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Wednesday, 27 November 1974
Page: 2884


Senator MURPHY (New South WalesAttorneyGeneral) - What we are really saying is that the first approach is that there ought to be no order for costs against a party. Consistently with what the Senate Standing Committee has put, we are saying that nevertheless, if courts are of the opinion that there are circumstances which justify their making an order for costs, they may make an order. On the other hand, orders as to costs ought to be made only where there are exceptional circumstances. But if the courts act wisely it may be that they will pay attention to the prime rule and not too readily invoke the provisions of sub-clause (2). I would hope they would do so. In any event, in cases where people cannot afford costs and have to use moneys which would otherwise be used in providing for their families, I think that the burden will be met by the provision of legal aid. I say to Senator Wood that if we have effective legal aid the problem will disappear. That is the solution that I see. In any event, we have given a legislative guideline. Unless there are some circumstances which really call for the court to depart from the rule, it shall not order costs.

Amendments agreed to.

Clause, as amended, agreed to.

Clause 93.

The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious, dismiss the proceedings.

Amendment (by Senator Murphy) agreed to.

At the end ofthe clause add- and make such orders as to cost as it thinks just'.

Clause, as amended, agreed to.

Proposed new Clause 94a.

Amendment (by Senator Murphy) agreed to.

Insert the following new clause:- 94a. After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage.'.

Clause agreed to.

Clause 95.

(   1 ) A person shall not print or publish, or cause to be printed or published, any statement or report that proceedings have been instituted under this Act unless the statement or report relates to proceedings the hearing of which has commenced or been completed.

(2)   Except as provided by this section, a person shall not, in relation to any proceedings under this Act, print or publish, or cause to be printed or published, any account of evidence in the proceedings, or any other account or particulars ofthe proceedings other than-

(a)   the names and addresses ofthe parties, and the name or names ofthe member or members of the court and ofthe counsel and solicitors:

(b)   a concise statement ofthe nature of the proceedings;

(e)   submissions on any points of law arising in the course of the proceedings, and the decision of the court on those points: or

(d   ) particulars of the decree made by the court. and a person shall not print any matter referred to in any of the paragraphs or this sub-section in letters larger than 12 point Times or publish any matter so printed.

(3)   A person who contravenes sub-section (1) or (2) is guilty of an offence punishable, on conviction-

(a)   in the case of a first offence, or a second or subsequent offence prosecuted summarily- by a fine not exceeding $1,000 or imprisonment for a period not exceeding 6 months; and

(b)   in the case of a second or subsequent offence, being an offence prosecuted on indictment- by a fine not exceeding $2,000 or imprisonment for a period not exceeding I year.

(4)   Any offence against this section may be prosecuted summarily, and a second or subsequent offence by a person against this section may be prosecuted summarily or on indictment.

(   5 ) Proceedings for an offence against this section shall not be commenced except by, or with the written consent of. the Attorney-General.

(6)   The preceding provisions of this section do not apply to or in relation to-

(   a ) the printing of any pleading, transcript of evidence or other document for use in connexion with proceedings in any court or the communication of any such document to persons concerned in the proceedings:

(b)   the printing or publishing of a notice or report in pursuance of the direction of a court;

(c)   the printing or publishing of law court lists;

(d)   the printing or publishing of any publication bona fide intended primarily for the use of members of the legal or medical profession being-

(i)   a separate volume or part of a series of law reports; or

(ii)   any other publication of a technical character; or

(e)   the printing or publishing of a photograph of any person, not being a photograph forming part of the evidence in proceedings under this Act.

(7)   In this section, 'court' includes an officer of a court investigating a matter in accordance with the regulations and judgment ofthe court' includes a report made to a court by such an officer.

Amendments (by Senator Murphy) agreed to.

Leave out marginal note and sub-clauses ( 1) and (2) and insert- 95 ( 1 ) A person shall not print or publish-

(a)   any statement or report that proceedings have been instituted in the Family Court or in another court exercising jurisdiction under this Act; or

(b)   any account of evidence in proceedings instituted in the Family Court or in another court having jurisdiction under this Act, or any other account or particulars of any such proceedings.'.

In sub-clause ( 3 ) leave out 'or (2 ) '.

In sub-clause (6) at end of paragraph (c) add 'or'.

In sub-clause (6), paragraph (d), leave out 'or' and paragraph (c).

After clause 95, insert the following new clause:- "95a. A person who is, under Part VIIIA ofthe Judiciary Act 1903-1973, entitled to practice in any federal court as a barrister or solicitor, or as both, has the like right to practice in any Slate court exercising jurisdiction under this Act. ".

Clause 95, as amended and proposed new clause 95a, agreed to.

