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FAMILY LAW AMENDMENT BILL 1983

The Senate, according to Order, resolved itself into Committee for the further consideration of the Bill.

In the Committee

Consideration resumed of Clause 47, as amended, and of the amendment moved thereto by Senator Walters, viz: Page 35, proposed section 98A, lines 3 to 25, leave out the proposed section, insert the following new section: ''98A. At the date fixed for the hearing of proceedings for dissolution of marriage, both parties to the marriage shall attend the court, unless the court, in its discretion, determines that the attendance of either or both parties is not practical.''.

Question-That the words proposed to be left out be left out-put.

The Committee divided-

AYES, 12

Senators- Archer Bjelke-Petersen Boswell Collard Crichton-Browne Harradine Jessop Kilgariff Lajovic Lewis Reid (Teller) Walters

NOES, 38

Senators- Baume Bolkus Carrick, Sir John Chaney Childs Chipp Coates Coleman Colston Crowley Durack Evans, Gareth Evans, Jack Foreman Georges Gietzelt Giles Grimes Haines Hamer Jones McClelland Macklin Maguire Martin Mason Messner Missen Ray, Robert Reynolds Richardson Robertson (Teller) Ryan Tate Townley Walsh Withers Zakharov

Amendment negatived accordingly.

Debate continued.

Question-That clause 47, as amended, be agreed to-put.

The Committee divided-

AYES, 32

Senators- Baume Bolkus Childs Chipp Coates Coleman Colston Crowley Evans, Gareth Evans, Jack Foreman Georges Gietzelt Giles Grimes Haines Hamer Jones McClelland Macklin Maguire Martin Mason Missen Ray, Robert Reynolds Richardson Robertson (Teller) Ryan Tate Walsh Zakharov

NOES, 17

Senators- Archer Bjelke-Petersen Boswell Carrick, Sir John Chaney Collard Crichton-Browne Durack Harradine Jessop Kilgariff (Teller) Lajovic Lewis Reid Townley Walters Withers

And so it was resolved in the affirmative.

Clause 47, as amended, agreed to accordingly.

Clauses 48 to 56, by leave, taken together and agreed to.

On the motion of the Attorney-General (Senator Gareth Evans) the following amendment was agreed to: Page 41, after clause 56, insert the following new clause: ''56A. After section 112 of the Principal Act the following section is inserted in Part XIV:

Interpretation '112A. In this Part, ''marriage'' includes a void marriage.'.''. Clause 57 read- On the motion of Senator Zakharov the following amendment was debated and agreed to: Page 42, paragraph (a), proposed new paragraph 114 (1) (c), line 2, after ''work'', insert ''or the place of education''.

Clause 57, as amended, agreed to.

Clause 58 read- On the motion of Senator Zakharov the following amendment was agreed to: Page 43, proposed new paragraph 114AA (2) (b), line 14, leave out ''or area'', insert '', area or place''.

On the motion of Senator Missen the following amendment was debated and agreed to: Page 43, proposed new paragraph 114AA (3) (a), lines 16 to 18, leave out the proposed paragraph, insert the following paragraph: ''(a) he shall- (i) ensure that the person is brought before the court that authorized the arrest, or another court having jurisdiction under this Act, before the expiration of the relevant period; and

(ii) take all reasonable steps to ensure that, before the person is so brought before a court, the person on whose application the order under sub-section (1) was made is aware that the first-mentioned person has been arrested and of the court before which he is to be brought; and''.

On the motion of Senator Gareth Evans the following amendment was agreed to: Page 44, proposed new sub-section 114AB (2), lines 25 to 33, leave out the proposed sub-section, insert the following sub-sections: '' '(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which he would, but for this sub-section, have been entitled to institute a proceeding under section 114 or 114AA, the person is not entitled to institute a proceeding under the section concerned in respect of that matter.

'(3) Any proceedings instituted by a person that are pending under section 114 at the commencement of this section in respect of a matter in respect of which the person has, before that commencement, instituted a proceeding or taken any other action under a law prescribed for the purposes of sub-section (2) are, by force of this sub-section, terminated.'.''.

Clause 58, as amended, agreed to.

Clauses 59 and 60, by leave, taken together and agreed to.

Clause 61 read- Senator Missen moved an amendment, viz: Page 45, before paragraph (1) (a), insert the following paragraphs: ''(aa) by inserting in sub-section (2) 'magistrates,' after 'judges,';

(ab) by inserting in sub-section (2) ', Senators, Members of the House of Representatives' after 'organizations';''.

Debate ensued.

Question-That the words proposed to be inserted be inserted-put and negatived.

