Swinnerton and Peters

[2012] FamCA 118

FAMILY COURT OF AUSTRALIA

SWINNERTON & PETERS [2012] FamCA 118

FAMILY LAW - ENFORCEMENT OF ORDERS - Warrant for Arrest - Where Respondent has failed to comply with a series of Orders since 2010 - Where the Respondent failed to appear following an Order issuing ordering that he do so - Where the Applicant requests that the Respondent be arrested and held pending a hearing regarding compliance with outstanding orders

Family Law Rules 2004 (Cth)

APPLICANT: Ms Swinnerton

RESPONDENT: Mr Peters

FILE NUMBER: BRC 10664 of 2007

DATE DELIVERED: 9 March 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 9 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cooper

SOLICITOR FOR THE APPLICANT: Biddle Lawyers

Orders

1. Pursuant to Rule 21.17 of the Family Law Rules 2004 (Qld), a warrant is to issue authorising the Marshal and officers of the Australian Federal Police and officers of the Queensland Police Service to arrest Mr Peters, address PO Box …, Town M, in the State of Queensland and bring him before the Court.

1. The Applicant’s costs of and incidental to this application and the warrant proceedings are reserved until further determination of those proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Swinnerton & Peters 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 10664 of 2007

Ms Swinnerton

Applicant

And

Mr Peters

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is the Application by Ms Swinnerton for enforcement of Orders that have been made by this Court and currently an Application that such enforcement be by means of the issue of a warrant for the arrest of the Respondent, one Mr Peters.

2. Rule 20.11 of the Family Law Rules 2004 (Cth) (“the Rules”) is the rule governing enforcement hearings in this Court. This is a case where Orders have historically been made by the Court for the Respondent, Mr Peters, to do certain things, including securing payment of certain sums to the present Applicant.

3. Rule 21.16 of the Rules contains the provision for an application for a warrant to be issued for the arrest of a respondent. Relevantly for present purposes, a Respondent is required to attend Court on being served with an application for an enforcement hearing under Rule 20.11 or upon being served with an Order directing the respondent to attend Court. I am satisfied on the material before me that the Respondent was served with an application for an enforcement hearing under Rule 20.11 and I note that last week on 1 March 2012 I made a number of Orders, including an Order in paragraph 4 of those Orders that the Husband attend this hearing today to be examined as to his financial affairs.

4. I have earlier read into the record communication apparently received from the Respondent indicating firstly that he has been served with the Order of 1 March 2012 and was aware of the fact of this hearing, and second, that he does not intend to appear this morning and that is what has transpired. I am satisfied on the affidavit of service read before me today that in compliance with paragraph (2) of the Order made on 1 March 2012, the Respondent has been served with the Orders made on 1 March 2012.

5. Plainly enough, the Respondent has not attended Court today, 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.

6. 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.

7. 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.

8. Whilst I have raised this morning the prospect of making it a condition or, more properly stated, allowing the release of the Respondent on compliance with a condition, it seems to me that in circumstances where there are a number of Orders which the Respondent has apparently disregarded, there are important matters that must be dealt with in terms of the Applicant securing enforcement of the Orders already made in her favour, that it is inevitable that the Respondent must be brought to Court in satisfaction of the warrant to address those matters and I do not intend to impose a condition for the Respondent to be released by the entry of a bond or by any other means.

9. 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.

10. 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 Respondent if he seeks his release from custody if arrested pursuant to this warrant, for him to carry the onus on being released from custody.

11. This is a case where a specific Order was made by Justice Bell on 9 May 2011 that the Respondent pay a substantial amount, namely the amount of approximately $148,000 within three months and it was also ordered that the Respondent pay the Applicant costs on an indemnity basis. On 26 July 2011, a costs assessment Order was made that the Husband pay an amount of approximately $18,000.00 in costs. On 13 September 2011, a costs assessment Order was made that the Respondent pay an amount of approximately $54,000.00. The Respondent has not complied with any of the above Orders, so that a sum of at least $220,000.00 is owing under the Orders already made. This is aside from the Respondent’s non-compliance with a variety of other Orders requiring him to make disclosure of documents and information and for him to provide details as to his financial affairs.

12. The Orders of 1 March 2012, aside from injunctive relief, required the Respondent Husband to give full disclosure of documents in relation to his assets and liabilities, income and outgoings including the Peters Superannuation Fund, and to produce such documents for inspection by the Court.

13. Whilst the time for the filing of a Financial Statement by the Respondent pursuant to paragraph 7 of the Orders of 1 March 2012 is yet to expire, there is evidence from the e-mail communication received from the Respondent that he is content to foreshadow to the Court that he intends to not comply with an Order of the Court that has been made and of which he is aware.

14. For those reasons, I make Orders as set out at the commencement of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 March 2012.

Associate: 

Date:  14 March 2012