Marshal of Family Court of Australia and Peyton

[2008] FamCA 914

FAMILY COURT OF AUSTRALIA

MARSHAL OF FAMILY COURT OF AUSTRALIA & PEYTON [2008] FamCA 914

FAMILY LAW – ENFORCEMENT OF ORDERS – WARRANTS – where warrant of commitment had expired without being executed – fresh warrant of commitment issued

Family Law Act 1975 (Cth) ss 38P, 65Q(2), 112AN(1)
Family Law Rules 2004 (Cth) r 21.03
Family Law Rules 1984 (Cth) Order 34, Division 2, rule 6(3) and rule 8

APPLICANT: MARSHAL, FAMILY COURT OF AUSTRALIA

HUSBAND: MR PEYTON

WIFE: MS PEYTON

FILE NUMBER: MLF 8602 of 1997

DATE DELIVERED: 9 October 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bryant CJ

HEARING DATE: 9 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

1. The Court directs the Marshal to make application for the issue of a Warrant of Commitment as incidental to the orders made by Brown J on 5 April 2002.

THAT UPON the oral application of the Marshal of the Family Court of Australia MADE UPON an ex parte basis; AND UPON being satisfied that the Warrant of Commitment dated 5 April 2002 and the Warrant of Commitment dated 14 July 2003 have not been executed; AND UPON being further satisfied that the term of imprisonment ordered by Brown J on 5 April 2002 has not been served by the husband it is ordered:

1. That a further Warrant of Commitment do issue and that the Warrant have attached to it the Orders made by Brown J on 5 April 2002 together with this Order.

2. That the Warrant of Commitment issued this day remain in force until such time as it is executed.  

IT IS DIRECTED that the preparation of these Orders be expedited forthwith. 

IT IS NOTED that publication of this judgment under the pseudonym Peyton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 8602 of 1997

MARSHAL, FAMILY COURT OF AUSTRALIA

Applicant

and

MR PEYTON

Husband

and

MS PEYTON
Wife

REASONS FOR JUDGMENT  

1. The application before me is brought by the Marshal of the Family Court. The Marshal is an officer of the Court, appointed pursuant to s 38N(1)(e) of the Family Law Act 1975 (Cth) (“the Act”), and has the powers described in s 38P of the Act, which are as follows:

   (1)The Marshal of the Court is responsible for the service and execution of all process of the Court directed to the Marshal.

   (2)      The Marshal is also responsible for:

   (a)dealing, on behalf of the Court, with the Australian Federal Police and the police forces of the States and Territories in relation to the service and execution of process of the Court directed to members of any of those police forces; and

   (b)the security of the Court and the personal security of the Judges and officers of the Court; and

   (c)taking, receiving and detaining all persons committed to his or her custody by the Court; and

   (d)discharging such persons when so directed by the Court or otherwise required by law.

2. In addition, the Family Law Rules 2004 (Cth) provide that the Court may direct the Marshal to make or continue an application for enforcement of parenting orders, contravention of orders and contempt of court. While I consider that the Marshal has the standing to make this application pursuant to his statutory powers, I have, to avoid any doubt, directed the Marshal to make application pursuant to Rule 21.03 of the Family Law Rules 2004.

3. The purpose of the application is to obtain a current Warrant of Commitment to commit to prison Mr Peyton, the husband, who was sentenced by Brown J on 5 April 2002, upon the Court having found that he had contravened primary orders of the Family Court made on 16 November 1999.

4. The Court found that the husband had contravened the said orders in that he:

   (a) failed to return the children of the marriage to the wife at 5.30 pm on 26 January 2002, and

   (b) breached paragraph 2 of the primary orders, pursuant to which the wife has sole responsibility for the education of the children. 

5. Brown J ordered:

   (1) That in respect of the first contravention found proven (the failure to return the said children [the children of the marriage, to be returned to the wife] at 5.30 pm on 26 January 2002) the husband is sentenced to four (4) month’s imprisonment.

   (2)That in respect of the second contravention found proven, in (breach of the order pursuant to which the wife has sole responsibility for the said children's education) the respondent is sentenced to one (1) month's imprisonment, such sentence to be served concurrently with the sentence imposed in respect of the first contravention pursuant to paragraph (1) hereof. 

