MAINTENANCE ORDERS (FACI
LITIES FOR ENFORCEMENT)
ACT.
Act No. 4, 1923.
| A n | A c t | t o f a c i l i t a t e | t h e | e n f o r c e m e n t | in N e w | S o u t h |
| W a l e s | of m a i n t e n a n c e | o r d e r s | m a d e | i n | E n g l a n d |
| a n d | I r e l a n d | a n d | c e r t a i n | o t h e r | p a r t s | of | H i s |
| M a j e s t y ' s | D o m i n i o n s | a n d | P r o t e c t o r a t e s , | a n d |
| v i c e | v e r s a . | [ A s s e n t e d | t o , | 2 n d | O c t o b e r , | 1923 . ] |
| BE it enacted by the King ' s M o s t Excel lent Majes ty , | b y and wi th t he advice and consent of t h e | Legis |
| lat ive Council and Legis la t ive Assembly | of X e w | S o u t h |
| W a l e s | in | P a r l i a m e n t | assembled, | and | by | the | au tho r i t y | of |
t he same, as follows :—
| 1 . | This | A c t | m a y | be | ci ted | as | the | " M a i n t e n a n c e |
| Orders | (Faci l i t ies | for | Enforcement ) | Ac t , | 1 9 2 3 . " |
| 2 . | I n | th is Ac t , | unless | t he | con tex t | or | s u b j e c t - m a t t e r |
o therwise indicates or requires,—•
| " | A p p l i c a n t | " | inc ludes | a | compla inan t . |
| " | A p p l i c a t i o n " | includes | a | compla in t . |
| "Cer t i f ied | c o p y " in re la t ion to | a n | order of a | cour t |
means a copy of t he order certified by t h e
proper officer of the cou r t to be a t rue copy.
| " D e p e n d a n t s " | means | such persons as | a | person |
aga ins t w h o m a m a i n t e n a n c e order is made is l iable to main ta in , accord ing to t he laAV in force in t he place where such m a i n t e n a n c e order i s made .
| " Governor " includes an Adminis t ra tor , Commis sioner, Res ident , or o ther officer | represen t ing |
| H i s | Majes ty | in any | Br i t i sh | Pro tec tora te . |
| " Ma in t enance | o r d e r " | means an order o ther t h a n | an |
order of affiliation for t he periodical p a y m e n t of sums of money towards t he ma in t enance of t h e wife or o ther dependants of t h e person aga ins t whom the order is made .
| " Prescr ibed " | means prescr ibed b y ru les | m a d e |
| unde r or by v i r t ue of th i s | Ac t . |
| " Rec ip roca t ing | S t a t e " | means | any | par t | of | H i s |
| Majes ty ' s | Dominions | outside t he | Un i t ed | K i n g |
| dom to which | the | Imper i a l | A c t | in t i tu led | t h e |
| Main tenance Orders (Faci l i t ies for | Enforce |
ment ) Ac t , 1920, ex tends , or is hereaf ter extended, and which has been declared unde r section twelve of th i s A c t to be a r ec ip roca t ing State- for t he purposes of th is Act .
| " Secre tary of Sta te " means one of H i s | Majes ty ' s |
| P r inc ipa l | Secretar ies of | Sta te for | t he | t ime |
| be ing . |
| 3 . | (1) W h e r e | a | ma in t enance | order | has , | w h e t h e r |
before or after the passing of th is Act , been m a d e agains t a n y person by any cour t in E n g l a n d or I re land , or in any rec iproca t ing Sta te , and a certified copy of t h e order has been t r ansmi t t ed by the Secre tary of S ta te or bv the Governor of t he reciprocat ing Sta te , as t he case m a y be, to t h e Governor, t h e Governor shall send a copy of t he order to t h e prescribed officer of a cour t in New Sou th W a l e s for regis t ra t ion ; and on receipt thereof, t he order
| shal l be regis tered in t h e prescr ibed m a n n e r , | and | shall , |
| f rom the date of such reg is t ra t ion , be of t he same force |
and effect, and , subject to t h e provisions of th is Act , all proceedings may be t a k e n on such order as if it had been an order original ly obtained in t h e cour t in which it is so registered, and t h a t cour t shal l have power to enforce t h e order accordingly .