On the motion of Senator Gareth Evans the following amendment was agreed to: Page 45, at end of sub-clause (1), add the following word and paragraph: ''; and (d) by omitting sub-section (9) and substituting the following sub-sections: '(9) The Council shall, as soon as practicable after 30 June in each year, prepare and furnish to the Attorney-General a report of the operations of the Council during the year that ended on that 30 June.

'(10) The Attorney-General shall cause a copy of a report furnished to him under sub-section (9) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Attorney-General.'.''.

Clause 61, as amended, agreed to.

Clause 62 read- On the motion of Senator Missen the following amendment was debated and agreed to: Page 46, proposed new paragraph 117 (2A) (f), lines 13 to 16, leave out the proposed paragraph, insert the following paragraph: ''(f) whether either party to the proceedings has, in accordance with section 117C or otherwise, made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and''.

Clause 62, as amended, agreed to.

Clauses 63 and 64, by leave, taken together and agreed to.

Clause 65 read- Senator Missen, by leave, moved the following amendments together, viz: Page 48, lines 17 to 18, leave out ''is repealed and the following section is substituted:'', insert ''is amended by omitting sub-sections (1) and (2) and substituting the following sub-sections:''.

Page 49, proposed new sub-sections 121 (3) to 121 (6), lines 3 to 38, leave out the proposed sub-sections.

Debate ensued.

Question-That the amendments be agreed to-put and negatived.

On the motion of Senator Gareth Evans the following amendment was agreed to: Page 48, proposed paragraph 121 (1) (b), line 26, after ''proceedings'', insert ''or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate''.

On the motion of Senator Gareth Evans the following further amendments were, by leave, taken together and agreed to: Page 48, proposed sub-section 121 (2), line 34, after ''who'', insert '', except as permitted by the Rules of Court,''.

Page 50, after proposed sub-section 121 (9), insert the following sub-section: '' '(9A) Rules of Court made for the purposes of sub-section (2) may be of general or specially limited application or may differ according to differences in time, locality, place or circumstance.'.''.

Clause 65, as amended, agreed to.

Clause 66 read- On the motion of Senator Gareth Evans the following amendments were, by leave, taken together and agreed to: Page 51, proposed new sub-section 37A (1), line 10, leave out ''sub-section (2)'', insert ''sub-sections (1A) and (2)''.

Page 51, proposed new paragraphs 37A (1) (f) and (g), lines 21 to 26, leave out the proposed paragraphs, insert the following paragraphs: ''(f) the power, in proceedings under this Act, to make- (i) an order under section 77; or

(ii) an order for the payment of maintenance pending the disposal of the proceedings;

(g) the power to make any order in proceedings under this Act (other than- (i) a decree of dissolution of marriage or nullity of marriage;

(ii) a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage; or

(iii) an order approving a maintenance agreement under section 87), with the consent of all the parties to the proceedings;''.

Page 51, after proposed new sub-section 37A (1), insert the following sub-section: '' '(1A) A Registrar shall not exercise the powers referred to in paragraph (1) (f) on application by a party to proceedings under this Act unless- (a) the other party to the proceedings appears at the hearing of the application; or

(b) the Registrar is satisfied that notice of the intention of the first-mentioned party to make the application has been served on the other party.'.''.

Page 52, proposed new sub-section 37A (5), line 12, after ''may'', insert '', within the time prescribed by the Rules of Court or within such further time as is allowed in accordance with the Rules of Court,''.

Page 52, proposed new paragraphs 37B (1) (b) and (c), lines 37 to 42, leave out the proposed paragraphs, insert the following paragraphs: ''(b) a Registrar is subject to the direction and control of- (i) the Chief Judge;

(ii) any other Judge authorized by the Chief Judge to direct and control that Registrar; and

(iii) the Principal Registrar, and is not subject to the direction or control of any other person or body; and

(c) a Deputy Registrar is subject to the direction and control of- (i) the Chief Judge;

(ii) any other Judge authorized by the Chief Judge to direct and control that Deputy Registrar;

(iii) the Principal Registrar; and

(iv) the Registrars, and is not subject to the direction or control of any other person or body.''.

Clause 66, as amended, agreed to.

Clause 67 agreed to.

Clause 68 read- On the motion of Senator Gareth Evans the following amendment was agreed to: Page 53, proposed paragraph 123 (1) (e), lines 39 to 42 and page 54, lines 1 to 3, leave out the proposed paragraph, insert the following paragraph: ''(e) making provision in relation to the exercise by officers of the Family Court of the powers conferred upon them by sub-section 37A (1) (other than in relation to the manner in which those powers are exercised by such officers) and in relation to the review by the Court pursuant to sub-section 37A (6) of exercises of those powers by such officers;''.

