Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 36

36. Section 79 of the Principal Act is amended-

   (a)  by inserting after sub-section (1) the following sub-sections:

''(1A) An order made under sub-section (1) in proceedings with respect to the
property of the parties to a marriage or either of them may, after the death
of a party to the proceedings, be enforced on behalf of, or against, as the
case may be, the estate of the deceased party.

''(1B) The court may adjourn proceedings with respect to the property of the
parties to a marriage or either of them, except where the parties to the
proceedings are-

   (a)  parties to concurrent, pending or completed proceedings for principal
        relief;

   (b)  parties to a marriage that has been dissolved or annulled under the
        law of an overseas country, where that dissolution or annulment is
        recognized as valid in Australia under section 104; or

   (c)  parties to a marriage who have been granted a legal separation under
        the law of an overseas country, where that legal separation is
        recognized as valid in Australia under section 104,

on such terms and conditions as it thinks fit, for such period as it thinks
necessary to enable the parties to the proceedings to consider the likely
effects (if any) of an order under this section on the marriage or the
children of the marriage, but nothing in this sub-section shall be taken to
limit any other power of the court to adjourn such proceedings.

''(1C) Where the period for which a court has adjourned proceedings with
respect to the property of the parties to a marriage or either of them as
provided by sub-section (1B) has not expired and-

   (a)  proceedings for principal relief are instituted by one or both of
        those parties;

   (b)  the marriage is dissolved or annulled under the law of an overseas
        country and the dissolution or annulment is recognized as valid in
        Australia under section 104; or

   (c)  the parties are granted a legal separation under the law of an
        overseas country and the legal separation is recognized as valid in
        Australia under section 104,

either party to the first-mentioned proceedings may apply to the court for the
hearing of those proceedings to be continued.''; and

   (b)  by omitting sub-section (4) and substituting the following
        sub-sections:

''(4) In considering what order (if any) should be made under this section in
proceedings with respect to any property of the parties to a marriage or
either of them, the court shall take into account-

   (a)  the financial contribution made directly or indirectly by or on behalf
        of a party to the marriage or a child of the marriage to the
        acquisition, conservation or improvement of any of the property of the
        parties to the marriage or either of them, or otherwise in relation to
        any of that last-mentioned property, whether or not that
        last-mentioned property has, since the making of the contribution,
        ceased to be the property of the parties to the marriage or either of
        them;

   (b)  the contribution (other than a financial contribution) made directly
        or indirectly by or on behalf of a party to the marriage or a child of
        the marriage to the acquisition, conservation or improvement of any of
        the property of the parties to the marriage or either of them, or
        otherwise in relation to any of that last-mentioned property, whether
        or not that last-mentioned property has, since the making of the
        contribution, ceased to be the property of the parties to the marriage
        or either of them;

   (c)  the contribution made by a party to the marriage to the welfare of the
        family constituted by the parties to the marriage and any children of
        the marriage, including any contribution made in the capacity of
        homemaker or parent;

   (d)  the effect of any proposed order upon the earning capacity of either
        party to the marriage;

   (e)  the matters referred to in sub-section 75 (2) so far as they are
        relevant; and

   (f)  any other order made under this Act affecting a party to the marriage
        or a child of the marriage.

''(5) Without limiting the power of any court to grant an adjournment in
proceedings under this Act, where, in proceedings with respect to the property
of the parties to a marriage or either of them, a court is of the opinion-

   (a)  that there is likely to be a significant change in the financial
        circumstances of the parties to the marriage or either of them and
        that, having regard to the time when that change is likely to take
        place, it is reasonable to adjourn the proceedings; and

   (b)  that an order that the court could make with respect to the property
        of the parties to the marriage or either of them if that significant
        change in financial circumstances occurs is more likely to do justice
        as between the parties to the marriage than an order that the court
        could make immediately with respect to the property of the parties to
        the marriage or either of them,

the court may, if so requested by either party to the marriage, adjourn the
proceedings until such time, before the expiration of a period specified by
the court, as that party to the marriage applies for the proceedings to be
determined, but nothing in this sub-section requires the court to adjourn any
proceedings in any particular circumstances.

''(6) Where a court proposes to adjourn proceedings as provided by sub-section
(5), the court may, before so adjourning the proceedings, make such interim
order or orders or such other order or orders (if any) as it considers
appropriate with respect to any of the property of the parties to the marriage
or of either of them.

''(7) The court may, in forming an opinion for the purposes of sub-section (5)
as to whether there is likely to be a significant change in the financial
circumstances of either or both of the parties to the marriage, have regard to
any change in the financial circumstances of a party to the marriage that may
occur by reason that the party to the marriage-

   (a)  is a contributor to a superannuation fund or scheme, or participates
        in any scheme or arrangement that is in the nature of a superannuation
        scheme; or

   (b)  may become entitled to property as the result of the exercise in his
        favour, by the trustee of a discretionary trust, of a power to
        distribute trust property,

but nothing in this sub-section shall be taken to limit the circumstances in
which the court may form the opinion that there is likely to be a significant
change in the financial circumstances of a party to the marriage.

''(8) Where, before proceedings with respect to the property of the parties to
a marriage or either of them are completed, either party to the proceedings
dies-

   (a)  the proceedings may be continued by or against, as the case may be,
        the legal personal representative of the deceased party and the
        regulations may make provision in relation to the substitution of the
        legal personal representative as a party to the proceedings;

   (b)  if the court is of the opinion-

        (i)    that it would have made an order with respect to property if
               the deceased party had not died; and

        (ii)   that it is still appropriate to make an order with respect to
               property,

the court may make such order as it considers appropriate with respect to any
of the property of the parties to the marriage or either of them; and

   (c)  an order made by the court pursuant to paragraph (b) may be enforced
        on behalf of, or against, as the case may be, the estate of the
        deceased party.

''(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).''.