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Thursday, 19 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I move -

Omit sub-clauses (1.) and (2.), insert the following sub-clauses: - " (1.) The court may, in proceedings under this Act, by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such a settlement of property to which the parties are, or either of them is, entitled (whether in possession or reversion) as the court considers just and equitable in the circumstances of the case. " (2.) The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application for the benefit of all or any of the parties to, and the children of, the marriage of the whole or part of property dealt with by ante-nuptial or postnuptial settlements on the parties to the marriage or either of them.".

This change is made for the purpose of more abundant caution. This is a new power - the power to order a settlement. Honorable members will remember that I have made reference to it during the course of debate. I did not want to run the risk of having a court look at the language carefully and think it had power with respect only to existing settlements. I wanted to make it perfectly clear that the court could make a settlement for the first time, and this amendment is designed to make the position clearer.

Amendment agreed to.

Amendment (by Sir Garfield Barwick) agreed to -

In sub-clause (3.) omit "sub-section (1.) of".

Clause, as amended, agreed to.

Clause80

(1)   The court, in exercising its powers under this Part, may -

(a)   order that a lump sum or a weekly, monthly, yearly or other periodic sum be paid or secured and order that any security is to be either wholly or partly in addition to or in substitution for an order for a periodic payment;

(b)   order that any necessary deed or instrument be executed and that such documents of title be produced or such other things to be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(e)   make a permanent order, an order pending the disposal of the proceedings or an order for a fixed term or for a life or during joint lives or until further order;

(g)   in relation to an order made in respect of a matter referred to in any of the last three preceding sections, whether made by that court or by another court and whether made before or after the commencement of this Act -

(iv)   subject to the next succeeding sub-section, vary the order so as to increase or decrease any amount payable under the order;

(h)   sanction an agreement for the acceptance of a lump sum or periodic sums in lieu of rights under an order made in respect of a matter referred to in any of the last three preceding sections, or any right to seek such an order;

(i)   make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this subsection, and whether or not it is in accordance with the practice under other laws before the commencement of this Act) which it thinks it is necessary to make to do justice; and

(j)   include its order under this Part in a decree under another Part or make an order under this Part at any time before or after the making of such a decree. (2.) The court shall not make an order -







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