Maintenance Act 1964 (NSW)
MAINTENANCE ACT.
Act No. 74, 1964.
An Act relating to the maintenance of wives, husbands, children and illegitimate children; to repeal the Deserted Wives and Children Act, 1901-1960, the Interstate Destitute Persons Relief Act, 1919-1960, and certain other Acts; to amend the Child Welfare Act, 1939-1961, the Maintenance Orders (Facilities for Enforcement) Act, 1923, and certain other Acts; and for purposes connected therewith. [Assented to, 21st December, 1964.]
BE it enacted by the Queen's Most Excellent Majesty, by
and with the advice and consent of the Legislative
Council and Legislative Assembly of New South Wales in
Parliament assembled, and by the authority of the same, asfollows: —
P A R T I. PRELIMINARY.
| (1) This Act may be cited as the "Maintenance Act, (2) Except as provided in subsection three of this section, this Act shall commence upon a day to be appointed by the Governor pursuant to this subsection and notified by proclamation published in the Gazette. | 1964". | |
|
1.
( 4 ) This Act is divided into Parts and Divisions as
follows: —
P A R T I .—PRELIMINARY—SS. 1 - 7 .
P A R T I I . — M A I N T E N A N C E AND OTHER ORDERS—. ss. 8-40.
DIVISION 1.—Jurisdiction and Powers of Children's
Courts—ss. 8 - 2 1 .
DIVISION 2.—Ancillary Orders—ss. 2 2 - 2 5 .
DIVISION 3.—General—ss. 2 6 - 3 4 . DIVISION 4.—Discharge, Suspension, Variation and
Annulment of Orders—ss. 3 5 - 4 0 .
P A R T I I I . — E N F O R C E M E N T OF ORDERS MADE IN N E W
SOUTH WALES— s s . 4 1 - 6 5 .
DIVISION 1.—Enforcement by Imprisonment, Regis tration of Certificate of Arrears, Recognizances,
or Sale of Goods—ss. 4 1 - 4 7 .
DIVISION 2.—Enforcement by Attachment of
Earnings—ss. 4 8 - 6 3 .
DIVISION 3.—General—ss. 6 4 - 6 5 .
P A R T IV.—RECIPROCAL ENFORCEMENT OF O R D E R S —
ss. 6 6 - 1 0 4 . DIVISION 1.—Interpretation and Administration— ss. 6 6 - 6 9 .
DIVISION 2.—Interstate Maintenance—ss. 7 0 - 7 9 .
DIVISION 3.—Overseas Maintenance—ss. 8 0 - 9 6 . DIVISION 4.—General—ss. 9 7 - 1 0 4 .
P A R T V . — M I S C E L L A N E O U S — S S . 1 0 5 - 1 2 0 .
DIVISION 1.—Procedural—ss. 1 0 5 - 1 1 2 . DIVISION 2.—Appeals—s. 1 1 3 .
DIVISION 3.—General—ss. 1 1 4 - 1 2 0 .
SCHEDULES.
2. (1) The several Acts specified in Schedule One to this Act are, to the extent that they are unrepealed, hereby repealed.
(2) Each Act (as amended by subsequent Acts, if any) specified in column 1 of Schedule Two to this Act is amended as specified opposite that Act in column 2 of that Schedule.
(3) Each Act, specified in column 1 of Schedule Three to this Act and as amended by subsequent Acts, if any, and by this Act, may be cited in the manner specified opposite that Act in column 2 of that Schedule.
3. (1 ) Any order—
(a)
made under the Deserted Wives and Children Act, 1901, as amended by subsequent Acts, or under Part X V I of the Child Welfare Act, 1939, as amended by subsequent Acts, and in force at the appointed day; or
(b)
made in any proceedings referred to in subsection two of this section,
| is deemed to be, and may be enforced, discharged, suspended, varied or annulled as if it were, a like order made under Part I I of this Act, but an appeal against such an order may only be made under and in accordance with the provisions of the Deserted Wives and Children Act, 1901, as amended by subse | quent Acts, or Part XVI of the Child Welfare Act, 1939, as | amended by subsequent Acts, as the case may require, and |
| for the purposes of any such appeal those provisions are, notwithstanding section two of this Act, deemed to continue in full force and effect. | ||
| (2 ) Any proceedings commenced under the Deserted Wives and Children Act, 1901, as amended by subsequent Acts, or under Part X V I of the Child Welfare Act, 1939, as amended by subsequent Acts, before, and not completed at, |
the
the appointed day may be continued and completed, and any order may be made in those proceedings, as if section two of this Act had not been enacted.
(3) Any moneys owing at the appointed day under an order made under the Deserted Wives and Children Act, 1901, as amended by subsequent Acts, or under Part X V I of the Child Welfare Act, 1939, as amended by subsequent Acts, are, whether or not the order has ceased to have effect, deemed to be moneys owing under a like order made under Part II of this Act, and the payment of those moneys may be enforced accordingly.
(4) In this section "appointed day" means the day upon which Part I I of this Act commences.
( 1 ) Where immediately before the appointed day an interstate order was enforceable under the repealed Act, that interstate order shall, on and from that day, be deemed to be registered under Division 2 of Part IV of this Act in the Metropolitan Children's Court at Sydney.
4.
(2 ) Any proceedings for the enforcement of a main tenance order as referred to in section sixteen of the repealed Act that were commenced before, but not completed at, the appointed day may be continued and completed, and any order may be made in those proceedings, as if section two of this Act had not been enacted.
( 3 ) Any proceedings commenced under subsection one of section 1 6A of the repealed Act and not completed at the appointed day may be continued and completed, and a provisional order may be made in those proceedings, as if section two of this Act had not been enacted. (4 ) Any proceedings commenced under subsection two of section 16A of the repealed Act and not completed at the appointed day may be continued and completed, and any order may be made in those proceedings, as if section two of this Act had not been enacted.
(5)
(5 ) A provisional order made (whether before or after the appointed day) under subsection one of section 16A of the repealed Act is deemed to be a provisional order made under section seventy-three of this Act.
(6 ) An order confirming, with or without modifica tion, or discharging a provisional order and made (whether before or after the appointed day) under subsection two of section 16A of the repealed Act is deemed to be a like order made under section seventy-eight of this Act.
(7) Any moneys owing at the appointed day under an interstate order that is deemed by subsection one of this sec tion to be registered under Division 2 of Part IV of this Act are deemed to be moneys owing under a like order registered under Division 2 of Part IV of this Act, and the payment of those moneys may be enforced accordingly.
(8 ) In this section—
"Appointed day" means the day upon which Division 2 of Part IV of this Act commences.
"Interstate order" has the meaning ascribed thereto by Division 1 of Part IV of this Act.
"Repealed Act" means the Interstate Destitute Persons Relief Act, 1919, as amended by subsequent Acts.
5. (1 ) Where—
(a) immediately before the appointed day an interstate
order was registered under the amended Act in a (b) at any time before that day an interstate order had been confirmed under the amended Act in a court and was immediately before that day enforceable in New South Wales, court; or
the order is, on and from that day, deemed to be registered under Division 2 of Part IV of this Act in the court in which it was so registered or had been so confirmed and, on and from that day, ceases to be enforceable under the amended Act.
(2 )
(2 ) Where immediately before the appointed day an interstate order was registered in the Supreme Court of New South Wales under the amended Act, the order is, on and from that day, deemed to be registered under Division 2 of Part IV of this Act in the Metropolitan Children's Court at Sydney and, on and from that day, ceases to be enforceable under the amended Act.
(3) Where—
(a) a country becomes a reciprocating country; and
(b)
it was, immediately before the prescribed date, a reciprocating State within the meaning of the
amended Act ; then—
(c) any overseas order made in that reciprocating country— (i) that immediately before the prescribed date was registered in a court; or
(ii) that at any time before the prescribed date had been confirmed in a court and was immediately before that date enforceable in New South Wales,
is, on and from the prescribed date, deemed to be registered or enforceable as a confirmed order, as the case may be, under Division 3 of Part IV of this Act, in the court in which it was so registered or had been so confirmed and, on and from that date, ceases to be enforceable under the amended
Act ; and
(d) any overseas order made in that reciprocating country that immediately before the prescribed date was registered in the Supreme Court of New South Wales under the amended Act is, on and from that date, deemed to be registered under Division 3 of Part IV of this Act in the Metropolitan Children's Court at Sydney and, on and from that date, ceases to be enforceable under the amended Act. (4) An interstate order shall not be registered under the amended Act after the appointed day.
(5)
( 5 ) An overseas order made in a reciprocating
country shall not be registered under the amended Act after the day upon which that country became a reciprocating country.
(6 ) No proceedings under section six of the amended
Act—
(a)
for the confirmation of an interstate order shall be commenced after the appointed day; or
(b)
for the confirmation of an overseas order made in a reciprocating country shall be commenced after the day upon which that country became a reciprocat ing country.
(7) Where—
(a) a provisional interstate order is confirmed under section six of the amended Act after the appointed day; or (b) a provisional overseas order made in a reciprocating country is confirmed under section six of the amended Act after the prescribed date,
the order is on and from the date of its confirmation deemed, in the case of an interstate order, to be registered under Division 2, and, in the case of an overseas order, to be enforceable as a confirmed order, under Division 3, of Part IV of this Act in the court in which it is so confirmed and, on and from that date, ceases to be enforceable under the amended Act.
(8) No order shall be made under section five of the
amended Act upon an application for a maintenance order
if the person against whom the order is sought is proved
to be resident in a reciprocating country.
(9) Any moneys—
(a)
owing at the appointed day under an interstate order that is deemed by subsection one, two or seven of this section to be registered under Division 2 of Part IV of this Act ; or
(b)
owing at the prescribed date under an overseas order made in a reciprocating country, being an order that is deemed, by subsection three or seven
of
of this section, to be registered or enforceable as a confirmed order, as the case may be, under Division 3 of Part IV of this Act,
are deemed to be moneys owing under a like order registered or confirmed, as the case may be, under Division 2 or 3 of Part IV of this Act, as the case may be, and the payment of those moneys may be enforced accordingly.
(10) In this section—
"Amended Act" means the Maintenance Orders (Facilities for Enforcement) Act, 1923.
"Appointed day" means—
(a) in relation to interstate orders, the day upon which Division 2 of Part IV of this Act commences; and (b) in relation to overseas orders, the day upon which Division 3 of Part IV of this Act commences.
"Country", "country having restricted reciprocity", "interstate order", "maintenance order", "overseas order" and "reciprocating country" have the mean ings ascribed thereto respectively by Division l of Part IV of this Act.
"Prescribed date", in relation to a reciprocating country, means the date upon which that country became a reciprocating country.
An order that is deemed by this Part to be an order for the benefit of two or more persons shall be deemed to be as a confirmed order under Part IV of this Act and that is a separate order in respect of each of the persons for whose
benefit the order was made.
