Matrimonial Causes (Affinity) Regulations (Cth)

STATUTORY RULES.

1961. No. 13.

––––––––––

REGULATIONS UNDER THE MATRIMONIAL CAUSES ACT 1959.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Matrimonial Causes Act 1959.

Dated this 25th day of January, 1961.

DUNROSSIL

Governor-General.

By His Excellency’s Command,

Minister of State for Repatriation acting for and on behalf of the Attorney-General.

––––––

MATRIMONIAL CAUSES (AFFINITY) REGULATIONS.

Citation.

1. These Regulations may be cited as the Matrimonial Causes (Affinity) Regulations.

Commencement.

2. These Regulations shall come into operation on the day on which the Matrimonial Causes Act 1959 comes into operation.

Interpretation.

3.—(1.) In these Regulations, unless the contrary intention appears—

“applicants” means two persons who are within the prohibited degrees of affinity and make application under section 20 of the Act for permission to marry one another;

“application” means an application for an order;

“Judge” means—

(a) a Judge of the Supreme Court of a State, being a Judge, in respect of whom an arrangement made under sub-section (4.) of section 20 of the Act is applicable; or

(b) a Judge of the Supreme Court of a Territory;

“order” means an order under section 20 of the Act;

“Territory” means a Territory of the Commonwealth in which the Act applies;

“the Act” means the Matrimonial Causes Act 1959.

(2.) In these Regulations, a reference to a Form by number shall be read as a reference to the Form so numbered in the Schedule to these Regulations.

 

* Notified in the Commonwealth Gazette on 26th January, 1961.

10736/60.—Price 5d. 9/23.1.1961.

 

Manner of making applications.

4.—(1.) An application to a Judge—

(a) shall specify the full name and address of each of the applicants;

(b)shall be signed by the solicitor representing the applicants or, if the applicants are not represented by a solicitor, by the applicants; and

(c) shall be filed in an appropriate office of the Supreme Court.

(2.) An application shall be in accordance with Form 1.

Affidavits in support of applications.

5.—(1.) As far as practicable, the facts on which applicants intend to rely in support of their application shall be stated in affidavits filed in support of their application.

(2.) Applicants shall state in an affidavit filed in support of their application—

(a) the circumstances by reason of which they are within the prohibited degrees of affinity;

(b)particulars of the exceptional circumstances alleged to justify the making of an order;

(c) the age of each of the applicants; and

(d)whether the applicants have made any previous application and, if the applicants have made a previous application, the date on which, and the Judge or Judges by whom, the previous application or each previous application was determined.

(3.) Where a person who has not attained the age of twenty-one years is one of two persons who are making application, under section 20 of the Act, for permission to marry one another, the person shall, in an affidavit filed in support of the application, state whether or not an appropriate person or court has given, or has refused to give, his or its consent to the proposed marriage and, if such a consent has been given, also state—

(a)the date on which and the name and address of the person by whom the consent was given and the capacity in which that person gave the consent; or

(b)the date on which, and the name of the court by which, the consent was given,

as the case may be.

(4.) Subject to the next succeeding sub-regulation, an affidavit in support of an application shall be filed in the office of the Supreme Court in which the application is filed.

(5.) Where an application has been transferred by a Judge of a Supreme Court for hearing by a Judge of another Supreme Court under regulation 7 of these Regulations, any further affidavit in support of the application shall be filed in the appropriate office of that other Supreme Court.

(6.) An affidavit to be used on the hearing of an application by a Judge shall, unless the Judge otherwise directs, be filed before it is so used.

 

Time and place of hearing.

6. As soon as practicable after an application is filed in an office of a Supreme Court, the appropriate officer of that court shall fix a time and place for hearing the application, and give notice of the time and place so fixed to the applicants.

Hearing of applications.

7.—(1.) A Judge may—

(a)adjourn the hearing of an application from time to time and from place to place; or

(b)direct that an application be heard by another Judge of the same Supreme Court.