On the motion of Senator Gareth Evans the following further amendment was agreed to: Page 54, proposed paragraph 123 (1) (g), line 6, after ''proceedings'', insert ''(including solicitor and client costs and party and party costs)''.

Clause 68, as amended, agreed to.

Clause 69 agreed to.

Schedule read- On the motion of Senator Gareth Evans the following amendments were, by leave, taken together and agreed to: Page 57, after the amendment of sub-section 44 (1), insert the following amendment: ''Sub-section 44 (1B)

Omit 'prescribed form', substitute 'form prescribed by the Rules of Court'.''.

Page 57, leave out the amendment of sub-section 87 (8), insert the following amendments: ''Sub-section 87 (7)

Insert 'by the Rules of Court' after 'prescribed'.

Paragraph 87 (11) (b)

Omit 'the regulations', substitute 'the Rules of Court'.''.

Schedule, as amended, agreed to.

Consideration resumed of postponed proposed new clause 4BA (Senator Harradine's amendment), viz: Page 6, after new clause 4B, insert the following new clause: ''4BA. Section 14 of the Principal Act is amended by adding after sub-section (5) the following sub-section: '6. In any application for dissolution of marriage the court shall not hear the proceedings unless the court is satisfied that- (a) the parties, together and separately, have had the assistance of a marriage counsellor, an approved marriage counselling organization or other suitable person or organization nominated by the Principal Director of Court Counselling of the Family Court or by an appropriate officer of a Family Court of a State for the purpose of considering a reconciliation; or

(b) there are special circumstances by reason of which the hearing should proceed.'.''.

Proposed new clause 4BA, by leave, withdrawn.

Senator Harradine, by leave, moved the following amendments together, viz: Page 4, clause 3, after paragraph (1) (n), insert the following new paragraph: ''(na) by inserting after the definition of 'matrimonial cause' the following definition: ' ''notice of separation'' means a notice given under sub-section 15A (1);';''.

Page 6, after clause 5, insert the following new clause: ''5A. After section 15 of the Principal Act the following section is inserted: Notice of separation '15A. (1) A party to a marriage who is living separately and apart from the other party to the marriage may file in the Family Court or in the Family Court of a State a notice stating that the parties to the marriage have separated and are living separately and apart.

'(2) Where a notice is filed under sub-section (1) by a party to a marriage, the Principal Director of Court Counselling of the Family Court or the person who administers the counselling facilities of the Family Court of that State, as the case may be, shall, not later than 14 days after the filing of the notice, cause to be served on each party to the marriage a notice requiring that party to attend at such respective times and places, and on such respective dates, as are specified in the notice- (a) an interview with a marriage counsellor; and

(b) a conference with the other party to the marriage and that marriage counsellor,

for the purposes of- (c) considering the legal, social and financial consequences of a dissolution of the marriage and, in particular, the effects of a dissolution of the marriage on any children of the marriage; and

(d) having regard to the consequences and effects referred to in paragraph (c), considering the possibility of a reconciliation.

'(3) Evidence of anything said or of any admission made at an interview or conference conducted pursuant to sub-section (2) is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law of the Commonwealth or of a State or Territory, or by consent of parties, to hear evidence.'.''.

Page 13, clause 17, after paragraph (b), insert the following new paragraph: ''(ba) by inserting after sub-section (2) the following sub-sections: '(2A) An application for dissolution of marriage shall not, without the leave of the court granted under sub-section (2B), be filed by a party to a marriage after the expiration of a period of 12 months commencing at the commencement of Part II of the Family Law Amendment Act 1983 unless- (a) that party or the other party to the marriage has filed a notice of separation;

(b) a period of not less than 12 months has elapsed since the filing of that notice; and

(c) there is filed with the application a certificate in the prescribed form- (i) stating that the parties to the marriage have, pursuant to notices served on them under sub-section 15A (2), attended interviews and a conference for the purposes set out in paragraphs 15A (2) (c) and (d); and

(ii) signed by the marriage counsellor who conducted the interviews and the conference.

'(2B) Notwithstanding sub-section (2A), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for dissolution of a marriage should proceed notwithstanding that a paragraph or paragraphs of that sub-section has not or have not been complied with, the court may- (a) if the application has not been filed-give leave for the application to be filed; or

(b) if the application has been filed-at any time before or during the hearing of the application, declare that it is so satisfied,

and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.';''.

Debate ensued.

And it being 7.30 p.m.: The Chairman of Committees (Senator Hamer), under Sessional Order, put the Question-That he do leave the Chair and report to the Senate.

Question-put and passed.

The President resumed the Chair; and Senator Hamer reported accordingly.