7. subject-matte r— (1) In this Act unless inconsistent with the context or 6. under Part II of this Act or to be registered or enforceable
"Adopted" means—
(a)
adopted in accordance with the law of New South Wales, or the law of another State or of a Territory of the Commonwealth;
or (b)
(b)
adopted in a country outside Australia and the Territories of the Commonwealth, if the adoption was effective according to the law of that country and the adoption is recognized by the law of New South Wales as having effect in New South Wales.
"Child", in relation to any person or persons, includes an illegitimate or adopted child of that person or, as the case may be, of those persons, but does not include a child of that person or those persons adopted by another person or persons; and "mother", "father" and "parent", in relation to a child, shall be construed accordingly.
"Child of the family", in relation to the parties to a marriage or to either of them and whether or not either party to the marriage is dead, means—
(a) any child of both parties; and
(b) any child of either party who has been accepted as one of the family by the other party, and "mother", "father" and "parent", in relation to a child of the family, shall be construed accordingly.
"Commonwealth" means the Commonwealth of Aus
tralia.
"Court" means a children's court established under the Child Welfare Act, 1939, as amended by subse quent Acts.
"Justice" means justice of the peace in and for the State of New South Wales. "Preliminary expenses", in respect of the confinement of a woman, means the expenses of the maintenance of the woman during the period of two months immediately preceding the confinement, reasonable medical, surgical, hospital and nursing expenses attendant upon the confinement, and the expenses of the maintenance of the woman and the child or children born to the woman during the confine ment for three months immediately after birth.
"Prescribed"
"Prescribed" means prescribed by regulations made under this Act.
"Special magistrate" means a special magistrate under the Child Welfare Act, 1939, as amended by subsequent Acts.
"Territory of the Commonwealth" includes a Territory under the trusteeship of the Commonwealth.
(2) For the purposes of the interpretation of "child of the family" a child of either party to the marriage shall, in the absence of proof to the contrary, be taken to have been accepted by the other party as one of the family if it is proved that at any time the child was ordinarily a member of the family household.
(3) For the purposes of this Act a man and a woman married by a subsisting marriage, whether monogamous or polygamous, shall if the marriage is lawful and binding in the place where it was solemnized be regarded as husband and wife.
(4 ) For the purposes of this Act—
(a) in determining whether a person has been left without adequate means of support provided by another person, the court shall have regard to the accustomed condition in life, but not the means (not being means provided by that other person) or earning capacity, of the first-mentioned person; and (b) the fact that payments have been made by the defendant for or towards the maintenance of the complainant since the date of the complaint may be disregarded by the court in determining whether
the complainant is left without adequate means of support provided by the defendant at the date of the hearing of the complaint, unless the court is satisfied that it is probable that the defendant bona fide intends to provide adequate means of support for the complainant.
(5) A reference in this Act to a person for whose benefit an order is sought or made shall not be construed as a reference to a person who makes a complaint or an application on behalf of another person.
P A R T
P A R T II . MAINTENANCE AND OTHER ORDERS.
DIVISION 1.—Jurisdiction and Powers of Children's Courts.
8. (1) A court shall have jurisdiction to make an order under this Part (not being an order under section twenty- two of this A c t ) —
(a) if the person against whom the order is sought; or (b) if the person for whose benefit the order is sought,
is resident in New South Wales.
(2) A court shall have jurisdiction to make an order under section twenty-two of this Act—
(a) if the child in respect of whom the order is sought is present in New South Wales at the time the order is made; and (b) if either the applicant or the respondent in the proceedings in which the order is sought is resident in New South Wales.
(3) Subject to this section, a court shall have jurisdic tion to make an order under this Part whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order, took place before the commencement of this Part or outside New South Wales.
| (4) Nothing in this Act shall limit or affect the opera child welfare or family welfare or social services or other | tion of any provision of any other Act (whether relating to |
| wise), or any law, by which any person is or may be required to make contribution to or payment on account of the maintenance or support of any other person. | |
| 9. Where it is necessary for the court to be satisfied, before making an order under this Act, that the complainant has been, is, or is about to be, left without adequate means of support provided by the defendant, the court shall not |
make
make the order if, upon any evidence before it, it is satisfied that the defendant had, has, or will have, as the case may be, just cause or excuse for so leaving the complainant.
10. (1) In determining the amount that a defendant is
to be ordered to pay by an order under section eleven, twelve, thirteen, fifteen, sixteen, eighteen or subsection four of section twenty-two, of this Act the court shall have regard, where appropriate, t o —
(a)
the accustomed condition in life of the person for whose benefit the order is to be made; and
(b)
any evidence before the court as to the means and earning capacity of the defendant and that person and the ability of the defendant to pay,
but may, in its discretion, disregard—
(c)
the earnings or savings from earnings from an occupation engaged in by that person, or any part of those earnings or savings, if it is satisfied that that person engaged in that occupation solely or mainly because that person was, or reasonably expected to be, left without adequate means of support; and
(d)
the earning capacity of that person, if it is satisfied that that person would engage in an occupation solely or mainly because that person is, or reason ably expects to be, left without adequate means of
support.
(2 ) In the case of an order for the benefit of a child
of the family, the expression—
(a)
"defendant", in paragraph (b) of subsection one of this section; and
(b)
"that person", in paragraphs (c) and (d) of that subsection,
includes the parent of the child, not being the parent who is
the defendant.
(3)
(3) In determining the amount that a defendant is
to be ordered to pay by an order under this Part—
(a)
in respect of a child who is a ward within the meaning of the Child Welfare Act, 1939, as amended by subsequent Acts; or
(b)
in respect of a child for whose support an allowance has been granted by the Minister under the Child Welfare Act, 1939, as amended by subsequent Acts,
no regard shall be had to the fact that the child is such a ward
or that such an allowance has been granted.
11. Where the court, upon complaint made by or on behalf of a wife, is satisfied—
(a)
that she is left by her husband without adequate means of support provided by him and was so left on the date alleged in the complaint; or
(b)
that her husband is about to remove out of New South Wales or into a distant part of New South Wales and leave her without adequate means of support provided by him,
the court may order the husband to pay for or towards her
maintenance such amount as it thinks reasonable.
12. Where the court, upon complaint made on behalf of
| a child of the family, is satisfied— |
(a) that the child is left by the father without adequate means of support provided by him and was so left on the date alleged in the complaint; or (b) that the father is about to remove out of New South Wales or into a distant part of New South Wales and leave the child without adequate means of support provided by him,
the court may order the father to pay for or towards the maintenance of the child such amount as it thinks reasonable.
13. Where the court, upon complaint made on behalf of
a child of the family, is satisfied—
(a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that the mother is about to remove out of New South Wales or into a distant part of New South Wales and leave the child without adequate means of support provided by her,
the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable.
14. Where the court, upon complaint made by or on behalf of a husband, is satisfied that the husband is unable to support himself adequately and—
(a) that he is left by his wife without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that his wife is about to remove out of New South Wales or into a distant part of New South Wales and leave him without adequate means of support provided by her,
the court may order the wife to pay for or towards his maintenance such amount as it thinks reasonable, having regard to his accustomed condition in life, his means and earning capacity at the time of the hearing and any evidence before the court as to his wife's means, earning capacity and
ability to pay maintenance.
15. Where the court, upon complaint made on behalf of an illegitimate child, is satisfied that the defendant
is the father of the child and—
(a)
that the child is left by the defendant without adequate means of support provided by him and was so left on the date alleged in the complaint; or
(b)
(b)
that the defendant is about to remove out of New South Wales or into a distant part of New South Wales and leave the child without adequate means of support provided by the defendant,
the court may order the defendant to pay for or towards the maintenance of the child such amount as it thinks reasonable.
16. Where the court, upon complaint made on behalf of
an illegitimate child is satisfied—
(a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that the mother is about to remove out of New South Wales or into a distant part of New South Wales and leave the child without adequate means of support provided by the mother,
the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable.
17. (1) Where the court, upon complaint made by or on
behalf of a woman, is satisfied—
(a)
that she is pregnant by the defendant (not being her husband) or has been delivered of a child or a stillborn child of whom the defendant (not being her husband) is the father; and
(b)
that he has not made adequate provision for the payment of her preliminary expenses,
the court may order the defendant to pay for or towards
preliminary expenses such amount as it thinks reasonable.
(2 ) A complaint referred to in subsection one of this section or a claim referred to in subsection eight of this section shall not be made after the expiration of twelve months after the birth or stillbirth of the child.
(3)
57191—27
(3 ) An order shall not be made under subsection one of this section where the woman for whose benefit the order is sought is pregnant unless the court is satisfied by the evidence or a certificate of a medical practitioner that the woman is quick with child.
(4 ) Where an order under subsection one of this section was made in the case of a woman who was pregnant by the defendant and—
(a)
the woman is not delivered of a child or stillborn child before a date specified in the order for the purposes of this subsection, being a date not later than six months after the order was made; or
(b)
the woman is delivered of a stillborn child before the date so specified,
the order ceases to have effect on the date so specified or on
the delivery of the stillborn child, as the case may be.(5 ) Where an order ceases to have effect on the date specified in it for the purposes of subsection four of this sec tion, any moneys paid under it and not disbursed shall be repaid to the defendant.
(6 ) Where an order ceases to have effect on the delivery of a stillborn child, any moneys paid under it and not disbursed shall, as directed by the court—
(a ) be paid to the woman;
(b) be repaid to the defendant; or (c)
be divided between the woman and the defendant in such proportions as the court thinks fit.
( 7 ) Where an order is made under subsection one
of this section in the case of a woman who is pregnant by
the defendant—
(a)
the clerk of the court may, if the order directed the payment of the preliminary expenses to him, disburse any amount paid under the order in such
manner
manner as he thinks proper, or, if the order directed the payment of the preliminary expenses to a mem ber of the police force, give, in writing, such direc tions as he thinks proper with respect to the disbursement by that member of any amounts paid under the order, but not so as to direct the dis bursement, before the woman is delivered of a child or stillborn child, of amounts aggregating more than one-half of the amount to be paid under the order; and
(b) amounts paid under the order shall not be dis bursed otherwise than in accordance with directions so given.
(8 ) Where a complaint has been made under section fifteen of this Act, the court may, if a claim for preliminary expenses is made at the hearing of the complaint, and subject to subsection two of this section, make an order under sub section one of this section for the payment of those expenses, notwithstanding that a complaint has not been made under this section.
(9) Where a claim referred to in subsection eight of this section is made, the court shall, if it is of opinion that the defendant would be prejudiced unless the hearing were adjourned, on the application of the defendant adjourn the hearing for such period as it thinks fit.
(10) The adoption of a child whether before or
after the commencement of this Part does not prevent the
making of an order for preliminary expenses in the same
manner as if the child had not been adopted and does not
affect the validity or operation of any order for preliminary
expenses in respect of the child.
(11) The death of a child whether before or after the commencement of this Part does not prevent the making of an order for preliminary expenses in the same manner as if the child had not died.
(12) In this section "child" includes adopted child.