(2.) Where a Judge is satisfied that an application could more properly be dealt with by a Judge of another Supreme Court, the Judge may, in his discretion, transfer the application for hearing by a Judge of that court.

(3.) Where an application is transferred in pursuance of the last preceding sub-regulation—

(a)the Judge shall cause all documents filed for the purpose of the application to be transmitted to an appropriate office of the other Supreme Court; and

(b)the application shall be deemed to be an application to a Judge of that court and to have been filed in an appropriate office of that court on the day on which the documents are received at such an office.

(4.) A Judge may exercise his powers under this regulation at any time and at any stage, and either with or without application by the applicants.

Judge not bound by rules of evidence.

8. A Judge—

(a)shall hear an application without regard to legal forms and solemnities; and

(b)is not bound by any rules of evidence, but may inform himself on any matter in such manner as he thinks fit.

Power to send for witnesses and documents.

9.—(1.) Where an application has been filed in the office of a Supreme Court, the appropriate officer of the Supreme Court may, at the request of the applicants, issue a summons requiring a person named in the summons to attend before a Judge at a time and place specified in the summons and then and there to give evidence and to produce any books, documents or writings in his custody or control which he is required by the summons to produce.

(2.) A summons under the last preceding sub-regulation shall be in accordance with Form 2.

(3.) Service of a summons under sub-regulation (1.) of this regulation shall be effected on a person by delivering a copy of the summons to the person personally and by showing the summons to the person at the time the copy is delivered to the person.

Duty of witness to continue in attendance.

10. A person who has been summoned to attend before a Judge as a witness shall appear and report himself at the time and place specified in the summons and then from day to day, unless excused by a Judge.

Arrest of witness failing to attend.

11.—(1.) If a person who has been summoned to attend before a Judge fails so to attend as required by the last preceding regulation, a Judge may, on being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to that person, issue a warrant for the apprehension of that person.

(2.) A warrant so issued authorizes the apprehension of the person and his being brought before a Judge and his detention in custody for that purpose until he is released by order of a Judge.

(3.) A warrant so issued may be executed by a member of the police force of the Commonwealth or a State or Territory, by the Sheriff or an officer of the Sheriff of a State or Territory or by any person to whom it is addressed, and the person executing it has power to break and enter any place, building or vessel for the purpose of executing the warrant.

(4.) The apprehension of a person under this regulation does not relieve him from any liability incurred by him by reason of his failure to attend before the Judge.

Witness fees.

12.—(1.) A person who attends in obedience to a summons to attend as a witness before a Judge is entitled to be paid witness fees and travelling allowances according to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory in which he is required to attend or, in special circumstances, such fees and allowances as the Judge directs (less any amount previously paid to him for his expenses of attendance).

(2.) The fees and allowances are payable by the applicants at whose request the witness was summoned.

Power to examine on oath.

13.—(1.) A Judge may administer an oath to a person appearing as a witness before the Judge, whether the witness has been summoned or appears without being summoned, and may examine the witness on oath.

(2.) Where a witness conscientiously objects to take an oath, he may make an affirmation that he conscientiously objects to take an oath and that he will state the truth, the whole truth, and nothing but the truth to all questions that are asked him.

(3.) An affirmation so made is of the same force and effect, and entails the same liabilities, as an oath.

Orders granting permission to marry.

14.—(1.) Where a marriage is solemnized between two persons who have been granted permission to marry under section 20 of the Act, the persons shall furnish the order granting the permission to the person by whom the marriage is solemnized and that person shall forward it to the appropriate registering authority of the State or Territory in which the marriage is solemnized.

(2.) Where a marriage between two persons who have been granted permission to marry under section 20 of the Act is solemnized, under the Marriage (Overseas) Act 1955-1958, by or before a marriage officer or by a chaplain, the persons shall furnish the order granting the permission to marry to the marriage officer or chaplain and that marriage officer or chaplain shall forward it to the Registrar of Overseas Marriages appointed under that Act.

Offences by witnesses.