( 2 ) The court in which an order is to be so
registered as aforesaid shall , if t he cour t by which the order was m a d e was a cour t of superior jur isdic t ion, be t he S u p r e m e Cour t , and, if t he cour t was not a cour t of super ior jur isdic t ion , be a cour t of s u m m a r y jurisdict ion.
| 4 . | W h e r e a c o u r t | in | N e w | Sou th | W a l e s | has , | w h e t h e r |
before or af ter t h e pass ing of th i s Ac t , m a d e a main t enance order aga ins t any person, a n d it is proved to t h a t cour t t h a t t he person aga ins t whom t h e order was
| m a d e | is | res ident | in | E n g l a n d | or | I r e l and | or | in | a |
rec ip roca t ing S ta te , t he cour t shall send to t he Governor , for t ransmiss ion to t h e Secre tary of S ta te or to the Governor of t h a t rec iprocat ing Sta te , as t h e case m a y be , a certified copy of t h e order.
| 5 . | (1) W h e r e a n appl ica t ion is m a d e | to a cour t of |
| s u m m a r y | jur isd ic t ion in | N e w | Sou th | Wales , for | a | ma in |
| t enance order aga ins t any person, and i t is proved | t h a t |
| t h a t | person | is | res ident | in E n g l a n d | or I r e l a n d | or in | a |
| rec iproca t ing | S ta te t he cour t | may , in t he absence of | t h a t |
| person, if af ter h e a r i n g t h e evidence i t is satisfied | of | t h e |
| jus t ice of | t h e | appl ica t ion, m a k e any such order as i t |
m i g h t have m a d e if a s u m m o n s had been du ly served on t h a t person and he had failed to appear a t t h e hea r ing , b u t in such case t h e order shal l be provisional only a n d shal l have no effect un less and un t i l confirmed by a c o m p e t e n t cour t in E n g l a n d or I r e l a n d or in such rec iproca t ing Sta te as aforesaid, as t he case m a y be.
(2) The evidence of any wi tness who is examined
on a n y such appl ica t ion shal l be p u t into wr i t ing , and
such deposit ion shal l be read over to and signed by h im.
| (3) | W h e r e such a n order is made , t h e cou r t | shal l |
send to t he Governor for t ransmiss ion to t he Secretary of S ta te in a case where t h e person agains t w h o m t h e
| order is m a d e is al leged to reside in E n g l a n d | or | I r e l and , |
| or to t h e Governor of t h e rec iproca t ing | Sta te in w h i c h |
| t h e person aga ins t w h o m | t h e order is made is a l leged | to |
| reside, as the case may be, t he deposit ions so t a k e n , and | a |
| certified | copy of | t h e order, t oge the r w i th a s t a t e m e n t | of |
| t h e | g rounds | on which | t h e | m a k i n g | of | t h e order | m i g h t |
| have been opposed if the person aga ins t w h o m t h e | order |
| is m a d e h a d | been du ly | served w i t h a s u m m o n s a n d | had |
| appeared | a t t h e hea r ing , | a n d | such | informat ion as t h e |
| cour t possesses for faci l i ta t ing | the | identif icat ion | of | t h a t |
| person | a n d | asce r t a in ing | his | whe reabou t s . |
| (4) W h e r e a n y such provisional order h a s | come |
| before | a cour t | in | E n g l a n d | or I r e l a n d | or in a rec ipro |
| ca t ing Sta te , as t he case m a y be, for | confi rmat ion, | a n d |
| t h e |
| t h e order has by t h a t cour t been r emi t t ed | to the | cour t |
of s u m m a r y jur isdic t ion which m a d e t h e order for t h e
purpose of taking 1 fu r ther evidence, t h a t cour t or any
o ther cour t of s u m m a r y jur isdic t ion si t t ing, and ac t ing for the same place shall , after g iv ing the prescr ibed not ice , proceed to t ake the evidence in l ike m a n n e r and subjec t to the l ike condit ions as t he evidence in suppor t of the original appl icat ion.
