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FAMILY LAW AMENDMENT BILL 1983

The Senate, according to Order, resolved itself into Committee for the further consideration of the Bill.

In the Committee

Clause 30 further considered.

On the motion of Senator Missen the following amendment was debated and agreed to: Page 24, after paragraph (a), insert the following new paragraph: ''(aa) by omitting paragraph (2) (1) and substituting the following paragraph: '(1) the need to protect a party who wishes to continue that party's role as a parent;'; and''.

Senator Walters moved an amendment, viz: Page 24, after paragraph (b), add the following new paragraph: ''(c) by omitting paragraph (2) (o) and substituting the following paragraph: '(o) any fact or circumstance, including any conduct of the parties to the matrimonial relationship, which, in the opinion of the court, the justice of the case requires to be taken into account'.''.

Debate ensued.

Question-That the words proposed to be added be added-put and negatived.

Clause 30, as amended, further debated.

Papers: Senator Harradine, by leave, laid upon the Table the following Papers: Family Law Statistics-Copies of statistics relating to- Widows' Pensions.

Supporting Parent's Benefits.

Supporting Parent Beneficiaries.

Clause 30, as amended, agreed to.

Clause 31 read- On the motion of Senator Missen the following amendment was debated and agreed to: Page 27, paragraph (b), after proposed sub-section 79 (8), insert the following new sub-section: '' '(9) The Family Court, or a Family Court of a State, shall not make an order under this section in proceedings with respect to the property of the parties to a marriage or either of them (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless- (a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be;

(b) the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).'.''.

Clause 31, as amended, further debated and agreed to.

Clause 32 read- Senator Missen, by leave, moved the following amendments together, viz: Page 28, paragraph (c), line 38, leave out ''sub-section'', insert ''sub-sections''.

Page 28, paragraph (c), after proposed new sub-section 79A (3), insert the following new 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.''.

Debate ensued.

Question-That the amendments be agreed to-put and negatived.

Clause 32 agreed to.

Clauses 33 to 35, by leave, taken together and agreed to.

Clauses 36 to 38, by leave, taken together, debated and agreed to.

Clause 39 read- On the motion of the Attorney-General (Senator Gareth Evans) the following amendment was agreed to: Page 31, leave out the clause, insert the following clause: ''39. (1) Section 87 of the Principal Act is repealed and the following section substituted:

Operation of maintenance agreements entered into in substitution for rights under Act '87. (1) Subject to this section, a maintenance agreement may make provision to the effect that the agreement shall operate, in relation to the financial matters dealt with in the agreement, in substitution for any rights of the parties to the agreement under this Part.

'(2) Where a maintenance agreement makes provision as mentioned in sub-section (1), the maintenance agreement has no effect, and is not enforceable in any way, unless it has been approved by the court.

'(3) In proceedings for the approval of a maintenance agreement, if the court is satisfied that the provisions of the agreement with respect to financial matters are proper, the court shall, by order, approve the agreement, but if the court is not so satisfied, it shall, by order, refuse to approve the agreement.

'(4) Where a maintenance agreement that makes provision as mentioned in sub-section (1) is approved by the court- (a) any order having effect under this Part or any order made under Part VIII of the repealed Act and continued in effect by virtue of paragraph 3 (2) (c) ceases to have effect in so far as it relates to the financial matters dealt with in the agreement and, whether or not the approval of the agreement is revoked, has no further effect; and

(b) subject to sub-sections (13) and (14), no court having jurisdiction under this Act may make an order (other than an order under this section or an order in connection with the enforcement of the agreement) with respect to those financial matters unless the approval of the agreement is revoked.

'(5) Notwithstanding any rule of law or equity, an approved maintenance agreement shall not be taken to be void, voidable or unenforceable by reason that it makes provision as mentioned in sub-section (1).

'(6) Where a court has approved a maintenance agreement, the agreement shall be deemed to be registered in that court.

'(7) An agreement that is by virtue of sub-section (6) deemed to be registered in a court may be registered, as prescribed, in another court having jurisdiction under this Act.

'(8) A court may, by order, revoke the approval of a maintenance agreement under this section if, and only if, the agreement is registered or deemed to be registered in that court and the court is satisfied that- (a) the approval was obtained by fraud;

(b) the parties to the agreement desire the revocation of the approval;

(c) the agreement is void, voidable or unenforceable; or

(d) in the circumstances that have arisen since the agreement was approved it is impracticable for the agreement to be carried out or impracticable for a part of the agreement to be carried out.

'(9) Where the approval of a maintenance agreement under this section is revoked by a court- (a) the agreement ceases, for all purposes, to be in force; and

(b) the court may, in proceedings for the revocation of the approval or on application by a party to the agreement or any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of the parties to the agreement and any other interested persons,

and, in exercising its powers under paragraph (b), the court shall have regard to the ground on which it revoked the approval of the agreement.