15. A person summoned to attend before a Judge as a witness shall not—

(a)without reasonable cause fail to attend, after payment or tender of a reasonable sum for his expenses of attendance;

(b)refuse to be sworn or to make an affirmation as a witness, or to answer any question when required to do so by the Judge; or

(c) without reasonable cause, refuse or fail to produce a book or document which he was required by the summons to produce.

Penalty: Fifty pounds.

Offences in relation to Judges.

16. A person shall not, when a Judge is exercising powers and functions under section 20 of the Act—

(a) wilfully insult or disturb the Judge;

(b) interrupt the proceedings before the Judge;

(c) use insulting language to the Judge; or

(d) by writing or speech use words calculated—

(i) to influence improperly the Judge or a witness before the Judge; or

(ii) to bring the Judge into disrepute.

Penalty: Fifty pounds.

Representation by counsel, &c.

17.—(1.) On the hearing of an application by a Judge, the applicants are entitled to be represented by a barrister or solicitor.

(2.) A barrister or solicitor appearing before a Judge may examine or cross-examine witnesses and address the Judge.

Protection of Judges, &c.

18.—(1.) A Judge has, in the performance of his duty as a Judge under section 20 of the Act, the same protection and immunity as the Judge has m the performance of his duty as a Judge of the Supreme Court.

(2.) A barrister or solicitor appearing before a Judge in connexion with an application has the same protection and immunity as a barrister or solicitor, as the case may be, has in appearing for a party in proceedings in the Supreme Court.

(3.) Where applicants who are not represented by a barrister or solicitor appear before a Judge in connexion with their application, each of the applicants has the same protection and immunity as a party to proceedings in the Supreme Court has in appearing before that court when not so represented.

(4.) A witness summoned to attend or appearing before a Judge has the same protection as a witness in proceedings in the Supreme Court.

Fees.

19. A fee of Two pounds is payable by applicants in respect of the filing of their application.

Compliance with Forms.

20. Strict compliance with the Forms in the Schedule to these Regulations is not necessary and substantial compliance, or such compliance as the circumstances of a particular case allow, is sufficient.

––––––––

THE SCHEDULE.

Form 1.

Reg. 4.

APPLICATION FOR PERMISSION TO MARRY.

Commonwealth of Australia.

Matrimonial Causes Act 1959.

To a Judge of

the Supreme Court

of  .

No. of 19 .

In the Matter of an Application under section 20 of the Matrimonial Causes Act 1959 by

and

Application is made to a Judge of the abovenamed Supreme Court on behalf of  , whose address is      and whose occupation is , and on behalf of  , whose address is and whose occupation is   , for permission to marry one another.

Dated this  day of , 19 .

Solicitor for the applicants.

This application is filed by of

on behalf of the applicants.

The Schedule—continued.

Form 2.

Reg. 9.

SUMMONS.

Commonwealth of Australia.

Matrimonial Causes Act 1959.

Before a Judge of

the Supreme Court

of  .

No.  of 19 .

In the Matter of an Application under section 20 of the Matrimonial Causes Act 1959 by

and

To [full name and address of person].

In pursuance of the power conferred by regulation 9 of the Matrimonial Causes (Affinity) Regulations, you are hereby summoned to attend at   on the  day of , 19 , at the hour of   o’clock in the noon to give evidence in connexion with the application, under section 20 of the abovementioned Act, by  and   to marry one another (and then and there to produce the following books, documents and writings:—  ).

Witness the Honourable  , a Judge of the Supreme Court of  , this  day of    , 19 .

Clerk of the Supreme Court.

Note:—Under the Matrimonial Causes (Affinity) Regulations, a person who, having been served with a summons and paid or tendered reasonable expenses, fails to attend as required by the summons—

(a) is guilty of an offence and liable, upon conviction, to a fine not exceeding Fifty pounds; and

(b) is liable to be arrested and brought before a Judge.

 

By Authority: A. J. Arthur, Commonwealth Government Printer, Canberra.