4569

2004-2005

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

Family Law Amendment Bill 2005

 

 

(Amendments to be moved by Senator Greig on behalf of the Australian Democrats in committee of the whole)

 

 

(1)     Schedule 1, item 136, page 34 (line 24) to page 35 (line 4), omit subsection 66X(2), substitute:

             (2)  If the maintenance provider applies to a court having jurisdiction under this Part for an order under this subsection, the court may make such order that it considers just and equitable in the circumstances, including:

                     (a)  if the purported order was of a kind referred to in paragraph 66P(1)(a) or (b)—an order for the repayment to the maintenance provider, by the person to whom the amount or amounts referred to in subparagraph (1)(b)(i) of this section were paid, of an amount up to, or equal to, that amount or the sum of those amounts; or

                     (b)  if the purported order was of the kind referred to in paragraph 66P(1)(c)—an order for the return to the maintenance provider of:

                              (i)  the property, or part of the property, referred to in subparagraph (1)(b)(ii) of this section; or

                             (ii)  an amount up to, or equal to, the value of that property.

[equitable recovery]

(2)     Schedule 1, item 136, page 35 (after line 23), at the end of section 66X, add:

             (5)  In determining whether to make an order under subsection (2), the court must give primary consideration to the likely impact of such an order on the maintenance and wellbeing of the child.

[impact on child]

(3)     Schedule 1, item 136, page 35 (after line 23), at the end of section 66X, add:

             (6)  If the court:

                     (a)  proposes to make an order under subsection (2); and

                     (b)  determines that a person:

                              (i)  is a parent of the child; and

                             (ii)  may have been required to pay child maintenance in respect of the child if the court had been aware that the maintenance provider was not a parent of the child at the time of making the purported order;

the court must consider whether it is just and equitable in the circumstances to make an order under Part VII, Division 7, requiring the person referred to in this subsection to pay an amount, or transfer or settle property, by way of maintenance for the child, including a retrospective order.

             (7)  Nothing in subsection (6) is intended to limit the power of the court to make a child maintenance order under Part VII, Division 7.

            [impact on child]