18. ( 1 ) Where a court makes an order for or towards
the payment of preliminary expenses under section seventeen of this Act, being an order made before the birth of the child to which it relates, it may, upon complaint made by or on behalf of the person for whose benefit the order is made and if it appears probable that the child will, at the expiration of three months after birth, be left without adequate means of support provided by the father of the child, order the father to pay for or towards the maintenance of the child such amount as it thinks reasonable.
(2) An order under subsection one of this section
takes effect—
(a) where a certified copy of the registration of the birth of the child is produced to the clerk of the court by which the order is made within a period of three months after the birth of the child—on the Monday last preceding the expiration of that period; or (b) where such a certified copy is not so produced— upon the production to that clerk of that certified copy.
(3) An order under subsection one of this section does not take effect if the child to whom it relates is stillborn or dies or is adopted before the order would otherwise take effect.
( 4 ) : An order under subsection one of this section
shall not be made requiring a person to make payments for
or towards the maintenance of a child unless— (a) the person has consented to the making of the order; or
(b)
the person has been given notice of the com plainant's intention to apply for the order.
( 5 ) Where a certified copy of the registration of the
birth of the child in relation to whom an order has been made under subsection one of this section is produced to the clerk of the court, the clerk shall forthwith send by post to the defendant at his usual or last known place of residence or
business
business notice in writing of the name of the child, if shown in the certified copy, and of the date and place of birth of the child and the date on which and place at which the first payment under the order is required to be made.
19. ( 1 ) Where—
(a) the court, upon complaint made by or on behalf of a parent (in this paragraph referred to as the "com plainant") of a legitimate child (including an adopted child) is satisfied that the child was a child of the family who died before attaining the age of sixteen years and— (i) that the complainant was, at the date of the death, entitled to receive payments under an order for the maintenance of the child from the other parent;
(ii) that an order for the maintenance of the complainant was, at the date of the death, in force under which the other parent was directed to make payments for the benefit of that parent; or
(iii) that at the date of death there was in force an order under section twenty-three of this Act directing the payment by the other parent of a nominal amount in respect of the child or the complainant; or
(b) the court, upon complaint made by or on behalf of a parent of a legitimate stillborn child, is satisfied that the child quickened and that an order for the maintenance of the parent was in force at the date of the stillbirth,
and the court is also satisfied that the other parent of the child has not made adequate provision for the funeral expenses of the child, the court may order the other parent to pay such amount for or towards the funeral expenses of the child as it thinks reasonable.
(2)
(2) Where a parent of a child might, but for that parent's death, have made a complaint under subsection one of this section, the complaint may be made by any person who has paid or is liable to pay the funeral expenses of the child.
(3) Where the court, upon complaint made by or on behalf of the mother of an illegitimate child, is satisfied that the child was stillborn or died before attaining the age of sixteen years and that the defendant—
(a)
was the father of the child or had been adjudged to be the father of the child in any other legal proceedings; and
(b)
has not made adequate provision for the funeral expenses of the child,
the court may order him to pay such amount for or towards
the funeral expenses of the child as it thinks reasonable.(4) Where the mother of an illegitimate child or of an illegitimate stillborn child has died, a complaint under subsection three of this section may be made by any person who has paid or is liable to pay the funeral expenses of the child.
(5) An order shall not be made under subsection three of this section in relation to a stillborn child unless the court is satisfied that the child quickened.
(6) An order shall not be made under this section
upon a complaint made more than twelve months after the
stillbirth or the death of the child to whom it relates.(7 ) An order shall not be made under subsection one of this section in respect of the funeral expenses of a child whose death occurred before the commencement of this section.
20. (1 ) Where the court, upon complaint made by any
person, is satisfied—
(a) that the defendant is the father of an illegitimate child (including a child that quickened but was stillborn) or has been so adjudged in any other legal proceedings; (b) that the mother of the child died during and in consequence of her pregnancy or in consequence of the birth or stillbirth of the child; and (c) that the defendant has not made adequate provision for the funeral expenses of the mother,
the court may order him to pay for or towards the funeral expenses of the mother such amount as it thinks reasonable.
(2 ) An order shall not be made under this section upon a complaint made more than twelve months after the death of the mother.
21. (1 ) Where the court upon complaint made by or on
behalf of—
(a)
a person for whose maintenance an order (not being an order for preliminary expenses) has taken effect and is in force under this Par t ; or
(b)
a person in respect of whom there has been made an order under section twenty-three of this Act
that is in force under this Part,
is satisfied—
(c)
that any medical, surgical, psychiatric, dental, hospital or nursing care or treatment is or was reasonably required to be rendered in respect of that person;
(d)
that the amount ordered to be paid for the mainten ance of that person is not sufficient to enable adequate provision to be made thereout for or towards the cost of that care or treatment; and
(e)
(e)
that the person against whom the order was made has not made adequate provision for or towards that cost and it is just and equitable in all the circumstances of the case that he pay or contribute towards that cost,
the court may order him to pay for or towards that cost such
amount as it thinks reasonable.(2 ) Where the court upon complaint made on behalf of a child in respect of whom an order for preliminary expenses has been made is satisfied—
(a) that any treatment referred to in paragraph (c) of subsection one of this section— (i) where the child has not attained the age of three months, is reasonably required to bo rendered in respect of that child; or
(ii) where the child has attained that age, was reasonably required, and was, in fact, rendered in respect of that child before he attained that age;
(b)
that the amount ordered to be paid for preliminary expenses was not sufficient to enable adequate pro vision to be made thereout for or towards the cost of that care or treatment; and
(c)
the person against whom the order was made has not made adequate provision for or towards that cost and it is just and equitable in all the circum stances of the case that he pay or contribute towards that cost,
the court may order him to pay for or towards that cost such amount as it thinks reasonable.
(3 ) Where an order is made under this section for the payment of moneys for or towards the cost of any care or treatment referred to in paragraph (c) of subsection one of this section the court or a justice may, at any time, give such directions in writing as the court or justice thinks proper for the disbursement of the amount ordered to be paid but so that no moneys are disbursed before the care or treatment to which the payment relates has been rendered.
( 4 )
(4) The adoption of a child does not prevent the making of an order under this section in the same manner as if the child had not been adopted and does not affect the validity or operation of any such order in respect of the child.
(5) Where complaint might have been made under this section by or on behalf of a person but for that person's death, the complaint may be made by any person who has paid or is liable to pay the cost of any treatment referred to in paragraph (c) of subsection one of this section.
(6 ) An order shall not be made under this section in respect of the cost of any care or treatment that was rendered before the commencement of this section.
DIVISION 2.—Ancillary Orders.
22. (1) Subject to this section, upon application made by
or on behalf of a parent of a child of the family, the court may commit the legal custody of the child to that parent alone until the child attains the age of sixteen years.
(2) The court may, by the same or a subsequent order, make such provision as it thinks fit with respect to the access to the child of the other parent during the currency of the order.
(3) An order under this section committing the legal custody of a child to a parent of the child shall not be made unless an order for the maintenance of the child is in force and the payments under the order are ordered or directed
to be made to that parent. (4) Notwithstanding the provisions of subsection
three of this section, where—
(a)
a complaint under section eleven or fourteen of this Act for the maintenance of a parent of a child of the family has been made by or on behalf of that parent against the other parent of that child;
(b)
there has been included in the form of complaint a statement that the complainant intends to seek, at the hearing of the complaint, an order committing
the
the legal custody of the child to him and that he also intends to apply for an order for the main tenance of the child; and
(c) notice of the application and statement referred to in paragraph (b) of this subsection has been included in the summons or warrant issued in the first instance, as the case may be,
the court may, if it makes an order for maintenance upon the complaint referred to in paragraph (a) of this subsection, make in addition both of the following orders, that is to say—
(d) an order committing the legal custody of the child to the complainant; and (e) an order requiring that other parent to pay for or towards the maintenance of the child such amount as it thinks reasonable.
(5) An order under this section committing the legal custody of a child to a parent shall not be made where the Minister under the Child Welfare Act, 1939, as amended by subsequent Acts, is the guardian of the child under that Act, as so amended, or where there is in force an order for the custody of that child made by the Supreme Court of New South Wales or of any State or Territory of the Common wealth, whether acting under the law of New South Wales or any other State or the Commonwealth or a Territory of the Commonwealth.
(6) Where an order for the maintenance of a child
in respect of whom an order under this section has been made
effect. is discharged, the order under this section ceases to have 23. ( 1 ) Where upon the hearing of a complaint under this Part for the maintenance of a person the court is satisfied that it would make an order for the maintenance of that person but for the fact—
(a)
that that person is not presently left without adequate means of support; or
(b)
(b)
that the defendant is not presently able to contribute to the support of that person,
the court may nevertheless make an order setting out its findings on the complaint and directing the payment by the defendant of a merely nominal amount in respect of that person.
(2) Proceedings shall not be taken under this Act to enforce payment of the nominal amount directed to be paid by an order, but, if that amount is varied under section thirty-five of this Act, proceedings may be taken to enforce payment of any amount payable under the order as varied.
24. (1 ) At any time after the making of a complaint
under section twelve or thirteen of this Act for the mainten ance of a child of the family and before the hearing of the complaint has commenced, a special magistrate or any two justices may, upon an affidavit made by the complainant relating to such matters as the magistrate or justices may require, order the defendant to pay for the maintenance of the child such amount (being not more than two pounds per week) as the magistrate or justices may think reasonable until the expiration of three months from the making of the order or until the making or refusal of an order for the maintenance of the child under this Part, whichever first occurs.
(2) An order may be made under this section without
prior notice being given to the defendant and shall not be
| subject to suspension, variation or appeal. |
25. (1) Where the hearing of a complaint made for the
purpose of obtaining an order for the maintenance of a wife, husband or child of the family is adjourned for a period of not less than seven days (whether or not the hearing has previ ously been so adjourned) the court may order the defendant to pay for or towards the maintenance of the wife, husband or Child such amount as it thinks reasonable.
(2 )
(2) An order under this section shall remain in force until the expiration of a period of three months from the date on which the order is made or until the complaint again comes before the court, whichever first occurs.
DIVISION 3.—General.
26. Subject to this Act—
(a) an order shall not be made under this Part in respect of a child who has attained the age of
sixteen years; and(b) an order for the maintenance or custody of a child ceases to have effect when the child attains the age of sixteen years, dies or is adopted or the person against whom the order was made dies, whichever first occurs.
(1) This section applies to any child for whose maintenance an order (in this section referred to as a "main tenance order") is or, at the time the child attained the age of sixteen years, was in force under this Act, the Deserted Wives and Children Act, 1901, as amended by subsequent Acts, or Part XVI of the Child Welfare Act, 1939, as amended by subsequent Acts.
27.
