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Wednesday, 27 November 1974
Page: 2870


Senator MURPHY (New South WalesAttorneyGeneral) - I move:

In sub-clause ( 3 ), lea ve out ' but the failure does not constitute a contempt ofthe court'.

This amendment was discussed in some depth, I think, several days ago. It is in line with the recommendation of the Senate Standing Committee on Constitutional and Legal Affairs.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 42.

A decree nisi of dissolution of marriage does not become absolute unless the court, by order, has declared that it is satisfied-

(a)   that there are no children of the marriage who have not attained the age of 1 8 years; or

(b)   that the only children of the marriage who have not attained the age of 18 years are the children specified in the order and that-

(i)   proper arrangements in all the circumstances have been made for the welfare of those children; or

(ii)   there are circumstances by reason of which the decree nisi should become absolute notwithstanding that the court is not satisfied that such arrangements have been made.

Amendment (by Senator Murphy) agreed to:

At the end of the clause add the following new subclause:

(2)   Where, in proceedings for a decree of dissolution of marriage, the court is in doubt whether the arrangements made for the welfare of a child ofthe marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a welfare officer regarding those arrangements'.

Clause, as amended, agreed to.

Clause 43.

(   1) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriagefa) the court shall regard the welfare of the child as the paramount consideration and in doing so shall take into account the wishes of the child;

(b)   except where the court is satisfied that it is necessary to do so by reason of special circumstances, the court shall not make an order with respect to the custody of, or access to, a child who has attained the age of 14 years where the order would be contrary to the wishes ofthe child; and

(c)   subject to paragraphs (a) and (b). the court may make such order in respect of those matters as it thinks proper.

(2)   In proceedings with respect to the custody of a child of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the child in the custody of a person other than a party to the marriage.

(3)   Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by any person.

(4)   Where a court makes an order under this Part with respect to a child, the court may also, if it thinks the welfare of the child so requires, by order direct that compliance with the first-mentioned order shall, as far as practicable, be supervised by a welfare officer.

(   5 ) An order under this section may bc a permanent order or an order pending the disposal ofthe proceedings.

(II)   The Attorney-General may appoint persons to be enforcement officers for the purposes of this Part and a warrant under sub-section (8) or (9) may be addressed to a person so appointed.

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

Leave out sub-clause ( I ) and insert the following subclause:

(   1 ) In proceedings with respect to the custody or guardianship of, or access to, a child of a marriage-

(a)   the court shall regard the welfare ofthe child as the paramount consideration;

(b)   where the child has attained the age of 14 years, the court shall not make an order under this Part contrary to the wishes of the child unless the court is satisfied that, by reason of special circumstances, it is necessary to do so; and

(c)   subject to paragraphs (a) and (b), the court may make such order in respect of those matters as it thinks proper, including an order until further order. '.

After sub-clause (3 ), insert the following new sub-clause: (3a) Where a court makes an order for joint custody of a child of a marriage or declines to make an order for the sole custody ofthe child, it may make orders as to access or such other orders as it thinks proper. '.

Leave out sub-clause (5) and insert the following subclause:

(5)   Where the court is of the opinion that there is a possibility or threat that a child will be removed from Australia, it may order the passport of the child and of any other person concerned to be delivered up to the court upon such conditions as the court thinks fit. '.

Clause, as amended, agreed to.

Clauses 44 and 45- by leave- taken together and agreed to.

Clause 46.

(   1 ) In this section- court', in relation to a State or Territory, means the Supreme Court, or a court of summary jurisdiction, of that State or Territory; custody order' means a subsisting order for custody of, or access to, an ex-nuptial child who has not attained the age of 1 8 years.

(2)   The regulations may make provision for and in relation to-

(a)   the registration in the courts of a State of custody orders made by the courts of other States or by the courts of the Territories; and

(b)   the registration in the courts of a Territory of custody orders made by the courts of other Territories or by the courts of the States.

(3)   Where a custody order is registered in a court under this section, the order has the same force and effect as if it were an order made by that court under this Act.

