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Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2009

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2008-2009

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008

 

 

(1)     Clause 2, page 2 (table items 3 to 5), omit the table items, substitute:

3.  Schedule 5

The 28th day after this Act receives the Royal Assent.

 

[legal advice requirements]

(2)     Schedule 2, item 2, page 6 (line 12), omit “had been made by”, substitute “were a judgment or order of”.

[technical amendment]

(3)     Schedule 2, item 4, page 6 (lines 22 and 23), omit “had been made by”, substitute “were a judgment or order of”.

[technical amendment]

(4)     Schedule 5, page 12 (after line 11), after item 1, insert:

1A  Subsection 90G(1)

Omit “A”, substitute “Subject to subsection (1A), a”.

[legal advice requirements]

(5)     Schedule 5, item 2, page 12 (lines 14 to 22), omit paragraph 90G(1)(b), substitute:

                     (b)  before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

                     (c)  either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

                    (ca)  a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

[legal advice requirements]

(6)     Schedule 5, page 12 (after line 26), after item 4, insert:

4A  After subsection 90G(1)

Insert:

          (1A)  A financial agreement is binding on the parties to the agreement if:

                     (a)  the agreement is signed by all parties; and

                     (b)  one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and

                     (c)  a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

                     (d)  the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and

                     (e)  the agreement has not been terminated and has not been set aside by a court.

          (1B)  For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.

          (1C)  To avoid doubt, section 90KA applies in relation to the enforcement application.

4B  Subsection 90J(2)

Omit “A”, substitute “Subject to subsection (2A), a”.

[legal advice requirements]

(7)     Schedule 5, item 5, page 12 (line 29) to page 13 (line 5), omit paragraph 90J(2)(b), substitute:

                     (b)  before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

                     (c)  either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

                    (ca)  a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

[legal advice requirements]

(8)     Schedule 5, page 13 (after line 9), after item 7, insert:

7A  After subsection 90J(2)

Insert:

          (2A)  A termination agreement is binding on the parties if:

                     (a)  the agreement is signed by all parties to the agreement; and

                     (b)  one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the agreement; and

                     (c)  a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

                     (d)  the court makes an order under subsection (2B) declaring that the agreement is binding on the parties to the agreement; and

                     (e)  the agreement has not been set aside by a court.

          (2B)  For the purposes of paragraph (2A)(d), a court may make an order declaring that a termination agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.

          (2C)  To avoid doubt, section 90KA applies in relation to the enforcement application.

[legal advice requirements]

(9)     Schedule 5, item 8, page 13 (line 11), omit “2 to 7”, substitute “1A to 7A”.

[legal advice requirements]

(10)   Schedule 5, page 13 (after line 16), at the end of item 8, add:

(3)       If, before the commencement of this item, a court has made an order under section  79 or 83 of the Family Law Act 1975 on the basis that an agreement did not bind the spouses , then, after the commencement of this item, the agreement is taken not to bind them.

(4)       For a financial agreement made before 14 January 2004, paragraph 90G(1)(b) of the Family Law Act 1975 , as inserted by item 2 of this Schedule, does not apply and the following paragraph 90G(1)(b) of that Act is taken to have been inserted by that item and to apply instead:

                     (b)  before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about:

                              (i)  the effect of the agreement on the rights of that party; and

                             (ii)  whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and

                            (iii)  whether or not, at that time, it was prudent for that party to make the agreement; and

                            (iv)  whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and

(5)       For a termination agreement made before 14 January 2004, paragraph 90J(2)(b) of the Family Law Act 1975 , as inserted by item 5 of this Schedule, does not apply and the following paragraph 90J(2)(b) of that Act is taken to have been inserted by that item and to apply instead:

                     (b)  before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about:

                              (i)  the effect of the agreement on the rights of that party; and

                             (ii)  whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and

                            (iii)  whether or not, at that time, it was prudent for that party to make the agreement; and

                            (iv)  whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable; and

(6)       For a financial agreement made before the commencement of this item, paragraphs 90G(1)(c) and (ca) of the Family Law Act 1975 , as inserted by item 2 of this Schedule, do not apply.

(7)       For a financial agreement made before the commencement of this item, paragraph 90G(1A)(b) of the Family Law Act 1975 , as inserted by item 4A of this Schedule, does not apply and the following paragraph 90G(1A)(b) of that Act is taken to have been inserted by that item and to apply instead:

                     (b)  paragraph (1)(b) is not satisfied in relation to the agreement; and

(8)       For a termination agreement made before the commencement of this item, paragraphs 90J(2)(c) and (ca) of the Family Law Act 1975 , as inserted by item 5 of this Schedule, do not apply.

(9)       For a termination agreement made before the commencement of this item, paragraph 90J(2A)(b) of the Family Law Act 1975 , as inserted by item 7A of this Schedule, does not apply and the following paragraph 90J(2A)(b) of that Act is taken to have been inserted by that item and to apply instead:

                     (b)  paragraph (2)(b) is not satisfied in relation to the agreement; and

[legal advice requirements]

(11)   Schedule 5, Part 1, page 13 (after line 16), at the end of the Part, add:

8A  Transitional—agreements made on or after 14 January 2004 and before commencement

(1)       Subitems (2) and (3) apply in relation to a financial agreement made on or after 14 January 2004 and before the commencement of this item.

