Condition 20B
66This condition provides:
The defendant must not contact or communicate by any means (directly or indirectly), or attempt to contact or communicate by any means (directly or indirectly) with any near relative of the victim of the index offence who is under the age of 16 years, unless such contact or communication is permitted by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth).
67The condition sought at an earlier time by the State was this:
Without limiting condition 19 above [a condition preventing the Defendant from associating with any persons specified by the departmental supervising officer), the Defendant must not contact or communicate by any means (directly or indirectly) with, or attempt to contact or communicate by any means (directly or indirectly), with any near relative of the victim of the index offence.
68Argument at the hearing was directed to the earlier form of this condition. What is contained in [66] above was put forward only when the matter came back for further argument on the day immediately preceding the day on which the final orders were required to be made. At the hearing the State submitted that the purpose of the condition was to prevent contact with the Defendant's two sons to his former partner Megan Perry. At the time of further argument the State submitted that the condition was also designed to prevent the Defendant having contact with the underage children of the victim's sisters.
69The Defendant submitted that the prohibition contained in this condition should not extend to prevent him from having contact with his sons XYZ and ABC and their mother Megan Perry. It appears that XYZ and ABC are aged seven and eight years respectively. They were born to the Defendant and Megan Perry. The victim from the index offences was a child of Megan Perry from a prior relationship. It is not clear when the Defendant last had contact with his sons but Dr O'Dea reported that at the time he saw the Defendant, the Defendant had no current contact with his sons. It seems likely that he has not seen his sons since he was incarcerated in November 2007.
70Nor is it clear when he last had contact with Megan Perry. The Defendant told Dr Ellis that he did not know the whereabouts of the boys as they had been in the custody of their mother or with the Department of Community Services. In fact an order to that effect was made by the Children's Court at Cooma on 31 March 2009 varying earlier orders made on 23 August 2006 and 21 February 2007.
71The Defendant submitted, not only that this order if made should exclude any reference to his sons, but also that s 11(g) of the Act, which specifically enables the making of a condition that prevents an offender from associating or making contact with specified persons, was invalid as being inconsistent with the Family Law Act 1975 (Cth) at least insofar as it could be used to prevent an offender from having contact with his or her children.
72There was some debate about this issue at the hearing and the question of the issue of Notices under s 78B Judiciary Act 1903 (Cth) was raised by me and discussed with counsel. By reason of the need for any order to be made by 9 March (therefore, effectively 7 March because 9 March was a Sunday) I said this during the hearing:
Mr Scragg, my prima facie view is that the Act is not inconsistent, but there may be limitations on conditions that can be imposed under the Act. I do not think, at the moment, that it is a matter that I should adjourn proceedings to issue notices to the Attorneys General. I will hear anything further you want to say when we are dealing with this condition later on about it. I will give consideration to the 78B point in my final judgment. If I form the view at that stage that notice should be given, I will notify the parties and I will not issue a final judgment and I will bring them back. But I just don't think it is something I should now decide on the run when there are these time issues involved.
73Notwithstanding, and without any reference to me, the Crown Solicitor issued s 78B notices to all the Attorneys-General in the Commonwealth. This created a serious timing problem because of the duty on the Court not to proceed in the cause until a reasonable time had elapsed since the giving of the notices (s 78B(1)).
74I was advised on 6 March that responses had been received from all of the Attorneys indicating that they did not wish to be heard on the point. I was also advised that the parties had agreed on modifications to the proposed conditions that were said to overcome the constitutional problem. This also involved the Defendant withdrawing submissions asserting a conflict between the Family Law Act and the C(HRO) Act.
75However, the problem raised cannot be solved in that way. The jurisdiction of the Court under the Act is not one that can be established or satisfied by consent between the State and a defendant either as to the making of an order or as to the conditions that are imposed. Section 11 requires the Court to consider the conditions "appropriate". A lack of opposition to any given condition may make it easier for the Court to find it appropriate but that will not necessarily be so. Further, when a constitutional issue is raised the Court must satisfy itself that any condition imposed does not conflict with any federal Law. This necessitated further argument on the issue on 6 March.
76The delay occasioned by the issue of the s 78B Notices meant that orders had to be made on 7 March with reasons to follow.