I f upon the hea r ing of such evidence i t appears to t h e cour t t h a t t he order ough t not to have been m a d e , t he cour t m a y rescind the order, b u t in any o ther case t h e deposit ions shall be sent to t he Governor and deal t
| w i th in l ike m a n n e r | as the original | deposi t ions. |
| (5) The confirmation of an order m a d e under this section shall no t atfect any power of a cour t of | s u m m a r y |
| jurisdict ion to vary or rescind t h a t order : |
| Provided | t h a t | on t he m a k i n g | of a v a r y i n g | or | rescind |
ing order t he cour t shall send a certified copy thereof to t h e Governor for t ransmiss ion to t h e Secretary of State or to the Governor of the rec iprocat ing Sta te in which t h e or iginal order was confirmed, as the case may he :
P rov ided also t h a t in the case of an order va ry ing an
or iginal order t he order shal l no t have any effect unless
and u n t i l confirmed in l ike m a n n e r as t he or iginal order.
(6) The appl icant shall have t he same r igh t of
appea l , if any, aga ins t a refusal to m a k e a provisional
order as such person would have had aga ins t a refusal
to m a k e t h e order had a s u m m o n s been du ly served on
the person aga ins t w h o m the order is sough t to be
made .
| 6 . | (1) | W h e r e a ma in tenance order has been m a d e by |
a cour t in E n g l a n d or I r e land or in a rec iprocat ing Sta te , and t h e order is provisional only and has no effect unless and u n t i l confirmed by a cour t of s u m m a r y jur isdict ion in New Sou th Wales , and a certified copy of t he order, toge ther w i th t h e deposi t ions of witnesses a n d a s ta te
m e n t of t h e g rounds on which the order m i g h t have been opposed lias been t r ansmi t t ed to t he Governor , and it appears to t he Governor t h a t t he person against wdiom the order was m a d e is res ident in N e w South W a l e s , t h e Governor m a y send the said documents to t h e prescribed officer of a cour t of s u m m a r y jur isdict ion,
w i t h
| with a requis i t ion | t h a t | a | s u m m o n s | he | issued | cal l ing |
u p o n t h e person to show cause w h y t h a t order should not he confirmed, and u p o n receipt of such documents and requis i t ion t he cour t shall issue such a s u m m o n s and cause it to be served upon such person.
(2) A t t h e hea r ing i t shall be open to the person on w h o m t h e s u m m o n s was served to raise any defence wh ich he m i g h t have raised in t he original proceeding h a d he been a pa r ty the re to , b u t no o ther defence, and t h e cert if icate from the cour t which m a d e the pro visional order s t a t ing t he g rounds on which the m a k i n g of the order m i g h t have been opposed if t he person aga ins t whom the order was m a d e h a d been a p a r t y to t he proceedings shal l be conclusive evidence t h a t those g rounds are g rounds on which objection m a y be t a k e n .
| (3) I f a t t h e hear ing the person served wi th | t h e |
s u m m o n s does n o t appear or, on appear ing , fails to satisfv t he cour t t h a t t h e order o u g h t not to be con- firmed, t h e cour t m a y confirm t h e order e i ther w i t h o u t modification or w i th such modifications as to t he cour t after hea r ing t h e evidence may seem jus t .
