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Wednesday, 19 October 1983
Page: 1972


Mr RUDDOCK(8.03) —by leave-I move:

(6) Clause 37, page 31, line 35, omit ''sub-section'', substitute ''sub- sections''.

(7) Clause 37, page 31, at the end of the clause add the following sub-section:

''(4) Proceedings for the setting aside of an order under this section shall not be instituted until leave has been obtained from the court in which the proceedings are to be instituted.''.

I can be fairly brief in relation to this matter as well. The Joint Select Committee on the Family Law Act, in recommendation 32, recommended that the Family Court ought to be given power under section 79A to vary previous maintenance orders. The Committee was of the view that the Court should only do so in very exceptional circumstances. The Government has attempted to enumerate those very special circumstances. The Joint Select Committee was of the view that not only should there be an indication of reluctance for these orders in relation to maintenance and property to be reviewed very sparingly but there ought to be a requirement that the parties seek leave to institute proceedings to vary a property order.

Under section 79, where an order is to be set aside or a new order is to be made, the Family Court, in making such an order, would do so only in the most exceptional circumstances. While we dealt with those in the other part of recommendation 32 which is being implemented, we were seeking in this amendment a provision that was in this form:

. . . proceedings for the setting aside of an order under s. 79 of the Family Law Act or s. 86 of the Matrimonial Causes Act shall not be instituted until leave has been obtained from the Court in which the proceedings are to be instituted;

I notice that the Attorney-General (Senator Evans) suggested in reply to Senator Missen's amendment in the other House that this procedure might only put another impediment and another cost in the way of the party. While there would be a cost and impediment, the Joint Select Committee on the Family Law Act was of the view that that impediment was appropriate in all the circumstances. This demonstrates the importance that it attached to the need for certainty in relation to orders that are made. Orders ought not to be lightly put aside. To do so would be to remove part of the certainty that we believe ought to be involved in proceedings under this Act and in relation to outcomes that people obtain under this Act. We were of the view that only in most exceptional circumstances should orders be set aside. It was with a view to emphasising the exceptional nature that we attach to it that we saw in relation to section 79A that leave was an important requirement. My amendment seeks to ensure that proceedings brought to set aside an order under section 79A are only brought with the leave of the court in which the proceedings are to be instituted.