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Constitutional and Legal Affairs - Senate Standing Committee - Reports - Law and Administration of Divorce and Related Matters, and the Clauses of the Family Law Bill 1974 (Final)


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Senate Standing Committee on

Constitutional and Legal Affairs

Report on

The Law and Administration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974

OCTOBER 1974

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1974 - Parliamentary Paper No. 133

THE PARLIAM ENT OF THE COM MO NW EALT H OF AUSTRALIA 1974 - Parliamentary Paper No. 133

Senate Standing Committee on

Constitutional and Legal Affairs

Report on

The Law and Admini stration of Divorce and Related Matters and the Clauses of the Family Law Bill 1974

OCTOBER 1974

Brought up and

ordered to be printed 15 October 1974

THE GOVERNMENT PRINTER OF AUSTRALIA

CANBERRA 1974

Printed by Union Offset Pty. Ltd., Fyshwick, A.C.T.

THE SENATE

STANDING COt-fHITTEE ON

CONSTITUTIONAL AND LEGAL AFFAIRS

Report on the Reference:

"The law and administration of divorce,

custody and family matters with particular regard to oppressive costs, delays, indignities and other injustices" and "the clauses of the Family Law Bill 1974"

iii

MEMBERS OF THE COMMITTEE

Senator J. R. McClelland (New South Wales) Chairman Senator J. N. Button (Victoria) Senator F. M. Chaney (Western Australia) Senator P. D. Durack (Western Australia) Senator M. G. Everett, Q.C. (Tasmania) Senator A. J. Missen (Victoria)

FORMER MEMBERS

Senator W. W. C. Brown (Victoria) Senator C. B. Byrne (Queensland) Senator G. C. Hannan (Victoria) Senator the Hon. L. K. Murphy (New South Wales) Senator the Hon. J. M. Wheeldon (Western Australia) Senator R. G. Withers (Western Australia) Senator the Hon. R. C. Wright (Tasmania)

Secretary - Mr. Michael Dixon, The Senate, Parliament House, Canberra.

iv

CHAPTER 1

CHAPTER 2

CHAPTER 3

ANNEXURE A

ANNEXURE B

ANNEXURE C

CONTENTS

Clauses of the Family Law Bill 1974 Referred to in this Report.

INTRODUCTION

References Reports

Paragraphs

1 - 15

1 - 2

3 - 15

CLAUSES OF THE "FAMILY LAW BILL 1974" 16 - 85

Interpretation Polygamous Marriages Transitional Provisions Reconciliation The Family Court of Australia

Judiciary Creation of the Court Court Structure Ancillary Services General Ground for dissolution of a marriage Welfare and Custody of Children Maintenance and Propert y

Appeals Enforcement of Decrees Injunctions Family Law Council Costs Restriction on Publication

CONSTITUTIONAL ASPECTS

List of organisations and persons who made written submissions on the general reference.

List of organisations and persons who provided written submissions on the Clauses of the Family Law Bill 1974

List of or ganisations and persons who gave oral evidence on the general reference.

v

17 - 22

23

24 - 26

27 - 31

32 - 46

35

36 - 37

38 - 39

40 - 43

44 - 46

47 61

62 - 63

64 - 76

77 78

79

80 - 83

84

85

86 - 89

vii

1

1

1

4

4

5

6

7

9

11

11

12

13

14

15

19

20

25 26 28

28

29 31

32

34

36

37

A EXURE D

AN EXURE E

ANNEXURE F

ANNEXURE G

List of persons who gave evidence on the Clauses of the Family Law Bill 1974

List of organisations and person s who provided information, stati stics and other relevant materia l on the general refere nce in informa l submissions and l ett ers to the Committee.

Proposed Clause 91

Family Law Bill 1974

vi

38

39

40

43

CLAUSES OF THE FAMILY LAW BILL 1974

REFERRED TO IN THIS REPORT

Clause 3(2)(c)

Clause 4 Clause 6 Clause 9 Clause 9(2)

PART III

(Clauses 14 to 17)

Clause 14 Clause 14(2) Clause 15

PAR T IV

(Clauses 18 to 25) Clause 18 Clause 18(6) Clause 19 Clause 20 Clause 21 Clause 22 Clause 23 Clause 24 Clause 25 Clause 26 Clause 26(2) Clause 27(2) Clause 30 Clause 35

PART VI

(Clauses 39 to 49) Clause 40(3)(a) Clause 41(3) Clause 42 Clause 43(1)(a) Clause 43(1)(b) Clause 49 Clause 49(6)

Para 78 (on page 27 in sub-section (3) of proposed Clause 84) Paras 17 to 22 Para 23 Para 26 Para 25; Para 26

Para 31 and generally in raras 27 to 31 Para 28(c) Para 29

Para 30

Gen erally in Paras 32 to 46.

Para 32 Para 32 Para 32

Para 32 Para 32 Para 32 Para 32 Para 32

Para 32 Para 25; Para 47; generally in Paras 47 to 59 Para 56; Para 59 Para 60(a) Para 17 Para 60(b)

Generally in Paras 62 and 63 Para 63(a) Para 63(b) Para 63(c) Para 63(d) Para 63(d) Para 63(e) Para 78 (on page 27 in sub-section (2)

of proposed Clause 84)

vii

PART VII

(Clauses 50 to 67) Clause 51 Clause 54 Clause 54(1) Clause 54(2) Clause 54(2)(b) Clause 54(2)(e) Clause 54(2)(f) Clause 54(2)(g) Clause 54(2)(j) Clause 55 Clause 55(3) Clause 55(4) Clause 57 Clause 57(1) Clause 57(2) Clause 58 Clause 58(1) Clause 58(3) Clause 58(4) Clause 58(4)(b) Clause 61 Clause 61(1) Clause 61(4) Clause 62(3) Clause 62(5) Clause 64(1) Clause 65 Clause 65(1) PART IX

(Clauses 70 to 73) Clause 71 Clause 72 Clause 73 PART XII

(Clauses 82 to 88) Clause 84 Clause 90 Clause 90(1) Clause 90(3)

Clause 91

Clause 92 Clause 92(1) Clause 92(2) Clause 93 Clause 95 Clause 95(6)(a) Clause 95(6)(b) Clause 95(6)(c) Clause 95(6)(d)

Generally in Paras 64 to 76 Para 66; Para 73 Para 58; Para 65; Para 67 Para 67(a) Para 66(b); Para 67(f); generally in Para 67. Para 67(b) Para 43; Para 67(g) Para 67(c) Para 67(d) Para 67(e) Para 68 Para 72(b)

Para 68 Para 69; Para 71 Para 71(a) Para 71(a) Para 69; Para 71 Para 71(b) Para 70; Para 71(c) Para 70 Para 71(d) Para 72 Para 72 Para 72 Para 73 Para 74 Para 75 Para 76 Para 76

Generally in Para 77 Para 77 Para 77 Para 77

Generally in Para 78 Para 78 Para 59; Para 79 Para 79 Para 78 (on page 27 in sub-section (2)

of proposed Clause 84) Generally in Paras 80 to 83, Para 81; Para 82(a); Para 83; Appendix F. Para 26; generally in Para 84 Para 84; Para 84(a); Para 84(b)(i) Para 84(a); Para 84(c) Para 84(c) Generally in Para 85 Para 85 Para 85 Para 85 Para 85

CHA PTER 1 - INTRODUCTION

References

1. On 7 December 1971 the Senate referred to this Co mmittee the following matt er for enquiry and report:

"The law and administr ation of divorce, custody and family matters with particular regard to oppressive costs, delays, indignities and other injustices".

1

2. On 8 April 1974 the Senate empowered the Committee to consider the clauses of the Famil y Law Bill 1974 during its consideration of the wider matter previousl y referr ed to it. As the Parliament was dissolved shortly afterwards, the Committee was unable to deal with the matter. Subsequently

on 16 August 1974 the Committee was re-est ablished and the Senate again empowered the Committee to consider the clauses of the revised draft of the Family Law Bill 1974 during the course of its consideration of the wider matter, pursuant to the Resolution of the Senate:

Reports

"(1) That notwithstandin g anythin g contained in the Standing Orders, the Legislative and General Purpose Standing Committee on Constitutional and Legal Affairs be empowered on its re-appointment to consider

the clauses of the Family Law Bill 1974 during its consideration of the ma tter previously referred to it, namely the Law and Administration of Divorce, Custody and Family Matters.

(2) That the Committee report to the Senate on those clauses by 18 September 1974".

3. On 31 October 1972 the Committee tabled an interim report on the general reference.

4. On 17 September 1974, on the motion of the Attorney- General, the Committee was granted an extension of time by the Senate for the tabling of its final report on the clauses of the Family Law Bill 1974.

5. On 24 September 1974, the Committee tabled a further interim report, on the general referen ce and on the Family Law Bill 1974.

6. The Committee acknowledges that, on a matter of such wide public interest as the proposed alteration of the law and administration of divorce and related matters, it is essential that its conclusions pay full regard to the divergent views on this subject held by various sections of the community.

2

7. However, when the Family Law Bill was referred to the Committee on 16 Au gust, 1974, the Committee did not consider that it had been instructed by the Senate to embark de novo on a general enquiry into the philosophy, history and variet y of legal forms of matrimonial relations and divorce, nor to invite submissions at lar ge from interested persons and organisations.

8. This was because of the nature of the reference itself which \vas "to consider the clauses of the"Family Law Bill 1974" during its (i.e. the Committee's) consideration of the matter previously referred to it, namely"the Law and Administration

of Divorce, Custody and Family Hatters. "

9 . In respect of the general reference, as distinct from the Family Law Bill, interested persons and organisations were invited by notice which appeared in the press throughout Australia on 18 ~Brch 1972, to lodge written submissions with the Committee by 20 May, 1972. Specific invitations were also issued to individuals, societies and associations known to be interested in the subject.

10 . In response to this general invitation the Committee received approximately 190 letters and informal submissions and a total of 108 formal submissions. Although the Committee has varied in composition since its inception all of these submissions have been available to the present Committee in considerin g the specific reference of the Family Law Bill 1974. Two members, Senators P. D. Durack and J. R. McClelland, have been members of the Committee continuously since the first reference.

11. In addition the Committee held six public meetings between 8 June, 1972 and 20 July, 1973, at which nineteen representative spokesmen on the subject gave evidence to the Committee. The Hansard record of this evidence has been available to the Committee in considering the specific reference.

3

12. On June 12, 1973, the Chairman of the Committee wrote to the heads of the Anglican, Roman Catholic, Presbyterian, Methodist and Congregational Union churches in Australia asking for the official views and comments of those churches

on the question of divorce law reform. In response to these letters the Anglican, Roman Catholic, Methodist and Congregational Union churches forwarded submissions and these are among the material which was available to members of the Committee in considering the Family Law Bill 1974.

13. In addition, members of the Committee (like other members of Parliament) have, since the introduction of the Family Law Bill 1974 into the Senate, received letters and submissions both for and against the Bill from individuals and

organisations. Since receiving the specific reference on the Family Law Bill on 16 August 1974, the Committee has had the advice of six prominent lawyers associated with divorce law practice in various States of Australia, directed to the clause by clause examination of the Bill and the practical

implementation of the Committee's views with respect to a family court.

14. Lists of persons and organisations who have provided the Committee with letters, informal or formal submissions, or who have given oral evidence; either on the general reference or on the specific reference of the clauses of the

Family Law Bill 1974, are set out in Annexures A to F.

15. The above material has been carefully considered by members _of the Committee and its recommendations are made in the full knowledge of the opinions both for and against the Bill of all citizens and organisations which have expressed

their views.

CHAPTER 2 - CLAUSES OF THE "FAMILY LAW BILL 1974"

16. This chapter concerns issues which have been raised in respect of the Bill, in submissions and in the second reading speeches on the three bills and also by this Commi tt ee in the course of its delib erations. In this chapter the Committee has recommended that certain changes be made to the Bill before it is passed, and has raised

4

some matters which were of concern to some members. The discussion on the issues will follow the chronological order of the Bill.

Interpretation (Clause 4)

17 . There is no provision in the Bill for a definition of a "void marriage" . The Committee notes the intention previously expressed by the Attorney-General that a definition of a "void marriage" would be included in an amendment to the Marria ge Act. How ever pursuant to Clause 30 of the Bill, an applic ation for a decree of nullity of marriage is to be based on the ground that a marriage is void; it is therefore

essenti al that this amendment be made before the Family Law Bill 1974 is passed . A definition similar in effect to Section 18(1) of the present Matrimonial Causes Act would be appropriat e . The Commi tte e understands there will be no room for the concept of a voidable as distinct from a void marriage and expresses the view that this should be made explicit in

the definition.

18 . Provision is made for the definition of "court of summary jurisdiction" and "Superior Court". Later in this report the Committee has recomme nded the establishment of a Family Court to exercise jurisdiction under this Bill. Accordingly

this provision and others throughout the Bill will require amendm ent. It is not proposed to enumerate all these changes in this report, other than those of special signifi cance .

19 . One of the consequenti al changes which will be required to be made to the Bill will be to the definitions of "marriage counsellor" and "we lfare officer" . As will be seen later in this report the Committee envisages a much more active and

significant role for both marriage counsellors and welfare officers , some of whom at least it is anticipated will be att ached to, or be officers of, the Family Court.

5

20. The Committee is concerned that as proceedin gs under the Bill may involve persons other than parties to a marriage , confusion may arise in the use of the word "parties " in the definition of "ma trimonial cause", particul arly in

sub-clauses (c)(i) and (c)(ii). It is suggested that there should be substituted in each case for the words "those parties" the words "the parties to a marriage".

21. The Committee recommends that the words "arisin g out of the marital relationship" appearing in sub-clause (e) of the definition of matrimonial cause be ame nded to "arisin g out of a marital relationship".

22. As a consequence of the definition of "terri tory", the Bill applies to the whole of Australi a and all its territories , except the territories of Christmas Isl and and the Cocos (Keelin g) Isl ands. The Commi tt ee feels that the reasons for

the introduction of this Bill to Austr ali a and its other Territories would justify the intro duction of the Bill to Christmas Isl and and the Cocos (Keelin g ) Isl ands. However the Co mmittee has noted that neither the Marriage Act nor

the present Matrimonial Causes Act applies to these Territor ies and that there may be reasons of Government polic y for not extending the subject Bill to these places.

Polygamous Marriages (Clause 6)

23. The purpose of Clause 6 is to enable people who have contracted polygam ous marriages in countries outside Australia, where the proper form of marriage was a polygam ous union, to seek relief under this legislation after they have come to live in Australia. The provision is necessar y because at Common Law the parties to a polygamous ma rri age were not, as between each other, entitl ed to relief under

our matrimonial laws. This Common Law barrier to relief existed even though the subject marriage was quite validl y cpntracted in a place o~tside Australi a and neither of the parties had entered into a union with another spouse. In

the previous Family Law Bill 1974, reference was made to polyandrous marriages. The Committee understands that the expression polygamous marriages includes polyandrous marriages. It should be noted that a similar clause existed in the present Matrimonial Causes Act and that the clause does not authorise the.contracting of polygamous marriages insi de Australia, as marriages in Australia must be contracted pursuant to the provisions of the Marriage Act, which do not authorise polygamous marriages.

6

Transitional Provisions (Clause 9)

24. The Committee believes that parties to matrimonial causes proceedin g s which are pending at the time the Bill becomes law ought to be encouraged to proceed under the new legislation in preference to the existing Act. However there are two areas of difficulty. The first arises out of the new grounds for divorce, the second relates to costs.

25. It is possible that some parties to a pending proceeding would not be able to take advantage of the provisions of Clause 9(2) when the new Bill becomes law. Under the present legislation it is possible for a party to a marriage to seek

instant relief once proof of a matrimonial fault of the other party has been established, notwithstandin g there has been no period of separation of the marriage partners. Under Clause 26 it will be seen that the Committee has recommended that proceedings for divorce under this Bill are not to be commenced until the period of separation has

elapsed. Clause 9(2) permits pending proceedings to be dealt with "as if they were proceedings instituted under this Act on the ground referred to in Section 26". To make sense of this provision, it is necessary for 12 months separation

to exist. Accordingly we recommend that there be added at the commencement of Clause 9(2) the words "where the parties have lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the application ".

26 . No provision is made in the Bill for costs in pending proceedin g s (which under Clause 9(2) become proceedings under the new Act). As the Bill stands this would mean that each party to pending proceedin g s would have to bear their own costs notwithstandin g the fact that they might have quite properly incurred substantial costs in the preparation or defence of a case under the present legislation and relying on rights under the previous Act. The Committee recommends

that a sub-clause be added to Clause 9 to provide that Clause 92 (which relates to costs) is not to apply to proceedings continued and dealt with under the transitional provisions of the Bill.

7

Reconciliation (Part III) Clauses 14 to 17

27. Experience has shown that the reconciliatio n provision s of the existin g Matrimonial Causes Act have had lit tle or no practical effect. Much of the blame for the failure of these provisions can be attributed to the present court structure and legalistic procedures which face married couples should

they turn to the law to resolve their inter personal problems. Furthermore, such reconciliation provisions are not avail able at an early stage of marital breakdown. The Members of the Committee have noted concern in some sections of the community , particularly amon gst some Church organisations, that the proposed Bill will help accelerate the present rate of divorce. The members of the Committee do not agree that the no fault principle of the Bill of itself will be the cause of an

increase in the breakdown of marriages. It does note with concern that the rate of divorce is increasin g . The Con@ittee believes that provided its concept of a Family Court is accepted,sound and'wo rkable reconcil ~ation provisions can be drafted which would make a rea l contribution to the stabilit y of the institution of marriage in Australia.

