Commonwealth Consolidated Acts

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FAMILY LAW ACT 1975 - SECT 98A

Proceedings in absence of parties

             (1)  The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage:

                     (a)  the proceedings are undefended;

                     (b)  there are no children of the marriage who have not attained the age of 18 years;

                     (c)  the applicant has requested the court to determine the proceedings in the absence of the parties; and

                     (d)  the respondent has not requested the court not to determine the proceedings in the absence of the parties;

the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.

             (2)  The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted jointly by the parties to the marriage:

                     (a)  one of the parties to the marriage has requested the court to determine the proceedings in the absence of the parties and the other party to the marriage has not requested the court not to determine the proceedings in the absence of the parties; or

                     (b)  both parties to the marriage have requested the court to determine the proceedings in the absence of the parties;

the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.

          (2A)  The court must not determine proceedings for the divorce order in relation to the marriage under subsection (2) if:

                     (a)  there are any children of the marriage who are under 18; and

                     (b)  the court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children.

          (2B)  The court may determine proceedings under subsection (1) or (2) in chambers.

             (3)  For the purposes of this section, a child (including an ex-nuptial child of either the husband or the wife, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by the husband and wife as a child of their family at the relevant time.

             (4)  For the purposes of subsection (3), the relevant time is the time immediately before the time when the husband and wife separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings for the divorce order in relation to the marriage.



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