6. Thus, the husband was required to serve a sentence of four months imprisonment.  A Warrant of Commitment was issued on 5 April 2002, directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of all the States and Territories of the Commonwealth of Australia to take the husband and convey him to the Melbourne Assessment Prison in the State of Victoria, and to deliver him to the Governor of the Melbourne Assessment Prison in the State of Victoria, together with the Warrant.

7. Further, the Warrant directed the Correctional Services Commissioner for the State of Victoria and the Governor of the Melbourne Assessment Prison in the State of Victoria to receive the husband into their custody and keep him in accordance with the order, a copy of which was attached to the Warrant.

8. Despite the issue of the Warrant, the husband could not be located and was not taken into custody pursuant to the Warrant.  Thus, he has not yet served the sentence ordered by Brown J.

9. On 14 July 2003, Guest J dealt with an application filed by the wife seeking that a further Warrant of Commitment be issued.  In brief Reasons for Judgment given on that day, Guest J noted the warrant had not been executed and said:

   By s 65Q(2) of the Family Law Act 1975, as amended, it is provided pursuant to sub-section (3) that a warrant ceases to be in force after a period of six months.  This warrant has accordingly expired.

   His Honour found it appropriate in the circumstances, given the husband was still at large, to issue a new warrant, and did so.  He ordered that the warrant be issued and maintained for a further six months. 

10. Section 65Q(2) of the Act referred to by his Honour, however, is not a section which deals with Warrants of Commitment. It is a section dealing with a warrant of arrest of an alleged offender, to enable that person to be brought before the court where there are reasonable grounds for believing that a person has contravened various sections of the Act. It is not a section that relates to Warrants of Commitment following the conviction and sentencing of a person.

11. Be that as it may, the original Warrant of Commitment issued by Brown J was issued pursuant to the Family Law Rules 1984, Order 34, Division 2, rule 6(3), which provided that a warrant that authorises a person to be committed to prison must be in accordance with Form 53. Rule 8 provided that unless the Court otherwise orders, a warrant (except a warrant issued under section 65Q(2) of the Act) ceases to be in force 12 months after it is issued. Hence, pursuant to that rule, the original warrant of commitment expired on 6 April 2003. The subsequent warrant issued by Guest J expired, according to his Honour's reasons, on 15 January 2004. Thus, there is no current Warrant of Commitment extant.

12. The Marshal of the Court has indicated that information has been received and the whereabouts of the husband have become known.  The Marshal is therefore desirous of taking the husband into custody by arranging for his being committed to prison in accordance with the orders of Brown J.  As it appears to me there is a requirement for a fresh Warrant of Commitment to be issued,
    I have directed the Marshal to make application for a Warrant of Commitment pursuant to rule 21.03 of the Family Law Rules, and the application having been made I have made that order.

13. For completeness, I note that a Notice of Appeal against the orders of Brown J made on 5 April 2002 was filed on 12 April 2002, being appeal number
    SA 30 of 2002. The appeal was dismissed on 4 December 2002, pursuant to Order 32, rule 18 of the Family Law Rules 1984 (Cth), then in operation, for want of prosecution. I am therefore satisfied that there is no extant appeal, that the order of Brown J sentencing the husband to a term of imprisonment for four months remains a valid order, and that order has not been put into effect. Accordingly, upon the application of the Marshal made this day it is appropriate to order that a Warrant of Commitment issue.

14. Whilst the Act does not specifically spell out a means by which a person is to be committed and transported to prison for the purpose of their sentence being carried out, such warrants are issued as a requirement of State correctional legislation and are incidental to the arrangements made by the Governor-General with relevant States or Territories, pursuant to s 112AN(1) of the Act, for:

    (a) the exercise of powers, and the performance of functions, by officers of the State or Territory, and

    (b) the making available of facilities of the State or Territory

    for and in relation to the carrying out of sentences imposed, and orders made, under Division 2 of Part XIIIA of the Act.

15. The sentence imposed on the husband in these proceedings was a sentence made under Division 2 of Part XIIIA of the Act. Accordingly for those reasons, I propose to order a Warrant of Commitment to issue.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate: 

Date:  16 October 2008