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Tuesday, 26 November 1974
Page: 2767


Senator MISSEN (Victoria) - I welcome very much the phasing out of the summary proceedings. I have had a long experience of them too and I have long thought that this was a pretty poor way to deal with very important matters of a marital nature.


Senator James McClelland (NEW SOUTH WALES) - So does Professor Finlay.


Senator MISSEN -Yes, Professor Finlay does. I have in my hand an excellent article by a Miss Dorothy Kovacs, a senior teaching fellow at Monash University. The article is entitled: Maintenance in the Magistrates' Courts: How Fares the Forum?' I shall quote a part of that article. Honourable senators should read this article because it refers to all areas, not only the effectiveness of the orders that are made and the enforcement of them, but also the way in which they are made, the lack of proper care to counselling and so forth. The author says at one stage:

The fault here may lie with the law itself, rather than in the institution entrusted with its administration. Nevertheless, as long as it remains the law it may pertinently be asked whether a magistrate with little training and no time may reasonably be required to apply it. His dilemma is complete when parties appear, as they often do in this jurisdiction, without legal representation, so that the harassed magistrate hears no argument on the law. The result is that many decisions will be made on the basis of a poor understanding of the legal issues involved, and that to a great extent these errors will pass undetected.

In fact there is a promise in this particular part of the Act that these will be phased out, of course, by proclamation, not immediately. The Standing Committee was quite aware of the fact that particularly in distant parts of some States it will take some time for family judges to be involved entirely in the area. I would say this part is a highly desirable one. The sooner it is brought into full force the better.

Question resolved in the affirmative.

Clause 1 8, as amended, agreed to.

Clause 19

(   1 ) The jurisdiction of the Superior Court under this Act shall not be exercised except in accordance with Proclamations under this section.

(2)   The Governor-General may, by Proclamation, fix a date as the date on and after which the jurisdiction of the Superior Court under this Act may bc exercised in respect of all proceedings, or a class or proceedings, in such States and Territories as are specified in the Proclamation.

(6)   A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this sub-section, have been instituted in the Superior Court, may apply to the Superior Court for an order transferring the proceedings to the Superior Court, and the Court may order accordingly.

Amendments (by Senator Murphy )- by leave- taken together and agreed to:

In sub-clause ( I ) leave out "Superior" and insert "Family".

In sub-clause (2) leave out "Superior" and insert "Family".

In sub-clause (6) leave out "Superior" (wherever occurring) and insert " Family ".







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