Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Tuesday, 26 November 1974
Page: 2760


Senator MURPHY (New South WalesAttorneyGeneral) - I move:

Insert the following new clauses: '17H Sittings of the Court shall be held from time to time as required at the places at which the registries of the Court are established, but the Court may sit at any place in Australia. ./7, (1) The original jurisdiction of the Court may be exercised by one or more Judges.

(2)   The jurisdiction of the Court in an appeal from a court of summary jurisdiction may be exercised by one or more Judges.

(3)   The jurisdiction of the Court in an appeal from a Judge of the Court or of the Supreme Court of a State shall be exercised by a Full Court.

(4)   Where, after a Full Court (including a Full Court constituted in accordance with this sub-section) has commenced the hearing, or further hearing, of an appeal and before the appeal has been determined, one of the Judges constituting the Full Court dies, resigns his office, or otherwise becomes unable to continue as a member of the Full Court for the purposes of the appeal, then the hearing and determination, or the determination, of the appeal may bc completed by a Full Court constituted by the remaining Judges, if at least 2 Judges remain, or, with the consent of the parties, by a Full Court constituted by the remaining Judge or Judges and an additional Judge or Judges.

(3)   A Full Court constituted in accordance with subsection (4) may have regard to any evidence given or received, and arguments, adduced, by or before the Full Court as previously constituted.

(6)   The Court constituted by one or more Judges may sit and exercise the jurisdiction of the Court notwithstanding that the Court constituted by one or more other Judges is at the same time sitting and exercising the jurisdiction of the Court. 17k. ( 1 ) The Family Court has jurisdiction to hear and determine-

(a   ) appeals referred to in section 7 1 ; and

(   b) appeals from judgments of the Family Court, constituted otherwise than as a Full Court, in the exercise of jurisdiction otherwise than under this Act.

(2)   The Family Court has jurisdiction to hear and determine appeals under section 73 except where the Supreme Court of a State has jurisdiction to hear such appeals.

(3)   Subject to section 73, in an appeal the Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and. in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Court or a Judge or in such other manner as the Court may direct. 1 7l If the Judges constituting the Court for the purposes of any proceedings are divided in opinion as to the judgment to be pronounced, judgment shall be pronounced according to the opinion of the majority, if there is a majority, but, if the Judges are equally divided in opinion-

(a)   in the case of an appeal from a judgment of the Family Court constituted by a single Judge, or of the Supreme Court of a State- the judgment appealed from shall be affirmed; and

(   b ) in any other case- the opinion of the Chief Judge or, if he is not one of the Judges constituting the Court, the opinion of the most senior of those Judges, shall prevail. 1 7m. (1 ) The Family Court has jurisdiction in-

(a)   matrimonial causes instituted or continued under this Act;

(b)   proceedings instituted or continued under the Marriage Act 1961-1973, other than proceedings under Part VII of that Act:

(c)   matters arising under a law of a Territory concerning

(i)   the adoption of children;

(ii)   the guardianship, custody or maintenance of children; or

(iii)   payments of a kind referred to in section 85; and

(d)   matters in which jurisdiction is conferred on it by a law made by the Parliament.

(2)   Subject to such restrictions and conditions (if any) as are contained in the regulations, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories. 17ma. (1) A power or function exercisable under the

Marriage Act 1961-1973 by a Judge or magistrate as defined in sub-section 5 ( 1 ) of that Act shall be exercisable by any Judge ofthe Family Court who is appointed by the AttorneyGeneral to be a person authorized to exercise that power or function, and that Act applies in relation to the exercise of a power or function in accordance with this section as if references in that Act to a magistrate or Judge included references to a Judge of the Family Court so appointed.

(2)   A request may not be made under section 17 of the Marriage Act 1961-1973 for a rehearing of an application that has been dealt with by a Judge of the Family Court.

(3)   The Governor-General may, by Proclamation, de clare that a power or function referred to in sub-section ( 1 ) is exercisable in accordance with this section to the exclusion, in whole or in part as specified in the Proclamation, of the exercise of that power or function by Judges or magistrates as defined in sub-section 5 ( 1 )of the Marriage Act 1961-1973. 1 7n. To the extent that the Constitution permits, jurisdic tion is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court. 1 7P. ( 1 ) The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

(2)   Without limiting the generality of sub-section (1 ), the Court may issue, or direct the issue of, writs and orders of such kinds as are prescribed. 1 7q. Subject to this and any other Act, the Family Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. 17r. (I) The Governor-General shall cause such Regis tries of the Court to be established as he thinks fit.

(2)   Unless and until the regulations otherwise provide, the Principal Registry shall be located in Sydney. 17S. ( 1 ) The Attorney-General may appoint such officers of the Court as are referred to in this section and such other officers of the Court as are necessary.

(2)   The officers of the Court have such duties, powers and functions as are provided by this Act and the regulations and such other duties and functions as the Chief Judge directs.

(3)   There shall be a Registrar of the Court and such

Deputy Registrars of the Court as are necessary.

(4)   There shall be a Marshal of the Court and such Deputy Marshals of the Court as are necessary. (5)TheMarshal-

(a)   is charged with the service and execution of all writs, orders, decrees, warrants, precepts, process and commands of the Court that are directed to him; and

(b)   shall take, receive and detain any person who is committed to his custody by the Court, and shall discharge all such persons when directed by the Court or required by law.

(6)   A Deputy Marshal may, subject to any directions of the Marshal, exercise or perform any of the powers and functions of the Marshal.

(7)   The Marshal or a Deputy Marshal may authorize such persons as he thinks fit to assist him in the exercise of any power or the performance of any function.

(8)   There shall be a Director of Counselling and Welfare, and such other counsellors and welfare officers as are necessary. 1 7t. (1 ) Subject to this Act, the practice and procedure of the Court shall be in accordance with the regulations.

(2)   In so far as the provisions applicable in accordance with sub-section ( 1 ) are insufficient, the Rules of the High Court, as in force for the time being, apply, mutatis mutandis, so far as they are capable of application and subject to any directions of the Court or a Judge, to the practice and procedure of the Court.

(3)   In this section, "practice and procedure" includes all matters with respect to which regulations may be made under this Act. '.


Senator Greenwood - I am concerned with the last clause, clause 17t.


Senator MURPHY - I ask for leave to alter my motion by deleting consideration of proposed new clause 1 7t.


The CHAIRMAN - Is leave granted? There being no objection, leave is granted. The question is, that proposed new clauses 17h to 17s be inserted.







Suggest corrections