77The Defendant submitted that Part VII Family Law Act deals with children. In particular Division 2 of the Part provides for parental responsibility. S 61F provides:
In:
(a) applying this Part to the circumstances of an Aboriginal or
Torres Strait Islander child; or
(b) identifying a person or persons who have exercised, or who may exercise, parental responsibility for such a child;
the court must have regard to any kinship obligations, and child-rearing practices, of the child's Aboriginal or Torres Strait Islander culture.
I note in passing that there was no evidence in these proceedings about kinship obligations or child-rearing practices of the children's Aboriginal culture. The relevance of the Defendant's reliance on this section was, therefore, obscure.
78The Defendant pointed also to Subdivision D of Division 8 of Part VII which provides for circumstances where allegations of child abuse and family violence arise. The Defendant' argument appeared to be, by analogy with what was decided in Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55, that s 11(g) of the C(HRO) Act cannot operate concurrently with the aforementioned provisions of the Family Law Act. The Defendant drew attention to s 68N Family Law Act and what is provided for in the definitions of family violence order and family violence in ss 4 and 4AB respectively. The Defendant pointed out that the C(HRO) Act is not a prescribed State Act under the Family Law Regulations for the purposes of the regime in Division 11 of Part VII of that Act.
79The State argued that there is no inconsistency arising from any intention of the Family Law Act to cover the field that the C(HRO) Act is concerned with relevant to s 11(g). Further, the State argued that there is no direct inconsistency between the State and Commonwealth laws. At best there might be operational inconsistency if an order was made under Part VII Family Law Act that was otherwise incapable of performance by reason of the condition imposed pursuant to s 11(g). However, that is not the case here because no order had been made under Part VII.
80In my opinion the State's arguments should be accepted. In P v P [1994] HCA 20; (1994) 181 CLR 583 the joint judgment said:
19. 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. 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.
20. Quite apart from any question of constitutional power, the reason why a law conferring jurisdiction in general terms is to be construed in the manner indicated is that it is ordinarily to be presumed that it is the intent of the Parliament that jurisdiction conferred in general terms will be exercised in the context of, and within the confines imposed by, the ordinary criminal law of the relevant State or Territory. That approach to construction is prima facie applicable to the provisions of the Family Law Act conferring welfare jurisdiction with respect to children of a marriage upon the Family Court.
21. 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. 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. If, in such a case, the terms and operation of the Commonwealth law disclose a legislative intent to cover the relevant field, s.109 of the Constitution will apply to render invalid the State or Territory law to the extent that it intrudes within the area validly occupied by the Commonwealth law. If the terms and operation of the Commonwealth law disclose no such legislative intent, the existence and extent of inconsistency between the Commonwealth and the State or Territory laws will depend upon the terms and operation of each. Commonly, when that is so, the State or Territory law will be inconsistent with the Commonwealth law and invalid pursuant to s.109 of the Constitution to, but only to, the extent that it would "alter, impair or detract from" (Victoria v. The Commonwealth ("the Kakariki")) the Commonwealth
law's conferral of jurisdiction by directly or indirectly precluding, overriding or rendering ineffective an actual exercise of that jurisdiction. The practical effect of that pro tanto invalidity of the State or Territory law is that orders made in the exercise of the Commonwealth jurisdiction will prevail over the provisions of the State or Territory law or orders made or acts done in the exercise of power or authority which the State or Territory law purportedly confers. (citations omitted)
81The Court of Appeal in Western Australia in Dunne v P [2004] WASCA 239; (2004) 29 WAR 232 noted that the Bail Act 1982 (WA) was not a prescribed law of the state for the purposes of the definition of "family violence order" in the Family Law Act. The Court held that P v P was distinguishable because the prohibition in the Bail Act which made it an offence to breach a condition imposed on a defendant's bail was imposed as part of the general criminal law. The condition in that case was one which prevented the defendant from contacting his wife in any way. An order had earlier been made by a Court of Petty Sessions under the Family Law Act preventing the parties to the marriage from telephoning one another "save and except in the case of an emergency or matters affecting the welfare of the children". It was held that the bail condition was not invalid or inoperative.
82In AA v BB [2013] VSC 120 Bell J held that there was no inconsistency between the Family Law Act and the Family Violence Protection Act 2008 (Vic). His Honour held at [105] that the Family Law Act did not intend to exclude State law with respect to family violence. Similarly, Marshall J held in Juries Against Illegal Laws Incorporated v The State of Tasmania [2010] FCA 578 that the Family Violence Act 2004 (Tas) was not invalid as being inconsistent with the Family Law Act.
