the children shall live with the mother during the school term.”

10. [10]
    The Parenting Order also provided for collection and delivery of the children by the parents:

“Collection and delivery

2. 11.
   That except as otherwise ordered, the Father and Mother shall collect the children from and return them to school during times that they have the children.

2. 12.
   That if the children are not attending school:

1. (a)
   the children shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the children at the Mother’s residence;

2. (b)
   the children shall be collected by the Mother or her nominee from the Father or his nominee at the commencement of her time with the children at the Father’s residence;”

11. [11]
    The Parenting Order set out a dispute resolution process:

“15.That the process to be used for resolving future disputes about the children or the terms or operation of these orders shall be as follows:

1. (a)
   the parents shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;

2. (b)
   …

3. (c)
   in the event that they are unable to, for any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternative Family Dispute Resolution Practitioner, the Mother shall nominate three practitioners …”

12. [12]
    The evidence before the learned Magistrate was that on the afternoon of 13 September 2013 the appellant entered the workplace office of the aggrieved at the address named in the Protection Order, and asked to see his nine-year-old daughter. The aggrieved testified there was no agreement between her and the appellant for him to attend that address. This happened on a Friday and was one of the alternative weekends when, under the Parenting Order, the children were to reside with the appellant. He had collected his son from school, but his daughter had not attended school that day and was with her mother at the workplace of the aggrieved when he arrived there, having first checked for her at school and at home.

13. [13]
    The appellant did not give evidence at the trial. These facts are not in dispute.

14. [14]
    At the commencement of the trial the prosecution particularised that the breach alleged was attendance by the appellant at the premises named in the Protection Order.

Appeal provisions

15. [15]
    Section 223 of the Justices Act 1886 provides that an appeal under s 222 is by way of rehearing on the evidence, both original and new.  Such an appeal is to be distinguished from an appeal de novo.

16. [16]
    The authorities make it clear that on an appeal by way of rehearing in accordance with s 223 a Judge is required to conduct a real review of the evidence, drawing his or her own inferences and conclusions, while giving due respect to the decision of the Magistrate and bearing in mind any advantage the Magistrate may have had in seeing and hearing the witnesses give evidence.^[1]

17. [17]
    This approach is in accordance with the decision of the High Court in Fox v Percy:

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”^[2]

18. [18]
    These principles are accepted and I now proceed to consider the matter on that basis.

The appellant’s submissions

19. [19]
    The appellant submitted that at the relevant time he had parental responsibility for his nine-year-old daughter in accordance with s 61C(1) of the Family Law Act 1975 (Cth) (“the FL Act”).  He acknowledged that this parental responsibility is subject to variation by a Family Court order but argued that the Parenting Order affirmed his parental responsibility for his daughter at the relevant time. 

20. [20]
    In a logical and carefully prepared submission, the appellant argued that the State Protection Order could not limit the operation of the FL Act and the Parenting Order in particular. He urged the Court to reject the prosecution’s submission that the Parenting Order limited the location from which he may collect the children to the school or the residence of the aggrieved. The appellant submitted that inconsistency between the Parenting Order and the Protection Order must be resolved in favour of the Family Court Order under s 109 of the Australian Constitution. 

The respondent’s submission

21. [21]
    The respondent submitted that the Family Law Act did not intend to cover the field and the appellant must identify a direct inconsistency to avoid the operation of the DFVP Act.  It was argued that the Parenting Order did not provide for collection of the children other than as was specifically specified and collection from the ward office was not so specified.  Accordingly it was submitted there was no inconsistency and the Queensland order placed a valid requirement upon the appellant. 

The issues

22. [22]
    It is not disputed by the respondent that to the extent there is inconsistency between the terms of the Parenting Order and the Protection Order, the former will prevail due to the operation of s 109 of the Australian Constitution. 

23. [23]
    Furthermore both parties acknowledge that the Family Law Act by virtue of Part VII Division 11 recognises State family violence Acts and provides mechanisms for dealing with inconsistencies between State Family Violence Orders and Family Court Parenting Orders. 

24. [24]
    It follows that the true issue arising in this case is whether direct inconsistency exists between the Parenting Order and the State Protection Order prohibition upon the appellant attending the workplace of the aggrieved. Resolution of this issue turns on the construction to be given to the terms of the Parenting Order.

Notices under the Judiciary Act

25. [25]
    On 5 September 2014 I made an interlocutory determination that notices be given to the Attorneys-General of the Commonwealth, States and Territories under s 78B of the Judiciary Act 1903 (Cth).

26. [26]
    That order was made because I concluded, as explained in my reasons of 5 September 2014, that a matter involving the interpretation of s 109 of the Constitution had arisen in this case.

