Commonwealth Numbered Acts

Family Law Amendment Act 1983 No. 72 of 1983 - SECT 37

37. Section 79A of the Principal Act is amended-

   (a)  by omitting sub-section (1) and substituting the following
        sub-sections:

''(1) Where, on application by a person affected by an order made by a court
under section 79 in proceedings with respect to the property of the parties to
a marriage or either of them, the court is satisfied that-

   (a)  there has been a miscarriage of justice by reason of fraud, duress,
        suppression of evidence, the giving of false evidence or any other
        circumstance;

   (b)  in the circumstances that have arisen since the order was made it is
        impracticable for the order to be carried out or impracticable for a
        part of the order to be carried out;

   (c)  a person has defaulted in carrying out an obligation imposed on him by
        the order and, in the circumstances that have arisen as a result of
        that default, it is just and equitable to vary the order or to set the
        order aside and make another order in substitution for the order; or

   (d)  in the circumstances that have arisen since the making of the order,
        being circumstances of an exceptional nature relating to the welfare
        of a child of the marriage, the child or, where the applicant has the
        custody of the child, the applicant, will suffer hardship if the court
        does not vary the order or set the order aside and make another order
        in substitution for the order,

the court may, in its discretion, vary the order or set the order aside and,
if it thinks fit, make another order under section 79 in substitution for the
order so set aside.

''(1A) A court may, on application by a person affected by an order made by a
court under section 79 in proceedings with respect to the property of the
parties to a marriage or either of them, and with the consent of all the
parties to the proceedings in which the order was made, vary the order or set
the order aside and, if it thinks fit, make another order under section 79 in
substitution for the order so set aside.

''(1B) An order varied or made under sub-section (1) or (1A) may, after the
death of a party to the proceedings in which the order was so varied or made,
be enforced on behalf of, or against, as the case may be, the estate of the
deceased party.

''(1C) Where, before proceedings under this section in relation to an order
made under section 79 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 exercised its powers under sub-section (1)
               or (1A) in relation to the order if the deceased party had not
               died; and

        (ii)   that it is still appropriate to exercise its powers under
               sub-section (1) or (1A) in relation to the order,

the court may vary the order, set the order aside, or set the order aside and
make another order under section 79 in substitution for the order so set
aside; and

   (c)  an order varied or 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.'';

         (b)  by inserting in sub-section (2) '', (1A) or (1C)'' after
''(1)''; and

   (c)  by adding at the end thereof the following sub-section:

''(3) In this section, a reference to an order made by a court under section
79 includes a reference to an order made by a court under section 86 of the
repealed Act.''.