Independent Children’s Lawyer and Lucie and Ors

[2014] FamCA 580

FAMILY COURT OF AUSTRALIA

INDEPENDENT CHILDREN’S LAWYER & LUCIE & ORS [2014] FamCA 580

FAMILY COURT – ENFORCEMENT OF ORDERS – Warrant for Arrest – Where the First Respondent has failed to comply with orders – Where the First Respondent has withheld the child and a recovery order has been issued – Where the First Respondent failed to appear following an Order issuing that he attend the Registry of this Court with the child – Where the Applicant requests that a warrant for arrest of the First Respondent be issued.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Independent Children’s Lawyer

FIRST RESPONDENT: Mr Lucie

SECOND RESPONDENT: Ms Neville

FIRST INTERVENOR: Ms C Lucie

SECOND INTERVENOR: Ms D

FILE NUMBER: BRC 12342 of 2007

DATE DELIVERED: 28 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 28 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: M + K Lawyers

FOR THE FIRST RESPONDENT: By telephone (not legally represented)

SOLICITOR FOR THE SECOND RESPONDENT: Appleton Krebs Lawyers

FOR THE FIRST INTERVENER: No appearance

FOR THE SECOND INTERVENER: In person

Orders

It is ordered that

1. Pursuant to Rule 21.16 of the Family Law Rules 2004, a warrant shall issue to the Marshal and to all officers of the Australian Federal Police and of all State and Territory police forces for the arrest of Mr Lucie (also known as Mr B) (male) born … 1973.

2. The Marshal, all officers of the Australian Federal Police and of all State and Territory police forces are ordered to arrest Mr Lucie (also known as Mr B) (male) born … 1973 and to bring him before this Court, or any other court exercising jurisdiction under the Family Law Act 1975 (Cth) on the first day on which the Court next sits after the person’s arrest, or as soon as practicable after that date.

3. The Warrant remains in force for a period of twelve (12) months.

IT IS NOTED that publication of this judgment by this Court under the pseudonym ICL & Lucie and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 12342 of 2007

Independent Children’s Lawyer

Applicant

And

Mr Lucie and Ms Neville

Respondents

And

Ms C Lucie and Ms D
Interveners

REASONS FOR JUDGMENT

1. This is the Application by the Independent Children’s Lawyer, (“the ICL”) for enforcement of Orders that have been made by this Court by means of the issue of a warrant for the arrest of the Respondent Father, Mr Lucie (“the Father”) (also known as Mr B).

2. The substantive proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concern the child, E born in 2006 who is now 7 years of age (“the child”). The parties to those proceedings are the Mother, Ms Neville as Applicant (“the Mother”), the Father as Respondent and Ms C Lucie (paternal aunt) and Ms D (maternal grandmother) as the interveners; and the ICL appointed to independently represent the child’s interests in the proceedings.

3. These parenting proceedings have a long and protracted history before this Court and previously before the now Federal Circuit Court dating as far back as 2007. On 28 November 2012 Forrest J made final parenting orders by consent which included orders for the parents to have equal shared responsibility, for the child to live with the Mother and spend time with the Father. However, the proceedings were reinstituted just one year later on 19 November 2013 by way of the Mother’s Application in a Case filed in the Federal Circuit Court.

4. Following an interim hearing on 20 December 2013, interim parenting orders were made by Judge Cassidy which provided, inter alia, for the child to live with the maternal grandmother Ms D, and spend time with the Father and the paternal aunt Ms C Lucie, each alternate week from after school Thursday to before school Tuesday and spend supervised time with the Mother for a period of 2 hours each alternate Saturday. Judge Cassidy also ordered that the proceedings be transferred to this Court with a request that the proceedings be considered for inclusion in the Magellan List.

5. On 6 March 2014, because the Father had at that time retained the child in breach of the order, a recovery order was issued by Registrar Spink authorising the Australian Federal Police to remove the child from the care of the Father and Ms Lucie and deliver her to the care of Ms D. The recovery order was executed that same day however the child could not be located. On 4 April 2014 Forrest J suspended the child’s time with the Father as provided for in order 4 of the interim orders dated 20 December 2013.

6. On 12 June 2014 the ICL filed an Application in a Case and supporting affidavit seeking, inter alia, a publication order and that a warrant be issued for the arrest of the Father. That Application was heard by Tree J on 16 June 2014 in the absence of the Father. On that occasion Tree J made various orders including an order that the Father deliver the child to the Brisbane Registry of this Court at 9.00 am on 23 June 2014 and that the ICL’s application for issue of an arrest warrant be adjourned to a date to be fixed not before 23 June 2014. In addition, a publication order was made along with orders relating to dispensation of service upon the Father. A notation appears on those orders which states:

   That the Application for the issue of an arrest warrant for the Father be adjourned to a date to be fixed not before 23 June 2014 and in the event the Father fails to appear or deliver the child in accordance with this Order the Court may issue a warrant for his arrest.

7. The application for the issue of a warrant was listed to 9.30 am today. The Father participated in the hearing by telephone.

8. Rule 21.16 of the Family Law Rules 2004 (Cth) (“the Rules”) contains the provision for an application for a warrant to be issued for the arrest of a respondent with respect to enforcement of parenting orders. Relevantly for present purposes, pursuant to Rule 21.16(1)(b) a party may apply, without notice, for a warrant to be issued for the arrest of a respondent if the respondent does not attend at court on the date fixed for attendance. As earlier noted, on 16 June 2014 Tree J ordered that the Father deliver the child to the Brisbane Registry of this Court at 9.00 am on 23 June 2014.

9. Plainly enough, the Father did not attend Court to deliver the child on 23 June 2014, being the date fixed for attendance within the meaning of Rule 21.16(1) of the Rules. Rule 21.17 permits a warrant to be executed by a member of the Australian Federal Police, a member of the police service of a state or territory, the Marshal of the Court or any other person appointed by the Court to enforce the warrant.

10. The hearing today is in respect of the application for the issue of a warrant. The Father seeks to appear by telephone. He repeatedly asserted, in answer to the Court’s question as to whether he intended to appear in this Registry and deliver the child to his Registry, to the effect that he would not do so.

11. In the circumstances I am satisfied that the orders of the Court must be enforced. I order that a warrant be issued authorising a member of the Australian Federal Police or a member of the police service of Queensland to proceed to enforce the warrant under its terms.

12. Rule 21.19 of the Rules sets out the procedure after a person’s arrest. It provides that a Court issuing a warrant for a person’s arrest may order that the person arrested:

    (a)      be held in custody until the hearing of the case; or

    (b)be released from custody on compliance with a condition, including a condition that the person enter into a bond.

13. Pursuant to Rule 21.19(2) of the Rules obliges a person who arrests another person under a warrant to do certain things, and those things include arranging for the person to be brought to the Court and to take all reasonable steps to have that person brought to the Court and be advised about the arrest in the Court and the Court processes.

14. I note also that under Rule 21.20 of the Rules, the person arrested may apply for the warrant to be set aside and may apply to be released from custody. It seems to me that the onus now falls to the Father if he seeks his release from custody if arrested pursuant to this warrant, for him to carry the onus on being released from custody.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 28 July 2014.

Associate:

Date: 28 July 2014