Bankruptcy - Arrest warrant

When a party to a marriage or de facto relationship is bankrupt and the bankruptcy trustee is a party to the property settlement or maintenance case, the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction in bankruptcy over matters connected with the bankruptcy (Bankruptcy Act s 35). Division 1.2.5 of the Family Law Rules then applies parts of the Division 2 Bankruptcy Rules, including Part 12 on warrants (FLR rr 1.21-1.24). Under section 78 the court may issue a warrant for the arrest of a bankrupt who has concealed property, or removed it without the trustee's permission, or who has without good cause failed to comply with a court order or another obligation under the Act. The warrant commits the bankrupt to gaol until the court otherwise orders and can also order that property and books in the bankrupt's possession be seized and handed to a person the court appoints. This form is the warrant itself; it is signed by a Registrar.

When you need it

• A family law proceeding is running under the court's bankruptcy jurisdiction (Bankruptcy Act s 35 or 35A) and a party is bankrupt.
• There is evidence the bankrupt has concealed property, or removed property without the trustee's permission (s 78(1)(d)).
• The bankrupt has, without good cause, neglected or failed to comply with an order of the court or another obligation under the Bankruptcy Act (s 78(1)(f)).
• You also want the bankrupt's property, books and papers seized and held until the court decides what happens to them.

1. 1

   Court and file details

   Tick the Division (1 or 2, or other), and insert the file number and the name of the bankrupt estate. The court completes the filing and court dates.

2. 2

   Part A - the parties

   Give the family and given names, as used now, of each applicant and respondent in the proceeding.

3. 3

   Part B, item 2 - who the warrant is addressed to

   Tick the officers who are to carry it out: the Marshal, Australian Federal Police officers, police constables, and the governor or keeper of the named gaol (or any gaol in the Commonwealth).

4. 4

   Item 3 - the grounds

   Insert the bankrupt's full name and tick the ground or grounds the evidence supports: concealing or removing property, or failing without good cause to comply with an order or obligation under the Act.

5. 5

   Items 4 and 5 - custody and seized property

   Name the bankrupt and the gaol they are to be delivered to, then the full name and address of the person who is to hold any property, books, documents and papers seized until the court orders how they are to be dealt with.

6. 6

   Leave the signature block

   The date and Registrar's signature are completed by the court when the warrant is issued.

• The warrant is sought by an application that states the grounds for it, supported by an affidavit setting out the facts (Division 2 Bankruptcy Rules r 12.01(1)-(2), applied by FLR r 1.22). Read the Family Law Practice Direction - Bankruptcy Act proceedings for which bankruptcy application form to use and how to serve it.
• File the draft warrant with the application in the family law registry managing the case. A filing fee may apply: check the court's current fee schedule.
• If the bankrupt is arrested, the person who made the arrest must immediately notify a Registrar at the registry that issued the warrant (r 12.01(4)).
• Property and books delivered to the appointed person are kept by that person until the court makes an order about their disposal (s 78(2)).

• Make sure the box ticked at item 3 matches what your affidavit actually proves. The court can only issue the warrant on a ground in section 78.
• This family law version is drafted for a person who is already bankrupt. Section 78 also covers some debtors before bankruptcy, but those grounds do not appear on this form.
• Name a specific, appropriate person at item 5 so there is no doubt who must hold any seized property.