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Nauru Sessional Legislation |
REPUBLIC OF NAURU
ANALYSIS
PART
I
PRELIMINARY
1. Short title and
commencement.
2.
Interpretation.
PART
II
THE FAMILY
COURT
3. The Family Court
established.
4. Members and Clerk of
the Family Court.
5. Decisions of the
Family Court.
6. Powers of the Family
Court.
7. General powers of members of
the Family Court.
8. Power to compel
the attendance of witnesses.
9. Power
to deal with contempt of the Family
Court.
10.
Procedure.
11. Absence of
member.
12. Language of the Family
Court.
13. Copies of, and access to,
records of evidence.
14. Recording
evidence.
15. Times and sitting of the
Family Court.
16. The Family Court not
to sit on certain days.
17.
Vacations.
18. Proceedings of the
Family Court not open to the
public.
19. Summoning
witnesses.
20. Seal of the Family
Court.
21. Members of the Court to
take oath.
22. Records and
returns.
23. Representation of
parties.
24. Rules relating to
dress.
25. Duties of the
Clerk.
PART
III
MISCELLANEOUS
PROVISION
26. Director of Police to
be responsible for the service and execution of process of the Family
Court.
27. Police to obey orders and
directors of members of the Family
Court.
28. Money, etc., deposited in
the Family Court.
29. Rules of
Court.
30. Amendment of Maintenance
Ordinance 1959-1967.
31. Amendment of
Adoption of Children Ordinance
1965-1967.
32. Other statutes not
affected.
33. Transitional
provisions.
----------------------------------------
AN ACT
To establish a Family Court and make other provision in relation thereto.
(Certified: 1st November, 1973)
Enacted by the Parliament of Nauru as follows:
PART
I
PRELIMINARY
SHORT
TITLE AND COMMENCEMENT
1. This Act
may be cited as the Family Court Act 1973 and shall come into effect on a date
to be notified by the Minister in the
Gazette.
INTERPRETATION
2.
In this Act unless the context otherwise requires-
"members" means a member of the Family appointed under the section 4 of this Act;
"the chairman" means the resident magistrate as the Chairman of the Family Court;
"the Clerk" means the Clerk of the District Court as the Clerk of the Family Court;
"the Courts Trust Fund" means the fund established by section 64 of the Courts Act 1972.
PART
II
THE FAMILY
COURT
THE
FAMILY COURT ESTABLISHED
3. There
is hereby established a subordinate Court to be called the Family Court. The
Family Court shall be a Court of
record.
MEMBERS
AND CLERK OF THE FAMILY COURT
4.
(1) The members of the Family Court shall be the person for the time being
holding, or acting in, the office of resident magistrate
and such other person
as may be appointed by the President, after consultation with the Chief Justice,
to be members.
(2) The person for
the time being holding, or acting in, the office of resident magistrate shall be
the Chairman of the Family
Court.
(3) Members of the Family
Court who are not public officers may be paid such fees and allowances as the
Minster may be notice in the
Gazette
direct.
(4) Save as may be
otherwise expressly provided, the Family Court shall be properly constituted for
the hearing and determination
of any proceedings before it when it is presided
over by the Chairman and two or more other members and not
otherwise.
(5) The Clerk of the
District Court shall be the Clerk of the Family
Court.
DECISIONS
OF THE FAMILY COURT
5. (1) The
decision of the majority of the members of the Family Court hearing any cause or
matter on any question of fact shall be
the decision of the
Court:
Provided that where the
members are equally divided in their views on the decision which should be given
the Chairman's decision shall
be the decision of the
Court.
(2) The decision of the
Chairman on any question of law shall be the decision of the
Court.
(3) For the purpose of this
section, the decision as to the order to be made in any cause or matter shall be
deemed to be decision
on a question of
fact.
POWERS OF
THE FAMILY COURT
6. The Family
Court and the members constituting that Court shall exercise jurisdiction,
powers and authorities conferred on it by
this Act, by the Maintenance Ordinance
1959-1967, by the Adoption of Children Ordinance 1965-1967 and by any other
written
law.
GENERAL
POWERS OF MEMBERS OF THE FAMILY
COURT
7. Every member of the
Family Court shall have power to administer oaths and take solemn affirmations
and declarations and to make
such orders and to issue such process and exercise
such powers, judicial and administrative, in relation to the administration of
justice as shall from time to time be prescribed by any written
law.
