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Tuesday, 26 November 1974
Page: 2767


Senator GREENWOOD (Victoria) - This again is another clause the import ofwhich I am sure has really not been the subject of consideration. It is, of course, an amendment which is introduced to a Bill which has been in circulation for some time and which did not even contain it. Because of what it will do I think that it is so important that it ought not to be regarded as something which passes without any comment or without warranting comment. It gives a power to the Government, by Governor-General's proclamation, to fix a date after which matrimonial causes shall not be heard in courts of summary jurisdiction. Under the definition of matrimonial cause, if this were the proclamation that was made, the hearing of matters in courts of petty sessions anywhere in the country which arose out of marital relationships would be denied.

I instanced on an earlier date that if an assault took place between a husband and wife one would normally feel that that involves the criminal law and that the main concern of the wife is to have the husband bound over to keep the peace or in other ways restrained. That is where normally, as I understand it from earlier days in practice, the wife would seek the assistance of the local constable or the clerk of the court and appropriate steps would be taken quickly. This amendment is giving power to bring that situation to an end and to say that all matters of that character must be taken to some other court and that persons will not be able to institute them in the ordinary courts of the land where they are normally to be taken. One may say that if we are to have a Family Court ultimately that must be the result, but it seems to me to have a curious ring about it that people may go to one court and be met not with an answer on the merits but simply with the rejoinder that they are in the wrong court and have to go to another court.

That duality of jurisdiction, I think, is something we do not want to see on the Australian scene.

I cannot understand why the AttorneyGeneral (Senator Murphy) cannot leave the option open so that people who want to utilise the provision of the Family Court can do so and people who want to go to the summary court, the court of petty sessions, may likewise do so. It is up to the people to make their decision.


Senator Murphy - Which party? You are saying leave it up to them.


Senator GREENWOOD - Well, leave it up to aggrieved party to choose the forum to which that party will go. If there is objection by the defendant of course it is, as always, for the magistrate to decide whether or not- as we know in our own jurisdiction- there is a more convenient forum or a more convenient court. I think this is a provision which will enable people in the metropolitan areas to have all the advantages of a Family Court, supposing the court develops as is proposed and people in the rural areas will be denied those facilities. If I might say so, it is an unfortunate discrimination.







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