Re Marshall of the Australian Federal Police & Ors; Ex parte Owen Carl Ingram Herbert

Owen Carl Ingram Herbert sought a writ of prohibition against the Family Court of Australia at Adelaide, the Marshal and officers of the Australian Federal Police, and officers of the states and territories of the Commonwealth. The application was heard ex parte by the High Court of Australia.

The primary legal issue before the Court was whether the Family Court had the power to issue a warrant for contempt, and consequently, whether a writ of prohibition should be granted to prevent the execution of such a warrant. This involved an examination of the relevant provisions of the Family Law Act, specifically sections 70, 70AA, and 70A, and their application to the events that transpired in March 1991, prior to amendments that took effect in April 1991.

The applicant's counsel argued that section 70AA of the Family Law Act provided a mechanism for the Family Court to deal with breaches of custody or access orders, including the power to issue warrants and arrest. However, the submission was that section 70A dealt separately with criminal contempt, which was to be handled by a criminal court. The Court was asked to consider whether the Family Court's actions in issuing a contempt order and warrant in March 1991 were within its jurisdiction, given the legislative framework at the time.