(2) Where upon application made to a court by or on behalf of a child to whom this section applies it appears to the court that, in the case of a child who has not attained the age of sixteen years, the child will be engaged in a course of
education or training after he attains that age or, in the case of a child who has attained that age, the child is or will be so engaged, and that the maintenance order made in respect of the child should be continued or revived, as the case may require, with or without variation, for the purpose of making provision for or towards the maintenance of the child while he is so engaged and of meeting the expenses of the course, the court may order —
(a)
where the child has not attained the age of sixteen years—that the maintenance order continue and be in force for such amount and for such period
not
not exceeding two years from the date on which he attains that age as may be specified in the order under this section; or
(b) where the child has attained the age of sixteen years —that the maintenance order revive on and from a date to be specified in the order made under this section (not being a date earlier than the date on which the order is made) and that the maintenance order thereafter be in force for such amount and for such period not exceeding two years from the date so specified as may be specified in the order so made. (3) A court may, from time to time, by a subsequent order under this section, extend the period specified in any previous order so made for such further period not exceeding two years from the date of expiry of the previous order as may be specified in the subsequent order.
(4) An order under this section shall not require payments to be made under a maintenance order after the date on which the child concerned attains the age of twenty- one years.
(5) An application under this section shall be heard by the court for the place where the maintenance order was made unless—
(a)
the parties to the application consent to the hearing of the application by a court sitting at another place; or
(b) the hearing of the application is adjourned, upon at another place. the application of either party, to a court sitting 28. Subject to this Part, an order under this Part for the
maintenance of a person may, whether or not an application in that behalf has been made, be made to take effect from a past date, not being earlier than three months before the date on which the order is made, and where an order takes effect from a past date the court may direct the past maintenance to be paid in one sum or by such instalments as the court directs.
29. An order under this Part for the maintenance of a
wife or husband ceases to have effect, if not earlier discharged or terminated, upon the death of the wife or husband, which ever death first occurs.
30. (1) The fact that an order under this Act for the
maintenance of a person ceases to have effect by virtue of this Act does not prevent the enforcement of the order so far as it relates to any period before it ceased to have effect.
(2) Subsection one of this section does not apply where the order ceases to have effect by reason of the death of a person.
31. Where—
(a) the conduct of a party to a marriage constitutes just cause or excuse for the spouse of that party to live separately or apart and— (i) occasions the spouse to live separately or apart; or
(ii) occasions the spouse to live separately or apart and to take a child of the family from the matrimonial home; or
(b) the conduct of a parent constitutes just cause or excuse for a child of the family to live separately or apart and occasions the child to live separately or apart, a bona fide offer by that party or parent to provide a home for the spouse or child, as the case may be, is not of itself a sufficient answer to a complaint under this Part for the maintenance of the spouse or child, or a sufficient reason for the discharge, suspension or variation of an order under this Part for the maintenance of the spouse or child.
32. Where it is necessary for the purpose of obtaining
an order under this Part to satisfy the court that the defendant is the father of an illegitimate child, the order shall not be made—
(a) upon the evidence of the mother of the child, unless her evidence is corroborated in some material particular; or (b) if the court is satisfied that at the time the child was conceived the mother was a common prostitute. 33. A wife and her husband are competent and compell
able witnesses in any proceedings under this Part, and any evidence given by a wife or husband in those proceedings may be used in any court—
(a) in proceedings to which the wife and husband are parties and in which they are competent and com pellable witnesses; and (b) in proceedings for perjury committed in the course of giving that evidence. 34. (1) Where it is necessary for the purpose of obtain
ing an order under this Part to prove a marriage, the order
shall not be made unless—
(a) direct evidence of the marriage is produced to the court; or
(b) evidence on oath is given of the time, place and circumstances of the marriage.
(2 ) In proceedings under this Act, the court may receive as evidence of the facts stated in it a document pur porting to be either the original or a certified copy of a certifi cate, entry or record of a birth, death or marriage alleged to have taken place whether in New South Wales or elsewhere.
DIVISION
DIVISION 4.—Discharge, Suspension, Variation and
Annulment of Orders.
35. ( 1 ) Upon application made by or on behalf of a
party to an order (including an order as varied) made under this Part a court may, subject to this Division, at any time make an order discharging the order, or suspending the order in whole or in part until a specified day or until further order, or varying the order in any specified particular.
( 2 ) An application under subsection one of this section shall be heard by the court for the place where the order the subject of the application was made unless—
(a)
the parties to the application consent to the hearing of the application by a court sitting at another place; or
(b)
the hearing of the application is adjourned, upon the application of either party, to a court sitting at another place.
(3) An order shall not be discharged, suspended or
varied under this Division unless the court is satisfied—
(a) that the order or, if the order has been varied, the original order or any order varying the original order was obtained by fraud or upon the basis of the existence of a marriage that did not in fact exist; (b) that new facts or circumstances have arisen that have not previously been disclosed to a court and
that by reason of those facts or circumstances it is reasonable to discharge, suspend or vary the order; or
(c)
that facts or circumstances were in existence at the time of the making of the order or, if the order has been varied, the original order or any order varying the original order, that have not previously been disclosed to a court and that were not and could not by the exercise of reasonable diligence have pre viously been known to the party presently seeking the discharge, suspension or variation of the order,
and
and that by reason of those facts or circumstances it is reasonable to discharge, suspend or vary the order.
(4) An order—
(a) that is in force under this Part may be—
(i) discharged, suspended or varied as from any past or future day;
(ii) suspended in respect of any past or future period; or
(b)
that has ceased to have effect, may be discharged, suspended or varied from any past day or suspended in respect of any past period,
specified in the order which effects the discharge, suspension
or variation.
(5) The fact that the defendant is in default in com plying with an order shall not preclude the discharge, suspension or variation of that order.
(6 ) The clerk of the court to which any application is made under subsection one of this section shall forward notice of the application to the Director of the Child Welfare Department.
36. (1 ) Where an order made under this Part is sus
pended until a specified day the order, unless earlier revived
pursuant to section thirty-seven of this Act, shall without any further or other order revive and again take effect upon the
specified day.
(2) Where an order is suspended until further order it shall not again take effect unless and until an order reviving it is made under section thirty-seven of this Act.
(3) Subject to subsection four of this section, the fact that an order is suspended shall not prevent the enforcement of the order so far as it relates to any period before the day as from which the suspension took or takes effect.
(4)
(4) Where an order is suspended, the court may order that the whole or any part of any moneys owing under the order as at the day from which the suspension took or takes effect shall not be recoverable under this Act during the period of the suspension, and no certificate in relation to those moneys shall be granted under section forty- five of this Act during that period.
37. (1) Upon application made by or on behalf of any
person for whose benefit an order was made under this Part that has been suspended under this Division until a specified day or until further order, a court may make an order reviving the suspended order in whole or in part with or with out variation, as it thinks fit.
(2) An application under subsection one of this sec tion shall be heard at the place where the suspending order was made unless—
(a) the parties to the application consent to the hearing of the application by a court sitting at another place; or (b) the hearing of the application is adjourned, upon the application of either party, to a court sitting at another place. (3) A suspended order may be revived from any past day or any future day specified in the reviving order and shall from that day have and, where necessary, be deemed to have had effect accordingly.
( 4 ) Where the court revives an order from a past
day, it may direct that payment in respect of any period before
the date of the reviving order be made in one sum or by suchinstalments as the court specifies in the reviving order.
38. (1) Where— (a) an order has been made under this Par t ; and
(b)
it was necessary to satisfy the court making the order that the defendant was the father of an illegitimate child,
the defendant may at any time make an ex parte application
to a special magistrate for the annulment of the order.
(2)
(2) If evidence is given to the court on oath, either
orally or on affidavit—
(a) showing that evidence material to the question of the paternity of the child is available and that the evidence was not produced at the time the order was made; and (b) disclosing the nature of that evidence and the names and addresses of the witnesses who are to be called to give the evidence,
the magistrate shall, upon such terms as he thinks fit, issue a notice directed to all persons (other than the child) to be affected thereby, calling upon them to show cause why the order should not be annulled.
(3) Where the person to whom any such notice is directed is living elsewhere than in New South Wales the magistrate shall state a time for the hearing which will allow that person to attend, regard being had to the distance of the place of residence of that person from the place fixed for the hearing.
39. (1) An application under section thirty-eight of this
Act shall be heard and determined by the court for the place where the order the subject of the application was made unless—
(a) the applicant and every person to whom a notice referred to in subsection two of that section is directed consent to the hearing of the application
by a court sitting at another place; or (b) the hearing of the application is adjourned, upon the application of the applicant or any such person, to a court sitting at another place.
(2) The court shall entertain an application to annul an order notwithstanding that the applicant is in default in complying therewith.
(3) The court shall receive and consider the evidence recorded at the original hearing or on appeal as well as the fresh evidence submitted.
(4)
(4) If at the conclusion of the evidence in chief submitted by the applicant no fresh evidence material to the question of paternity has been submitted, the application shall be dismissed.
( 5 ) At the hearing the onus is upon the applicant to
prove that he is not the father of the child.
(6) If the court finds that the applicant is not the father of the child, it shall so declare and annul the order but otherwise the application shall be dismissed.
(7) If the order is annulled the defendant is released from payment of any amount due and unpaid under the order, but is not entitled to recover from any person any amount paid under and by virtue of the order.
(8) If the order is annulled the annulment does not, except as provided in subsection seven of this section, affect the previous operation of the order or anything duly suffered or done thereunder.
40. Where an order under section eighteen of this Act
for the maintenance of an illegitimate child is made before the birth of the child and two or more children are born, an application may be made under this Division for variation of the order to provide for the maintenance of the additional child or children.
P A R T III.
ENFORCEMENT OF ORDERS MADE IN N E W SOUTH WALES.
DIVISION 1.—Enforcement by Imprisonment, Registration of
Certificate of Arrears, Recognizances, or Sale of Goods. 41. In this Division a reference to an order includes a reference to an order as varied from time to time.
42. (1) Where, upon complaint made by or on behalf
of a person for whose benefit an order (in this section referred to as a "maintenance order") has been made under Part II of this Act for the payment of moneys, whether in one sum, by instalments or by periodical payments or has been made for costs, the court is satisfied—
(a) that the defendant, being a male person, has dis obeyed or failed to comply with the order; and (b) that a sum of money (in this section referred to as "arrears") due under the order is unpaid,
the court may order that, unless the order is complied with, the defendant be committed to prison for a period of one day for every pound due under the order and unpaid or due and unpaid in respect of costs payable by the defendant in respect of the proceedings against him under this section.
(2) Notwithstanding that a person has, by an order made in accordance with subsection one of this section, been committed to prison for a longer period, he shall not be detained in prison for a period of more than twelve months.
(3) The period of detention in prison of any such person shall be subject to the provisions of section ninety-four of the Justices Act, 1902, as amended by subsequent Acts.
(4) A defendant is not liable to serve a period of imprisonment in respect of his failure to pay any arrears if he has previously served a period of imprisonment in respect of his failure to pay those arrears.