28. A disadvantage of Part III of the existin g Ma trimonial Causes Act is that the provisions operate only when the parties have actually instituted proceedin gs, which in the professional experience of members of the Committee is at a time when the attitudes of the parties to the marriage are most hardened against reconciliation. Later in this report the Committee has recommended that a section of the Family Court's facilities be devoted to marriage counsellin g services and other social welfare work. The Committee recommends that provisio n be made in Part III of the Bill for the marriage counsellin g

facilities of the Family Court to be available in the following circumstances:

(a) Firstly, where no application for matrimonial relief of any form has been instituted and indeed none has been contemplated;

(b) Secondly, where an application for relief has been made no matter how "minor" or "serious" the relief sought; and

(c) Thirdly, in the situation which is envisaged by Clause 14, the Committee recommends tha t Clause 14, subject to the amendments suggested below, ought to remain in the Bill.

8

The Committee emphasises that provisions must be drawn in such a way as to encourage parties whose marriages or family lives are in difficulty to come and take advantage of the marriage counsellin g facilities of the Family Court at any

time, regardless of whether or not proceedings under the Bill are contemplated or have been initiated. The Committee believes that such facilities would also be of value to persons whose marriages have failed, in assisting such persons to

come to amicable arrangements for custody of children, maintenance and disposition of propert y . It is envisaged that the marriage counselling facilities of the FAmily Court will augment and co-operate with existin g private marriage

guidance counselling services.

29. The Committee recommends that in Clause 14(2) of the Bill, the words "or of a legal practitioner representing a party" be deleted from the Bill, as it is felt that their inclusion may lead to their improper use as a legal ma .:weuvre, rather

than to serve their proper purpose. It is in fact the attitude of "the parties or either of them" which should be the court's concern not the attitude of the legal practitioner appearing in the case.

30. In view of the recommendations made above, the Committee feels that Clause 15 must also be considerably improved. This clause relates to the provision of documentary material to the persons proposin g to institute proceedings. The Committee feels that the provision is of such importance

that it should not be left to the chance that regulations may or ma y not spell out the detail of documents to be furnished to parties setting out the effects of divorce, and further that the word "consequences" is neither

appropriate nor specific enough for the purpose. The Committee recommends that the section be amended to provide that officers of the Family Court may:

(a) advertise the marriage counselling and other social welfare facilities of the court;

(b) where proceedings for principal relief or otherwise have been instituted, or where persons seek advice, forward a document to the parties affected by the action setting out:

(i) the legal and possible social effects of the contemplated action;

(ii) the marriage counselling facilities available insi de the structure of the Family Court or elsewhere ;

and that the regulations may provide the format and detail of the documents to be furnished.

9

31 . The Committee has noted concern expressed from some sections of the community with the failure of the Bill to include a provision similar to that in Section 43 of the Matrimonial Causes Act, which subject to some exceptions, prohibits the

instituting of proceedings for a divorce within 3 years nf a marria ge. The Committee shares the concern that young couples facing marital difficulties may take premature action for divorce. On the other hand the Committee believes that

the existing provision is too rigid, (causin g hardship in many cases) and too arbitrar y in the nature of its excepti ons . The Committee recommends the insertion into Part III of the Bill of a provision to the effect tha t where an application

for principal relief discloses that the parties to the marriage have been married for less than 2 years, the Registrar or other proper off.ic er of the court must refer the application to a Judge of the Family Court. The judge

then, may direct that the application is not to be heard until one or both of the parties to the marriage ha s been interviewed by a marriage counsellor or some other person as the judge may direct. The Committee believes that such a provision coupled with the concept of the Famil y Court will give adequate protection against hasty divorces in young marriages.

The Family Court of Australia (Part IV) Clauses 18 to 25

32. The substantial effect of Clauses 18 to 25 inclusive of the Bill is to permit an Australian citi zen or a person domicil ed or ordinarily resident in Australi a (for one precedin g year) to institute proceedin gs for dissolution of marri age and other remedies. Jurisdiction for hearin g applications is conferred on the Supreme Court of a State but may be transferre d

to the Superior Court by proclamation if and when such Court is created. Apart from applications for divorce or nullity,

10

jurisdiction to hear other applications is also conferred on courts of summary jurisdiction (Clause 18(6))subject to certain restrictions (Clauses 20, 23 and 24). The terms of such division of responsibility (particularly Clause 24) are unsatisfactor y and should be amended in the light of

the substantial recommendations made under this Part. Irrespective of the acceptance or rejection of our major recommendation, we propose that Clause 22 be amended to restore the words of the 1973 Bill namely "except as permitted by the regulations or with the leave of the Court"

to permit applications for ancillary orders to be made more than 12 months after the decree in special circumstances. If this is not done, substantial injustices will occur.

33 . The Committee is firmly of the opinion that this Part requires substantial redraftin g to inc~rporate the creation under the Bill of the Family Court of Australia, a federal court of record , being invested with the full jurisdiction of the Commonwe alth under Section 51 of the Constitution (viz. ma rria ge, divorce and matrimonial causes) and dealin g

exclusively with family law matters. It is proposed that the new Court exercise not only the remedies in relation to matrimonial causes now exercised in State Supreme Courts and Territor y Courts but maintenance, custody and family property jurisdictions presently exercised in a variety of

State courts. It is recognised that for some period the present mag istrate jurisdiction will need to continue in some districts, but it should be phased out over a period.

34. The concept of a "family court" is well established in the United States of Amer ica , Canada and Japan though there are vari ations in the proceedin gs and powers. It generally involves the creation of a special court (or division of a larger court), the assimilatiqn of all family matters into

one court, with active pre-divorce and post-divorce counsellin g not merely to assist reconciliation, but also to provide for the reduction of bitterness and distress and in allevi atin g on-going post-divorce problems. It is the concept of the "helping court". A useful commentary on

the need and development of a family court in Australia is to be found in a paper entitled "An Australian Family Court" written by Mr. R. Watson, Q.C., which is available upon application to the Secretary of this Committee. The Committee also commends the study of the evidence given before the Committee by Judge Burnett, relating to the South Australian Family Court, which is now operating in the

jurisdiction below the Supreme Court level.

Judiciar y

35. It is proposed that the Family Court of Australia consist of a two tier body of judges, the first tier having the equivalent status of Supreme Court or Federal Judges and the second tier having the status equivalent to County

11

Court or District Court Judges. It would sit in all States and Territories and appeals from single Judges would be heard by a Full Court of three judges. It is not contemplated that the jurisdiction of each tier be rigidl y defined in the Bill but certain matters (particularly complex cu;:;t ody and propert y

issues) would no doubt be reserved for the first tier judges. Judges would need to travel on circuit to provide a wide availabilit y of the facilities of the Court. It is of the essence of our recommen dation that the Judges appointed

to this Court (men and women) should be chosen for their experience and understandin g of family problems and should be drawn from existin g Judges, members of the bar and solicitors, accordin g to their particu lar suitability. They would need to recognise their responsibilit y in develooing a new type of court, actin g with a minimum of formality ,

co-ordinatin g the work of ancillary specialists attach ed to the court, encouraging conciliation and applying , only as a last resort, the judicial powers of the court.

Creation of the Court

36. The Committee is concerned with the effect on the creation of the Family Court and appoincment of judges of Section 72 of the Commonwealth Constitution, which in general requires judges of the Family Court created by Parliament to be appointed for life. The Committee does not believe that it

is desirable that judges on this Court should adjudicate when of advanced years. It accepts that judges of the "first tier", dealin g with matters of legal substance and difficulty, should be federally appointed judges, but efforts should be explored

to see whether they may be induced not to sit in this jurisdiction after a certain age. With respect to the judges of the second tier (who will handle the substance of maintenance proceedin gs and will travel more extensively), the

Committee believes the problem is more acute.

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37 . The Committee has not conceived its duty to be to solve this problem which is however a matter of essential importance to the Australian Government. However one possible solution to this problem is along the following lines, namely that the Australian Government immediately approach the various State Governments to seek their agreement as follows:

(a) That the respective State Governments will appoint (as State judges subject to retirement) such Judges of the second tier as will operate mostly in that particular State and will make

such appointments in agreement with or on the recommendation of the Australian Government.

(b) That the respective State Governments, create and maintain the facilities for such parts of the Family Court operatin g in that particu lar State, from moneys provided by the Australi an Government and subject to such reasonable conditions as may be prescribed for attaining a minimum standard of facilities for the Family Court in all States.

(c) Consideration could also be given to incorporating into the Family Court of Australia, the existing Family Court of South Australia.

(d) Until co-operation is achieved with a particular State Government, the ma gistrates' jurisdiction would need to continue in that State in a substantial way. Where a State Government refuses

to co-operate in the implementation of the Bill, it may be necessary for all judges to be appointed by the Australian Government, despite the difficulties outlined above.

(e) The Bill would require amendment to empowe r agreements and administrative arrangements to be made in accordance with these suggestions if adopted.

Court Structure

38 . There is a need for a new start in matrimonial law and administration in creating a new entity not interchangeable with existing courts. The Court will require new standards and methods, both in its physical environment, its procedural methods and in its approach to marital problems. Court

premises should be separated from existing courts, and business

13

be conducted in modern surroundings with small well provided court rooms, enabling easy dialogue between the court and the parties. Conference rooms and other facilities and ready access to advice, including legal aid are essential. The careful choice of staff and the provision of written and oral advice and assistance must receive close attention.

39. It is essential that the activity of the court be seen as a "team" operation, not in the traditional atmosphere of the judicial separation and inflexible divisions of functions. The Family Court of South Australia, although in its infancy,

is a worthwhile example of such team activity. The judge should nonetheless retain his clearly discernible role as a judge, not as a counsellor. He should control proceedin gs, advance optional solutions and create the "climate" for settlement. But if there is no settlement, the necessary decrees must be

judicial and must be seen to be judicial.

Ancillary Services

40. The Family Court of Australia, properl~ constituted, requir es ancillary support at three levels:-(a) Welfare officers who can talk to parties, evaluate custodial difficulties, report to the court and,

where required, provide on-going supervision of custody and access orders;

(b) Court counsellors who can counsel on marriage and personality difficulties, and

(c) Legal advisers who can inform parties as to their rights, and as to the availability of legal aid and other community services.

(While the litigious side of matrimonial law will inevitably be reduced, the legal profession will continue to represent parties but training in behavioural sciences will obviously become more important for those specialising in this area).

41. In addition to ancillary services employed by the court, provision must be made for use, on a consultant basis, of specialised services required in particular cases, e.g. psychiatric, psychological, voluntary marriage guidance

services and accountancy services.

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42. The geographical problems in this country will, as has been said, require the continued use for some time of ma gistrates in adjudicating \vi thin the framework of the F 8mily Court. Refresher trainin g will be required and, as far as possible the facilities and services of the Family Court must be made available to them. Orders by magistrates should be of an

interim nature and subject to reconsideration by Judges of the court.

43 . \Vhile the orders for maintenance and custody currently made by magistrates under State jurisdiction are substantial in num ber, the Commi tt ee recognises tha t a large part are caused by the statutory requirement that deserted \vives must annly for and enforce orders before their eli gibility for

(or continu ance of) a deserte d wife's pension is approved. ~Je recommend that Section 62(3) of the Social Services Act

1947-1~74 be amended to disnense with this requirement . It

is a cause of unnecessar y liti gation and disharmony and the Dep artment should be empowered to recover contributions from husbands \vi thout this requirement. Furthermore, Clause 54(2)(e) of the Bill alread y contemplates the takin g into consideration of pension entit] ements on applications being made for maintenance orders. This change should reduce

substantially the volume of maintenance applications.

Genera l

44. The Co mm ittee sees the creation of the Family Court of Australi a as essential to g ive substance to reconciliation provision s of the Bill. Under the existin g Act reconciliati on has not been effective. Reconciliation and counsellin g

facilities must be availab le and be used before and at the early stages of matrimonial liti gation if it is to achieve effect. We see the new court as performing this positive service and where reconciliation fails, as p laying a major role in reducing the area of disharmony and bitterness and facilit ating the settlement of custody, access and property disputes.

15

45. It is recognised that the full imp lem entation of the redrafted Part incorporatin g the Fami ly Court of Australia will require ti me and cannot be achieved at once. It will depend on the effecti ve administrati ve actions of the CouL t and its officers and the jurisdiction should be progressive ly

extended by proc lamation. The co-operation of State authorities should be sought in extending the operation of the Court an d , specifica ll y, approaches should be ma de to seek the reference, by the States to the Commonwealth, of powers over affili ation and maintenance of ex-nuptia l children so they may be dealt with in the Family Court of Austr ali a on equa l conditions as children of a marriage .

46 . The creation of the Family Court of Austr ali a will put Australi a in the forefront of family law refor m and Hill ensure that other facilities and remedies provided in the Bill can have effective imp lementati on.

Ground for dissolution of a marriage (Clause 26)

47 . Clause 26 of the Bill provides, in effect, that the only ground for the dissolution of a marria ge shall be the fact that the marriage has broken down ir retriev ab ly , evidencec: by the Court being satisfied that "the parties separated and thereafter li ved separately and apart for a continuous period of not less than twelve mon ths immediately precedin g

the date of the commencement of the hearing of the application".

48 . The Commit tee ha s given serious consideration to this tr ansition, a s the sole ground for dissolution of a marriage , from the concept of so-calle d "fault" to one of "non-fault".

49 . The Commit tee notes that the separation of the parti es to a marria ge has been recognised as a g roun c ~ for dissol u tion in Austr ali a for a considerable time - at first in the State of I.Jest ern Australi a since 1944 and later, from the commen cemen t of the Commonwe alth Ha trimoni a l Causes Ac t 1959 , on a national basis - although the period of separation is five years . In short, the notion of divorce without fault does not break any new ground in Au stralia.

16

50. The Committee's major task therefore was to determine whether or not the fact of irretrievable breakdown, evidenced by separation of the parties should replace other existing grounds as the sole basis for dissolution, and if

so what period of separation should be required.

51. The Committee pointed out in its interim report, tabled in the Senate on 24 September, 1974, that from the submissions it had received and oral evidence taken on the general reference, a remarkable consensus had emerged that the existing grounds for divorce based on a notion of matrimonial fault should be replaced by a new ground of irretrievable breakdown.

52. Evidence considered by the Committee during its examination of the specific clauses of the Bill has confirmed that the judgment of most persons and organisations with interest in, and experience of, the operation of the existing law favours

the transition to the non-fault concept which the Bill expresses. The Committee has already, in its interim report, cited a number of extracts from the evidence. It invites the attention of members of the Senate to the detailed

submissions, presented to it in written or oral form, which are either reported in the Hansard record of the Committee's deliberations or readily available on request to the Secretar) of the Committee.

53. The Committee has not ignored the contrary view expressed by some witnesses. However, it has conceived its duty to be to determine how best the stability of a marriage may be buttressed and yet, when it has irretrievably broken down, how best it may be dissolved with the maximum of fairness and the minimum of bitterness, distress and humiliation.

(See the report of the English Law Commission to which the Australian Attorney-General referred when the first Family Law Bill was introduced on 13 December 1973).

17

54. The Committee has unanimously reached the view that the provision of irretrievable breakdown of a marriage, based on a period of separation as the sole ground of divorce is proper and in the public interest. When applied in the context of a broadly-based Family Court, as the Committee recommends, the clause will, in the Committee's view,

satisfy the criteria expressed by the English Law Commission, and bring a degree of honesty and dignity to the administration of Australia's national divorce law. There should no longer be any encouragem ent to perjury, exaggeration, false attitudes or the need for discretion statements.

55. The Committee recognises that there may well be differences of views held as to the appropriate period of separation in proving irretrievable breakdown. A majority (Senators J. R. McClelland, M. G. Everett, Q.C., J. N. Button and A. J. Missen) of the Committee believe that a period of 12 months separation proposed in the Bill (and subject to the

terms of Para 56) should be required to establish irretrievable breakdown. Two members of the Committee (Senators P. D. Durack and F. M. Chaney) dissent from this recommendation and believe that 12 months is an inadequate period and propose a period of 2 years.

56. The Committee is opposed to the provision in Clause 26(2) whereby a proceeding for dissolution of a marriage may be instituted before the required period of separation has elapsed. In the Committee's view its recommendation that

reconciliation and counsellin g procedures of a Fami ly Court should be available without any necessity for the filin g of any application under the Act makes it essential that there should be what has been described as a "coolin g off" period before the institution of proceedings for dissolution.

In any event such a period is desirable in the Committee's oplnlon. The Committee therefore recommends that Clause 26(2) be amended by substituting for the words "the date of the commencement of the hearing of the application" the followin g words: "the date of the institution of the proceeding" or words with a similar effect.

18

58. The provisions of the Bill do not abolish all consideration of so-called "fault". In particular, in the provisions which deal with the right of a spouse to maintenance, the Court is required to take into account a number of matters which involve detailed facts relating to the marital relationship. To ensure that no relevant fact is overlooked which justic e requires should be taken into account, the Co c~~ittee recommends that Clause 54 be amended in the manner referred to later in this report. Moreover in respect of custody proceedin gs the conduct of the parti es is relevant to the deter minati on of the issue. 59. The Committee gave deep consideration to the question of

whether or not an altern ative mode of proof of irretrievable breakdown should be included in Clause 26 to cover cases in which, for example, a wife is subject to intolerable conduct, but because of practical considerations is unable

to establish an actual state of separation. On ultimate balance the majority of the Committee is of the opinion that it would not be desirable to amend Clause 26(2) in order to cover such cases which they consider will normally be the subject ot the exercise of the Court's jurisdiction under Clause 90. It would be a proper area of concern for

the Family Law Council (see infra p. 28) to consider whether any case of injustice arises in this respect but at this stage the majority of the Committee is not persuaded that injustice will occur.

60. There are two further amendments to this Part recommended by the Committee:

(a) The provision in Clause 27(2) reproduces the Common Law position that separation may occur "under the one roof". The Committee believes this requires extension by providin g that such separation may occur notwithstandin g

that one party has from time to time performed services for the other party.