'(10) Where a maintenance agreement has been approved by a court as provided by this section, then- (a) unless the agreement otherwise provides, the agreement (other than a provision in the agreement providing for the payment by way of maintenance of a periodic sum) continues to operate notwithstanding the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party; and

(b) if the agreement so provides, a provision in the agreement providing for the payment to a person by way of maintenance of a periodic sum continues to operate notwithstanding the death of any party to the agreement who is liable to make payments pursuant to that provision and is binding on the legal personal representative of that party but, notwithstanding any provision in the agreement, does not continue to operate after the death of the person who is entitled to receive those payments.

'(11) Apart from the provision made by sub-sections (2), (5), (9) and (10), the validity, enforceability and effect of an approved maintenance agreement shall be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings of the kind referred to in sub-paragraph (ea) (iii) of the definition of ''matrimonial cause'' in sub-section 4 (1), being proceedings instituted in a court in which the approved maintenance agreement is registered or deemed to be registered, the court- (a) subject to paragraph (b), has the same powers, may grant the same remedies and shall have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction;

(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable pursuant to the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the regulations; and

(c) in addition to, or instead of, making an order or orders pursuant to paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

'(12) Where the approval of a maintenance agreement under this section has been revoked, a court shall, in considering whether, and if so, how, to exercise any powers under this Part, have regard to- (a) anything done or omitted to be done by a party to the agreement pursuant to the agreement;

(b) any change in the circumstances of a party to the agreement arising out of the doing of any act by a person, or the failure of a person to do an act, pursuant to the agreement;

(c) any order made by that court or another court exercising jurisdiction under this Act in connection with the agreement while the agreement was in force; and

(d) any order made under paragraph (9) (b) in connection with the revocation of the approval of the agreement.

'(13) Where the court is satisfied that the arrangements relating to a child of the marriage who has not attained the age of 18 years made in an approved maintenance agreement are no longer proper, it may make an order under this Part.

'(14) Where the court is satisfied- (a) that the provision of maintenance for a child of a marriage who has attained the age of 18 years is necessary- (i) to enable the child to complete his education (including vocational training or apprenticeship); or

(ii) because the child is mentally or physically handicapped; and

(b) that the arrangements relating to the child made in an approved maintenance agreement are not proper, or are no longer proper, having regard to the matters referred to in paragraph (a),

the court may make an order under this Part.

'(15) In this section, ''approved maintenance agreement'' means a maintenance agreement that has been approved under this section and the approval of which has not been revoked.

'(16) Nothing in this Act affects the operation of an agreement sanctioned under paragraph 87 (1) (k) of the repealed Act or the rights and obligations of a person under such an agreement.

'(17) Subject to section 89, this section does not apply to overseas maintenance agreements.'.

''(2) Where- (a) a maintenance agreement had, before the commencement of this section, been approved under section 87 of the Family Law Act 1975 as in force, or as amended and in force, at any time before that commencement; and

(b) the approval of the maintenance agreement had not been revoked before that commencement,

section 87 of the Family Law Act 1975 as amended and in force after that commencement applies to and in relation to that maintenance agreement as if it had been approved under that section as so in force.

''(3) Where- (a) a maintenance agreement had, before the commencement of this section, been approved under section 87 of the Family Law Act 1975 as in force, or as amended and in force, at any time before that commencement; and

(b) the approval of the maintenance agreement had been revoked before that commencement,

section 87 of the Principal Act continues to apply to and in relation to that maintenance agreement as if sub-section (1) of this section had not been enacted.''.

Clause 39, as amended, agreed to.

On the motion of Senator Gareth Evans the following amendment was agreed to: Page 31, after clause 39, insert the following new clause: Enforcement of maintenance agreements ''39A. Section 88 of the Principal Act is amended by adding at the end thereof the following sub-section: '(2) Sub-section (1) does not apply in relation to maintenance agreements that have been approved under section 87.'.''.

Clauses 40 to 46, by leave, taken together and agreed to.

Clause 47 read-

On the motion of Senator Gareth Evans the following amendments were, by leave, taken together, debated and agreed to: Page 35, after proposed paragraph 98A (1) (a), insert the following new paragraph: ''(aa) there are no children of the marriage who have not attained the age of 18 years;''.

Page 35, proposed sub-section 98A (2), line 16, after ''marriage'', insert ''there are no children of the marriage who have not attained the age of 18 years and''.

Senator Walters, by leave, moved an amendment, viz: Page 35, proposed section 98A, lines 3 to 25, leave out the proposed section, insert the following new section: ''98A. At the date fixed for the hearing of proceedings for dissolution of marriage, both parties to the marriage shall attend the court, unless the court, in its discretion, determines that the attendance of either or both parties is not practical.''.

Debate ensued.

Ordered-That the Chairman of Committees (Senator Hamer) report progress and ask leave to sit again.

The Acting Deputy-President (Senator Sibraa) resumed the Chair; and Senator Hamer reported that the Committee had considered the Bill, made progress, and asked leave to sit again.

Ordered-That the Committee have leave to sit again on the next day of sitting.