(5 ) A defendant is liable to pay any arrears (other
| served a period of imprisonment in respect of his failure | than arrears due under an order made under section nineteen, twenty or twenty-one of this Act) notwithstanding that he has |
| to pay those arrears and those arrears may be recovered under any other law. | |
| (6) Where it appears that any arrears referred to in a complaint made under subsection one of this section have been paid after the service of the summons or the issue of a warrant in connection with proceedings under this section for the recovery of those arrears and before the execution of the warrant committing the defendant to prison, the court may |
order
order the person summoned or apprehended to pay the costs of and incidental to the proceedings and those costs may be recovered in a summary way under the Justices Act. 1902, as amended by subsequent Acts.
(7) One complaint may be made under subsection one of this section in respect of two or more maintenance orders if—
(a) the complainant is entitled to receive the payments under each of the maintenance orders; and (b) the person against whom the complaint under sub section one of this section is made was the defendant against whom the maintenance orders were made.
(8 ) Where one complaint is made as referred to in subsection seven of this section, the court shall, in deter mining the period for which the defendant shall be committed to prison, have regard to the total amount due in respect of both or all the maintenance orders in respect of which the com plaint under subsection one of this section was made, and may make an order under that subsection accordingly.
43. (1) A court shall not commit a defendant to prison
under section forty-two of this Act if it is satisfied—
(a) that the defendant has not, and has not had, the means and ability, and could not by reasonable effort have had the means and ability, to comply with the order under which the moneys are due
and unpaid; or (b) that for any other reason the order should not be enforced by imprisonment.
(2 ) Where the court that is committing a defendant to prison under section forty-two of this Act for the non payment of a sum is aware that a court has previously refused to commit the defendant to prison under that section for non-payment of a sum (in this section referred to as the "original sum") included in that sum, the court shall only have regard to the amount by which the sum still due and
unpaid
unpaid exceeds the original sum, unless it is satisfied that since that refusal the means and ability of the defendant to pay the original sum have so altered as to make it reason able for him to be committed to prison for non-payment of the original sum.
44. ( 1 ) The court may, upon the making of a commit
ment order pursuant to section forty-two of this Act, or a justice may, at any time thereafter, upon such conditions as it or he thinks fit—
(a) postpone the issue or execution of the warrant of commitment for any period; (b) order that the warrant of commitment be issued or executed for such part of the amount found to be due and unpaid and any costs awarded to be paid as is specified in the order; or (c) order the amount found to be due and unpaid and any costs awarded to be paid by instalments,
and if the defendant fails to comply with any such condition or to pay any instalment ordered to be paid a justice may direct the issue or execution of the warrant.
(2) Where, before a justice directs under subsection one of this section the execution of a warrant committing a person to prison, it appears to the justice that, by payment of part of the arrears for the non-payment of which that
person has been so committed, those arrears have been
reduced to such an extent that the unsatisfied balance, if it
had constituted those arrears, would have subjected that person to a maximum period of imprisonment less than the period of imprisonment which he is liable to serve under the warrant, the justice shall, by the warrant of commitment, revoke the period of imprisonment and order that person to be committed to prison for a period calculated in accordance with subsection one of section forty-two of this Act, having regard to the unsatisfied balance, instead of for the period originally mentioned in the warrant.
45. (1 ) Where an order (in this section referred to as a
"maintenance order") has been made under section eleven, twelve, thirteen, fourteen, fifteen, sixteen or eighteen, or sub section four of section twenty-two, of this Act, and it is made to appear upon oath to a special magistrate that a sum of money due under the order is unpaid, the magistrate may, upon ex parte application made by or on behalf of the person for whose benefit the order was made and subject to subsection four of section thirty-six of this Act, grant a certificate in the prescribed form stating the amount due under the maintenance order at the date of the certificate.
(2) The person for whose benefit the maintenance order was made may file the certificate or cause the certificate to be filed in the Supreme Court of New South Wales, in a District Court for the district in which the defendant resides or in which any real property of the defendant is situated or in a court of petty sessions within the meaning of the Small Debts Recovery Act, 1912, as amended by subsequent Acts, for the petty sessions district in which the defendant resides, irrespective of the amount stated in the certificate to be due under the maintenance order.
(3) Where a certificate is filed in accordance with subsection two of this section, the Prothonotary, the Registrar of the District Court, or the Registrar of the court of petty sessions, as the case may be, shall enter judgment for the person to whom the certificate was granted for the amount stated to be due in the certificate, together with the fees paid for the certificate and for filing it and entering the judgment and shall forthwith send notice in writing of the
entry of such judgment to the clerk of the court at the place where payments under the maintenance order are for the time being required to be made. (4) Where judgment is entered under this section proceedings for its enforcement shall not be commenced unless an affidavit has been filed stating that no proceedings are pending in another court for the recovery of any of the arrears of maintenance included in the amount of the judgment and that the maintenance order has not been discharged, suspended or varied since the date of the certificate to which
the
the judgment relates in such a way as to affect any of the arrears of maintenance included in the amount of the judgment.
(5 ) One application may be made under subsection one of this section in respect of two or more maintenance orders if—
(a) the applicant is entitled to receive the payments under each of the maintenance orders; and (b) the defendant in the proceedings in which those orders were made was the same person.
(6 ) Where one application is made in accordance with subsection five of this section one certificate may be granted in respect of the total amount due under all of the maintenance orders in respect of which the application was made.
(7 ) Rules of court may prescribe the practice and procedure in the Supreme Court of New South Wales and in district courts to be observed in connection with the filing of certificates and entering up of judgments thereon in pursuance of this section, and the fees to be paid.
46. (1 ) Where an order (in this section referred to as
a "maintenance order") has been made under section eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen or eighteen, or subsection four of section twenty-two, of this Act, a court may—
(a)
at the time of the making of the maintenance order; or
(b) at any time, and from time to time, while the main tenance order is in force upon complaint made by or on behalf of the person for whose benefit the maintenance order was made;
order the defendant to enter into a recognizance with or without sureties to the satisfaction of a justice for the due performance of his obligations under the maintenance order for a specified period, not exceeding twelve months at any one time.
(2 )
(2 ) An order shall not be made under this section
unless the court is satisfied—
(a) that the defendant has persistently failed to comply with the requirements of the maintenance order; or (b) that he has by his conduct indicated an intention to make default in complying with the require ments of the maintenance order. (3 ) Upon the making of an order under this section the court may, if the defendant does not immediately enter into the required recognizance with the required sureties, commit the defendant to prison there to remain until—
(a)
the expiration of the term, not exceeding twelve months, specified by the court;
(b ) he enters into the required recognizance; or
(c)
he performs his obligations under the maintenance order in respect of the period referred to in subsec tion one of this section,
whichever first happens.
(4) Where the defendant fails to comply with his obligations under any recognizance entered into under this subdivision the recognizance may in respect of the defendant and any surety or sureties or any of them be forfeited and estreated by any court of petty sessions consisting of a stipen diary magistrate sitting alone, and any moneys arising from the estreatal of any such recognizance shall be applied for or towards the payment of maintenance due or becoming due under the maintenance order.
47. ( 1 ) Upon the making or during the operation of an
order for the payment of moneys made under Part I I of this Act a court may, upon ex parte application made by or on behalf of the person for whose benefit the order was made, by order authorise and direct a person named in the order during the operation of the order and from time to time, if necessary, to seize and sell, to the extent necessary to satisfy the order, any goods, chattels and securities belonging to the defendant or to demand and receive, to that extent, any
annuity,
annuity, rents and other income (not being earnings within the meaning of section forty-eight of this Act) payable to the defendant or any moneys credited to the defendant in any bank account or like account, and to apply the proceeds of any such sale or any moneys so received, after deducting therefrom his costs and charges towards the payment of the amounts required to be paid under the order.
(2) Any person so authorised and directed shall have full power and authority to do all acts and things, including the execution of transfers, receipts, discharges and acquittances, necessary to give full effect to the seizures, sales, demands and receipts so authorised and directed.
(3) Any person who fails to comply with the demand made upon him under subsection one of this section by a person authorised and directed in that behalf by a court is guilty of an offence and liable to a penalty not exceeding one hundred pounds.
(4) One application may be made under subsection one of this section in respect of two or more maintenance orders if—
(a)
the applicant is entitled to receive the payments under each of the maintenance orders; and
(b)
the defendant in the proceedings in which those orders were made was the same person.
(5) Where one application is made in accordance
with subsection four of this section one order may be made
under subsection one of this section in respect of all the
| made. | maintenance orders in respect of which the application was | DIVISION 2.—Enforcement by Attachment of Earnings. |
|
text or subject-matter—
"Attachment of earnings order" means an order under subsection three of section forty-nine of this Act or such an order as varied from time to time.
"Defendant"
"Defendant", in relation to a maintenance order or to proceedings in connection with a maintenance order, means the person against whom the order was made.
"Earnings", in relation to a defendant, means any sums payable to the defendant—
(a)
by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages or salary); or
(b) by way of pension, including—
(i) an annuity in respect of past services, whether or not the services were rendered to the person paying the annuity; and
(ii) periodical payments in respect of or by way of compensation for the loss, abolition or relinquishment, or any diminution in the emoluments, of any office or employment,
but does not include any pension payable to the defendant under the Social Services Consolidation Act 1947, as amended by subsequent Acts, the Australian Soldiers' Repatriation Act 1920, as amended by subsequent Acts, or the Seamen's War
Pensions and Allowances Act 1940, as amended by subsequent Acts, of the Commonwealth.
"Employer", in relation to a defendant, means a person (including the Crown in right of the State, a Minister of the Crown in right of the State, and any statutory authority representing the Crown in right of the State) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the defendant.
"Maintenance
"Maintenance order" means an order made under section eleven, twelve, thirteen, fourteen, fifteen, sixteen or eighteen or subsection four of section twenty- two, of this Act or enforceable as if so made and, if such an order has been varied, means the order as so varied and includes—
(a) such an order that has ceased to have effect if any arrears are recoverable under the order; and (b) an order for the payment of costs in any proceedings in which an order under any of those sections was made.
"Net earnings", in relation to a pay-day, means the amount of the earnings becoming payable by a particular employer on that pay-day, after deduction from those earnings of—
(a) any sum deducted from those earnings under Division 2 of Part VI of the Income Tax and Social Services Contribution Assess ment Act 1936, as amended by subsequent Acts, of the Commonwealth; and (b) any sum deducted from those earnings that would be an allowable deduction— (i) under section 82H of that Act, as so amended, other than life insurance premiums, not being life insurance premiums payable in respect of
superannuation; or (ii) under section 82HA of that Act, as so amended.
"Normal deduction", in relation to an attachment of earnings order and in relation to a pay-day, means an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day, or, where there is no last preced ing pay-day, the date on which the employer became, or last became, the defendant's employer.
"Pay-day"
"Pay-day" means an occasion on which earnings to which an attachment of earnings order relates become payable.
"Protected earnings", in relation to an attachment of earnings order and in relation to a pay-day, means the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day, or, where there is no last preced ing payday, the date on which the employer became, or last became, the defendant's employer.