(b) Clause 35 relates to the certificate that a decree for divorce has become absolute. The Committee believes it should be amended to provide, in the Act, for a Central Re gistry to be kept recording orders for dissolution of marriage, with the additional requirement that copies of the decree be forwarded to

the Registr y of Marriages of the State in Australia in which a marriage was performed.

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61. The Cormnittee concludes this section of its report with the observation that it does not expect its basic recormnendation on the ground for dissolution of marriage to be universally accepted, but it is in no doubt, on a consideration of the

submissions and oral evidence, that the large majorit y of the public desire the existin g laws with respect to divorce to reflect a widely held contemporary view that the

shortcomings in our family law system should be removed as quickly as possible. The Cormnittee is firmly of the view that a Family Court provides the key to the achievemen t of this goal of social reform and that under its influence marriages will be buttressed and only dissolved when

irretrievable breakdown makes legal preservation a travesty. Failure to terminate such a situation would not, in the Cormnittee's view,be in the interests of any person, including children, who are encompassed within a matrimonial relationship.

Welfare and Custody of Children (Part VI) Clauses 39 to 49

62. It is the belief of this Cormnittee that this is one aspect of interpersonal relationships which will benefit most by the social welfare facilities of the Family Court. Custody of children is an area of divorce proceedings which is often fought with great bitterness, and more tragicall y under the present Act the matter of custody of the children of a marriage is often used as a means for securin g an advantageous

settlement for one of the parties to a∑ divorce. The Cormnittee is of the view that Part VI of the Bill coupled with the Cormnittee's concept of the Family Court will assist in preventin g the issue of custody from being used as a tactical procedure in divorce proceedings.

63. The Committee recommends that the followin g amendments be made to Clauses of Part VI of the Bill:

(a) Insert at the end of sub-clause 40(3)(a) the words "or who has married";

(b) Omit the words "but the failure does not constitute a contempt of the Court" from Clause 41(3);

(c) Insert in Clause 42 a prov~s~on to the effect that if the court is in doubt as to whether proper arrangements for the welfare and custody of children have been made, it shall be the duty of

the court to adjourn the proceedin gs until a report has been obtained from a welfare officer. The

Committee considers it desirable to add a provision whereby the court in appropriate cases can exercise on-going supervision in respect of custody orders.

(d) Omit sub-clause 43(.1)(b). The Committee believes that Clause 43(1)(b) is too rigid and restrictive on the court and that the provisions of sub-clause 43(1)(a) are adequate for the purpose of taking proper account of a child's wishes in custody proceedings. The Committee is of the view

that the wishes of a child, although of great importance, are not the only matter to be taken into account by a court in determining custody issues.

(e) Insert in Clause 49 a prov1s1on enabling the court to make an order to deliver up to the Court a person's passport, where it is anticipated that a person having control of a child is about to flee the jurisdiction with the child.

Maintenance and Property (Part VII) Clauses 50 to 67

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64. The Bill provides that maintenance applications are to be related to need. The provisions of Part VII of the Bill in so far as they relate to maintenance proc~edings, formerly covered by State and Territory maintenance legislation, are in the opinion of the Committee a significant improvement.

65. The Committee agrees with the general object of the Bill in respect to maintenance where it seeks to encourage the parties to be financially independent. However it recognises that there are three shortcomings in the Bill as drafted and

it suggests various amendments to Clause 54 to meet them. The shortcomings are as follows:

(a) The Bill does not take adequate account of the position of a woman of mature years who, by reason of her marriage, could not reasonably be expected to return to or enter the workforce.

(b) Conversely the Bill as drafted might allow a party to a marriage who is "in need", but not properly entitled to expect to be maintained by the other party, to obtain such an order for maintenance.

(c) The matters to be taken into account by the Court under Clause 54(2) are not sufficiently wide as to enable the court fully to exercise its discr etion in the matter.

66. The Committee recommends that Clause 51 be amended as follows:

(a) The words "appropriate employment" be substitut ed for "gainful employment". (This will allow the court to exercise a wider discretion).

(b) Add the following words at the end of the Clause "includin g the consideration of the matters specified in Section 54(2)".

67. The Committee recommends the followin g amendments to Clause 54 of the Bill:

(a) Sub-clause 54(1) - omit the sub-clause and insert in its stead:

"54(1) in exerc~s~ng its jurisdiction under this part, the court sna~ l take into account the matters referred to in sub-section (2)".

(b) Sub-clause 54(2) - omit sub clause (2)(b) and insert a provision in its stead to the effect that the court is to take into account the income, property and financial resources of each of the parties and the physical and mental capacity of each of the parties for gainful employment.

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(c) Sub-clause 54(2)(f) - omit sub-clause (2)(f) and insert in its stead: "where the parties have separated or the marriage has been dissolved, a standard of living in relation to the parties as in all the circumstances is reasonable".

(d) Sub-clause 54(2)(g) - omit the sub-clause and insert in its stead: "The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earnin g capacit y of

that party by enablin g that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income".

(e) Sub-clause 54(2)(j) - omit the words "the financial circumstances of the cohabitation" and insert in their stead "the financial circumstances relatin g to the cohabitation".

(f) Sub-clause 54(2) - Insert two further provisions in sub-clause (2) to the followin g effect:

( i) "the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, propert y and financial resources of the

other part y";

(ii) any fact or circumstance which in the opinion of the court the justice of the case requires to be taken into account.

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(g ) Senator Durack expressed a reservation with respect to the inclusion of sub-clause 54(2)(e) in the Bill.

68. The Committee recommends that Clause 55 be amended by deletin g sub-clause 55(4), which it believes to be unnecessary and unjust.

69. The Committee has noted the distinction in the Bill between the powers of the Court with respect to the declaration of interests of parties to a marriage in relation to property (Clause 57) and alteration of those interests (Clause 58).

70. Clause 58(3) provides that an alteration in the interests of the parties in propert y can only be made if a Decree Nisi for dissolution of the marriage or a Decree of Nullity of marriage has been made or proceedin gs for principal relief have been instituted. In such cases the Court is required to take into account the several matters set out

in sub-clause 58(4) of the Bill.

71. The Committee makes the following recomm endations with respect to Clauses 57 and 58:

(a) That sub-clause (2) of Clause 57 be omitted and replaced by a provision that where a court makes a declaration under sub-section (1) it may make consequential orders to give effect to such declaration, including orders as to sale or partition and interim or permanent orders as

to possession.

(b) That the words "who has not attained the age of 18 years" be omitted from sub-clause (1) of 58. The Committee recommends this change in order to prevent injustice to children of a marriage who may have already attained the age of 18 years, but who have an equal right with their brothers and

sisters who have not attained the age of 18 years to share in a division of family property.

23

(c) The Comm itt ee recommends that Clause 58(3) should be amended so that the order may be made under this clause where any appli cation for any matrimonial relief has been instituted. Unless this is done parties may be induced to

institute proceedings for dissolution solel y to come within the ambit of the section and obtaiu E settlement of property. It is also possible that the clause as it stands will allow some parts of State jurisdiction to continue because of the absence of an intention in this Bill to cover the field and this may lead to comp etin g applications in competing jurisdictions.

(d) Clause 58(4)(b) should be amended to read as follows: "Contribution made directly or indirectly to the acquisition, conservation or improvement of the property by either party". The Committee feels that

this paragraph as it appears in the Bill is too restrictive and may prevent the Court taking into account the contribution of a party otherwise than as a homemaker or parent.

72. Clause 61 particularly sub-clauses (1) and (4) which deals with the cessation of orders requires amendments to the followin g effect:

(a) an order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party, unless the court otherwise orders;

(b) subject to the provisions of Clause 5~(3) an order with respect to the maintenance of a child of a marriage ceases to have effect upon the marriage of the child;

(c) where a re-marriage referred to in para (a) above or a marriage referred to in para (b) above takes place, it is the duty of the person for whose benefit the order was made

to inform without delay the person liable to make paym~nts under the order of the date of such marriage or re-marriage.

(d) the regulations may provide for the repayment of any moneys paid after the date of such marriage or re-marriage and for the imposition of penalties for non-compliance with Para (c) above.

73. The Committee recommends that Clause 62(3) be amended by omittin g the words "Section 51" and insertin g in their stead the words "this Part".

74. The Committee recommends that Clause 62(5) be amended by the deletion of the words "having regard to a change in

24

the cost of livin g"\vhich occur at the end of that sub-clause.

75. The Committee has considered the provisions of sub-clause (1) of 64 which, on the authorities, is confined to cases in which there is an int ,ention to defeat an existing or anticipated order. In the opinion of the Committee the power conferred by this sub-clause should be extended to cases in which, irrespective of intention, the likely effect is to

defeat an existing or anticipated order.

76. The Committee believes that Clause 65(1) is in conflict with the express purpose as given in the Explanator y Memorandum to the Bill which states "A maintenance agreement approved by the court ma y be registered. Upon

registration, the agreement may be enforced as an order of the court". The Committee believes that the effect

25

of this sub-clause as it stands would be to prevent every unregistered agreement from being enforceable. Parti es should not be discouraged from making their own arrangements. The existin g sub-clause in the Bill would permit misuse. The Committee is of the opinion that such maintenance agreements should be enforceable but be subject

to amendment or revocation by order of a judge. In relation to Clause 65 the Committee recommends that the power to vary maintenance agreements simil ar to the power to vary maintenance orders should be included in the Bill with appropriate consequential amendments.

Appeals (Part IX) Clauses 70 to 73

77. As a consequence of the incorpor ation into the Bill of provisions establishing a Family Court, the Committee recommends the followin g amendments to clauses in Part IX of the Bill. Omit Clauses 71, 72 and 73 and insert in

their stead provisions to the followin g effect:

(a) A person aggrieved by a decision of a single judge of the Family Court may appeal to the Full Court of the Family Court, and the Full Court shall have powe r to affirm, reverse or vary the decree or, if the court thinks fit, order a re-hearin g .

(b) An appeal does not lie to the High Court from a judgment, decree or order of a court exercisin g jurisdiction under the Bill, except by leave of the High Court.

(c) Appeals may be made from courts of summ ary jurisdiction as defined by the Bill to the Family Court. On the hearin g of an appeal under such a provision a part y is not entitled to adduce evidence at the hearin g ,

except by leave of the court:

(i) granted on the ground tha t the evidence relates to matters which occurred after the hearin g of the proceedings in the court of summary jurisdiction; or

(ii) otherwise granted in special circumstances.

(d) It may be necessary to provide that in the period of tr ansition between the time of the commencement of the Bill and the time when the Family Court of Austr alia begins to function, the State Supreme Courts should have:

(i) original iurisdiction under the Bill; and

(ii) aopellate jurisdiction in respect of summar y courts exercisin g jurisdiction under the Bill.

Enforcem ent of Decrees (Part XII) Clauses 82 to 85

26

78 . The Committee agrees with the principle that persons should not be imprisoned for failure to pay civil debts. The Committee beli evRs that ma intenan ce should be treated as a civil debt and that a person should not be liable for

imprisonment for non payment of maintenance. On the other hand, the Committee realises that the court must have at its disposal an effective method to enforce its orders and accordingly recognises that the court must have power to punish contempt of court by imprisonment. The Committee is concerned that such a power should only be used as a matter of last resort and it is confident that,with the establishment of a Family Court, it would oe used only in rare cases. The Committee recommends tha t in place of Clause 84 the

following 2 new clauses be inserted:

Clause 84 - Arrest in Execution

(1) A decree or order of a court exerc1s1ng _iurisdiction under this Act for the payment of mone y shall not be enforceable;

(i) by any process of any court for attachment of the person or for committal to custody or prison; or

(ii) by the issue of a writ of or in the nature of capias ad satisfaciendum.

27

(2) This section does not affect the power of a court to punish a person for contempt of court or the operation of Sect.:ion4 9(6) or Section90(3).

(3) After the commenc em ent of this Act, no person shall be arreste d or comm itted to custody or imprisonment in contravention of sub-section (~) whether the decree or order was made under

the Act or whether the decree or order has or continues to have effect under the provisi ons of Section 3 (2)(c) and any person who is in prison or other custody at the commenc ement of this Act contrar y to this section shall be released forthwith.

(4) The release from prison or other custody unrler sub section (3) does not release the person from any li abilit y to pay m oney s to any other person.

Clause 84A - Contempts

(1) Notwithstandin g any other provlslon of law, a court exercisin g jurisdiction under this Ac t ma y punish for contempt in the face of the court and for wilful disobedience of any decree made by a court exercisin g jurisdiction under this Act.

(2) The Re gulations may provide for practice and procedure as to arrest, chargin g with contemp t and the hearing of the charge.

(3) ~mere a person in contempt is not a corporation the Court ma y punish such contempt by committal to prison or fine or both.

(4) Where a corporation is in contempt the Cou r t may punish such contempt by sequestr ation or fine or both.

(5) The court may make an order for punishment on terms, the suspension of punishment, or the giving of security for good behaviour.

(6) Where a person is committed to prison for a term, a court may order his dischar ge before the expir y of that term.

28

Inj'Jnctions (Clause 90 )

7';. The Cor:lf

obli gati on to cohabit \vith each other. The Committee is aware that this power may be implicit in sub-clause 90(1), however the Comm itt ee is of the opinion that such a power should be s~e ci f i ca ll y set out in the Bill because:

(.") the pmver of itself is of great importance; and

(i)) sm:-te nersons seeking reli ef from the court may have o',jection to divorce and prefer the altern ative order.

Fom il v Lnw Council (Clause 91)

':8. The Co r~u~1 it tee is full y conscious that the principl es \vhich have been given statutory expression in the Bill, combined 11i th the amendme nts it reconu-nends, establish a body of law

11hich reouires contin ual revie\v and evaluation in the li ght of exoeriencc, c h a n ~ i n g social attitu des and the development of the lc:w in related areas, such as the projected amendments to the Marriage Ac t.

21. It therefore hos closely scrut inised the provisions of Clause

82. In this Co mm itt ee's vie1∑ 1, these provisions should be enlarr:ed and strengthened to achieve the followin g basic purposes:

(a) The body establish ed by Clause 91 should not be me rely an ad hoc aclvisory agency, but should have a broad and continuin g role in reviewing the operation of the Act and directin g attention, in a formal way, to all ma tters which are relevant

to a sound fam il y l.sw system;

(b) Its title should more forcibly describe its functions. The Co ~n itt ee considers the name "Family Law Council" would be appropriate;

(c) The Council should have the express right to advise and make recommen dations not only at the request of the Attorney-General, but also of its own motion;

(d) There should be provlslon for representatives of churches to be appointed to the Council;

(e) The Council should me et frequentl y ; and

(f) It should present an annual report for tablin g in Parliament.

83 . A draft of a revise d Clause 91, which the Comm itt ee recomme nds, is att ached as App endix F.

Co sts (Clause 92)

29

84 . The Committee is in no doubt that the lega l costs incurred by parties in ma trimonial proceedings are too high, in some cases inordin ately so. To a large degr-ee, this is the result of the existin g adversar y system of determ ining matrimoni al disputes. The establishment of a Family Court and the

simplifi ed substantive provisions in the Bill will reduce the scope for legal disputation. The Co mm itte e therefore endorses the principle expressed in Clause 92(1) that each party to proceedings under the legisl ation shall bear his or her own costs. However, the Co mm ittee make s∑ the follo w ing recommen dations:

(a ) That the word "excepti onal" in Clause 92(2) shou ld be deleted. Such a qualific ation on the circumstances in which it would be proper for a Court to deoart from the basic rule expressed in sub-clause (1) could prevent the exercise of a wide and proper

judicial discretion and there by lead to injustices in particul ar cases. The amen dme nt proposed w ould permit a court to vary the applicati on of the basic rule in the li ght of any circum stances which it considers ju stif y it in doing so. It wo uld be undesira ble to attempt to specify the nature of

such circumstances, which should be left to the discretion of the court.

(b) The Committee is of the view that the area of family law, as encompassed by the Bill, is one wh ich is appropriate for a wide application of the principles with respect to legal aid '"hich have been propounded from time to time by the Au str ali an Go vernm ent. Ho wever, it is conscious

that the existin g practic e with respect to legal aid in matrimonial ma tters is not uniform throughout the various States and territories. In the Comm ittee's view uniformit ;' is desirable.

It therefore proposes that, following the precedent of the Trade Practices Ac t 197Lf, the legislation should contain provisions conferrin g on a person

30

'vho has institute d or proposes to institute a proceeding under the Act the right to apply to an officer of the Fam il y Court for legal a id . The details with respect to such an application and the financial arra ngem ents

into 'vhich the Aus trali an Government is prepared to enter shoulG be left to the regulations and administrative procedures. Hm vever, the Committee is of the vieH that existin g arrangements \vhereby , through State legal aid authorities, legal aid is available

in this area should not be disturbed, except under specific arrangements between the Australi an and State Governmen ts. The Committee is aware that, in 1973-74, the Australian Government made avail able a sum of

$2 ,000,000 to Lhe States to suppleme nt State legal aid schemes. However, this assistance was on an interim basis and the Committee is not aware of the detailed future p lans of the Australian Govertcment in this respect. \Jhat the Committee wishes to emphasise is that -

(i) In view of the basic rule expressed in Clause 92(1),∑ a comprehensive scheme for legal aid in appropriate cases is necessary; and

(ii) The nature and exten t of lega l aid should be as uniform throughout the nation as is practi cable , and the respective responsibili ties of Australian and State Governments and of legal aid schemes controlled by the legal profession

should be clarified.

(c) The Committee appreciates that there will no doubt be cases in which a court will be askec to exercise its jurisdiction under Clause 93 , name ly where proceedin gs are frivolous or vexati ous. In

cases in which it does so, the court would probably exercise its power with respect to costs under Clause 92(2). Normall y , no doubt, such a power would be sufficient, but to put the matter beyond

doubt the Committee recommends that at the enr1 of Clause 93 the followin g words be added:"and make such orders as to costs as the court thinks iu st". A court would therefore, in cases of frivolous or vexatious proceedin gs, be able to exercise its normal discretionar y powers as to costs .