Clause 96

The Governor-General may make regulations, not inconsistent with this Act, for or in relation to the practice and procedure ofthe courts having jurisdiction under this Act, or any of them, including regulationsfa) prescribing matters relating to the costs of proceedings and the assessment or taxation of those costs:

(b)   authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications for or relating to any matter before the court:

(c)   authorizing an officer making an investigation referred to in paragraph (b) to take evidence on oath or affirmation, and to obtain and receive in evidence a report from a welfare officer, and enabling the summoning of witnesses before an officer making such an investigation for the purpose of giving evidence or producing books and documents;

(d)   regulating the procedure of a court upon receiving a report of an officer who has made an investigation referred to in paragraph (b);

(e)   providing for the manner of service of process of a court under this Act, and for dispending with such service;

(f)   subject to the Constitution, authorizing an officer of a court to perform and exercise powers and functions, on behalf of the court or otherwise, in relation to proceedings under this Act and enabling the court to review the decision of that officer in relation to the performance or exercise of any function or power;

(g)   providing for and in relation to the grant of legal aid in proceedings under this Act;

(h)   prescribing matters incidental to the matters specified in the preceding paragraphs of this section; and

(i)   prescribing penalties not exceeding $200 for offences against the regulations.

Amendment (by Senator Murphy) agreed to.

Leave out the clause and insert the following new clause: -

96.   ( I ) The Governor-General may make regulations, not inconsistent with this Act. prescribing all matters that are required or permitted by this Act to be prescribed or are ncessary or convenient to be prescribed for the carrying out or giving effect to this Act.

(2)   The regulations may make provision for or in relation to the practice and procedure to bc followed in the Family Court and in other courts exercising jurisdiction under this Act, and for or in relation to all matters and things incidental to any such practice or procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts.

(3)   Without limiting the generality of sub-section (2), the regulations may make provision for or in relation to-

(a)   the attendance of witnesses;

(b)   providing for the manner of service of process of the Family Court or another court exercising jurisdiction under this Act, and for dispensing with such service;

(c)   the enforcement and execution of the judgments of the Family Court and other courts exercising jurisdiction under this Act:

(d)   the time and manner of institution of appeals in and to the Family Court;

(e)   the duties of officers ofthe Family Court; ( 0 subject to the Constitution, authorizing an officer of the Family Court or of another court exercising jurisdiction under this Act to perform and exercise powers and functions, on behalf ofthe court or otherwise, in relation to proceedings instituted in the Family Court or proceedings tinder this Act, and enabling the court concerned to review the decision of that officer in relation to the performance or exercise of any function or power:

(g)   the seals and stamps to bc used in the Family Court and in courts having jurisdiction under this Act:

(h)   prescribing matters relating to the costs of proceedings and the assessment or taxation of those costs;

(i)   authorizing a court to refer to an officer of the court for investigation, report and recommendation claims or applications Tor or relating to any matters before the court;

(j)   authorizing an officer making an investigation referred to in paragraph (i) to take evidence on oath or affirmation, and to obtain and receive in evidence a report from a welfare officer, and enabling the summoning of witnesses before an officer making such an investigation for the purpose of giving evidence or producing books and documents;

(k)   regulating the procedure of a court upon receiving a report of an officer who has made an investigation referred to in paragraph (i);

(1)   prescribing matters incidental to the matter specified in the preceding paragraphs of this section;

(m)   prescribing penalties not exceeding $500 for offences against the regulations.'.

Clause, as amended, agreed to.

Postponed Clause 4.

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

In sub-clause ( 1 ) insert the following definition:- "Family Court" means the Family Court of Australia'.

In sub-clause (I), in the definition of 'marriage counsellors ', insert: (aa) a person appointed as a counsellor under section 1 7s;*.

In sub-clause ( I ), in the definition of 'matrimonial cause' paragraph (c) (i), leave out 'those parties' and insert 'the parties to a marriage'.

In sub-clause ( I ), in the definition of 'matrimonial cause' paragraph (c) (ii), leave out 'those parties' and insert 'the parties to a marriage '.

In sub-clause (1) in the definition of 'matrimonial cause' paragraph (c) (iii), leave out 'children ofthe marriage' and insert ' a child of a marriage '.

In sub-clause ( 1) in the definition of 'matrimonial cause' paragraph (e), leave out 'the' and insert 'a'.

In sub-clause ( 1 ) in the definition of 'proceedings', leave out 'includes cross-proceedings' and insert- means a proceeding in a court, whether between parties or not. and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding'.

In sub-clause ( 1 ), in the definition of 'repealed Act', leave out all the words after 'amended' and insert 'at any time'.

In sub-clause ( 1 ) leave out the definition of 'Superior Court'.

In sub-clause (1), in the definition of 'welfare officer' insert '(aa) a person appointed as a welfare officer under section I7s:\

In sub-clause (2) after 'annulled' insert ', in Australia or elsewhere'.

Clause, as amended, agreed to.

Postponed Clause 14.







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