(2) In this Division—
(a) a reference to a person entitled to receive payments under a maintenance order is a reference to a person entitled to receive payments under the main tenance order either directly or through another person or for transmission to another person; and (b) a reference to proceedings relating to an order includes a reference to proceedings in which the order may be made. (1) A person entitled to receive payments under a maintenance order may apply in writing—
49.
(a)
where the name of an employer is specified in the application, to the court for the area in which the
employer's place of abode or business is situated; or
(b)
where the name of an employer is not so specified, to the court for the place where payments under the order are required by the order to be made,
for an attachment of earnings order.
(2) An application under subsection one of this sec tion may be made ex parte and without specifying the name of any particular employer.
(3)
(3) If the court is satisfied that the defendant is a person to whom earnings are payable or are likely to become payable and—
(a) that, at the time when the application was made, there was due under the maintenance order and unpaid an amount equal to not less than— (i) in the case of an order for weekly payments —four payments; or
(ii) in any other case—two payments; or
(b) that the defendant has persistently failed to comply with the requirements of the order,
the court may order a person who appears to the court to be the defendant's employer in respect of those earnings or a part of those earnings to make out of those earnings or thai part of those earnings payments in accordance with section fifty of this Act.
(4) The court shall not make an attachment of earn- ings order if it appears to the court, in a case to which paragraph (a) of subsection three of this section applies, thai the failure of the defendant to make payments under the maintenance order was not due to his wilful refusal 01 culpable neglect.
| (5) An attachment of earnings order shall specify either generally or in relation to any particular pay-day or pay-days the normal deduction rate, that is to say, the rate at which the court considers it to be reasonable that the earnings to which the order relates should be applied in satisfying the | requirements of the maintenance order but not exceeding the |
| rate that appears to the court to be necessary for the purpose | |
| of— |
(a) securing payment of the sums from time to time falling due under the maintenance order; and (b)< securing payment within a reasonable time of any sums already due and unpaid under the main tenance order and any costs incurred in proceedings relating to the maintenance order that are payable by the defendant.
(6)
(6) An attachment of earnings order may specify a higher normal deduction rate to apply for a specified number of pay-days after the order comes into force and a lower normal deduction rate to apply to subsequent pay-days.
(7) An attachment of earnings order shall also specify the protected earnings rate, that is to say, the rate below which, having regard to the resources and needs of the defendant and of any person for whom he must or reasonably may provide, the court considers it to be reason able that the earnings to which the order relates should not be reduced by a payment under the order.
(8) An attachment of earnings order shall provide that payments under the order are to be made to the clerk of the court specified in the order.
(9) An attachment of earnings order shall contain such particulars as the court thinks proper for the purpose of enabling the person to whom the order is directed to identify the defendant.
(10) An attachment of earnings order shall be served
on—
(a) the defendant; and
(b) the person to whom the attachment of earnings order is directed,
and shall not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed.
(1) An employer to whom an attachment of earnings order is directed, being an attachment of earnings order that is in force, shall, in respect of each pay-day, if the net earnings of the defendant exceed the sum of—
50.
(a) the protected earnings of the defendant; and
(b)
so much of any amount by which the net earnings that became payable on any previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day,
pay,
pay, so far as that excess permits, to the clerk of the court
specified in the order—
(c) the normal deduction in relation to that pay-day; and (d) so much of the normal deduction in relation to any previous pay-day as was not paid on that pay-day and has not been paid on any other previous pay day.
(2) A payment made by the employer under sub section one of this section is a valid discharge to him as against the defendant to the extent of the amount paid.
(1) Where any proceedings are brought in a court to enforce a maintenance order the court may, instead of making any other order, make an attachment of earnings order.
51.
(2) Unless the court otherwise orders where an attachment of earnings order is in force, no warrant or other process shall be issued or order made in proceedings for the enforcement of the maintenance order that were begun before the making of the attachment of earnings order.
96. (1) Where the Governor is satisfied that the law in any country makes provision for the enforcement in that country of maintenance orders made in another country, the Governor may, by proclamation published in the Gazette, declare that country to be a reciprocating country for the purposes of this Part.
(2) If it appears to the Governor that the jurisdiction of the courts of a country specified, or to be specified, in a proclamation under subsection one of this section to make maintenance orders extends to the making of orders that are not of the same kind as orders that may be made in New South Wales under Part II of this Act he may, by the same or a subsequent proclamation, declare that that country has restricted reciprocity with the State of New South Wales.
(3) In a proclamation made under subsection one or two of this section the Governor may specify, in relation
to the country to which the proclamation applies, a date,
which may be before or after or the same day as the date of the proclamation, and declare that maintenance orders made in that country on or after that date shall be enforceable in New South Wales in accordance with the provisions of this Division.(4) The Governor may, by the like proclamation,
revoke or vary or further vary any proclamation made under
subsection one or two of this section.
(5)
(5) Where a country that has been a reciprocating country ceases to be a reciprocating country—
(a) a maintenance order made in that country and enforceable in New South Wales by virtue of this
Division ceases to be so enforceable; and(b) every warrant or other process under this Act aris- ing out of any such order previously issued in New South Wales and not executed ceases to have effect,
but this subsection does not affect the validity of anything done under this Act for the enforcement of a maintenance order while that country was a reciprocating country.
(6) At least once in every year the Collector shall cause to be published in the Gazette a list of the names of the reciprocating countries, showing the respective dates upon which they became reciprocating countries, indicating the date, if any, specified in relation to any such country in accordance with subsection three of this section, and indicat- ing which of those countries are countries having restricted reciprocity.
(7) Production of a copy of the Gazette containing such a list is evidence of the matters stated in the list and of the fact that a country shown in the list as a reciprocating country of either class continues to be a reciprocating country of that class.
DIVISION 4.—General.
97. While a maintenance order is enforceable in New South Wales under this Part, all moneys directed by the order to be paid are payable to the Collector, and the receipt of the Collector for any such moneys is a sufficient discharge of the liability of a person to pay those moneys in accordance with the order.
98. Where the operation of a New South Wales order enforceable in another Australian State or in a reciprocating country, or the operation of an interstate order or overseas order enforceable in New South Wales, is affected by an order (other than a provisional order), event or other matter made, occurring or arising in New South Wales of which the Col- lector has notice, the Collector shall send to the Collector for the other Australian State, or to an appropriate officer in the reciprocating country, a certified copy of the order, or a notice in writing giving particulars of the event or other matter, by which the operation of the order so enforceable has been so affected.
(1) Where the Collector receives from the Collector for another Australian State or from an appropriate officer in a reciprocating country a certified copy of an order (other than a provisional order), or a notice in writing giving parti- culars of an event or other matter, made, occurring or arising in that other Australian State, or in that reciprocating country and affecting, in a manner appearing from the certified copy or notice, the operation of a New South Wales order enforce- able in that other Australian State or in that reciprocating country, or of an interstate order or overseas order enforceable in New South Wales under this Part, the Collector shall—
99.
(a) file the certified copy or notice in the court in which the order affected was made or confirmed or is registered; and (b) if the complainant or defendant is resident in New South Wales, cause a copy of the certified copy or notice to be served on the complainant or defendant, as the case may be.
(2) Where a certified copy or notice is filed in accordance with subsection one of this section in relation to a maintenance order, the order, event or matter has the like effect in New South Wales as it appears from the certified copy or notice to have in the other Australian State or reciprocating country.
(3)
(3) Subsections one and two of this section do not apply in relation to an order made in a reciprocating country affecting a maintenance order in a manner adverse to the defendant unless it appears from the documents received by the Collector that the defendant appeared on the hearing of the proceedings.
100. (1) For the purposes of this Part, an overseas order
(including a provisional order) or a certificate or notice originating in a reciprocating country, that refers to an amount of money (including an amount of arrears) expressed in the currency of a reciprocating country shall be deemed to refer to the amount that was the equivalent amount in Australian currency on the prescribed date on the basis of the telegraphic transfer rate of exchange that prevailed on that date.
(2) For the purposes of this section, a certificate signed by the Collector, or the Collector for another Austra- lian State, and purporting to be based on information obtained by him from a bank, that a specified amount in Australian currency was, on a specified date, the equivalent of a specified amount in another currency on the basis of the telegraphic transfer rate of exchange prevailing on that date is evidence of the matter stated in the certificate.
(3) Where a certificate of a Collector in accordance
with subsection two of this section has been filed in a court in New South Wales in relation to an order, certificate or
notice, every copy of that order, certificate or notice served
on any person shall be accompanied by a copy of the first-
mentioned certificate.
(4) Where, under section sixty-eight of this Act, the Collector is required to remit an amount of money to a country outside the Commonwealth, he shall remit such amount in the currency of that country as he is able to remit by the expenditure of that first-mentioned amount.
(5)
(5) In this section "the prescribed date" means—
(a) in relation to a maintenance order registered under this Part, or a certificate with respect to the arrears payable under a maintenance order sought to be so registered—the day upon which the order is registered; (b) in relation to a provisional order confirmed under this Part—the day upon which the order is con- firmed; or (c) in relation to an order or notice referred to in subsection one of section ninety-nine of this Act— the day upon which the certified copy of the order, or the notice is filed in a court in accordance with that subsection. 101. Where a certified copy of an order of a court (including a provisional order), a record of the evidence of a witness or other document arising out of, or relating to, proceedings in a court outside the Commonwealth is not in the English language, it shall not be used for the purpose of registering an order under this Part, or received in evidence in proceedings under this Part, unless it is accompanied by a translation of the document into the English language certified under the hand of an officer of that court to be a correct translation, or bearing the seal of that court, and where such
a document is accompanied by such a translation— (a)
the translation may be received in evidence to the same extent as the document of which it is a translation and shall, unless the contrary is proved, be deemed to be a correct translation;
(b)
all notations made on the document shall be made also on the translation; and
(c)
any copy of the document served on any person shall be accompanied by a copy of the translation.
102. In any proceedings under or for the purposes of this
Part, a certificate purporting to be signed by the Collector or the Collector for another Australian State, or an officer of a reciprocating country in which a maintenance order was made or is enforceable, concerning amounts paid or unpaid under a maintenance order is evidence of the facts stated in the certificate.
103. (1) For the purposes of this Part and in proceedings
under or arising out of this Part, a document purporting to
be—
(a) a certified copy of an order (including a provisional order) of a court; (b) the record, or a certified copy of the record, of the evidence of a witness in proceedings before a court; or (c) a certificate or notice of a kind referred to in this Part, shall, unless the contrary is proved, be taken to be such a certified copy, record, certificate or notice, and shall be admitted in evidence without proof of the signature of the person purporting to have signed it or of his official position.
(2) The depositions of a witness in proceedings
before a court in another Australian State or in a reciprocat-
ing country, received in New South Wales for the purposes
of this Part, shall be admissible in evidence in proceedings
under this Part in a court in New South Wales.104. (1) Except where the contrary intention appears in this Part, any document required or permitted by this Part to be served on a person shall be served on that person personally.