Restriction on Publication (Clause 95)

31

85. The Committee is of the opinion that publication of a report oi evidence should be confined to the cases set out in sub-cl auses (a), (b), (c) and (d) of sub-clause 0.5(6).

32

CHAPTER 3 - CONST ITUT IONAL ASPECTS

86. The attention of the Commi tt ee was directed from time to ti me to areas in which there might be room for argumen t as to the constitutional validity of some of the detailed orovisions of the Bill, hm-

87. The Committee has not interoreted its role as includin g the expression of firm vie\vS on such ma tters. The Committee invites att ention to the wide powers of the Australian Parliament, as contained in Section 51 of the Commonwealth of Australia Co nstitution Act, two of the provisions of Hhich empow er the Australi an Parliament to make law s with

resoect to:

(a) Narria ge (placitum xxi); and

(b) Divorce and ma trimonial causes; and in relation thereto, oarental rights, and the custody and guardianship of infants (placitum xxii).

3, '3. The Commit tee is mvare of the consideration alread y given to the constitution al powers of the natior :.al Parliamen t in the area of family lmv by one of the Standing Committees of the Australian Constitutional Convention. It takes the view that issues relatin g to ille gitimacy and adoption are ma tters of national concern and should be the subject of national legisl ation achieved either by a reference of power

by the States, or by an appropriate amendment of the Constitutio n.

89. It follows that the Co mm ittee advocates a national approach to all aspects of family law , not all of which have been encomp assed within the Bill under reference because of constitutional limitations and doubts. Such limitations and doubts should be removed as soon as practicable.

Report

90. The Committee having examined the two matters referred, and having considered the evidence given and submissions received now reports back to the Senate.

The Senate, Canberra.

October 1974.

(J. R. McClelland) Chairman

33

ANNEXURE A 34

LIST OF ORGANISATIONS AND PERSONS WHO MADE WRITTEN SUBM ISSIONS

ON THE GENERAL REFERENCE

1. Mr K . J . A. Asche , Q.C., Barrister, Victoria 2. Department of the Attorney-General, Canberra 3. Mr Malcolm Broun, Barrister, New South Wales 4 . Canberra Women's Liberation 5. Defence Against Women's Maintenance and Alimony 6 . Family Law Comm itt ee of the Sydney University Law Graduates

As sociation

7. Family Life Movement of Australia 8 . National Marriage Guidance Council of Australi a 9. Department of the Interior, Canberra 10. Janet V . Coombs, Barrister, New South Wales 11. Cairnmillar Institut e, M elbourne 12 . National Council of Women of Australia 13 . Mr Frank Bates, University of Tasmania 14. Professor R . Sackville , Universi ty of New South Wales 15 Dr Ailsa Burns , Macquarie University 16 . Professor H. A . Finlay , Monash University 17. Dr Benjamin Schlesinger, University of We stern Australia 18 . University of Sydney, Department of Adult Education 19 . The Hon. Mr Justic e E. H . E . Barber, Supreme Court of Victoria 20. The Hon . Mr Justic e Sir Stanley Burbury, K .B.E.) Supreme Court 21. The Hon. Mr Justic e Chamb ers ) of Tasmania

22 . Mrs Anna Frenkel, Barri ster, Ne w South Wales 23. The Hon . Mr Justic e P. E . Joske , C.M.G ., Commonwealth Industri al Court 24 . Law Council of Au strali a 25 . Law Institut e of Victori a 26. Law Society of We stern Au stralia 27. Ne w South Wal es Bar As sociation 28 . Mr E. B . Penman, Public Solicitor for New South Wale s 29. The Hon. Mr Justic e D. M . Selby, Judge in Divorce, Supreme

Court of Ne w South Wales 30. Victorian Bar Council 31. Law Society of New South Wa les 32. Divorce Law Reform Association of Victori a 33. Divorce Law Refo∑ rm Association of New South Wales 34 . Divorce Law Reform Association of Qu eensland 35. Divorce Law Reform Association of South Australia 36 . The Au strali an Episcopal Conference 37. A numb er of persons consistin g of legal consult ants and

marri age counsellor s associated with the Church of England Marri age Guidance and Education Council, Melbourne

~8. Congregational Union of Australia

39. Department of Social Mission of the Congregational Union of South Australia 40. Abortion Law Repeal Association of Victori a 41. Australian Association of Social Workers 42. W.A. Child Welfare Department 43. The Citizens Welfare Service, Victoria 44. The Social Workers of the Family Welfare Bureau 45. The Communist Party of Au stralia 46. The N.S.W. Humanist Society 47. Legal Aid Committee, Melbourne 48 . Jewish Ecclesi astic al Authority of Victoria 49. League of Women Voters of ∑ N .S.W.

SO. Liberal Party of Australia (Victorian Division) 51. Methodist Church of Aus tralasia 52 . The Mo thers' Union, Au str alian Commonwealth Council 53. National Catholic Welfare Committee 54. Parents Without Partners in Australia 55. The Presbyterian Church of Queensland 56. Mr M. R. Hardwick, Barrister, New South Wales 57. Law Societ y of Tasmania 58 . W. A . Branch of Australian Association of Social Workers 59. Supporting Mothers Association of S.A. Inc. 60. Victorian Council of Social Service 61 . The Women Lawy ers ' Association of New South Wales 62. Barbara Cotterell, South Yarra Women 's Liberation Group 63. Denise Dawson, Braybrook Women 's Liberation Group 64. 45 submissions from interested members of the public

writin g about their persona l experiences or making general submissions on the reference

35

ANNEXURE B 36

LIST OF ORGA NIZATIO NS AND PERSONS WHO PROVIDED WRITTE N SUBMISSIONS ON THE CLAUSES OF THE FAMILY LAW BILL 1974

1. Mr R. S. Watson, Q.C., Barrister, New South Wales 2. Mr J. B . Piggott, Barrister and Solicitor, Tasmania 3. Church of England Social Questions Committee (Diocese of Melbourne) 4. Ch ildr en's Welfare Association of Victoria

5. Mr A . J. Barblett, Barrister and Solicitor, Western Australia 6. No Name - Social Group of Perth, Western Australia 7. Janet V. Coombs, Barrister, New South Wal es 8 . Queensland Law Society Incorporated 9 . Lecturin g Staff, St. Peter Channel' s Seminary, Toongabbie, N .S.W . 10 . St. Thom as Mor e 's Paris h Co uncil, Campbe ll, A .C.T.

ANNEXURE C 37

LIST OF ORG AN ISATIO NS AND PERSONS WHO GAVE OR AL EVIDENCE

ON THE GENERAL REFERENCE

l. Mr Justi ce Selby, Judge in Divorce, Supreme Court of New South Wal es 2. Mr R. S. Watson, Q .C., Chairman of the Famil y Law Committee, Sydney University Law Graduates Association 3. Professor P. E. Nyg h, Secretary of the Family Law Committee,

Sydney University Law Graduates Association 4. Mr S. G. Hume, C ha~rm a n of the Marriage Co unsellin g Service, Executive of the Family Life Movement of Australi a 5. Mr J. Robson, Director of the Family Life Movement of

Australia

6. Mr K. J. A . Asche, Q.C .; Chairman of the Ma tri mon ial Causes Sub-Committee of the Victorian Bar Council 7. Mr M. D. Broun, memb er of the New South Wales Bar

Association

8. Mr G. Romeyko, President, South Au str ali an Divorce Law Reform Association 9. Mr R. D. Down s, President, Queensland Divorce Law Reform Association 10. Mr H. Eisler, President, New South Wales Divorce Law

Reform Association 11. Mr M. Kennett, member of Council of New South Wa les Divorce Law Reform Association 12. Mrs D. Sachs, member of Council of New South Wal es Divorce

Law Reform Association 13. Dr N. Yeomans , member of Council of New South Wales Divorce Law Reform Association 14. Mr T. Cooke, President , Victoria Divorce Law Reform

Association

15. Mr G . L. McNaught, Senior Vice-President, Victori a Divorce Law Reform Association, and Barrister and Solicitor of the Supreme Court of Victoria 16. Rev. F . J. Angus, Honorary Secret ary, National Marri age

Guidance Council of Au str alia 17. Dr R. A . Pargiter, President, Nati onal Ma rri age Guidance Council of Australia 18. Mrs J. M . Scotford, President, Na tional Council of

Women of Au str ali a 19. Mr W . W. Hartin, Deputy Director of the Cairnmill ar Institute, Melbourne

ANNEXURE D 38

LIST OF PERSO NS WHO GAVE ORAL EVIDENCE ON THE CLAUSES OF

THE FAMILY LAW BILL 1974

Wedne sday, ll September 1974 at Melbourne

MR RAYMOND SANDERS WATSON, Q.C., 14 Churchill Avenue,

Kirrawee, New South Wales, Queen's Counsel for the Bars of New South Wales, Victori~ and the Australian Capital Territory, and a member of the Bar of Papua New Guinea. (Mr Watson had given evidence before the Committee on

the general reference as Chairman of the Family Law Committee of the Sydney University Law Graduates Association.)

MR ROY FREDERICK TURNER, 187 Macquarie Street, Sydney,

New South Wales, Solicitor, Supreme Court of New South Wale s; Chairman of the Law Council of Australia's Divorce Committee; formerly Vice-Chairman of the Law Council of Au stralia.

MR JOHN BRUCE PIGGOTT, 128 Macquarie Street, Hobart,

Tasmania, Barrister and Solicitor, legal practitioner of the Supreme Court of Tasmania; formerly President of the Law Society of Tasmania; formerly President of the Law Council of Australia.

MR GORDON JOHN FORD YU ILL, Attorney-General's Department,

Australian Capital Territory, attended this meeting as an observer.

Mond ay, 23 September 1974 at Canberra

MR ALAN JAMES BARBLETT, Barrister and Solicitor, Supreme Court of We stern Australia, Convenor of the Matrimonial Causes Sub-Committee, Law Society of Western Australia,

SENATOR THE HON. LIONEL MURPHY, Q.C., Attorney-General and Minister for Customs and Excise.

Thursday, 27 September 1974 at Canberra

JUDGE IAN BRANDWOOD BURNETT, Judge of the Local and District Criminal Court, South Australia. (In his capacity as a Judge of the Local and District Criminal Court, Judge Burnett is a Judge of the Family Court of South Australia.)

ANNEXURE E 39

LIST OF ORGANISATIONS AND PERSO NS WHO PRO VIDED INFORMATIO N ,

STATISTICS AND OTHER RELEVANT MATER IAL ON THE GE NERA L

REFERENCE IN INFORMAL SUBMI SS IONS AND LETTER S TO

THE COMMITTEE

1. Department of the Attorney-General, Canberra. 2. Dep artment of the Attorney-Gener a l and Justice , New South Wa les. 3. Department of the Attorney-General, South Austr ali a . 4 . Department of the Attorney-General, Tasm ania . 5. Crown Law Department, Western Australia . 6. The Regist rar in Divorce, Supreme Court of Qu eensland.

7. The Hon. Mr. Justice H. A. Winnek e , Chief Justice of Victoria . 8. The Hon. Dr . J. J . Bray, Chief Justi ce of South Australi a . 9. The Hon. Justice Mitchell, Supreme Court of South Australia. 10. The Chief Stipendiary Magistrat e , Local and Distri ct

Criminal Courts Department, South Australi a . 11. The Master of the Supreme Court, South Australia. 12. The Senior Stipendiary Magistrate, Summ ary Relief Court, Perth. 13. The Deputy-Registr ar of the Magisteria l Branch, Southern

Division, Tasmania. 14. The Senior Stipendiary Ma gistrate, Devonport, Tasmania. 15. Stipen diary Magistrate, Launceston. 16. Department of Tourism, Sport and Welfare Service, Queensland. 17. Department of Child Welfare & Social Welfare, New South Wa les. 18. Dr . Frank Woods, Primate of Australia. 19. Church of England Commi ssion on Marriage and Divorce. 20. Department of Justice, New Zealand. 21. Department of Socia l Services, Canberra. 22. 49 letters and informal submissions from int erested

members of the public writin g about their personal experiences or ma king general commen ts on the reference.

ANNEXURE F 40

PROPO SED CLAUSE 91.

Family Law Council

91.(1) The Attorney- General may establi sh a Family Law Council

consistin g of persons appointed by him in accordance

with sub-section (2).

(2) The Council shall consist of a Judge of the Family Court

and such other judges, officer s of the Public Service of

Au strali a or of a State , legal practition ers,

representatives of churches and marria ge counsellin g

organizations and other persons as the Attorney- General

thin ks fit.

(3 ) It is the function of the Council to advise and make

recomme ndations to the Attorn ey-General, either of it s

own motion or upon request made to it by the Attorn ey "

Gen eral concerning -

(a) the working of this Act and other legislatio n relati ng

to family law;

(b) the working of legal aid in proceedin gs in

family law; and

(c) any other matters relatin g to family law.

(4) The Attorney-General shall appoint one of it s member s

to be Chairman of the Council,

(5) The members of the Counci1 shall be paid such allowances in respect of expenses in connexion with

thei r duties as are prescribed.

(6) A member (including the Chairman) may resign his office by writin g signed by him and deliv ered to the Attorn ey-General.

(7) The Attorney-General may terminate the appointment of a member of the Council.

(8) Meetings of the Council shall be convened by the Chairman or the Attorney-General.

(9) The Council shall cause records to be kept of its meetings.

(10) The Council shall, within 60 days after each year

ending on 30 June, furni sh to the Attorn ey-General,

for present ation to the Parli ament, a report with respect to its operation s in that year.

41

ANNEXURE G

FAMILY LAW BILL 1974

43

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

THE SENATE

(As read a first time)

FAMILY LAW BILL 1974

TABLE OF PROVISIONS

PART I-PRELIMINARY

Clause I. Short titl e 2. Commencement 3. Repeal anc! saving 4. Interpr <:tation 5. Certain cl:ildren deemed to be children of a marriage 6. Polygamou s marriages 7. Extension of Act to Norfolk Island 8. Supersession of existing laws 9. Transitional I 0. Child welfare Jaw not afTectec!

PART II- MARRIAGE COUNSEL LING ORGANIZATIONS

II. Grants to approved marriage counselling organizations 12. Approval of marriage counselling organizations 13. Reports and financial statements of approved marriage counselling organizations

PA RT HI-RECONC ILIATION

14. R econciliation 15. Provision of documents setting out effect s of divorce 16. Admi ssions made to m arriage counselling counsellors, &c. 17. Oath or affir m ation of secrecy

PART I V -J U RL ~D I CTION

JR. Jurisdicti on in m atrimonial c.aus~s 19. Jurisdiction of Superior Court 20. Jurisdicti on of courts of summary jurisdi ction 21. Law to be applied 22. Instituti on of proceeding s 23. Staying and transfer of proceedings 24. Tr ~ n s f e r of proceerli ngs from court of sum mary jurisdiction in certain cases 25. Courts to act in aid of each other

3,520/1.8.1974-19223/73

ii

TABLE OF PROVISIONS-continued

PART V-DISSOLUTION AND NULLITY OF MARRIAGE Clause 26. Dissolution of marriage 27. Meaning of separation

28. Separation order or agreement not a bar 29. Effect of resumption of cohabitation 30. Nullity of marriage 31. Court not to make decree of dissolution where application for decree of nullity before it 32. Circumstances occurring before commencement of Act or outside AustraEa 33. Decree nisi in first instance 34. When decree becomes absolute 35. Certificate as to decree absolute 36. Rescission of decree nisi where parties reconciled 37. Rescission of decree nisi on ground of miscarriage of justice 38. Re-marriage

PART VI-WELFARE AND CusTODY OF CHILDREN

39. Definitions 40. Rights of guardianship and custody of children 41. Conferences with, and report~ by, welfare officers 42. Decree absolute where children 43. Powers of court in custodial proceedings 44. Separate representation of child 45. Where applicant iii contempt 46. Registrati on inter-State of orders for custody of ex-nuptial children 47. Overseas custody orders 48. Transmission of Au stralia n custody orders to overseas country 49. Interfering with child subject to custody order

PART VII-MAINTENANCE AND PROPFRTY

50. Definition 51. Right of spouse to m aintenance 52. Maintenance of children 53. Powe rs of court in maintenance proceedings 54. Matters to be taken into consideration in proceedings with respect to maintenance 55. Maintenance of children 56. Urgent m aintenance cases 57. Declaration of interests in propert} 58. Alteration of property interests 59. General powers of court 60. Duty of court to end financial relations

61 . Cessation of orders 62. Modification of maintenance order 63. Execution of instruments by order of court 64. Transactions intended to defeat claims 65. Maintenance agreements 66. Overseas maintenance agreements 67. Instruments not liable to stamp duty

PART VIII-INTERVENTION

68. Intervention by Attorney-General 69. Intervention by other persons

PART IX-APPEALS

70. No appeal after decree absolute 71. Appeals from single Judges of State Supreme Court 72. Appeals to High Court ∑ 73. Appeals from courts of summary jurisdiction

PART X-PROCEDURE AND EVIDENCE

74. Procedure 75. Evidence by affidavit in undefended proceedings 76. Evidence as to paternity

iii

TABLE OF PROVISIONs--continued

C lause 77. Evidence of husbands and wives 78. Indecent or scandalous questions 79. Proof of birth, death or marriage

PART XI-RECOGNITION OF DECREES

80. Decrees under this Act 81. Overseas decrees

PART XII-ENFORCEMENT OP DECREES

82. Enforcement generally 83. Methods of enforcement 84. Persons in prison at commencement of Act

85. Inter-State enforcement of affiliation and like orders 86. Overseas enforcement of maintenance orders 87. Convention on Recovery Abroad of Maintenance 88. Arrangements with States

PART XIII-DECLARATIONS AND lNJUNcrioNs

89. Proceedings for declarations 90. Injunctions PART XIV-MISCELLANEOUS

91. Family Law Advisory Committee 92. Costs 93. Frivolous or ventious proceedings 94. Married persuns may sue each other 95. Restrictions on publication of reports or evidence 96. Regulations

1974

TilE PARLIAMENT OF TilE COMMONWEALTII OF AUSTRALIA

THE SENATE

(Presented pursuant to leave granted and ,read 1∞, 1 A.ugust 1974)

(THE ATTORNEY-GENERAL AND MINISTER FOR CUSTOMS AN D EXCISE,

SENATOR MURPHY)

A BILL

FOR

AN ACT

Relating to, .Marriage and to Divorce and Matrimonial Causes and, in relation thereto, Parental Rights and the Custody and Guardianship of Infants, and certain other Matters.