83I do not consider that there is indirect or "cover the field" inconsistency (see Victoria v The Commonwealth (1937) 58 CLR 618) between the Family Law Act and s 11(g) C(HRO) Act. Part VII of the Family Law Act assumes the existence of State laws in relation to such matters. Nor is there direct inconsistency because it is not necessarily the case that orders under each Act will be incapable of performance together. However, it may be the case that at some point operational inconsistency will arise. Sections 68P and 68Q Family Law Act contemplate such inconsistency and provide for it.
84Provided that the condition imposed under the C(HRO) Act does not preclude the Defendant being able to apply under the Family Law Act, there is no present inconsistency between the two Acts. If the court having jurisdiction under the Family Law Act makes an order enabling contact with the Defendant's sons operational inconsistency may arise. As the State submits, there is no conflicting order at the present time.
85If the condition does not preclude the right to apply under the Family Law Act, the ESO will not be removing any rights of the Defendant, contrary to the Defendant's submission.
86An affidavit was read on behalf of the State which annexed a statement by the victim of the index offences pursuant to s 21A of the Act. The affidavit also annexed a statement from the victim's mother who was the former partner of the Defendant. There was no objection to this statement although its status and relevance must be doubtful. The statement said this:
I, Megan Perry, mother of [XYZ] and [ABC] wish that an AVO be taken, on our behalf, against Edward Cruz (sic). I as the parent also do not want him to have access to either of his children. I have no desire for him to know of the whereabouts of myself or the two boys. Further, I do not want him to know of their educational facilities or any personal; information.
87Whilst I understand Ms Perry's perspective, the issue of contact with the Defendant's sons cannot be based on Ms Perry's views about the matter. This Court is not the appropriate place for the determination of the rights of parents to have contact with their children except insofar as the C(HRO) Act requires the imposition of a condition on an ESO based on the risks that must be considered from the evidence adduced on an application such as the present one. Nor is it appropriate for this Court to impose a condition that would prevent the Defendant from applying to the Family Court or other court given jurisdiction under the Family Law Act if he chooses to do so. Such a condition may well be struck down under s 109 of the Constitution.
88Further, it is always open to a Defendant to make application to this Court under s 13 to vary or revoke an ESO which would include varying or revoking a condition imposed. If the Defendant wished to make contact with his sons it would always be open to him, if the Family Court was minded to accede to any such application, to apply to this Court also with evidence to have the condition varied or removed.
89The purpose of the conditions of the ESO is not to punish the Defendant but to protect those who might be potential victims.
90The Defendant has said to a number or doctors and psychologists that he is entirely heterosexual and has no homosexual inclinations. Nevertheless one of the victims of his offending was a three year old boy. As noted, the offence was committed when the Defendant said that he was very drunk and had in fact entered the wrong flat where the child was sleeping. He told Dr O'Dea:
I think it happened because I was insecure ... lonely ... and sexually inadequate ... I wasn't normal ... I'd just got out of a bad marriage.
91In the light of Ms Sutton's opinion that re-offending was most likely to occur while the Defendant was intoxicated with the offence being spontaneous and the psychiatrist similarly being of the view that the combination of a deviant sex drive expressed impulsively when disinhibited by alcohol and cannabis, I consider that there is an unacceptable risk that the Defendant may commit a serious sex offence involving the boys. I note that there was no restraint on his actions despite the fact that the victim of the index offences was his step-daughter and the offence took place in the home.
92On the other hand, I can see no basis upon which it is appropriate to restrict the Defendant from having contact with Megan Perry if he wishes to do so. If, as appears, she does not wish him to contact her she is in a position to say so to him and, if necessary, in appropriate circumstances, obtain an Apprehended Violence Order if that is what she fears. She is not a victim under this Act and her statement cannot provide a proper basis for so restricting the Defendant.
93Nor, in the circumstances where the Defendant has no desire to make contact with the victim's sisters' daughters, is there any basis for this particular condition including other than the Defendant's sons. These other children are sufficiently protected by other conditions such as 19 and 25.
94For the reasons given earlier the condition in should be varied to provide:
The defendant must not contact or communicate by any means (directly or indirectly), or attempt to contact or communicate by any means (directly or indirectly) with his two sons to his former partner Megan Perry unless such contact or communication is permitted by order of a court exercising jurisdiction under the Family Law Act 1975 (Cth). This condition does not prevent or restrict the Defendant making application to the Family Court of Australia or any other court having jurisdiction under the Family Law Act in respect of his sons.