(2)
(2) A document required by subsection four of section seventy-one, subsection seven of section eighty-three, subsection four of section eighty-six, or section ninety-nine, of this Act to be served on a person may be served on that person—
(a) personally; or
(b) by post at his usual or last-known place of residence or business.
(3) A reference in this Part to any document being served on a person personally shall be read as a reference to that document being served by—
(a)
delivering a copy of the document to that person; or
(b)
leaving a copy of the document at the usual or last-known place of residence or business of that person with some other person who apparently resides therein or is employed thereat, and is apparently over the age of sixteen years.
PART V.
MISCELLANEOUS.
DIVISION 1.—Procedural.
105. (1) A complaint made for the purposes of this Act
shall be in writing made upon oath before a justice of the
peace.
(2) The justice before whom any complaint is so
made—
(a) may issue a summons addressed to the defendant commanding him to attend the court upon the hear-
ing of the complaint; or(b) if satisfied by oath that the whereabouts of the defendant are unknown to the complainant, or that the defendant is about to move out of the State or into a distant part of the State or has so moved without providing the complainant with adequate
means
means of support, may issue a warrant for the apprehension of the defendant and for his being brought before a court pursuant to this Act.
(3) Two or more complaints made against a defendant by a complainant, whether on the complainant's own behalf, on behalf of other persons or both on the com plainant's own behalf and on behalf of other persons, may be joined in the one form of complaint.
(4) Where, pursuant to subsection three of this section, two or more complaints are joined in the one form, of complaint—
(a) one summons may be issued in respect of those complaints; (b) those complaints shall, unless the court otherwise orders, be heard and determined by the court at the same time; and (c) two or more orders in respect of those complaints may be joined in the one form of order but the order in respect of each complaint shall, for the purposes of this Act, be deemed to be a separate order. (5) Where complaints—
(a)
for the maintenance of a child of the family are made by the same complainant against the father as well as against the mother of that child; or
(b)
for the maintenance of an illegitimate child are made by the same complainant against a person
against the mother of that child, alleged to be the father of that child as well as
the complaints may, if the court thinks fit, be heard and
determined by the court at the same time.
106. ( 1 ) Where the defendant does not appear before
the court in obedience to a summons issued in relation to a complaint under this Act or on any day to which the hearing
of
of that complaint is adjourned, the court may, upon proof that the summons was duly served on the defendant a reason able time before the day appointed for his appearance—
(a)
issue a warrant for the apprehension of the defendant and adjourn the hearing of the complaint until the defendant is brought before the court; or
(b)
proceed to hear and determine the complaint in the absence of the defendant.
( 2 ) Where a warrant has been issued for the appre
hension of the defendant (whether in the first instance or upon the defendant failing to appear as aforesaid) and the court is satisfied that after strict inquiry and search the defendant cannot be found the court may proceed to hear the complaint in the absence of the defendant.
(3 ) The inquiry and search made for the defendant for the purposes of this section may be proved by evidence given orally or by the affidavit of the person or persons who made such inquiry and search.
107. (1) An application to a court for the purposes of
this Act shall be in writing made to the court at which the
application is, by the application, set down for hearing.
( 2 ) Except where an ex parte application may be
made under this Act, the court may, after service of notice
of the application upon such persons as appear to the courtto be affected by the application, proceed to hear the applica tion whether or not any person to whom any such notice has been issued is present at the hearing.
( 3 ) Any person on whom any such notice has been
served shall be entitled to be heard and may be represented by counsel or an attorney, and may examine and cross- examine the witnesses giving evidence for or against him respectively.
108. (1) A complaint or an application under this Act
purporting to be made on behalf of a person is, in the absence of evidence to the contrary, deemed to be made on behalf of that person.
(2) Where a complaint or an application under this Act may be made by a person on behalf of a child that person may make the complaint or application whether or not he has been duly authorised to do so.
109. An order made by a court under this Act directing
the payment of moneys shall direct that—
(a) the moneys be paid to the clerk of the court or to some other person, and at a place, specified in the order; (b) the moneys payable under the order for or towards the maintenance of a person be paid, except where otherwise provided in this Act, weekly, monthly or otherwise periodically; and (c) the moneys payable under the order, other than moneys referred to in paragraph (b) of this sec tion, be paid either in one sum or by instalments or partly in one sum and partly by instalments. 110. (1) Where an order (in this section referred to as
an "original order") under this Act directs the payment of
moneys, the court may by that or a subsequent order, make such orders as it thinks necessary relating to the matters referred to in section one hundred and nine of this Act, for regulating the receipt and disbursement of the moneys, for investing and applying the proceeds of the sale of any goods, chattels or securities directed to be sold or any annuity, rents or income directed to be collected, under an order made under section forty-seven of this Act, for ensuring the proper appropriation of those moneys or for causing any child for whose benefit those moneys are payable to be properly brought up and educated.
(2)
( 2 ) An order may be made under subsection one of
this section, at the discretion of the court—
(a) either with or without any application for the order; and (b) either upon notice of any such application being given to the defendant against whom the original order was made or without any such notice being given.
111. (1) Where the court proceeds pursuant to the provisions of section one hundred and six of this Act to make an order against a defendant who was not served with a summons and who did not appear at the hearing, the defendant may, within a period of twenty-one days after the time when the order comes to his knowledge (proof of which time lies upon the defendant), make application to the court which made the order to set aside the order and to re-hear the matter of the complaint in respect of which the order was made.
(2) Notice in writing of intention to make an application under subsection one of this section shall be lodged with the clerk of the court and a copy thereof shall be served, either personally or by post, a reasonable time before the day specified in the notice for the making of such application, on the person who was the complainant in the proceedings in which the order was made.
(3) Upon proof of due service of the notice the
court may, if it thinks it just in the circumstances of the case so to do, set aside the order made in the absence of the proceed to hear and determine the matter of the complaint in respect of which the order was made in accordance with the provisions of Part II of this Act. (4 ) Any order made pursuant to subsection three of this section may be made to take effect from any date upon which the order set aside could have been made to take effect pursuant to the provisions of section twenty-eight of this Act. defendant on such terms as to costs as it thinks fit and
112. (1 ) Where—
(a) a complaint (in this section referred to as an "original complaint") made under section fifteen, section seventeen or subsection three of section nineteen of this Act has been dismissed;
(b) on appeal, an order (not being an order for the dismissal of the complaint) made upon such a complaint has been reversed, quashed, or set aside, or an order for the dismissal of such a complaint has been affirmed or confirmed; or
(c) on appeal or otherwise, the court by which an order (not being an order for the dismissal of the complaint) was made upon such a complaint has been restrained from proceeding or further proceed ing with the order,
a further complaint may be made against the defendant against whom the original complaint was made and in respect of the same child if the further complaint contains an allegation that facts or circumstances were in existence at the time of the making of the original complaint that have not previously been disclosed to the court and that were not and could not by the exercise of reasonable diligence have previously been known to the complainant who made the original complaint.
(2) The court shall receive and consider the evidence recorded at the original hearing and on any appeal as well as any fresh evidence submitted.
(3) If at the conclusion of the evidence submittedi
by the complainant no fresh evidence material to the question,
dismissed. of paternity has been produced, the complaint shall be DIVISION 2.—Appeals.
(1 ) Except where otherwise provided, any person aggrieved by any decision of a: court under this Act may appeal against that decision in the manner pro vided by Part V (sections one hundred and twenty-three and
113.
one
one hundred and twenty-four excepted) of the Justices Act, 1902, as amended by subsequent Acts, and the provisions of that Part (those sections excepted) so far as they are not inconsistent with the provisions of this Act shall apply with such modifications as may be necessary to and in respect of any such appeal.
(2 ) Where an appeal is made under this section against an order directing the payment of moneys or against an order varying such an order, the court to which the appeal is made may stay the order and, if it thinks fit, in addition make a temporary order to take effect during the pendency of the appeal.
(3) A court making a temporary order under subsection two of this section may exercise all the powers of the court that made the stayed order.
(4) A temporary order made under subsection two of this section may be enforced in the same manner in all respects as if it were a final order, but shall not be subject to appeal, nor except by the court by which it was made, to discharge, suspension or variation.
(5 ) Where an order has been made under section seventeen of this Act for the benefit of a pregnant woman, and the defendant gives notice of intention to appeal to a court of quarter sessions, and in that notice requests that the appeal be not heard before the birth of the child, the appeal shall be heard and determined at the court of quarter sessions first held after a period of one month after the birth has elapsed, or at any court of quarter sessions succeeding that first held
court and to which the hearing is postponed, but no such appeal shall be heard before the holding of that first held court. (6 ) At the request of either party to an appeal against a decision on a complaint made by or on behalf of a child the child shall be produced in court.
(7 ) The provisions of section sixteen of the Child Welfare Act, 1939, as amended by subsequent Acts, shall apply to the hearing of an appeal under this section.
DIVISION
DIVISION 3.—General.
Y.4. (1) In any proceedings under this Act, the court
may —
(a) direct the defendant to attend before the court at a specified time to be examined concerning his means and ability to comply with any order made against him under this Act ; (b) direct the defendant to state to the court or to furnish to the court within a specified period a statement signed by the defendant specifying— (i) the name and address of his employer or,
if he has more employers than one, of each
of his employers;(ii) particulars as to the defendant's earnings; and
(iii) such particulars as the court thinks are necessary to enable the defendant to be identified by any of his employers; or
(c) direct any person who appears to the court to be indebted to the defendant or to be the employer of the defendant to furnish to the court, within any time fixed by the court, a statement signed by him or on his behalf containing such particulars as are specified in the direction of his indebtedness to the defendant or of all the earnings of the defendant that became payable by that person during a specified period, as the case may be.
(2 ) A document purporting to be a statement
referred to in subsection one of this section shall be received in evidence in any proceedings under this Act and shall, unless the contrary is shown, be deemed without further proof to be such a statement.
(3 ) Every person who—
(a)
without reasonable cause or excuse, refuses or fails to comply with a direction under this section that is applicable to him; or
(b)
(b)
in any statement furnished to a court pursuant to the provisions of this section, makes a statement that he knows to be false or misleading in a material particular or does not believe on reason able grounds to be true,
is guilty of an offence and liable to a penalty not exceeding
one hundred pounds.115. (1) Subject to any order made under this Act with
respect to the appropriation of moneys any moneys received under an order for the payment of moneys made under this Act by the person entitled to receive those moneys shall be deemed a payment made by the defendant to that person, so as to discharge, to the extent of the moneys received, firstly any sums due and unpaid under the order (a sum due at an earlier date being discharged before a sum due at a later date) and secondly any costs incurred in proceedings relating to the order that were payable by the defendant in respect of any previous proceedings for the enforcement of the order.
(2 ) In any proceedings relating to an order for the payment of moneys enforceable under this Act the production of books purporting to be the books of account of a court in relation to the order shall be evidence that the payments to which the entries therein purport to refer have been made and that those payments are the only payments that have been made.