BE IT ENACTED by the Queen, the Senate and the House of Representatives of Australia, as follows:-PART I-PRELIMINARY

1. This Act may be cited as the Family Law Act 1974.

No. 43

Short title.

5 2. This Act shall come into operation on a date to be fixed by Commence-Proclamation. ment.

3. (1) The Matrimonial Causes Act 1959, the Matrimonial Causes Act Rei?W and 1965 and the Matrimonial Causes Act 1966 are repealed. saVIng.

(2) Notwithstanding the repeal effected by sub-section (1)-10 (a) the validity of a decree made before the commencement of the Matrimonial Causes Act 1959 by virtue of the Imperial Act entitled the Matrimonial Causes (War Marriages) Act, 1949 or Part I of

2

Interpre " tation.

No. Family Law 1974

the Matrimonial Causes (War Marriages) Act 1947 of New Zealand and in force immediately before the commencement of this Act shall continue to be recognized in all courts in Australia; (b) a decree of the Supreme Court of a State or Territory made before

the commencement of the Matrimonial Causes Act 1959 in the 5 exercise of jurisdiction invested or conferred by the Matrimonial Causes Act 1945, or that Act as amended by the Matrimonial Causes Act 1955, and in force immediately before the commence " ment ofthis Act shall continue to have effect throughout Australia; and 10

(c) a decree of the Supreme Court, or of a court of summary juris " diction, of a State or Territory-(i) mad e before the commencement of this Act in the exercise of .iurisdiction invested or conferred by the repealed Act,

or in a m atrimonial cause or proceedings for a separatio n 15 order instit uted under the law of that State or Territory, being a decree that was in force immediately before the commencement of this Act; or (ii) made after the commencement of this Act in proceedings

to which sub-section 9 (1) applied, 20

sha!l have, or continue to have, effect throughout Australia, and, except in the case of-(iii) a decree of nullity of marriage made on the ground that the marriage was voidable;

(iv) a decree of judicial separation; 25

(v) a decree of restitution of conjugal rights; (vi) a decree of jactitation of marriage; or (vii) a separation order, this Act applies to and in relation to the decree as if the decree had been made under this Act. 30

(3) For the purposes of paragraph (2) (c), a purported decree to which section 5 of the Matrimonial Causes Act 1971 applies made in a State shall be deemed to be a decree of the Supreme Court of that State made in the exercise of jurisdiction invested by the repealed Act.

4. (1) In this Act, unless the contrary intention appears- 35

"adopted", in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children; " appeal "includes an application for a re-hearing; " applicant " includes a cross-applicant and, in relation to proceedings 40

for dissolution of marriage instituted before the commencement of this A ct, includes a petitioner or cross-petitioner;

1974 Family Law

" approved ", in relation to a marriage counselling organization, means approved by the Attorney-General in pursuance of section 12;

"Australia" includes Norfolk Island,

5 " court ", in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act;

" court of summary jurisdiction " includes a Family Court of a State or Territory, not being a court that may be constituted by a Judge of the Supreme Court of a State or Territory ;

10 "decree" means decree, judgment or order, and includes a decree nisi

15

and an order dismissing an application or refusing to make a decree or order;

" financial matters ", in relation to the parties to a marriage, means matters with respect to-(a) the maintenance of one of the parties; (b) the property of those parties or of either of them; or

(c) the maintenance of children of the marriage; "financial or custodial proceedings " means proceedings (being, unless the context otherwise requires, proceedings under this 20 Act) of a kind referred to in paragraph (c), (d) or (e) of the

definition of " matrimonial cause " in this sub-section; " made ", in relation to a decree, being a judgment, means given, and " make " has a corresponding meaning; " maintenance agreement " means an agreement in writing made, 25 whether before or after the commencement of this Act, between

the parties to a marriage, being an agreement that makes provision with respect to financial matters, whether or not there are other parties to the agreement and whether or not it also makes pro " vision with respect to other matters, and includes such an 30 agreement that varies an earlier maintenance agreement;

" marriage counsellor " means-( a) a person authorized by an approved marriage counselling organization to offer marriage counselling on behalf of the organization; or 35 (b) a person authorized under the regulations to offer marriage

40

counselling;

" matrimonial cause " means-( a) proceedings between the parties to a marriage for a decree of-(i) dissolution of marriage; or

(ii) nullity of marriage;

3

4 No. Family Law 1974

(b) proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise;

(c) proceedings with respect to-(i) the maintenance of one of thos(parties; 5

(ii) the property of those parties or of either of them; or

(iii) the custody, guardianship or maintenance of, or access to, children of the marriage;

(d) proceedings between the parties to a marriage for the 10 approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement; (e) proceedings for an order or injunction in circumstances

arising out of the marital relationship; or 15 (f) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings

of a kind referred to in any of paragraphs (a) to (e), in " cluding proceedings of such a kind pending at, or com- 20 pleted before, the commencement of this Act;

"ordinarily resident" includes habitually resident;

" overseas maintenance agreement " means a maintenance agreement that has force and effect in a prescribed overseas country by reason of the registration of the agreement, or the taking of any 25 other action in relation to the agreement, under the law of that country and includes an agreement with respect to the main " tenance of an ex-nuptial child that would be covered by the foregoing provisions of this definition if the child were a child of the marriage of the parties to the agreement; 30

" prescribed overseas country " means New Zealand or any other country outside Au stralia that is declared by the regulations to be a prescribed overseas country for the purposes of the provision in which the expression is used;

"proceedings " includes cross-proceedings; 35

"proceedings for principa l relief" means proceedings under this Ac t of a kind referred to in paragraph (a) or (b) of the definition of "matrimonial cause" in this sub-section; " property ", in relation to the parties to a marriage or either of them,

means property to wh ich those parties are, or that party is, as the 40 case may be, entitled , whether in possession or reversion;

" Registrar ", in relation to a court, means the Registrar, Master or other proper officer of that court;

1974 Family Law No.

" repealed Act" means the Matrimonial Causes Act 1959 and includes that Act as amended by the Matrimonial Causes Act 1965 and by the Matrimonial Causes Act 1966;

"∑ separation order" means a decree, not being a decree of dissolution 5 or nullity of marriage or for a judicial separation, having the effect of relieving a party to a marriage from any obligation to cohabit with the other party to the marriage;

"Superior Court" means the Superior Court of Australia;

" Territory " does not include an external Territory other than 10 Norfolk Island;

15

20

" welfare officer " means-(a) a person who is permanently or temporarily employed as a welfare officer in the Australian Public Service or in the Public Service of a Territory; (b) a person who is permanently or temporarilyemployed as a

welfare officer in the Public Service of a State and whose services have been m ade availaole for the purposes of this Act in pursuance of an arrangement between the Govern " ment of Au stralia and the Government of the State;

(c) a person nominated by an organization concerned with the we lfare of children; or

(d) a person appointed as a welfare officer in accordance with the regulation s.

(2) A reference in this Act to a party to a marriage includes a reference 25 to a person who was a party to a marriage that has been dissolved or annulled.

(3) In ascerta111111g the domicile of a party to a marriage for the purposes of this Act-(a) a person's domicile at any time (whether before or after the 30 comni.encement of this Act) in any country, howsoever acquired,

shall be deemed to have continued, or to continue, until the acquisition by that person of a domicile of choice in another country;

(b) the domicile of a woman who is, or has at any time been, married 35 shall be determined as if she had never been married; and

(c) a person who has attained the age of 18 years, or a person who has not attained that age but is, or has at any time been, married, has, and shall be deemed to have had at all times since that person attained that age or became married, the capacity to acquire a 40 domicile of choice.

5

6

Certain children deemed to be children of a marriage.

No. Family Law 1974

5. (1) For the purposes of the application of this Act in relation to a marriage-( a) a child adopted since the marriage by the husband and wife or by either of them with the consent of the other;

(b) (c) a child of the husband and wife born before the marriage; and I

a child of either the husband or wife (including an ex-nuptial child of either of them and a child adopted by either of them) if, at the relevant time, the child was ordinarily a member of the household of the husband and wife,

5

shall be deemed to be a chi!d of the marriage, and a child of the husband 10 and wife (including a child born before the marriage) who has been adopted by another person or other persons shall be deemed not to be a child of the marriage.

(2) For the purposes of sub-section (1), in relation to any proceedings the relevant time is- 15

(a) the time immediately preceding the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately preceding the time when they last separated before the institution of the proceedings; or (b) if the husband and wife were living together at the time when the 20

proceedings we re instituted, the time immediately preceding the institution of the proceedings.

(3) The provisions of sub-sections (I) and (2) apply in relation to a purported marriage that is void as if the purported marriage were a marriage. 25

Polygamous 6. For the purpose of proceedings under this Act, a union in the marriages. nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.

Extension of Act to Norfolk Island.

Supersession of existing laws.

7. This Act extends to N orfolk Island.

8. (1) After the commencement of this Act-(a) proceedings by way of a matrimonial cause shall not be instituted except under this Act; and

30

(b) proceedings by way of a matrimonial cause instituted before the commencement of this Act shall not be continued except in 35 accordance with section 9.

(2) Proceedings for a decree of restitution of conjugal rights, of jactitation of marriage or of judicial separation shall not be instituted or continued after the commencement of this Act.

1974 Family Law ∑ No.

(3) Proceedings for a separation order shall not be instituted after the commencement of this Act.

7

9. (1) Subject to sub-section (2), pending proceedings for a decree of Transitional . dissolution of marriage or for a decree of nullity of marriage on the ground 5 that the marriage is voidable, and pending proceedings for a separat ion order, may be continued and shall be dealt with as if this Act had not

been passed.

(2) Pending proceedings for a decree of dissolution of marriage shall, if the applicant so requests, be dealt with as if they were proceedings 10 instituted under this Act on the ground referred to in section 26.

(3) Pending proceedings for a decree of nullity of marriage on the ground that the marriage is void or proceedings of a kind referred to in paragraph (b) of the definition of" matrimonial cause" in sub-section 4 (1) may be continued and shall be dealt with as if. they were proceedings 15 instituted under this Act.

(4) Pending proceedings constituting a matrimonial cause, not being proceedings for principal relief , whether instituted under the repealed Act or under the law of a State or Territory, may be continued and shall be dealt with as if they were proceedings instituted under this Act.

20 (5) Where, in any proceedings constituting a matrimonial cause, a decree has been made before the commencement of this Act-(a) any appeal in respect of that decree may be continued or in " stituted;

(b) any new trial or re-hearing ordered upon the hearing of such an 25 appeal, or upon an appeal heard before the commencement of this Act, may be had and completed; and (c) any decree may be m ade upon any such appeal, new trial or re "

hearing, and, if a decree so made is a decree nisi, the decree may become absolute,

30 as if this Act had not been passed.

(6) Where, in any proceedings constituting a m atrimonial cause, a decree nisi was made before the commencement of this Act but did not become absolute before that date, the decree becomes absolute upon-(a) the expiration of 1 month from the date of making of the decree; 35 (b) the expiration of 1 month from the date of making of a relevant

order under sub-section 71 (1) of the repealed Act or section 42 of this Act; or

(c) the date of commencement of this Act, whichever is the latest.

8

Child welfare law not affected.

Grants to approved marriage counselling organiza " tions.

No. Family Law 1974

(7) The law to be applied, and the practice and the procedure to be followed, in and in relation to pending proceedings that are continued as if this Act had not been passed shall be the same as if this Act had not been passed.

(8) In this section- 5

" appeal " includes-(a) an application for leave or special leave to appeal; (b) an application for a new trial or for a re-hearing; and (c) an intervention;

"pending proceedings" m eans proceedings that were instituted before 10 the date of commencement of this Act but were not completed before that date.

10. (1) Subject to sub-section (3), a court shall not make an order under Part VI or Part VII for the maintenance, custody or guardianship of- 15

(a) a child w ho, under the law of a State, is a ward of the State or a State child or is under the care and control of a Minister of State of the State; or (b) a child vvho has a similar status under a law of a. Territory.

(2) Nothing in this Act, and no decree under this Act, affects- 20 (a) the jurisdiction of a court, or the power of an authority, under a law of a State to m ake an order, or take any other action, whereby a child becomes a ward of the State or a State child, or is placed

under the care and control of a Minister of State of a State or any similar jurisdiction or power under a law of a Territory; 25 (b) any such order made, or action taken, or the operation, in respect of a child in relation to whom any such order has been made or

action taken, of the law under which the order was made or action taken; (c) the jurisdicti on of a court under a law of a State or Territory to 30 make an order in respect of the m aintenance of a child referred

to in sub-section (1) in favour of an officer or authority of the State or T errit ory performing functions in relation to the welfare of childr en; or (d) an order of a kind referred to in paragraph (c) made by a court. 35

(3) The Superior Co urt or the Supreme∑ Court of a State or Territory m ay m ake an order referred to in sub-section (1) if it is satisfied that there are special circumstances that justif y the m aking of the order.

P ART If- M AR RIAGE COU NSE LLI NG OR GAN IZATIONS

11. The Attorney-General ma y, from time to time, out of moneys 40 appropriated by the Parliam ent for the purposes of this Part, grant to an approved ma rriage counselling organization, upon such conditions as he thinks fit, such sums by way of financial assistance as he determines.

5

1974 Family Law No.

12. (1) A voluntary organization may apply to the Attorney-General for approval under this Part as a marriage counselling organization.

(2) The Attorney-General may approve any such organization as a marriage counselling organization where he is satisfied that-(a) the organization is willing and able to engage in marriage coun-selling; and ∑

(b) marriage counselling constitutes or will constitute the whole or the major part of its activities. (3) The approval of an organization under this section may /be given 10 subject to such conditions as the Attorney-Genera l determines. '

(4) Where the approval of an organization has been given subject to conditions, the Attorney-General may, from time to time, revoke or vary all or any of those conditions or add further conditions.

(5) An approval of a voluntary organization under Part II of the 15 repealed Act shall be deemed to be an approval under this section.

(6) The Attorney-General m ay, at any time, revoke the approval of an organization where-(a) the organization has not complied with a condition of the approval of the organization; 20 (b) the organization has not furnished , in accordance with section 13,

a statement or report that the organization was required by that section to furnish; or (c) the Attorney-General is satisfied that the organization is not adequately carrying out marriage counselling.

25 (7) Notice of the approval of an organization under this section, and

30

35

of the revocation of such an approval, shall be published in the Gazette.

13. (1) An approved marriage counselling organization shall, not later than 30 September in each year, furnish to the Attorney-General, in respect of the period of 12 months that ended on 30 June in that year-(a) an audited financial statement of the receipts and payments of the

organization, in which receipts and payments in respect of its marriage counselling activities are shown separate ly from other receipts and payments; and

(b) a report on its marriage counselling activities, including inform " ation as to the number of cases dealt with by the organization during the year.

(2) Where the Attorney-General is satisfied that it would be im " practicable for an organization to comply with the requirements of sub " section (1) or that the application of those requirements to an organization 40 would be unduly onerous, he may, by writing under his hand, exempt the

organization, wholly or in part, from those requirements.

9

Approval of marriage counselling organiza " tions.

Reports and financial statements of approved marriage counselling organiza " tions.

10

Reconcilia∑ tion.

Provision of documents setting out etf.x:t~ of

divorce.

Admissions :nade to marriage counsellors, &;:

No. Family Law 1974

PART Ill-RECONCILIATION

14. (I) Where proceedings for a dissolution of marriage have been institut ed, or financial or custodial proceedings have been instituted by a party to a subsisting marriage, it is the duty of the Judge or magistrate constituting the court and of every legal practitioner representing a party to give consideration, from time to time, to the possibility of a reconcilia-5 tion of the parties.

(2) If, in such proceedings, it appears at any time to the Judge or magistrate from the evidence in the proceedings or the attitude of the parties, or of either of them, or of a legal practitioner representing a party, that there is a reasonable possibility of such a reconciliation, the 10 Judge or magistrate may -

(a) adjourn the proceedings to afford the parties an opportunity to consider a reconcilia tion; and (b) if he thinks it desirable to do so, nominate-(i) a marriage counsellor or an approved marriage counselling 15

organization; or (ii) in special circumstances, some other suitable person or organization , to assist those parties in considering a reconciliation.

(3) Tf, after an adjournment under sub-section (2) has taken place, 20 either of the parties requests that the hearing be proceeded with, the Judge or ma gistrat e shall resume the hearing as soon as practicable.

(4) Where the court makes an order or grants an injunction under section 90 wh ich has the effect , either directly or indirectly, of requiring the parti es to a marriage to live separately and apart, the court shall, if 25 it is of opinion that it is in the interests of the parties or of the children of the marriage to do so, di;∑ect either or both of the parties to attend upon a marriage counsellor, bC~t failure to comply with such a direction does not constitute a contempt of the court.