POWER TO
COMPEL THE ATTENDANCE OF
WITNESSES
8. (1) Subject to the
provisions of this Act, the Family Court in Criminal proceedings shall have the
same powers to compel the attendance
of witnesses as are vested in the District
Court in Criminal proceedings by the Criminal Procedure Act
1972.
(2) Subject to the
provisions of this Act the Family Court in any proceedings other than criminal
proceedings, shall, unless other
provisions is made by any other written law
have the same powers to compel the attendance of witnesses as are vested in the
District
Court in civil proceedings by the Courts Act
1972.
POWERS TO
DEAL WITH CONTEMPT OF THE FAMILY
COURT
9. (1) If any
person-
(a) wilfully insults a member of the Family Court or any witness or any other officer of the Court in court, or in going to or returning from the court:
(b) wilfully interrupts the proceedings of the Family Court or otherwise misbehaves in court, or
(c) wilfully and without lawful excuse disobeys any order or direction of the Family Court in the course of the hearing of any proceedings,
the
Clerk with or without the assistance of any police officer or other person may
by order of the Chairman, take the offender into
custody and detain him until
the rising of the Court and the Chairman may if he thinks fit convict the
offender of contempt of court
and commit him to prison for any period not
exceeding ten days or impose upon him a fine not exceeding fifty dollars for
each offence.
(2) Any person
aggrieved by an order of the Chairman under this section may appeal against it
to the Supreme Court within fourteen
days of the order being made and the
provisions of the Appeals Act 1972 relating to bail pending the hearing of an
appeal from the District Court following conviction shall apply mutatis
mutandis.
(3) The Supreme shall
have the same powers to deal with the contempt of the authority of the Family
Court as it has to deal with contempt
of its own
authority.
PROCEDURE
10.
(1) Subject to the provisions of this Act, where the Family Court hears and
determines a criminal charge, it shall follow as nearly
as possible the
procedure prescribed in Part VI of the Criminal Procedure Act 1972 for the trial
of the offences by the District
Court.
(2) Subject to the
provisions of this Act, where the Family Court holds the preliminary inquiry
into a criminal charge, it shall follow
as nearly as possible the procedure
prescribed in Part VII of the Criminal Procedure Act 1972 for the holding of the
preliminary
enquiries by the District
Court.
(3) Where the Family Court
hears and determines, or otherwise deals with, any cause or matter in exercise
of powers or authorities
conferred upon it by any other written law it shall,
unless the procedure which it is to follow is prescribed by that written law,
follow as nearly as possible and so far as it may be applicable the procedure
prescribed for the District Court in the exercise of
its civil
jurisdiction.
(4) Notwithstanding
the provision of the other subsections of this section, the Chief Justice may by
rules of court prescribe the
procedure to be followed by the Family Court in any
type of proceedings or in any part of any proceedings and, where any such rules
of court have been made the provisions of the other subsections of this sections
so long as those rules are in force, have force
and effect only to the extent
that they are not repugnant to, or inconsistent with, those
rules.
ABSENCE
OF MEMBER
11. (1) Where the
hearing of any cause or matter has commenced before the Family Court constituted
by three or more members and before
it has been determined one of the members
other than the Chairman, dies or, because of illness or absence from Nauru, is
unable to
continue to attend and is unlikely to be able to do so within a
reasonable time the remaining members may complete the hearing and
determine the
cause or matter.
(2)
Notwithstanding the provisions of section 4 of this Act, where any hearing has
been completed and the cause or matter determined
under the provisions of this
section, the Family Court shall be deemed to have been properly constituted at
all times during the
hearing and determination of that cause or
matter.
LANGUAGE
OF THE FAMILY COURT
12. The
language of the Family Court shall be English unless in any proceedings the
Chairman directs that it shall be
Nauruan.
COPIES
OF, AND ACCESS TO, RECORDS OF
EVIDENCE
13. (1) A party to any
cause or matter in the Family Court shall be entitled upon payment of the
prescribed fee, to receive a copy
of the record of the evidence given
therein.
(2) Save as may be
provided by any written law, no person shall be entitled as of right to inspect
the original record of the proceedings
in any cause or matter in the Family
Court but such inspection shall be authorised by the
Chairman.
RECORDING
EVIDENCE
14. (1) In every cause
and matter the whole of any oral evidence given before the Family Court, or so
much thereof as the Court deems
material, shall be taken down in writing by the
Chairman or recorded in such other manner as the Chief Justice may from time to
time
by rules of court direct.