(3 ) Where—
(a)
the clerk of the court or other person to whom the payment of moneys is, pursuant to paragraph (a)
of section one hundred and six of this Act, directed to be made under two or more orders made against the same defendant receives from the defendant an amount that is less than the total amount payable
under those orders; and
(b) no order for the appropriation of that amount has been given by the defendant to the clerk or other person, the clerk or other person shall, subject to subsection one of this section and to any order made under subsection one of section one hundred and ten of this Act, appropriate that
amount
amount to the payment of the sums payable under each of those orders in such manner as the clerk or other person thinks proper or where a manner is prescribed in that manner.
116. (1) Except where otherwise provided by this Act—
(a) a summons, notice, or other document may be served on any person in the manner provided for the service of summonses by the Justices Act, 1902, as amended by subsequent Acts; and (b) a notice may be served by post addressed to the person to whom it is directed at his last known place of residence or business.
(2 ) If in any proceedings in connection with which any notice has been served in accordance with subsection one of this section it appears to the court that the person to whom the notice is directed has not or may not have received it, the court may direct that the notice be again served on that person in such manner as it thinks fit.
( 3 ) Service of a summons, notice or other docu ment in a manner authorised by this Act may be proved by the oath of the person who served it, or by affidavit, or otherwise.
117. In any proceedings under this Act before a court,
the court may order the payment of such costs by such
persons, being parties to the proceedings as it thinks fit.
118. (1 ) The Minister may authorise one or more
officers of the Public Service to appear on behalf of the
complainant or applicant in any proceedings under this Act to
| which the officer's authority extends. |
(2) Any such authority may be given in respect to particular proceedings, to all proceedings, or any class of proceedings, under this Act.
(3) An officer so authorised shall be entitled to appear and be heard in any proceedings to which his authority extends as if he were the complainant or applicant in those proceedings.
(4) Professional costs may be allowed in respect of
any such appearance.
(5 )
(5) Any professional costs allowed to the person for whom any such officer appears shall, when recovered, be paid to the Consolidated Revenue Fund.
119. Proceedings for offences against this Act or the regulations under this Act may be taken in a summary manner before a court.
120 (1) The Governor may make regulations not incon
sistent with this Act for or with respect t o—
(a)
prescribing any forms to be used under this Act or in connection with any proceedings under this Act ;
(b)
the practice and procedure of courts in any pro ceedings under this Act ;
(c)
all matters which by this Act are required or per mitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may impose a penalty not
exceeding fifty pounds for any offence against the regulations.
(3) The regulations shall—
(a) be published in the Gazette;
(b)
take effect from the date of publication or from a later date to be specified in the regulations; and
(c) be laid before both Houses of Parliament within.
fourteen sitting days after publication thereof if Parliament is then in session and, if not, then within fourteen sitting days after the commencement of the next session.
(4) If either House of Parliament passes a resolution of which notice has been given at any time within fifteen sitting days after the regulations have been laid before that House disallowing any regulation or part thereof, that regulation or part thereupon ceases to have effect.
SCHEDULES.
SCHEDULES.
S C H E D U L E O N E . REPEAL OF ACTS.
| Year and Number of Act. | Short title of Act. |
| 1901 No. 17 | . . | . . | Deserted Wives and Children Act, 1901. |
| 1913 No. 9 | ... | . . | . . Deserted Wives and Children Amending Act, |
1913.
| 1919 No. 33 | Interstate Destitute Persons Relief Act, 1919. |
| 1931 No. 33 . . | . . | . . Deserted Wives and Children (Amendment) |
Act, 1931.
| 1960 No. 34 | Interstate Destitute Persons Relief (Amend |
ment) Act, 1960.
S C H E D U L E T W O . AMENDMENTS OF ACTS.
Column 1. Column 2.
Year and
| Number of | Short title of Act. | Amendment. |
Act.
| 1898 No. 1 1 . . Evidence Act, 1898. | Section 43A— |
Omit paragraph (a) and insert in lieu thereof the following paragraph:—
(a) under the Maintenance Act,
1964.
Omit from paragraph (c) the words "or Part XVI".
| 1899 No. 14 . . Matrimonial Causes Section 90A— |
Act 1899. Subsection (2)— Omit the subsection and insert in lieu thereof the following sub section:—
(2) The complaint shall be dealt with in like manner as a complaint under Part II of the Maintenance Act, 1964, and the provisions of that Part shall apply accordingly.
| 1900 No. 40 . . | Crimes Act, 1900. | Section 573— |
Omit the words "Deserted Wives and Children Act, 1901" and insert in lieu thereof the words "Maintenance Act, 1964".
S C H E D U L E
S C H E D U L E T W O — c o n t i n u e d .
Column 1. Column 2.
Year and
Number of Short title of Act. Amendment.
Act.
1901 No. 41 . . Apprentices Act, 1901 Section 8— After the word "Justices" where secondly occurring insert the words "or a children's court established under the Child Welfare Act, 1939, as amended by subsequent Acts,".
1902 No. 27 . . Justices Act, 1902. Section 82— Subsection (2)—
Omit the words " 'Deserted Wives and Children's Act, 1901' and in the 'Lunacy Act of 1898' " and insert in lieu thereof the words "Maintenance Act, 1964".
1932 No. 33 . . Farmers' Relief Act, Section 9—
1932. Subsection (2)—
Omit from subparagraph (iii) of paragraph (a) of the proviso the words "Deserted Wives and Child ren Act, 1901-1931, for the support of his wife or children" and insert in lieu thereof the words "Main tenance Act, 1964, for the support of any person".
Omit subparagraph (iv) of
paragraph (a) of the proviso.
1937 No . 3 5 . . Statute Law Revision Omit so much of the Second
Act, 1937.
Schedule as amended the Deserted Wives and Children Act, 1901, and the Interstate Destitute Persons Relief Act 1919.
1939 No. 17 . . Child Welfare Act, Section 2— '
1939. Omit the matter relating to Part
XVI.
Omit the matter relating toDivision 1 and Division 2 of Part
XX. Section 12—
Subsection (1), paragraph (c)—
Omit the paragraph and insert in lieu thereof the following para graph:—
(c) shall exercise the powers and authorities conferred on the court by the Maintenance Act, 1964.
Subsection (1), paragraph (e)—
Omit the paragraph.
S C H E D U L E
S C H E D U L E T W O — c o n t i n u e d . Column 1. Column 2.
Year and
| Number of | Short title of Act. | Amendment. |
Act.
1939 No. 17 . . Child Welfare Act, Section 13—
1939—continued. Subsection (1)— Omit the words "Deserted Wives and Children Act, 1901-1939" and insert in lieu thereof the words "Maintenance Act, 1964".
Section 14—
Subsection (1)—
Omit the words " , except those matters in which a justice or justices has or have jurisdiction under the Deserted Wives and Children Act, 1901-1939,".
Section 16 —
Subsection (3)—
Omit the words "Part XVI of this Act" and insert in lieu thereof the words "the Maintenance Act, 1964".
Section 18 —
Subsection (1)—
Omit the words "or Part XVI". At the end of the section insert the following new subsection:—
(4) This section does not apply
to any decision in any proceedingsunder the Maintenance Act, 1964.
Section 19—
After the words "this Act" where firstly occurring insert the words "or in the case of pro ceedings under the Maintenance Act, 1964, with that Act,".
Omit the words " , other than proceedings under Part XVI of this Act".
Section 59A—
Omit the words "section 104A of
this Act" and insert in lieu thereof the words "section twenty-seven of the Maintenance Act, 1964".
Section 60—
Subsection (3)—
After the words "this Act," insert the words "as in force at any time before the repeal of that Part by the Maintenance Act, 1964,".
After the figures "1901-1939," insert the words "or for the pay ment of preliminary expenses or maintenance under the Maintenance Act, 1964,".
S C H E D U L E
S C H E D U L E T W O — c o n t i n u e d .
Column 1. Column 2.
Year and
Number of Short title of Act. Amendment.
Act.
1939 No . 1 7 . . Child Welfare Act, Section 61—
1939—continued. Subsection (1)— Omit the words "Part XVI of this Act." and insert in lieu thereof the words "Part II of the Maintenance Act, 1964.
For the purposes of enforcing any such order, a certificate purporting to be under the hand of the Direc tor, or any officer authorised by the Director to give such a certificate, and to state the amount due under the order, shall be prima facie evidence of the amount due under the order."
Part XVI—
Omit the Part.
Section 129—
Subsection (1)—
Omit the words "Where an order to pay maintenance for the support of a child or for the use of a wife and the support of a child has been made under the Deserted Wives and Children Act, 1901-1939, or where an order to pay preliminary ex penses or maintenance for the support of an illegitimate child or" and insert in lieu thereof the words "Where an order for the mainten ance of any person or for the pay ment of preliminary expenses is in force under the Maintenance Act, 1964, or where an order to pay".
Part XX, Divisions 1 and 2—
Omit the Divisions.
1952 No. 9 . . Prisons Act, 1952. Section 4— At the end of paragraph (d) of the definition of "convicted prisoner" insert the words " , or Part III of the Maintenance Act, 1964".
Section 20—
Subsection (4)—
After the word "Acts," insert the words "or Part III of the Mainten ance Act, 1964,".
S C H E D U L E
S C H E D U L E T W O — c o n t i n u e d . Column 1. Column 2.
Year and
| Number of | Short title of Act. | Amendment. |
Act.
| 1952 No. 9 . . | Prisons | Act, | 1952 Section 21— |
—continued. Subsection (1)— After the word "Acts," where secondly occurring insert the words "or Part III of the Maintenance Act, 1964,".
Section 52—
Omit the section.
1958 No. 22 . . Matrimonial Causes Section 1—
(Amendment) Act, Subsection (3)— 1958. Omit the subsection.
Section 3—
Omit the section.
1960 No. 2 1 . . Deserted Wives and Section 1—
Children (Amend- Subsection (3)— ment) Act, 1960. Omit the subsection.
Section 2—
Omit the section.
Section 3, paragraphs (b), (c), (d), (e),
(f) and (g).
Omit the paragraphs.
S C H E D U L E T H R E E . CITATION OF ACTS.
Column 1. Column 2. —
Year and
| Number of | Short title of Act. | Citation. |
Act.
| 1899 No. 14 . . Matrimonial Causes Matrimonial Causes Act, 1899-1964. |
Act 1899.
| 1901 No. 41 . . | Apprentices Act, 1901 Apprentices Act, 1901-1964. | |||
| 1902 No. 2 7 . . |
|
1932 No. 3 3 . . Farmers' Relief Act, Farmers'Relief Act, 1932-1964.
1932.
1939 No. 17 . . Child Welfare Act, Child Welfare Act, 1939-1964.
1939.
1952 No. 9 . . Prisons Act, 1952 . . Prisons Act, 1952-1964.
1958 No. 2 2 . . Matrimonial Causes Matrimonial Causes (Amendment)
(Amendment) Act, Act, 1958-1964.
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0
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