15. The regulations may provide for the furnishing to persons 30 proposing to institute proceedings under this Act, and to their spouses, of documents-(a) setting out the co:1seq Liences of dissolution of marriage (including

the consequences for the childrer. of the marriage); and (b) specifying approved marriage counselling organizations available 35 to assist the partie s to a marriage in considering a reconciliation.

16. ( l) This section applies to " ( a) a marriage counsellor; (b) a person nominated, or acting on behalf of an organization nominated, in accordance with sub-paragraph 14 (2) (b) (ii); or 40

1974 Family Law No.

(c) a person to whom a party to a marriage has been referred by a marriage counsellor, or by a person referred to in paragraph (b), for medical or other professional consultation.

(2) Evidence of anything said or of any admission made at a conference 5 that takes place in pursuance of this Part with a person to whom this section applies is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by a law

of Au stralia or of a State or Territor y, or by consent of parties, to hear evidence.

10 17. (1) A m arriage counsellor shall, before entering upon the per- formance of his functions as such a counsellor, make before a person authorized under the law of Australia or of a State or a Territory to take affidavits, an oath or affirmation of secrecy in accordance with the pre " scribed form. 15 (2) A marriage counsellor who has made an oath or affirmation of

secrecy under the repealed Act shall be deemed to have made an oath or affirmation under this section .

PART IV-JURISDICTION

11

Oath or affirmation of secrecy.

18. (1) Subject to this Part, a person may institute a matrimonial Jurisdiction 20 cause under this Act- in matri-

(a) in the Superior Court; or

(b) in the Supreme Court of a State or a Territory. (2) Subject to this Part, a person may institute a matrimonial cause under this Act, not being proceedings for principal relief, in a court of 25 summ ary jurisdiction of a State or Territory.

(3) Proceedings for a decree of dissolution of marriage may be instituted under this Act by a party to the marriage if, at the date on which the application for the decree is filed in a court, either party to the mar " nage-30 (a) is an Au stralian citizen;

(b) is domiciled in Australia; or (c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date, (4) Proceedings of a kind referred to in any of paragraphs (a) to (e) 35 of the definition of" matrimonial cause" in sub-section 4 (1), other than

proceedings for a decree of dissolution of marriage, may be instituted under this Act if-(a) either party to the marriage is an Australian citizen; (b) either party to the marriage is present in Australia; or 40 (c) the proceedings relate to a child of the marriage and the child is

present in Australia.

monial causes.

12

Jurisdiction of

Superior Court.

No. Family Law 1974

(5) Subject to this Part, the Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Superior Court and on the Supreme Court of each Territory, to hear ?.nd deter " mine-

(a) matrimonial causes instituted under this Act; 5

(b) matrimonial causes continued in accordance with section 9; and

(c) proceedings instituted under regulations made for the purposes of section 83, 86 or 87.

(6) Subject to this Part, the courts of summary jurisdiction of each State are invested with federal jurisdiction, and jurisdiction is conferred 10 on the courts of summary jurisdiction of each Territorf, to hear and determine-

( a) matrimonial causes, not being proceedings for principal relief, instituted under this Act; (b) matrimonial causes, not being proceedings for principal relief, 15 continued in accordance with section 9; and

(c) proceedings instituted under regulations made for the purposes of section 83, 85, 86 or 87.

(7) Jurisdiction under this Act in a matrimonial cause instituted under this Act is not conferred on a court of a Territory unless at least one of 20 the parties to the proceedings is, at the date of the institution of the proceedings or the date of the transfer of the proceedings to the court of the Territory, ordinarily resident in the Territory.

(8) Jurisdiction under this Act in a matrimonial cause continued in accordance with section 9 is not invested in or conferred on a court other 25 than the court in which the matrimonial cause was instituted or to which it has been transferred under sub-section 19 (6) or section 23.

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 Ptoclamation , fix a date as the 30 date on and after which the jurisdiction of the Superior Court under this Act may be exercised in respect of all proceedings , or a class of pro " ceedings, in such States and Territories as are specified in the Proclamation.

(3) The Governor-General may, by Proclamation , fix a date as the date on and after which proceedings under this Act may not be instituted 35 in or transferred to the Supreme Court of a State or Territory specified in. the Proclamation, or may be so instituted or transferred only where specified conditions are complied with, and such a Proclamation may be expressed to apply only to proceedings of specified classes and may be expressed to apply only to the institution of proceedings in, or the transfer 40 of proceedings to, a particular Registry or Registries of a Supreme Court referred to in the Proclamation.

1974 Family Law No .

(4) The Supreme Court of a State or Territory shall not hear and determine proceedings under this Act instituted in or transferred to that Court otherwise than in accordance with any Proclamation in force under sub-section (3), but nothing in this section invalidates a decree made by 5 such a Supreme Court.

(5) Proclamation s under sub-sections (2) and (3) may be made from time to time.

(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, 10 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.

(7) The regulations m ay make provision in relation to matters arising 15 in or in connexion with the transfer of proceedings in accordance with an order under sub-section (6).

13

20. The jurisdiction of a court of summary jurisdiction shall not be Jurisdiction exercised in proceedings with respect to the property of the parties or of ~~ ~g~:ary either party to a marriage, or with respect to the custody or guardianship jurisdiction. 20 of, or access to, a child of a marriage-

( a) if there are pending proceedings with respect to the same matter in the Superior Court or in the Supreme Court of a State or Territory; or

(b) if an order of the Superior Court or of the Supreme Court of a 25 State or Territory is in force in relation to that matter, unless the exercise of the jurisdiction of the court of summary jurisdiction is permitted by the terms of that order.

21. (I) The jurisdiction conferred on a court, or with which a court Law to be is invested, by this Act shall be exercised in accordance with this Act. applied.

30 (2) Where it would be in accordance with the common law rules of private international Jaw to apply the laws of any country or place (in " cluding a State or Territory) , the court shall apply the laws of that country or place.

22. (I) Subject to this secti on, proceedings under this Act shall be Institution 35 instituted by application . ~~~.

(2) A respondent may, in an answer to an application, include an application for any decree or declaration under this Act.

(3) Where a decree nisi of dissolution of marriage or of nullity of marr:iage has been made, proceedings of a kind referred to in sub-para-40 graph (c) (i) or (ii) of the definition of "matrimonial cause" in sub " section 4 (1) (not being proceedings seeking the discharge, suspension,

revival or variation of an order previously made in proceedings with

14

Staying and transfer of pro cee ding~.

Transfer of proceedings from court of summ ary jurisdiction in certain cases.

Courts to act in aid of each other.

Dissolution of

marriage.

No. Family Law 1974

respect to the maintenance of a party) shall not be instituted after the expiration of 12 months after the date of the making of the decree or the date of commencement of this Act, whichever is the later.

23. (1) Where it appears to a court in which a m atrimonial cause (including a matrimonial cause instituted before the com m encement of 5 this Act) is pending that a matrimonial cause (including a matrimonial cause institut ed before the commencement of this Act) in respect of the same marriage or void m arriage is pending in ahother court, the first " mentioned court may stay the proceedings in that court for such time as it thinks fit or may dismiss the proceedings. 10

(2) Where it appears to a court in which a matrimonial cause has been instituted or is being continued under this Act that it is in the interests of justic e that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the

other court. 15

24. (1) Where proceedings are instituted in a court of summary jurisdiction with respect to-(a) the custody or guardianship of, or access to, a child of a marriage; or

(b) property of a value exceeding $1,000, 20

and the respondent, in an answer to the application by wh ich the pro " ceedings were instituted, seeks an order different from that sought in the application , the court shall, unless the parties agree to the court hearing and determining the proceedings, transfer the proceedings to the Superior Court or to the Supreme Court of a State or Territory.

25

(2) Before transferring proceedings under sub-secti0!1 (1), the court may make such orders as it considers necessary pending the disposal of the proceedings by the court to which they are to be transferred.

(3) Where proceedings are transferred to a court in pursuance of this section, that court shall proceed as if the proceedings had been originally 30 instituted in that court. (4) Without prejudice to the duty of a court of summary jurisdiction to comply with this section, failure by such a court so to comply does not invalidate any order of the court in the proceedings.

25. All courts having jurisdiction under this Act shall severally act in 35 aid of and be auxiliary to each other in all matters under this Act.

PART V-DISSOLUTION AND NULLITY OF MARRIAGE

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. 40

1974 Family Law No.

(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 satisfie d that the parties separated and thereaft er lived separately 5 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 dot be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

15

10 27. (1) The parties to a marriage ma y be held to have separated Meaning of notwithstanding that the cohabitation was brought to an end by the separation. action or conduct of one only of the parties . (2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued 15 to reside in the same residence.

28. A decree of dissolution of marriage may be made notwithstanding that there was in existence at any relevant time-(a) a separation order in relation to the parties to the marriage; or (b) an agreement between those parties for separation.

20 29. (1) For the purposes of proceedings for a decree of dissolution of marriage, where, after the parties to the marriage separated, they re " sumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the commencement of the 25 hearing of the application, the periods of living separately and apart before

and after tbe period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall hot be deemed to be part of the period of living separately and apart. (2) For the purposes of sub-section (1), a period of cohabitation shall 30 be deemed to have continued during any interruption of the cohabitation

that, in the opinion of tbe court, was not substantial.

Separation order or agreement not a bar.

Effect of resumption of co " habitation .

30. An application under this Act for a decree of nullity of marriage Nullity of shall be based on the ground that the marriage is void. marriage.

31. Where both an application for a decree of nullity of a marriage 35 and an application for a decree of dissolution of that marriage are before a court, the court shall not make a decree of dissolution of the marriage unless it has dismissed the application for a decree of nullity of the

Court not to make decree of dis " solution where application for decree of nullit y before

40

marriage.

it.

32. A decree may be made, or refused, under this Part by reason of Circum " facts and circumstances notwithstanding that those facts and circum- stances occurring stances, or some of them, took place before the commencement of this Act before t 'd A t li commence - or ou SI e us ra a. ment of Act

or outside Australia.

16

Decree nisi in first instance.

When decree becomes absolute.

No. Family Law 1974

33. A decree of diss,Jlution of marriage under this Act shall, in the first instance, be a decree nisi.

34. (1) Subject t o this section, a decree nisi made under this Act be " come s absolute by force of this section at the expiration of a period of 1 month from the making of the decree or from the making of an order under section 42, whichever is the later.

(2) Where a decree nisi has been made in any proceedings , the court of first instance (whether or not it made the decree), or a court in which an appeal has been instituted , m ay, either before or after it has disposed

5

of the proceedings or appeal, and whether or not a previous order has 10 been made under this sub-section-(a) having regard to the pcssibility of an appeal or further appeal, m ake an order extending the period at the expiration of which the

decree nisi will become absolute; or

(b) if it is satisfied that there are special circumstances that justify 15 its so doing, m ake an order reducing the period at the expiration of w hich the decree nisi will become absolute.

(3) Where an appeal is instituted (whether or not it is the first appeal) before a decree nisi has become absolute, then, notwithstanding any order . in force under sub-section (2) at the time of the institution of the appeal 20 but subject to any such order made after the institution of the appeal, the decree nisi, unless reversed or rescinded, becomes absolute by force of this section -

( a) at the expiration of a period of 1 month from the day on which the appeal is determined or discontinued; or 25

(b) on the day on which the decree would have become absolute under sub-section (1) if no appeal had been instituted,

whichever is the later.

(4) A decree nisi shall not become absolute by force of this section where either of the parties to the marriage has died. 30

(5) In this section, "appeal", in relation to a decree nisi, means "

(a) an appeal or application for leave to appeal against, or an inter " vention or application for a re-hearing relating to-(i) the decree nisi; or

(ii) an order under section 42 in relation to the proceedings 35 in which the decree nisi was made; or

(b) an application under section 36 or 37 for rescis sion of the decree or an appeal or application for leave to appeal arising out of such an application.

1974 Family Law No.

(6) For the purposes of this section, where an application for leave to appeal, or for a re-hearing, is granted, the application shall be deemed not to have been determined or discontinued so long as-(a) the leave granted remains capable of being exercised; or 5 (b) an appeal or re-hearing instituted in pursuance of the leave is

pending.

17

35. (l) Where a decree nisi becomes absolute, the Registrar of the Certificate court by which the decree was made shall prepare and file a memorandum ~~!~~~~-ree of the fact and of the date upon which the decree became absolute.

10 (2) Where a decree nisi has become absolute, any person is entitled, on application to the Registrar of the court by which the decree was made, to receive a certificate signed by the Registrar that the decree nisi has become absolute.

(3) A certificate given under sub-section (2) is, in all courts (whether 15 exercising federal jurisdiction or not) and for all purposes, evidence of the matters specified in the certificate.

36. Notwithstanding anything contained in this Part, where a decree nisi has been made in proceedings for a decree of dissolution of marriage, the court may, at any time before the decree becomes absolute, upon the 20 application of the parties to the marriage, rescind the decree on the ground

that the parties have become reconciled.

Rescission of decree nisi where parties reconciled.

37. Where a decree nisi has been made but has not become absolute, Rescission of the court by which the decree was made may, on the application of a ~~c~~~~s~ party to the proceedings, or on the it1tervention of the Attorney-General, of ~is-25 if it is satisfied that there has been a miscarriage of justice by reason of ~r~~~~e.

fraud, perjury, suppression of evidence or any other circumstance, rescind J

30

the decree and, if it thinks fit, order that the proceedings be re-heard.

38. Where a decree of dissolution of marriage under this Act has Re-marriage. become absolute, a party to the marriage may marry again.

PART VI-WELFARE AND CUSTODY OF CHILDREN

39. In this Part-" marriage " includes a void marriage; " overseas custody order " means an order made by a court in a prescribed overseas country, being-

Definitions.

35 (a) an order for custody of, or access to, a child who has not attained the age of 18 years; or (b) an order varying or discharging an order of the kind referred to in paragraph (a), including an order of that

kind made under this Act.

18

Rights of guardianship and custody of children.

Conferences with, and reports by, welfare officers.

No. Family Law 197

40. (1) Subject to any order of a court for the time being in force, each of the parties to a marriage is a guardian of any child of the marriage who has not attained the age of 18 years and those parties have the joint custody of the child.

(2) A party to a marriage may institute proceedings under this Act 5 with respect to the custody or guardianship of, or access to, a child of the marnage.

(3) An order with respect to the custody or guardianship of, or access to, a child-(a) shall not be made in respect of a child who has attained the age 10 of 18 years; and

(b) ceases to be in force when the child attains the age of 18 years or is adopted by a person who is not a party to the marriage.

(4) On the death of a party to a marriage in whose favour a custody order has been made in respect of a child of the marriage, the other party 15 to the marriage is entitled to the custody of the child only if the court so orders on application by that other party and, upon such an application, any other person who had the care and control of the child at the time of the application is entitled to be a party to the proceedings.

41. (1) Where- 20

(a) there is a child (being a child who has not attained the age of 18 years) of a marriage in respect of which proceedings for principal relief have been instituted; or (b) proceedings for the custody or guardianship of, or access to, a

child of a marriage who has not attained the age of 18 years are 25 contested, the court may, at any stage of the proceedings, of its own motion or upon the request of a party to the proceedings, make an order qirecting the parties to the proceedings to attend a conference with a welfare officer to discuss the welfare of the child and, if there are any differences between 30 the parties as to matters affecting the welfare of the child, to endeavour to resolve those difference s.

(2) Where the court makes an order under sub-section (1), it may fix a place and time for the conference to take place or direct that the con " ference shall take place at a place and time to be fixed by a welfare officer. 35

(3) If a party fails to attend a conference in respect of which an order has been made under sub-section (I), it is the duty of the welfare officer to report the failure to the court but the failure does not constitute a contempt of the court.

( 4) The court may adjourn any proceedings referred to in sub- 40 section (1) until a report has been obtained from a welfare officer on such matters relrwant to the proceedings as the court considers desirable, and may receive the report in evidence.

1974 Family Law No.

(5) Subject to sub-section (4), evidence of anything said or of any admission made at a conference that takes place in pursuance of an order made under this section is not admissible in any court (whether exercising federal jurisdiction or not) or in proceedings before a person authorized by 5 a law of Australia or of a State or Territory, or by consent of parties, to

hear evidence.

10

15

20

42. A decree nisi of dissolution of marriage doe ~ not become absolute unless the court, by order, has declared that it is satisfied -(a) that there are no children of the m arriage who have not attained the age of 18 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.

43. (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 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 25 with respect to the custody of, or access to, a child who has

attained the age of 14 years where the order wou ld be contrary to the wishes of the child; and (c) subject to paragraphs (a) and (b), the court may make such order in respect of those matters as it thinks proper.

30 (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 marnage.

(3) Where the court makes an order placing a child of a marriage in 35 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, 40 by order direct that compliance with the first-mentioned order shall, as far as practicable , be supervised by a welfare officer.

Decree absolute where children .

19

Powers of court in custodial proceedings.

20

Separate repre " sentation of child.

Where applicant in contempt.

No. Family Law 1974

(5) An order under this sectio n may be a permanent order or an order pending the disposal of the proceedings.

(6) The court may dischar ge or vary an order under this section, or may suspend any part of the order and may revive the operation of any part so suspended. 5

(7) On an application for the dischar ge or variation of an order under this section in respect of a child who has attained the age of 14 years, if the court is satisfie d that the discharge or variation of the order would be in accordance with the wishes of the child, it shall discharge or vary the order accordingly unless the court is satisfied that it is undesirable to do so 10 by reason of special circumstances.

(8) Where an order made by a court (including a court of a prescribed oversea<; country) with respect to the custody of a child is in force, a court having jurisdiction under this Act may issue a warrant authorizing or directing the person, or any of the persons, to whom it is addressed to 15 take possession of the child and to deliver the child to the person entitled to custody or to some other person or authority (including a person or authority in or from a prescribed overseas country) named in the order on behalf of the person entitled to custody.