(2)
Oral evidence shall be ordinarily taken down in the form of a narrative and not
in the form of questions and
answers:
Provided that the
Chairman may in his discretion take down, or cause to be taken down any
particular question and
answer.
TIMES
AND SITTING OF THE FAMILY
COURT
15. (1) So far as
practicable no sitting of the Family Court shall be held at a time when by
reason of another Court sitting on that
day, persons attending the Family Court
will be brought into contact with persons attending any other
Court.
(2) Subject to the
provisions of the last preceding subsections and to any directions given by the
Chief Justice, the Family Court
shall sit at such times, as the Chairman
directs.
(3) The Family Court
shall sit at the Court House at Yaren, unless the Chairman for any special
reason considers that for the hearing
or determination of any proceedings it
should sit
elsewhere.
THE
FAMILY COURT NOT TO SIT ON CERTAIN
DAYS
16. The Family Court shall
not sit on Christmas Day, Good Friday, Independence Day, Constitution Day, Angam
Day on any
Sunday.
VACATIONS
17.
The Chief Justice may, by order, direct such vacations of the Family Court not
exceeding in the aggregate thirty days in any one
year as he thinks
fit.
PROCEEDINGS
OF THE FAMILY COURT NOT OPEN TO THE
PUBLIC
18. (1) No person shall be
entitled or permitted to be present at the hearing of any proceedings of the
Family Court save as a witness
except therein-
(a) members and officers of that Court,
(b) the persons immediately concerned with the proceedings and their barristers and solicitors or pleaders.
(c) the parents or guardian of any children in respect of whom the proceedings are taken, or any other person whom the Court may admit as standing in the place of such parent or guardians.
(d) any probation officer or welfare officer whose presence is requested by the Court or by any person immediately concerned in the proceedings, and
(e) such other person as the Court may specially authorise to be present.
(2)
Save with the special leave of the Chairman it shall not be lawful for any
person to publish a report of any proceedings of the
Family Court or the names
of the parties thereto or any information by which they may be
identifiable.
SUMMONING
WITNESSES
19. (1) Save as may be
otherwise provided by any other written law, in any cause or matter in the
Family Court the Chairman may, either
of his own motion or on the application of
any party summon any person within Nauru to attend to give evidence or to
produce any
document in his possession or power and may examine such person as a
witness and require him to produce any document in his possession
or power
subject to just exceptions.
(2)
The provisions of sections 50, 51, 52, 53 and 54 of the Courts Act 1972 shall
apply mutatis mutandis to the Family
Court.
SEAL OF
THE FAMILY COURT
20. The Family
Court shall have and use, as occasion may require as seal of such nature and
pattern as the President may, by notice
in the Gazette
direct.
MEMBERS
OF THE COURT TO TAKE OATH
21.
Every member of the Family Court shall, before entering upon his office, take
and subscribe before the Minister the oath or affirmation
set out in the
Schedule to this Act.
Provided
that failure by any member to take the oath or affirmation shall not invalidate
any proceedings heard and determined by the
Family
Court.
RECORDS
AND RETURNS
22. (1) The Family
Court shall keep written records and furnish return of causes and matters heard
or dealt with by it to the Supreme
Court in such manner as the Chief Justice may
from time to time direct.
(2) A
judge of the Supreme Court shall periodically inspect the records of the Family
Court and may give such instructions and advice
thereon as he may deem
necessary.
REPRESENTATION
OF PARTIES
23. Any party to any
cause or matter in the Family Court may employ as his legal representative
therein a barrister or solicitor or
a
pleader.
RULES
RELATING TO DRESS
24. The Chief
Justice may, by order, prescribe the dress to be worn by members of the Family
Court and by barristers and solicitors
and pleaders appearing before the
Court.
DUTIES
OF THE CLERK
25. The duties of the
clerk of the Family Court shall be-
(a) to attend at such sittings of the Court as the Chairman may direct.
(b) to prepare summonses, warrant decree, orders, recognizances, writs of execution and other documents and to submit them to the Chairman or if the Chairman so directs to another member of the Court for signature.
(c) to issue process if authorised by rules of court.
(d) to maintain case files and registers to record judgement and orders of the Court and to make, or cause to be made, copies of proceedings when required to do so.
(e) to receive all fees, fines and penalties, and all other moneys said or deposited in respect of proceedings in the Court and to keep an account of them.
(f) to perform or cause to be performed, such other duties connected with the Court as may be assigned to him by the Chairman.