| (4) If | t h e | person | aga ins t | w h o m | the | s u m m o n s |
was issued appears a t the hear ing and satisfies t he cour t t h a t for t h e purpose of a n y defence i t is necessary to r e m i t t h e case to t h e cour t which m a d e the provisional order for the t a k i n g of any fu r the r evidence, t he c o u r t m a y so remi t t he case and ad journ t h e proceedings for
(5) W h e r e a provisional order lias been con
| firmed u n d e r th i s section, i t m a y be varied or rescinded in l ike m a n n e r as if i t had | or iginal ly been m a d e by | t h e |
| conf i rming cour t , and where on a n appl ica t ion for |
rescission or var ia t ion t he cour t is satisfied t h a t it is necessarv to remi t t h e case to the cour t which m a d e the order for t he purpose of t a k i n g a n y f u r t h e r evidence,
| t h e cour t | m a y so r e m i t | t h e case, and | adjourn | t h e | pro |
ceedings for t he purpose .
(6) W h e r e an order has been so confirmed, t he person bound the reby shal l have t h e same r i g h t of appeal , if any , aga ins t t he confirmation of t he order as he wou ld have h a d aga ins t t he m a k i n g of t h e order had the order been a n order m a d e by the cour t confirming
7. The Governor m a y m a k e regula t ions as to the m a n n e r in which a case can be remi t ted b y a court au thor i sed to confirm a provisional order to t h e court which made the provisional order, and genera l ly for
| fac i l i ta t ing | communica t ions | between | such | courts . |
8 . (1) A cour t in which an order has been registered u n d e r th i s Ac t or by which an order has been confirmed unde r this Act , and the officers of such court , shall t ake all such steps for enforcing the order as m a y be prescribed.
(2) Every such order shal l , where pract icable , be enforceable in like m a n n e r as if t he order were made by the cour t in which it is so registered, or by which it is so confirmed, and where not prac t icable shall he enforceable in the m a n n e r prescribed by the Jus t i ces Act , 1902, for enforcing an order for t he paymen t of money .
| 9 . (1) The Acts for the t ime be ing in force and appl icable | to | proceedings | in | respect | of | m a i n t e n a n c e |
| orders | before a cour t of | s u m m a r y | jur isdic t ion | shall |
apply to proceedings unde r th i s A c t before such cour t .
| (2) The Governor may for the purpose of ca r ry ing ou t t he provisions of th i s Ac t m a k e | rules for | ca r ry ing |
| out t he pract ice and procedure of courts of | s u m m a r y |
| jur isd ic t ion | unde r | this | Act . |
(3) The judges of t h e Supreme Cour t shall have
power to m a k e rules for ca r ry ing out the pract ice and
| procedure of t he | S u p r e m e | Cour t unde r th is | Act . |
1 0 . A n y document pu rpo r t ing to be- s igned by a
| j u d g e or officer of a cour t in E n g l a n d | or I r e l and or in a |
| reciprocat ing State shall , un t i l the con t ra ry is proved, |
be deemed to have been so signed wi thou t proof of the s igna ture or judicial or official charac te r of t h e person appear ing to have signed it, and the officer of a court by w h o m a document is signed shall , un t i l the cont ra ry is proved, be deemed to have been the proper officer of t he cour t to sign t he document .
| 1 1 . | Depositions t a k e n | in a | cour t | in | E n g l a n d | or |
I r e l and or in a rec iprocat ing Stare, for t h e purposes of this Act , may he received in evidence in proceedings
| before cour ts of s u m m a r v jurisdict ion unde r th is | Act. |
1 2 . (1) Where the Governor is satisfied that reciprocal provisions have been made by the legislature of any part of His Majesty's Dominions outside the United Kingdom for the enforcement within that part of maintenance orders made by courts within New South Wales, the Governor may, by proclamation published in the Govern- ment Gazette, declare such part to be a reciprocating State for the purposes of this Act, and thereupon such part shall become a reciprocating State within the meaning of this Act.
(2) A proclamation under this section may be
varied or revoked by a subsequent proclamation.