(9) Where an order made by a court (including a court of a prescribed 20 overseas country) entitling a person to access to a child is in force, a court having jurisdiction under this Act may, for the purpose of giving effect to the order, issue a warrant authori zing or directing the person, or any of the persons, to whom it i s addressed to take possession of the child and to deliver the child to the person so entitl ed to access. 25

(10) Wh ere an order entitle s more than one person to the custody of a child, a warrant shall not be issued under this section for the removal of the child fro:n the possession of one of those persons and the delivery of the child to another of them.

(11) The Attorney-General ma y appoint persons. to be enforcem ent 30 officers for the purposes of this Part and a warrant under sub-section (8) or (9) m ay be addressed to a person so appointed.

44. Where, in proceedings with respect to the custody, guardianship or m aintenance of, or access to, a child of a ma rriage, it appears to the court that the child ought to be separately represented, the court may, of its 35 own motion, or on the application of the child or of an organization concerned with th e welfare of children or of any other person, order that the child be separately represented, and the court may make such other orders as it thinks necessary for the purpose of securing such separate representation. 40

45. The court may proceed with the hearing of proceedings in relation to a child notwithstanding that the person by whom the proceedings were instituted has failed to comply-with an order of the court or of another court having jurisdiction under this Act.

5

1974 Family Law No.

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 18 years.

(2) The regulations m ay m ake 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 10 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 sam e force and effect as if it were an order made by that court under this Act.

21

Registration inter-State of orders for custody of ex-nuptial children.

15 47. (l) The regulati ons may make provision for and in relation to the Overseas registration in courts in A ustralia of overseas custody orders. ~~~~~~:

(2) Where an overseas 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.

20 (3) Where an overseas custody order is so registere d, a court in Australia shall not, whe re it becom es aware of the order, exercise juris " diction in proceedings for the custody of, or access to, the child the subject of the overseas custody order, unless-

(a) every person having rights of custody or access in relat ion to the 25 child under the overseas custody order con-en!s to the exercise of jurisdiction by the court in the proceedings; or

(b) the court is satisfied that there arc substantial grounds for believing that the welfare of the child will be adversely affected if the court does not exercise jurisdiction in the proceedings.

30 (4) Wh ere the court exercises jurisd icti on in proceedings for the custody of, or access to, a child w ho is the subject of an overseas custody order, the court shall not make an order with respect to the custody of, or access to, the child unless the person w ho instituted the proceedings satisfie s the court-35 (a) that the we lfare of the child is likely to be adversely affected if

the order is not made; or

(b) that there has been such a change in the circumstances of the child that the order ought to be made.

22

Transmission of Australian custody orders to overseas country.

Interfering with child subject to custody order.

No. Family Law 1974

48. (1) Where an order made by a court in Australia with respect to the custody of, or access to, a child who has not attained the age of 18 years may be enforced in a prescribed overseas country under provisions corresponding to the provisions of section 47, the Registrar of the court

shall, if so requested in writing by a person ho.ving rights of custody or access in relation to the child under the order, send to an appropriate court or authority in that country such documents and information as are necessary for securing the enforcement of the order in the overseas country.

5

(2) The regulations may make prov1s1on fbr and in relation to the 10 transmission to a prescribed overseas country of copies of, and documents relating to, an order made by a court in Australia with respect to custody of, or access to, a child who is the subject of an overseas custody order.

49. (1) Where an order is made under this Act granting to a person the custody of a child of a marriage, a person shall not remove the child 15 from the care and control of the first-mentioned person contrary to the order or interfere with the exercise of the first -mentioned person' s rights under the order in respect of the child.

(2) Where an order is made under this Act granting to a person the custody of a child of a marriage, being a child that is in the care and control 20 of another person, that other person shall, upon demand by the person entitled to the custody of the child under the order, deliver the child to that person.

(3) Where an order under this Act provides for a person to have access to a child of a marriage, a person shall not, without iust cause or excuse, 25 hinder or prevent the first-mentioned person from obtainin g access to the child in accordance with the order or interf ere with the access to the child that the first-mentioned person is entitled to in accordance with the order.

(4) Sub-sections (1), (2)"and (3) apply to an order registered in a court under section 46 or 47 as if the order were an order made under this Act. 30

(5) A person shall not prevent or hinder the execution of a warrant issued in pursuance of section 43.

(6) If a court having jurisdiction under this Act is satisfied that a person has knowingly and without reasonable cause contravened or failed to ~.:omply with a provision of this section, that court may- 35 (a) order that person to pay a fine not exceeding $1,000;

(b) require that person to enter into a recognizance, with or without suretie s, 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 40 recognizance or until the expiration of 3 months, whichever first occurs;

1974 Family Law ∑ No.

(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.

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

PART VII-MAINTENANCE A~D PROPERTY

50. In this Part-" marriage " includes a void marriage; 10 " re-marriage", in relation to a person who was a party to a purported marriage that is void, means marriage.

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, 15 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.

23

D efinition .

Right of spouse to maintenance.

52. The parties to a marriage are liable, according to their respective M aintenance 20 financial resources, to maintain the children of the marriage who have not or children. attained the age of 18 years.

25

30

53. In proceedings w ith respect to the maintenance of a party to a marriage or of a child of a marriage, the court may make such order as it thinks proper for the provision of maintenance in accordance w ith this Part.

54. (J) In determining-( a) what constitutes adequate support of a party to a marriage for the purpose of section 51 ; (b) whether to make an order for the maintenance of a party to a

marriage or a child of a m arriage; or (c) the period for which such an order should continue in force or the amount of any payment to be required to be m ade under such an order, the court shall take into account only the matters referred to in sub-35 section (2).

(2) The matters to be so taken into account are-(a) the age and state of health of each of the parties ; (b) the income, earning capacity, property and other financial re " sources of each of the parties;

Powers of court in maintenance proceedings.

Matters to be taken into con " sideration in proceedings with respect to main " tenance.

24

Maintenance of children.

No. Family Law 1974

(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 pen- 5 sion, allowance or benefit being paid to either party;

(f) where the parties have separated or the marriage has been dis " solved, 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 10 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 15 affected the earning capacity of the party whose maintenance is under consideration;

(j) if the party whose maintenance is under consideration is co " habiting with another person- the financial circumstances of the cohabitation; and 20

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

55. (1) In determining-(a) whether to m ake an order for the maintenance of a child of a marriage; or 25

(b) 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, in addition to the matters referred to in section 54, take into account- 30

(c) the income, earning capacity, property and other financial resources of the child; (d) the financial needs of the child; and (e) the manner in which the child is being, and in which the parties to

the marriage expected the child to be, educated or trained. 35

(2) Subject to sub-sections (3) and (4)-(a) an or

the child attains the age of 18 years. 40

1974 Family Law No.

(3) The court may-(a) provide in an order for the maintenance of a child who has not attained the age of 18 years that the order shall continue in force until a day that is later than, or for a period that extends beyond, 5 the day on which the child will attain that age; or

(b) make an order for the maintenance of a child who has attained the age of 18 years, being an order that is expressed to continue in force until a day, or for a period, specified in the order, if the court is satisfied that the provision of the maintenance is necessary 10 to enable the child to complete his education (including vocational

training or apprenticeship) or because he is mentally or physically handi " capped, and, in that case, the order continues in force until that day or the expiration of that period, as the case may be. ( 4) Th e court shall not make an order under sub-section (3) unless it 15 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.

20

25

56. Where, in proceedings with respect to the maintenance of a party to a m arriage or a child of a marriage, it appears to the court that the party or child is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be m ade, the court may order the payment, pending the disposal of the proceedings, of such periodic sum as the court considers

reasonable.

57. (I) In proceedings between the parties to a marriage with respect to existing titl e or rights in respect of property , the court may declare the title or rights, if any, that a party has in respect of the property . (2) A n order under this section is binding on the parties to the marriage

but not on any other person.

30 58. (I) In proceedings with respect to the property of the parties to the marriage or either of them, the court may make such order as it thinks fit altering the intere sts of the parties in the property, including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage who has not attained the 35 age of 18 years, such settlement or transfer of property as the court

determines. (2) The court shall not m ake an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. 40 (3) The court shall not make an order under this section unless a

decree nisi for dissolution of the m arriage, or a decree of nullity of the m arriage, has been m ade or proceedings for a decree of dissolution or nullit y of the marriage have been instituted in that court or in another court having jurisdiction under this Act.

25

Urgent maintenance cases.

Declaration of interests in property.

Alteration of property interests .

26

General powers of court.

No. Family Law 1974

(4) In considering what order should be made under this section the court shall take into account-(a) the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or

improvement of the property; 5

(b) the contribution m ade to the acquisition, conservation or improve " ment of the property by either party in the capacity of hom emaker or parent or otherwise;

(c) the effect of any proposed order upon the earning capacity of either party: 10

(d) the matters referred to in sub-section 54 (21) so far as they are relevant; and

(e) any other order made under this Act affect ing a party.

59. The court, in exercising its pow ers under this Part, m ay do any or all of the following: - 15

(a) order paymen t of a lump sum, whether in one am ount or by instalments; (b) order payment of a weekly, mo nthly, yearly or other periodic sum; (c) order that payment of any sum ordered to be paid be wholly or 20

partly secured in such manner as the court direct s; (d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be: done as are necessary to enable an order to be carried out effect ively

or to provide security for the due performance of an order; 25 (e) appoint or remove trustees; (f) order that payments be made direct to a party to the m arriage, to a trustee to be appointed or into court or to a public authority

for the benefit of a party to the marriage; (g) order that payment of maintenance in respect of a child be made 30 to such person or public authority as the court specifies; (h) make a permanent order, an order pending the disposal of pro "

ceedings or an order for a fixed term or for a life or during joint lives or until further order;

(i) impose terms and conditions; 35

(j) make an order by consent;

(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it i s necessary to make to do justice; and (1) subject to this Act, make an order under this Part at any time 40

before or after the making of a decree under another Part.

1974 Family Law No.

60. In proceedings under this Part, other than proceedings under section 57 or proceedings with respect to maintenance payable during tlv ~ subsistence of a marriage, the court shall, as far as practicable , make such orders as will finally detennine the financial relationships between the 5 parties to the marriage and avoid further proceedings between them.

27

Duty of court to end ! ; ! : ~ ~ I ~ : i . t ! relations.

61. (I) An order with respect to the maintenance of a party to a Cessation of marriage or a child of a marriage ceases to have effect upon the death of orders. the party or child.

(2) Subject to sub-section (3), an order with respect to the maintenance 10 of a party to a marriage or a child of a marriage ceases to have effect upon the death of the person liable to make payments under the order.

(3) Sub-section (2) does not apply in relation to an order if the order is expressed to continue in force throughout the life ofthe person for whose benefit the order was made or for a period that had not expired at the 15 time of the death of the person liable to make payments under the order

and, in that case, the order is binding upon the legal personal representative of the deceased person.

(4) An order with respect to the maintenance of a party to a marriage or a child of a marriage ceases to have effect upon the re-marriage of the 20 party or the marriage of the child.

(5) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.

62. (1) In proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, if there is in force an order (whether 25 made before or after the commencement of this Act) with respect to the maintenance of that party or child by the other party to the marriage-

( a) made by the court; or

(b) made by another court (including the Superior Court or the Supreme Court of a State or Territory) and registered m the 30 first-mentioned court in accordance with the regulations, the court may-

( c) discharge the order if there is any just cause for so doing;

(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;

35 (e) revive wholly or in part an order suspended under paragraph (d); or

(f) subject to sub-section (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

Modification of main∑ tenance order.

28

Execution of instruments by order of court.

No. Family Law 1974

(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied-(a) that, since the order was made or last varied-(i) the circumstances of a person for whose benefit the order

was made have so changed; 5

(ii) the circumstances of the person liable to make payments under f order have so changed; or (iii) in the case of an order that is binding on a legal personal representative, the circumstances of the estate are such, as to justify its so doing; 10

(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or

(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false. 15

(3) Sub-section (2) does not prevent the court from making an order varying an ord~.- r made before the date of commencement of this Act if the ftrst-mentioned order is made for the purpose of giving effect to section 5 I.

(4) In satisfying itself for the purposes of paragraph (2) (b), the court 20 shall have regard to any changes that have occurred in the Consumer Price lndex published by the Commonwealth Stati stici an.

(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order w as made or was last varied having regard to a 25 change in the cost of living.

(6) A n order decreasing the amount of a periodic sum payable under an order or discharging an order shall not be expressed to be retrospective to a date earlier than 12 months before the date of the application for the vm iation or discharge. 30

17) For the purposes of this section , the court shall have regard to the prO v'!Sions or sections 5 I' 54 and 55.

(8) The discharge of an order does not affPct the recovery of arrears due under the order at the time as at v.:hich the discharge takes effect.

63. (1) Where- 35

(a) an order under this Part has directed a person to execute a deed or instrument; and (b) that person has refused or neglected to comply with the direction or, for any other reason, the court thinks it necessary to exercise

the powers of the court under this sub-section, 40

1974 Family Law No.

the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

5 (2) The execution of the deed or instrument by the person so appointed has the same force and validity as if it had been executed by the person directed by the order to execute it.

(3) The court may make such order as it thinks just as to the payment of the costs and expenses of and incidental to the preparation of the deed 10 or instrument and its execution.

64. (I) In proceedings under this Part, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, if it is made or proposed to be made to defeat an existing or anticipated order in those proceedings 15 for costs, maintenance or the declaration or alteration of any interests in

property.

(2) The court may order that any money or real or personal property dealt with by any such instrument or disposition may be taken in execution or charged with the payment of such sums for costs or maintenance as 20 the court directs, or that the proceeds of a sale shall be paid into court

to abide its order.

(3) The court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

25 (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.

(5) In this section, "disposition" includes a sale and a gift.

29

Transactious intended to defeat claims.

30 65. (I) A maintenance agreement is not enforceable unless it has been Maintenance approved by the court and the approval has not been revoked. agreement&

(2) In proceedings for the approval of a maintenance agreement, if the court is satisfied that the provisions of the agreement with respect to financial matters are proper, the court shall approve the agreement, but, 35 if the court is not so satisfied, it shall refuse to approve the agreement.

(3) A maintenance agreement ceases to be in force upon the death of a party to the agreement unless the agreement otherwise provides. (4) A court may revoke its approval of a maintenance agreement only if it is satisfied that the coricurrence of a party or the approval of 40 the court was obtained by fraud or that the parties to the agreement

desire the revocation of the approval. Jml/74-2

30

Overseas maintenance agreements.

Instruments DOt liable to atunp duty.

Intervention by Attorney " General.

No. Family Law 1974

(5) Where a court has approved a maintenance agreement and the approval has not been revoked, the agreement shall be deemed to be registered in that court. (6) The regulations may make provision for and in relation to the registration in a court having jurisdiction under this Act of a maintenance 5 agreement that has been approved by another court under this section.

(7) A subsisting maintenance agreement that is registered in a court may be enforced as if it were an order of that court. (8) Subject to sub-section (9), where a subsisting maintenance agree " ment that is registered makes provision with respect to financial matters, 10 the court shall not make an order with respect to the financial matters dealt with in the agreement.

(9) Where the court is satisfied that the arrangements in a subsisting maintenance agreement that is registered relating to a child of the m arriage who has not attained the age of 18 years are no longer proper, it ma y make 15 an order under this Part.

(10) Nothing in this Act affects the operation of an agreement sanctioned under paragraph 87 (1) (k) of the repealed Act or the rights and obligations of a person under such an agreement. (11) Subject to section 66, this section does not apply to overseas 20 maintenance agreements.

66. The regulations may make provision for and in relation to " (a) the application of section 65, with such additions , exceptions and modifications as are prescribed, to overseas maintenance agree-ments; and 25

(b) the transmission to appropriate courts or authorities of prescrib ed overseas countries of, or of copies of, maintenance agreements and of agreements for maintenance of ex-nuptial children for the purpose of securing the enforcement of those agreements in those countries. 30

67. A maintenance agreement, or a deed or other instrument executed by a person for the purposes of such an agreement or for the purposes of, or in accordance with an order under, this Part, is not subject to stamp duty under any law of a State or Territory.

PART VIII-INTERVENTION

68. (1) The Attorney-General may intervene in, and contest or argue any question arising in-(a) any proceedings under this Act where the court requests him to do so or a matter arises that affects the public interest; or

35

(b) any proceedings under this Act with respect to the custody or 40 guardianship of, or ∑ access to, children.

1974 Family Law No.

(2) Where the Attorney-General intervenes in any proceedings , he shall be deemed to be a party to the proceedings with all the rights , duties and liabilities of a party.

69. (1) In proceedings other than proceedings for principal relief , any 5 person may apply for leave to intervene in the proceedings , and the court may make an order entitling that person to intervene in the proceedings .

(2) An order under trus section may !be made upon such conditions as the court trunks fit. (3) Where a person intervenes in any proceedings by leave of the court 10 he shall, unless the court otherwise orders, be deemed to be a party to

the proceedings with all the rights , duties and liabilities of a party.

PART IX-APPEALS

31

Intervmtion by other persons.

70. An appeal does not lie from a decree of dissolution of marriage No appeal after the decree has become absolute. ~f:~~~~ .ree

15 71. (1) A person aggrieved by a decree of a Judge of the Supreme Court of a State exercising jurisdiction with which that Court is invested by trus Act may, witrun such time as is prescribed , appeal from the decree to the Supreme Court of that State sitting as a Full Court or as a Court of Appeal.

20 (2) The Supreme Court of each State is invested with jurisdiction to hear and determine appeals under this section.

(3) Upon such an appeal the Court may affirm, reverse or vary the decree the subject of the appeal and may make such decree as, in the opinion of the Court, ought to have been made in the first instance , or 25 may , if it thinks fit, order a re-hearing on such terms and conditions ,

if any, as it trunks just.