(2)       Paragraph 90G(1)(b) of the Family Law Act 1975 , as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:

                     (a)  the effect of the agreement on the rights of that party; and

                     (b)  whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and

                     (c)  whether or not, at that time, it was prudent for that party to make the agreement; and

                     (d)  whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.

(3)       Paragraph 90G(1)(c) of the Family Law Act 1975 , as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (2) of this item.

(4)       Subitems (5) and (6) apply in relation to a termination agreement made on or after 14 January 2004 and before the commencement of this item.

(5)       Paragraph 90J(2)(b) of the Family Law Act 1975 , as in force during that period, is also taken to be satisfied in relation to a spouse in relation to the agreement if, before signing the agreement, the spouse party was provided with independent legal advice from a legal practitioner about:

                     (a)  the effect of the agreement on the rights of that party; and

                     (b)  whether or not, at the time when the advice was provided, it was to the advantage, financially or otherwise, of that party to make the agreement; and

                     (c)  whether or not, at that time, it was prudent for that party to make the agreement; and

                     (d)  whether or not, at that time and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.

(6)       Paragraph 90J(2)(c) of the Family Law Act 1975 , as inserted by this Act, applies in relation to the agreement as if the reference in that paragraph to the advice referred to in paragraph (b) included a reference to the advice referred to in subitem (5) of this item.

(7)       This item does not apply in relation to an agreement if, before the commencement of this item, a court has made an order setting aside the agreement.

[legal advice requirements]

(12)   Schedule 5, page 14 (after line 10), after item 9, insert:

9A  Subsection 90UJ(1)

Omit “A”, substitute “Subject to subsection (1A), a”.

[legal advice requirements]

(13)   Schedule 5, item 10, page 14 (lines 13 to 21), omit paragraph 90UJ(1)(b), substitute:

                     (b)  before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

                     (c)  either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

                    (ca)  a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

[legal advice requirements]

(14)   Schedule 5, page 14 (after line 25), after item 12, insert:

12A  After subsection 90UJ(1)

Insert:

          (1A)  A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:

                     (a)  the agreement is signed by all parties; and

                     (b)  one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and

                     (c)  a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

                     (d)  the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and

                     (e)  the agreement has not been terminated and has not been set aside by a court.

          (1B)  For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.

          (1C)  To avoid doubt, section 90UN applies in relation to the enforcement application.

12B  Subsection 90UL(2)

Omit “A”, substitute “Subject to subsection (2A), a”.

[legal advice requirements]

(15)   Schedule 5, item 13, page 14 (line 28) to page 15 (line 4), omit paragraph 90UL(2)(b), substitute:

                     (b)  before signing the termination agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the termination agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the termination agreement; and

                     (c)  either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the termination agreement); and

                    (ca)  a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

[legal advice requirements]

(16)   Schedule 5, page 15 (after line 8), after item 15, insert:

15A  After subsection 90UL(2)

Insert:

          (2A)  A Part VIIIAB termination agreement is binding on the parties if:

                     (a)  the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and

                     (b)  one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the termination agreement; and

                     (c)  a court is satisfied that it would be unjust and inequitable if the termination agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

                     (d)  the court makes an order under subsection (2B) declaring that the termination agreement is binding on the parties to the agreement; and

                     (e)  the termination agreement has not been set aside by a court.

          (2B)  For the purposes of paragraph (2A)(d), a court may make an order declaring that a Part VIIIAB termination agreement is binding on the parties to the agreement, upon application (the enforcement application ) by a spouse party seeking to enforce the agreement.

          (2C)  To avoid doubt, section 90UN applies in relation to the enforcement application.

[legal advice requirements]

(17)   Schedule 5, item 17, page 15 (line 26), omit “10 to 15”, substitute “9A to 15A”.

[legal advice requirements]

(18)   Schedule 5, page 15 (after line 34), at the end of item 17, add:

(3)       If, before the commencement of this item, a court has made an order under section  90SI or 90SM of the Family Law Act 1975 on the basis that an agreement did not bind the spouse parties , then, after the commencement of this item, the agreement is taken not to bind them.

(4)       For an agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 before the commencement of this item, paragraphs 90UJ(1)(c) and (ca) of the Family Law Act 1975 , as inserted by item 10 of this Schedule, do not apply.

(5)       For an agreement made under section 90UB, 90UC or 90UD of the Family Law Act 1975 before the commencement of this item, paragraph 90UJ(1A)(b) of the Family Law Act 1975 , as inserted by item 12A of this Schedule, does not apply and the following paragraph 90UJ(1A)(b) of that Act is taken to have been inserted by that item and to apply instead:

                     (b)  paragraph (1)(b) is not satisfied in relation to the agreement; and

(6)       For a Part VIIIAB termination agreement made before the commencement of this item, paragraphs 90UL(2)(c) and (ca) of the Family Law Act 1975 , as inserted by item 13 of this Schedule, do not apply.

(7)       For a Part VIIIAB termination agreement made before the commencement of this item, paragraph 90UL(2A)(b) of the Family Law Act 1975 , as inserted by item 15A of this Schedule, does not apply and the following paragraph 90UL(2A)(b) of that Act is taken to have been inserted by that item and to apply instead:

                     (b)  paragraph (2)(b) is not satisfied in relation to the agreement; and

[legal advice requirements]