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Wednesday, 27 November 1974
Page: 2879


Senator EVERETT (Tasmania) - I move:

Leave out the clause, insert the following clauses: 65 ( I ) A subsisting maintenance agreement other than an agreement to which section 65a applies may be registered, as prescribed, in any court having jurisdiction under this Act.

(2)   Where a maintenance agreement is so registered in a court, the court may, in relation to the agreement, exercise any of the powers conferred on the court under section 62 as if the agreement were an order of the court.

(3)   The court in which a subsisting maintenance agreement is registered under sub-section ( I ) may set aside the agreement if. and only if. the court is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside.

(4)   Subject to section 66, this section does not apply to overseas maintenance agreements. 65a ( I ) Subject to this section, a maintenance agreement may make provision to the effect that the agreement shall opcrate, in relation to the financial matters dealt with in the agreement, in substitution for any rights ofthe parties to the agreement under this Part.

(2)   A maintenance agreement that makes provision as mentioned in sub-section ( I ) does not have an effect unless it has been approved by the court. (3)ir-

(a)   a maintenance agreement makes provision as mentioned in sub-section ( 1 ); and

(b)   the agreement has been approved by the court and the approval has not been revoked, any order having effect under this Part or any order made under Part VIII ofthe repealed Act and continued in effect by virtue of paragraph 3 (2 ) (c) ceases to have effect in so far as it relates to the financial matters dealt with in the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, subject to sub-section (9), no court having jurisdiction under this Act may make an order with respect to those financial matters.

(4)   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 approve the agreement, but, if the court is not so satisfied, it shall refuse to approve the agreement.

(5)   A maintenance agreement that has been approved by a court ceases to bc in force upon the death of a party to the agreement unless the agreement otherwise provides.

(6)   A court may revoke its approval of a subsisting maintenance agreement if. and only if, it is satisfied "that the approval of the court was obtained by fraud, that the concurrence of a party was obtained by fraud or undue influence or that the parties to the agreement desire the revocation of the approval and, where an approval is so revoked, the agreement ceases to be in force.

(7)   Where a court has approved a maintenance agreement, the agreement shall bc deemed to bc registered in that court.

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

(9)   Where the court is satisfied that the arrangements in a subsisting maintenance agreement that has been approved by the court relating to a child ofthe marriage who has not attained the agc of 18 years are no longer proper, it may make an order under this Pan.

(10)   Nothing in this Act affects the operation of an agree- ment sanctioned under paragraph 87 ( 1 ) (k) ofthe repealed Act or the rights and obligations of a person under such an agreement.

(11)   Subject to section 66, this section does not apply to overseas maintenance agreements. 65b A subsisting maintenance agreement that has been registered, or is deemed to have been registered, in a court may be enforced as if it were an order of that court. '.

In explanation 1 point out that as printed the Bill provides that a maintenance agreement as defined in clause 4 is not enforceable unless it has been approved by the court. That is in clause 65 ( 1 ) as printed. I invite the Committee's attention to paragraph 76 of the Standing Committee's report in which it expressed the view that there was some conflict in clause 65(1) as printed and the expressed purpose given in the explanatory memorandum to the Bill. That led to further discussion as a result of which it was thought desirable to split clause 65 as printed into 2 sections which now appear in the amendments as clause 65 and clause 65a. Those 2 amendments provide for 2 alternative approaches. In the first place, proposed new clause 65 provides for the registration of subsisting maintenance agreements; 'subsisting' means an agreement which still remains in force. As I have said the proposed new clause provides for registration of maintenance agreements and where they have been registered the court can exercise the powers of variation which are conferred on it by clause 62.

I invite attention to proposed new clause 65 (3) whereby the court in which a subsisting maintenance agreement is registered may set aside that agreement only if it is satisfied that the concurrence of a party was obtained by fraud or undue influence or that the parties desire the agreement to be set aside. That is the first section of the agreement dealt with by the amendment. Proposed new clause 65a contains the second alternative approach to the question of maintenance agreements and it provides that an agreement can operate in substitution for any rights under the Act provided it is approved by the court. As such the principle is very similar to that which is contained in section 87 (1) (k) of the existing Act. 1 invite the attention of the Committee to the safeguards which are contained in proposed new sub-clauses 4 and 6.


Senator James McClelland (NEW SOUTH WALES) - That is in proposed new clause 65a.


Senator EVERETT -Yes. Proposed new subclause 4 provides that the court shall refuse to approve an agreement unless it is satisfied that the financial matters with which it deals are proper.

Sub-clause 6 relates to revocation of a court's approval in cases of fraud or undue influence. It seems to the members of the Standing Committeeand 1 think I am speaking on their behalf in relation to this latest proposed amendment- that these new proposed amendments provide a more systematic approach to the question of maintenance agreements. There would really be a 3-tier scheme because the amendments do not interfere with the recognition at common law of an agreement provided it is not contrary to public policy by attempting to oust the jurisdiction of the court. It then provides for a second tier of registered agreements. Thirdly, it provides for an agreement to be approved in proposed new clause 65a very-much in the same manner as an agreement is now sanctioned under section 87 ( 1 ) (k) of the Matrimonial Causes Act.







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