72. Notwithstanding anytrung contained in the Judiciary Act 1903-1973, an appeal does not lie to the High Court, except by special leave of the High Court, from a judgment, decree or order of the Supreme 30 Court of a State given or made under this Act, whether in the exercise

of original or appellate jurisdiction.

Appeals from single Judges of State Supreme Court.

Appeals to High Court.

73. (1) A person aggrieved by the decree of a court of summary Appeals jurisdiction of a State or Territory exercising jurisdiction under this Act ~f=~ may, within such time as is prescribed, appeal to the Superior Court or jurisdiction. 35 to the Supreme Court of that State or Territory.

(2) The Supreme Court of each State is invested with federal juris " diction, and jurisdiction is conferred on the Superior Court and on the Supreme Court of each.Territory, to hear and determine appeals instituted in that Court under trus section.

32 No. Family Law 1974

(3) A court shall determine an appeal under this section in accordance with-( a) the law in force on the date on which the hearing of the appeal is concluded; and

(b) the evidence that was before the court of summary jurisdiction 5 and any other evidence adduced with the leave of that court under sub-section (4).

(4) On the hearing of an appeal to which this section applies a party is not entitled to adduce evidence except with the leave of the court-( a) granted on the ground that the evidence relates to matters that 10 occurred after the hearing of the proceedings in the court of

summary jurisdiction ; or (b) granted in special circumstances on another ground.

PART X-PROCEDURE AND EVIDENCE

Procedure. 74. ( 1) Subject to sub-section (2) and to the regulations, all proceedings 15

Evidence by affidavit in undefended proceedings.

Evidence as to paternity .

Evidence of husbands and wives.

under this Act shall be heard in closed court.

(2) Subject to the regulations, relatives or friends of either party, marriage counsellors , we lfare officers and legal practitioners may be present in court unless in a particular case the court otherwise orders.

(3) In proceedings under this Act, the court shall proceed without 20 undue formality and shall endeavour to ensure that the proceedings are not protracted.

(4) Neither the Judge hearing proceedings under this Act nor counsel shall robe.

75. The regulations may provide for evidence of any material matter 25 to be given on affidavit at the hearing of-(a) proceedings for principal relief that are undefended at the time of hearing; and

(b) proceedings other than proceedings Jor principal relief.

76. Where the paternity of a child is a question in issue in proceedings 30 under this Act, the court may make an order requiring either party to the marriage or any other person to give such evidence as is material to the question.

77. (l) The parties to proceedings under this Act are competent and compellable witnesses. 35

(2) The parties to a marriage are competent and compellable to disclose communications made between them during the marriage.

(3) Sub-section (2) applies to communications made before, as well as to communications made after, the date of commencement of this Act.

1974 Family Law No. 33

78. The court sklll forbid the asking of, or excuse a witness from Offensive or ∑ ∑ l ∑ scandalous answcrtng. a question that it regards as offensive, scandalous, m su tmg questions. or humiliating. unless the court is satisfied that it is essential in the intere sts

5

of justice that the question be answered.

79. ln proceedings under this Act, the court may receive as evidence of the facts stated in it. a docum ent purporting to be either the original or a certified copy of a certificate , entry or record of a birth, death or m arriage alleged to have taken place whether in Australia or elsewhere.

PART Xl- R ECOGN !TION OF DE C REES

Proof of birth, death or marriage.

10 80. A decree under this Act has effect throughout Australia and the Decrees under this

external Territories other than Papua New Guinea. Act.

15

81. ( 1) J n this section- Overseas

decrees.

∑∑app licant .. , in relation to the dissolution or annulment of a mar-riage. me ans the party at whose instance the dissolution or annul " m ent \\as cnected;

" m ::rri:1ge ., includes :-~ purporteJ marriage that is void;

"ovc r se ~. s c o L ~nli'Y" l~ , e~ m s a country, or part of a country, outside

Aus tr ;d i :-~;

"rckvant da'tc ∑∑ , in rc∑l<;tion to a dissolution or annulment of a 20 ma rri:1gc. m eans the date of the i nstitut.on of the proceedings thut rc s ul: ~u in the disso lL!tion or annulment;

"rc. pondcnt ", in relati on to the dissolution or annulment of a m arriage, means a party to the m arriage not being the party at whose instance the dissolution or annulment was effecte d.

25 (2) F or the puq oscs of this section, a person who is a national of a country of wh ich an o∑ Jerseas country forms part shall be deemed to be a national of that overseas country.

(J) A dissolutio 11 or ::mnulm cnt of a m arriage effected in accordance with the law of an overseas country shall be recognized as valid in 30 Au stralia where-(a) the responclc " 1t wa s ordinarily resident in the overseas country at

the re!cvo.nt date; (b) the applicant was ordinarily resident in the overseas country at the relevant elate and cither -35 (i) the ordinar y residence of the applicant had continued for

not less than 1 year immediately before the relevant date; or

(ii) the last place of cohabitation of the parties to the marriage was in that country; 40 (c) the applicant or the respondent was domiciled in the overseas country at the relevant date;

34 No. Family Law 1974

(d) the respondent was a national of the overseas country at the relevant date; (e) the applicant was a national of the overseas country at the relevant date and either-

(i) the applicant was ordinarily resident in that country at 5 that date; or (ii) the applicant had been ordinarily resident in that country for a continuous period of 1 year falling, at least in part,

within the 2 years immediately before the relevant date; or

(f) the applicant was a national of, and present in, the overseas 10 country at the relevant date and the last place of cohabitation of the parties to the marriage was in an overseas country the Jaw of which, at the relevant date, did not provide for dissolution of marriage or annulment of marriage, as the case may be. (4) A dissolution or annulment of a marriage shall not be recognized 15 as valid by virtue of sub-section (3) where-

( a) under the common law rules of private international law , recog " nition of its validity would be refused on the ground that a party to the marriage had been denied natural justice or that the dissolution or annulment was obtained by fraud; or 20

(b) recognition would manifestly be contrary to public policy.

(5) Any dissolution or annulment of a marriage that would be recognized as valid under the common law rules of privat e international law but to which none of the preceding provisions of this section applies shall be recognized as valid in Australia, and the operation of this sub- 25 section shall not be limited by any implication from those provision s.

(6) Notwithstanding anything contained in this section, the annulment in accordance with the law of an overseas country of a marriage solemnized under Part V of the Marriage Act 1961 or of that Act as amended, being an annulment on the ground only of non-compliance with the form alities 30 prescribed by the law of the country in which the m arriage was solemnized, shall not be recognized as valid in Australi a.

(7) For the purposes of this section , a court in Au stralia , in considering the validity of a dissolution or annulment effected under the law of an overseas country, may treat as proved any facts found by a court of the 35 overseas country or otherwise established for the purposes of the law of the overseas country.

(8) For the purposes of the preceding provisions of this section but without limiting the operation of those provisions , a dissolution or annulment of a marriage shall be deemed to have been effected in 40 accordance with the law of an overseas country if it was effected in another overseas country in circumstances in which, at the relevant date, it would have been recognized as valid by the law of the first-mentioned overseas country.

1974 Family Law No.

(9) Where a dissolutio n or annulment of a marriage is to be recognized as valid in accordance with this section, the capacity of a party to that marriage to re-marry in accordance with the law of Australia is not affected by the fact that the validity of the dissolution or annulment is 5 not recognized under the law of some other country.

(10) The preceding provisions of this section apply in relation to dissolutions and annulments effected whether by decree, legislation or otherwise, whether before, on or after the commencing date, and, for the purposes of this section, any decree, legislation or other process by which 10 it is established that a purported marriage was or is to become void

shall be deemed to be an annulment of the marriage.

PART XII-ENFORCEMENT OF DECREE S

35

82. (1) Subject to this Part and to the regulations, all decrees made Enforcement under this Act may be enforced by any court having jurisdiction under generally. 15 this Act.

(2) A court shall not entertain a proceeding under this Act for the enforcement of a decree made by another court unless the decree is registered in the first-mentioned court in accordance with the regulations.

(3) Where a person bound by a decree made under this Act has died, 20 the decree may, by leave of the court by which it was made and on such terms and conditions as the court thinks fit, be enforced, in respect of liabilitie s that arose under the decree before the death of that person,

against the estate of that person.

25

30

83. The regulations may make prov1s1on for and in relation to the manner in which decrees made under this Act m ay be enforced including provision for conferring juri sdiction on courts of the Territories or investing State courts with Federal jurisdicti on.

84. (1) After the commencement of this Act, no person shall be imprisoned or otherwise placed in custody by reason of contravention of, or failure to comply with, an order mad e in a matrimonial cause and any person who is in a prison or other custody at the commencement of this Act as a result of contravention of, or failure to comply w ith, such

an order shall be released forthwith .

(2) The release from prison or other custody under sub-section (I) of 35 a person who was in that prison or custody by reason of failure to pay any money s does not release the person from any liability to pay those mon eys.

(3) This section does not affect the operation of sub-section 49 (6) or sub-section 90 (3).

Methods of enforcement.

Person5 in prison at comm ence " ment of Ac t.

36

Inter-State enforcement of affiliation and like order>.

Ov erseas enforcement of main " tenance orders.

No. Fami~ v Law 1974

85. (I) This section applies to an order for the payment of-(a) the expenses of maintainin g, for a period immediately before her confinem ent or expected confinement, a woman who has been, or i s expected to be, confined for the purposes of childbirth; (b) medical, surgical, hospital or nursing expenses in respect of the 5

confinem ent of such a woman; (c) the expenses of m aintainin g such a woman for a period imm ediately follow ing her confinement; (d) the expenses of m aintaining a woman who is expecting a child,

vvl1ere the order was made by reason that she was expecting the 10 child; (e) an ;;mount in respect of the maintenance of an ex-nuptial child '.vho has not a tw ined the age of 18 years w here the order was made

on th,; b :1~ is that the person against w hom the order was made is a r J ~!rent of the child; 15

(f) funeral CXI:cnses in n:spect of an ex-nuptial child, where the order vvas ma de o r~ the hasis that the person ag:1inst whom the order was mccle i::; :1 pctren t of the child; (g) funeral expenses in respect of the mother of an ex-nuptial child,

w here 1.he order was made on the basis that the person against 20 \\hom the order was m ade is the father of the child; or (h) medical, surgical, hospital or nursmg expenses in respect of a person, where the order was m ade by reason that an order for

the p

(2) The regulation s may make provision for and in relation to-(a) the enforcement by a court of a State having jurisdicti on∑ under this Act of orders to wh ich this section applies m ade by a court of another State or of a Territory; and (b) the enforcement by a court of a Territory having jurisdiction 30

under this Ac t of orders to which this section applies made by a court of another Territ ory or of a State.

86. (l) Jn this section-" country with restrict ed recipr ocity " means a country outside Au stralia declared by the regulations to be a country with 35 restricted reciprocity for the purposes of this section; " m aintenance order " m eans an order with respect to the maintenance

of 3 party to a marriage or of a child of a marriage who has not attained the age of 18 years or, to the extent provided by the regula t it n ~ , an order of the kind referred to in section 85; 40

" reciproca ting country" me ans a country outside Australia declared by the regulations to be a reciprocating country for the purposes of this section.

1974 Family Law No.

(2) The regulati ons may make provision for and in relation to-(a) the registration in, and enforcement by, courts having jurisdiction under this A ct of maintenance orders made by courts of recip " rocatin g countries or of countries with restricted reciprocity; 5 (b) the transmission to appropriate courts or authorities of recip-

rocating countries or of countrie s with restrict ed reciprocity of maintenance orders mad e by courts having jurisdiction under this Act for the purpose of securing the enforcement of those orders in those countrie s; 10 (c) the m aking of orders (includin g provisional orders) for the

variation, discharge, suspension or revival of maintenance orders registered in accordance with regulati ons under this section or transmitted to other countries in accordance w ith regulations under this section, and the effect in A ustralia of orders under 15 this paragraph; and

(d) the m aking of orders for the confirmation of provisional orders m ade by courts in reciprocating countries or in countrie s with restricted reciprocity, being provisional maintenam :e orders or provisional orders varying, discharging, suspending or revivin g 20 m aintenance orders, and the effect in A ustralia of orders under

this paragraph.

25

(3) T he r c g ul <~ ti on s may m ake different provision under this section in relation to reciprocating countries from the provision m ade in relation to coun:ries wi th restricted reciprocity.

87. T l;e regulations may mak e such provision as is necessary to enable the performa nce of the obligations of A ustralia under the C onvention on the R ecovery Abroad of Maintenance signed at N ew Y ork on 20 June J 956 hut any such ,∑e g u l a ti n n ~ shali not come into operati on until the day

on \\hich that Co nvention enters into force for A ustralia.

37

Convention on Recovery Abroad of Maintenance.

30 88. The Go vernment of A ustrali a m ay m ake arrangements with the Arrange " G overnment of a State for the performance by officer s of the State of ~~~~.with functions under the regulations.

P ART X IH- D EC LA R A TIO N S AN D IN JUNC TION S

89. In proceedings of the kind referred to in paragraph (b) of the 35 defmition of "ma trim onial cause" in sub-section 4 (1), the court ma y m ake such declaration as is justifi ed.

Proceedings for declarations.

t.iO. (J) 1n proceedings of the kind referred to in paragraph (e) of the Injunctions.

definition of" m atrimonial cause" in sub-sectio n 4 (J), the court ma y mak e such order or grant such injunction as it thinks proper w ith respect 40 to the ma tter to which the proceedings relate, including an injunction for the personal protection of a party to the n1arriage or of a child of the

m arriage or for the protection of the ma rital relationship or in relation to the property of a p arty to the m arriage.

38

Family Law Advisory Committee.

No. Family Law 1974

(2) A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (l) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms 5

and conditions as the court thinks appropriate. (3) 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 an injunction or order under this section, that court may- 10

(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 he will comply with the injunction or order, or order him to be

imprisoned until he enters into such a recognizance or until the 15 expiration of 3 months, whichever first occurs; (c) order that person to deliver up to the court such documents as the court thinks fit; and (d) make such other orders as the court considers necessary to enforce

compliance with this injunction or order. 20

(4) Sub-section (3) does not prejudice the power of a court to punish a person for contempt of court.

PART XIV-MISCELLANEOUS

91. (l) The Attorney-General may establish a Family Law Advisory Committee, consisting of persons appointed by him in accordance with 25 sub-section (2). (2) The Committee shall consist of a Judge of the Family Division of the Superior Court of Australia and such other judges, magistrates, officers of the Public Service of Australia or of a State, representatives of marriage counselling organizations and other persons as the Attorney-30 General thinks fit.

(3) The function of the Committee is to advise the Attorney-General on the working of this Act and on other matters relating to family law. (4) The Attorney-General shall appoint one of the members to be the Chairman of the Committee. 35

(5) The member s of the Committee shall be paid such allowances in respect of expenses in connexion with their duties as are prescribed. (6) Meetings of the Committee shall be convened by the Chairman or the Attorney-General.

(7) The Committee shall meet at least once a year. 40

(8) The Chairman shall cause records of meetings of the Committee to be kept and shall promptly report to the Attorney-General on the deliberations of the Committee.

1974 Family Law No. 39

92. (1) Subject to sub-section (2), each party to proceedings under Coats. this Act shall bear his own costs.

(2) If the court is of opinion in a particu lar case that there are exc~ptional circumstances that justify it in doing so, the court may ,

5 subject to the regulations, make such orders as to costs and security for costs, whether by way of interlocutory order or otherwise as the court thinks just. '

93. The court may, at any stage of proceedings under this Act, if it is Frivolous or satisfi ed that the proceedings are frivolous or vexatious, dismiss the ~~~gs . 10 proceedings.

94. Either party to a marriage may bring proceedings in contract or Married in tort against the other party. ::~os~e

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 15 under this Act unless the statement or report relates to proceedings the hearing of which has commen ced 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 20 account or particulars of the proceedings other than-

25

30

35

( a) tbe names and addresses of the parties , and the name or names of the member or members of the court and of the counsel and solicitors; (b) a concise statement of the nature of the proceedings;

(c) 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 of this sub-section in lette rs 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 tbe 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 1 year.

(4) Any offence against this section may be prosecuted summarily, and 40 a second or subsequent offence by a person against this section may be prosecuted summarily or on indictment.

each other.

Restrictions on publica " tion of re " ports or evidence.

40 No. Fami~y Law 1974

(5) Proceedings for an 0ffence against this section shall not be com " menced except by, or with the written consent of, the Attorney-General.

(6) The preceding provisions of this section do not apply to or in relati on to--(a) the printing of any pleading, transcript of evidence or other 5 document for usc 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; 10

(c) the printin g or publishing of law court lists;

(d) the printing or publishing of any publication bona fide intended primaril y for the use of memb ers of the legal or medical profession, being:--(i) a separate volume or part of a series of law report s; or 15

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

(e) the printin g 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 20 a matter in accordance \Vith the regulations and "judgment of the court" includes a report 1~1 ade to a court by such an officer.

Regulations. 96. T he Go vernor-General m ay m ake regulations, not inconsistent with this Act, for o r in relati on to the practice and procedure of the courts having jurisdicti on L!nde:∑ this Act, or any of them, including 25 regulations--

(a) prescribing m atters relating to the costs of proceedings and the ass(ssrne nt 'Jr taxation of those costs;

(b) authorizing a court to refer to an officer of th<.> court for investi " gation, report and recommendation claims or applications for or 30 relating to any matter before the court;

(c) authorizing an officer ma king an investi gation 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 35

m:1king such an investi gation for the purpose of giving evidence or producing books and documents; (d) regulatin g the procedure of a court upon receiving a report of an oflker who has made an investigation referred to in para-

graph (b); ∑ 40

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

1974 Family Law No.

(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 5 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 10 (i) prescribing penalties not exceeding $200 for offences against the

regulations.

41

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4/876)- I Code: PP 133/74 Recommended retail price SUS