27. [27]
    The Attorneys-General of the Commonwealth, and all the States and Territories have now responded to the notices advising they do not wish to intervene in these District Court proceedings.

Inconsistency

28. [28]
    Section 109 of the Australian Constitution provides that when a State law is inconsistent with a Commonwealth law, the latter will prevail and the former shall, to the extent of the inconsistency, be invalid.

29. [29]
    The High Court in P v P^[3] held a provision of the New South Wales Guardianship Act which required judicial consent before major medical treatment may be performed on a child was inconsistent with a Family Court Order authorising a medical procedure to render a child infertile.

30. [30]
    The High Court held in Jemena Asset Management (3) Pty Ltd v Coinvest Ltd that:

“The expressions ‘a law of the State’ and ‘a law of the Commonwealth’ in s 109 are sufficiently general for s 109 to be capable of applying to inconsistencies which involve not only a statute or provisions in a statute, but also, as mentioned, an industrial order or award, or other legislative instrument or regulation, made under a statute.”^[4]

31. [31]
    It follows that in the case of direct inconsistency between a Family Court order and an order made under the DFVP Act, the Commonwealth order will prevail and the DFVP Act order will be invalid to the extent of that inconsistency.

32. [32]
    In my view this is not a case where it could be realistically argued that the Commonwealth law was intended to cover the field so as to render the State law wholly invalid. Part VII Division 11 of the FL Act acknowledges the existence of State domestic violence legislation and provides mechanisms to deal with inconsistencies between orders made under Commonwealth and State laws. Section 68N provides:

“The purposes of this Division are:

1. (a)
   to resolve inconsistencies between:

1. (i)
   family violence orders; and

2. (ii)
   certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and

1. (aa)
   to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and

2. (b)
   to achieve the objects and principles in section 60B.”

33. [33]
    The term “family violence order” is defined in s 4 as:

“… an order … made under a prescribed law of a State or Territory to protect a person from family violence.”

34. [34]
    The DFVP Act is a prescribed law within the meaning of this definition.^[5] 

35. [35]
    Division 11 places notification obligations on a Family Court that makes a Parenting Order which is inconsistent with an existing family violence order.^[6]  In that circumstance the inconsistent family violence order is invalid.^[7]  Furthermore, a prescribed State or Territory Court when making a family violence order may, subject to certain conditions, revise, vary, discharge or suspend an existing Parenting Order.^[8]

36. [36]
    It is apparent from these provisions that the Commonwealth Act is not intended to be an exhaustive or exclusive law in respect to the making of domestic violence protection orders. In this regard Division 11 is legislation of the type referred to by Mason J in the following passage from R v Credit Tribunal; ex parte General Motors Acceptance Corporation:

“… a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.”^[9]

37. [37]
    Direct inconsistency potentially arising between Parenting Orders and Protection Orders may be resolved through the mechanisms provided in Division 11, but where direct inconsistency otherwise arises the Family Court orders will prevail.

38. [38]
    The Magistrate in this case did not move to vary the existing parenting order under s 68R; accordingly it is necessary to look to the orders affecting the conduct of the appellant and the aggrieved and the provisions under which those orders were made in order to discern whether a “real conflict”^[10] exists.  The extent of any inconsistency “depends on the text and operation of the respective laws”.^[11]

Family Law Act provisions

39. [39]
    The FL Act provides that each of the parents of a child have parental responsibility “subject to any order of a court for the time being in force”^[12].  The term “parental responsibility” is defined in s 61B.  The Full Court of the Family Court considered its meaning in Re: B and B: Family Law Reform Act 1995:

“9.23  Section 61B defines the term ‘parental responsibility’ in relation to a child to mean:-

‘all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.’

1. 9.24
   This definition provides little guidance, relying as it does on the common law and relevant statutes to give it content. It would appear to at least cover guardianship and custody under the previous Part VII and may be wider. The Attorney-General submitted that it was probably wider than that and covered ‘all of the underlying and continuing common law and statutory law that affects the relationship of parents and their children’.

1. 9.25
   It omits any reference to rights. Whilst this omission is understandable, given the philosophy of the amendments, it is doubtful whether that achieves any practical effect other than to make it clear that there are no possessory rights to children, insofar as this could be said to have been the case prior to the amendments.

1. 9.26
   Read in conjunction with s. 60B(2)(c) the emphasis is on the continuance of responsibility independently of the status of the parental relationship. Section 61D(2) provides that a parenting order does not take away or diminish any aspect of parental responsibility except to the extent expressly provided for in the order or necessary to give effect to the order.”^[13]

40. [40]
    It follows that the definition of “parental responsibility” adopts the position applying at common law in respect of a parent. At common law the rights and powers of a parent as against their child would not have entitled them to contravene the criminal law.

