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Thursday, 19 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I move -

After proposed new clause 80a, insert the following new clause in Part VIII.: - "80b. - (j.) Except as provided by this section, the court shall not make an order under this Part where the petition for the principal relief has been dismissed. " (2.) Where-

(a)   the petition for the principal relief has been dismissed after a hearing on the merits; and

(b)   the court is satisfied that -

(i)   the proceedings for the principal relief were instituted in good faith to obtain that relief; and

(ii)   there is no reasonable likelihood of the parties becoming reconciled, the court may, if it considers that it is desirable to do so, make an order under this Part, other than an order under section seventy-nine of this Act. " (3.) The court shall not make an order by virtue of the last preceding sub-section unless it has heard the proceedings for the order at the same time as, or immediately after, the proceedings for the principal relief. "(4.) In this section, 'principal relief means relief of a kind referred to in paragraph (a) or (b) of the definition of ' matrimonial cause ' in sub-section (1) of section five of this Act.".

This is another of the few substantial changes made by these amendments. I should explain that under the bill as presented the person who was not successful in obtaining a divorce would not get an order for maintenance or alimony. But as I have provided by another provision that the court should, as far as practicable, determine the whole case at once - the suit, the alimony, the custody and the like - it would follow that people would get ready all aspects of their cases so as to have them dealt with at the one time. If it should happen that the court refused a divorce, then, according to the bill as drawn, the parties would have wasted the expenditure involved in preparing their cases. I thought it would be better to give to the court a power to deal with the maintenance and custody when granting a divorce in the circumstances which are detailed in this clause.

Proposed new clause agreed to.

Clause 81 agreed to.

Clause 82 - (1.) If, in proceedings under this Act in a court, not being proceedings by way of appeal, a question of law arises which the Judge and at least one of the parties wish to have determined by the High Court before the proceedings are further dealt with by the court, the Judge shall -

(a)   state the facts in the form of a special case for the opinion of the High Court; and

(b)   transmit to the High Court the special case and the documents in the proceedings, or such of them as are required for the purposes of the determination, and a Full Court of the High Court shall hear and determine the question.







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