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: 2784


Senator MURPHY (New South WalesAttorneyGeneral) - I move:

In sub-clause (1), paragraph (6), leave out 'Superior' insert 'Family'.

After sub-clause (1 ) insert the following new sub-clause: ( 1 A) Where proceedings referred to in sub-section ( 1 ) are before it, the court may transfer the proceedings of its own motion, notwithstanding that the parties would be willing for the court to hear and determine the proceedings. '.

In sub-clause (2) after 'such orders' insert, 'including an order under section 41,'.

Amendment 65 is consequential upon the establishment of the Family Court and merely replaces a reference to the Superior Court with a reference to the Family Court. Clause 24 provides that certain proceedings for custody or access or in respect of property worth more than $ 1,000 instituted in a court of summary jurisdiction must be transferred to a higher court if they become defended, unless the parties agree that the matter be heard in the lower court. Amendment 66 is a clarifying one to ensure that a court of summary jurisdiction has a discretion to transfer such proceedings on its own motion, notwithstanding that the parties are willing for that court to hear and determine the proceedings. It may be specially desirable for a custody case to be transferred if the lower court lacks the necessary ancillary staff. Sub-clause 24(2) enables the summary court, before transferring proceedings as required, to make orders pending the disposal of the proceedings in the higher court. Amendment 67 would enable a court of summary jurisdiction in a contested custody case, before transferring the proceedings, to order the parties to attend a conference with a welfare officer pursuant to clause 41. This would enable the conference which would help the parties resolve their differences to be held at an earlier date than if it had to be ordered by the higher court. The effect of clause 24 generally has already been indicated, and I need add only that sub-clause (3) provides for the hearing of the transferred proceedings in the higher court. Sub-clause (4) preserves the validity of any order made by a summary court in proceedings that should have been transferred.

Amendments agreed to.

Clause, as amended, agreed to.

Clause 25 agreed to.

Clause 26

(   1 ) An application under this Act by a party to a marriage for a decree of dissolution of the marriage shall be based on the ground that the marriage has broken down irretrievably.

(2)   Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the commencement of the hearing of the application.

(3)   A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.







Suggest corrections