Amendment (by Senator Murphy) agreed to:

Leave out sub-clause (2) and insert the following sub-clause: (2) The regulations may make provision for and in relation to the registration in a State or Territory in a court having jurisdiction under this Act (including the Family Court) of custody orders made by a court in another State or Territory. '

Clause, as amended, agreed to.

Clauses 47 and 48- by leave- taken together and agreed to.

Clause 49.

(6)   If a court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with a provision of this section, that court may-

(a)   order that person to pay a fine not exceeding $1,000;

(b)   require that person to enter into a recognizance, with or without sureties, in such reasonable amount as the court thinks fit, that that person will comply with the relevant order, or order that person to be imprisoned until that person enters into such a recognizance or until the expiration of 3 months, whichever first occurs;

(c)   order that person to deliver up to the court that person's passport and such other documents as the court thinks fit; and

(d)   make such other orders as the court considers necessary to enforce compliance with this section.

(7)   Sub-section (6) does not prejudice the power of acourt to punish a person for contempt of court.

Amendment (by Senator Murphy) agreed to:

After sub-clause (6). insert the following new sub-clause: (6a) Where an act or omission referred to in sub-section (6) is an offence against any other law. the person committing the offence may bc prosecuted and convicted under that law, but nothing in this section shall render any person liable to bc punished twice in respect ofthe same offence.'

Clause, as amended, agreed to.

Clause 50 agreed to.

Clause 51.

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so. if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for gainful employment or for any other adequate reason.

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

In clause 51, before 'gainful 'insert 'appropriate'. Insert at end ofthe clause- having regard to any relevant matter referred to in subsection 54 (2)'.

Clause, as amended, agreed to.

Clauses 52 and 53- by leave- taken together and agreed to.

Clause 54.

(   1 ) In determining-

(a)   what constitutes adequate support of a party to a marriage for the purpose of section 5 1 ;

(b)   whether to make an order for the maintenance of a party to a marriage or a child of a marriage; or

(c)   the period for which such an order should continue in force or the amount of any payment to be required to be made under such an order, the court shall take into account only the matters referred to in sub-section (2).

(2)   The matters to be so taken into account are-

(a)   the agc and state of health of each of the parties;

(b)   the income, earning capacity, property and other financial resources of each of the parties;

(c)   the financial needs and obligations of each of the parties:

(d)   the responsibilities of either party to support any other person;

(e)   the eligibility of either party for a pension, allowance or benefit under any law of Australia or of a State or Territory or under any superannuation fund or scheme, or the rate of any such pension, allowance or benefit being paid to either party;

(   f ) where the parties have separated or the marriage has been dissolved, the standard of living of the parties before the breakdown of the marriage;

(g)   the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business;

(h)   the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration:

(j   ) if the party whose maintenance is under consideration is cohabiting with another person- the financial circumstances ofthe cohabitation; and

(k)   the terms of any order made or proposed to be made under section 58 in relation to the property of the parties.

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

Leave out sub-clause ( 1 ) and insert the following subclause:

(I)   In exercising jurisdiction under this Part, the court shall take into account only the matters referred to in subsection^).'.

In sub-clause (2) leave out paragraph (b) and insert the following paragraphs:-

(b)   the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment: (ba) whether either party has the care or control of a child ofthe marriage who has not attained the age of 1 8 years; '.

In sub-clause (2), paragraph ( f), leave out- the standard of living of the parties before the breakdown of the marriage' and insert 'a standard of living that in all the circumstances, is reasonable'.

In sub-clause (2 ) at end of paragraph (g) add- or otherwise to obtain an adequate income".

In sub-clause (2) after paragraph (g), insert the following new paragraph:- (ga) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; '.

In sub-clause (2), paragraph (j ), leave out 'of the cohabitation; and' and insert 'relating to the cohabitation; and '.

Amendment (by Senator Durack) agreed to:

In sub-clause (2) after paragraph (k), add the following new paragraph:

(1)   any fact or circumstances which in the opinion ofthe Court the justice ofthe case requires to be taken into account '.

Clause, as amended, agreed to. Clause 55.

(4)   The court shall not make an order under sub-section (3) unless it is satisfied that, having regard to the child's standard of living and the availability of educational and social benefits, refusal to make the order would subject the child to substantial hardship.







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