PART
III
MISCELLANEOUS
DIRECTOR
OF POLICE TO BE RESPONSIBLE FOR SERVICE AND EXECUTION OF PROCESS OF THE FAMILY
COURT
26. (1) The Director of
Police shall be responsible for the service and execution of all such summonses,
writs, warrants, orders,
commands and process of the Family Court as he shall be
required by the Court or any member thereof to serve or execute and shall
make
return of every writ, warrant, order, command or process together with the
manner of execution thereof to the
Court:
Provided that, where the
Court directs or awards any process against the Director of Police or awards any
process in any cause, matter
or thing in which the Director of Police has such
personal interest that Court considers it undesirable that he should be
responsible
for its execution, the Minister may appoint some other fit person to
execute and return it and the said process shall be directed
to the person so
appointed.
(2) Where the Director
of Police is prevented, by reason of his absence from Nauru or by illness, from
performing his duties under
the last preceding subsection, they shall be
performed by the next most senior officer of the Nauru Police Force present in
Nauru.
(3) Every writ, warrant,
order, command and process may be executed according to its
tenor.
POLICE
TO OBEY ORDERS AND DIRECTIONS OF MEMBERS OF THE FAMILY
COURT
27. All officers of the
Nauru Police Force shall obey the orders and directions of every member of the
Family Court in the exercise
of the criminal jurisdiction of that Court and
shall have the powers and authority necessary to enable them to
so.
MONEYS,
ETC., DEPOSITED IN THE FAMILY
COURT
28. (1) All moneys paid into
the Family Court to stand to the credit of any party in any cause or matter in
the Court shall be received
into, and credited to, the Courts Trust Fund and
paid by the Clerk into the bank account of that
fund.
(2) All securities for money
deposited in the Family Court shall be handed by the Clerk to the Registrar of
the Supreme Court who
shall place them in safe
custody.
(3) The provisions of
section 65, 66 and 67, and of the proviso to subsection (1) of section 64, of
the Courts Act 1972 shall apply
to moneys paid to the Family Court to stand to
the credit parties to causes and matters in that Court and to securities
deposited
in the Family
Court.
RULES OF
COURT
29. The Chief Justice may
make rules of court for the Family Court for all or any of the purposes for
which he is empowered to make
rules of court under the Courts Act 1972, the
Criminal Procedure Act 1972 or the Civil Procedure Act.
1972.
AMENDMENT
OF MAINTENANCE ORDINANCE
1959-1967
30. (1) Section 3 of the
Maintenance Ordinance 1959-1967 is amended by deleting the definition of "the
Court" therein and substituting
therefor the following
definition-
"the court" means the Family Court established by section 3 of the Family Court Act 1973.
(2)
Any order made by the District Court before this Act comes into force and
continuing to have effect thereafter, shall be deemed
to have been made by the
Family Court and the Clerk of the District Court shall transmit to the Clerk of
the Family Court the record
of the proceedings in which such orders were made
and they shall thereafter form part of the records of the Family
Court.
AMENDMENT
OF ADOPTION OF CHILDREN ORDINANCE
1965-1967
31. (1) In the Adoption
of Children Ordinance 1965-1967 the words "the Central Court" are deleted
wherever they appear and there are
substituted therefor the words "the Clerk of
the Family
Court".
OTHER
STATUTES NOT AFFECTED
32. Except
as expressly provided in this Act, nothing in this Act shall limit or affect the
provisions of the Maintenance Ordinance
1959-1967 or of the Matrimonial Causes
Jurisdiction Ordinance 1910 of the Territory of Papua in its application in
Nauru.
TRANSITIONAL
PROVISIONS
33. Where before the
commencement of this Act the hearing has commenced in some other Court of any
cause or matter which under the
provisions of this Act is to be heard and
determined by the Family Court, the hearing of that cause or matter shall be
completed,
and the cause or matter determined, by that other Court as though
this Act had not come into force and, where the circumstances so
require, the
provisions of section 76 of the Courts Act 1972 shall apply thereto mutatis
mutandis.
SCHEDULE
(Section 21)
OATH
(AFFIRMATION) TO BE TAKEN BY
EVERY
MEMBER OF THE
FAMILY COURT
I,......................................swear
by Almighty God (affirm) that I will well and truly serve the Republic of Nauru
in
the office of member of the Family Court and that I will do right to all
manner of people according to law, without fear or favour,
affection or
ill-will.
So help me
God!
-----------------------------------
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