41. [41]
    The FL Act provides that parental responsibility has effect subject to any order made by the Family Court.^[14]

42. [42]
    The Family Court has power under the Act to make parenting orders providing for a child to spend time with each of his or her parents. Section 61D:

“(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.

3. (2)
   A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):

1. (a)
   expressly provided for in the order; or

2. (b)
   necessary to give effect to the order.”^[15]

43. [43]
    While ordinarily the exercise of parental responsibility could not justify a breach of State criminal law, the position may change where a parenting order has enhanced parental entitlement. In those circumstances a parenting order may prevail over a State law creating a specific criminal sanction.

44. [44]
    In the High Court decision of P v P the plurality observed:

“A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done. …

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 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 jurisdiction or powers which overlap or compete with the jurisdiction conferred by the Commonwealth law.”^[16]

45. [45]
    The latter situation applies here. The criminal sanction imposed on the appellant was imposed as part of a statutory scheme directed to enforcing orders designed to reduce domestic violence. Accordingly no presumption arises in favour of the criminal sanction enacted under the State DFVP Act. Where an inconsistency arises between that Act and the Commonwealth Family Law Act the latter will prevail. 

Do the orders conflict?

46. [46]
    On the fact situation arising in this case, the answer to the question posed above is to be found in the construction to be given to the Parenting Order made by the Family Court. The Parenting Order is a carefully drafted document of eight pages in length. It provides detailed directions in respect of various topics affecting the responsibilities of the parents. Underlying the terms of the document is an assumption there will be a complete severance of the financial and physical interdependence of the parents, save for their shared responsibilities towards the children.

47. [47]
    Under the heading “Time with the parents” the Parenting Order provided for the children during school term to spend each alternative weekend with the father “from after school Friday until 2 p.m. Sunday”.

48. [48]
    The Parenting Order also specified the arrangements for collection and delivery of the children. Ordinarily the children were to be collected from the school. However, clause 12 of the Order provided:

“12. That if the children are not attending school:

1. (a)
   the children shall be collected by the Father or his nominee from the Mother or her nominee at the commencement of his time with the children at the Mother’s residence;”

49. [49]
    The appellant submits that provision for collection of the children in these clauses did not limit the father from taking alternative steps if the child was not at the residence. He argues that the effect of clause 12 “was to establish a threshold of responsibility for collecting the children before a party could complain of a breach of the parenting order, not limiting where the children could be collected”.^[17]

50. [50]
    The respondent placed reliance on the use of the term “shall” in clause 12 and argued that the provision is mandatory and the FL Act did not empower the appellant to collect the children other than by agreement of the parents or at their residence.

51. [51]
    In my view this clause must be construed in the context of the Parenting Order read as a whole. The Order defines the respective entitlements and obligations of the parents with a degree of particularity. It is commonplace for orders for a parent to spend time with a child to provide conditions for how that may be exercised. For example, orders may require the child to be collected from and returned to a specified neutral location. Conditions of this type benefit the child by minimising potential for conflict to arise between the parents.

52. [52]
    In my view the conferral of parental responsibility on the father under clause 7(d)(i) was made conditional upon the children being collected in accordance with the requirements of clause 12(a).^[18]

53. [53]
    The appellant submitted that this conclusion would give rise to an absurd result, namely that the father would not be able to exercise his entitlement to time with the child if the mother made it impossible to collect the child from the school or residence. That frustration might arise in such a circumstance is understandable. However, the order provided options for resolving such an impasse.

54. [54]
    The order provided for the parents to make alternative arrangements by agreement. Otherwise, in the event of default by a parent, the order specified in clause 15 a “process to be used for resolving future disputes about … the terms or operation of [the] orders”. Failing that, a further application could be made to the Court.

The Queensland order

55. [55]
    The Magistrates Court order was made subsequent to the Parenting Order and its terms demonstrate an awareness of that order.

56. [56]
    The prohibitions in the order are limited to the workplaces of the mother. The Protection Order specifically authorised attendance at the residence to have contact with the children in compliance with a Court order. It follows that the Protection Order does not conflict with the terms of the Parenting Order as properly construed.

Conclusion

57. [57]
    I find no inconsistency arises as between the Queensland Protection Order and the Family Court Parenting Order. Accordingly, a breach of the Protection Order was capable of constituting a valid offence under the criminal law of Queensland. The appeal against conviction must fail. 

Order

58. [58]
    The appeal is dismissed.

59. [59]
    No order as to costs.