FAMILY COURT ACT 1997 - SECT 205ZL

FAMILY COURT ACT 1997 - SECT 205ZL

205ZL .         Modification of de facto maintenance orders — FLA s. 83

        (1)         If there is in force an order, whenever made, with respect to the maintenance of a de facto partner made by a court, the court may, by order —

            (a)         discharge the order if there is any just cause for so doing; or

            (b)         suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or

            (c)         revive wholly or in part an order suspended under paragraph (b); or

            (d)         subject to subsection (2), vary the order —

                  (i)         so as to increase or decrease any amount ordered to be paid; or

                  (ii)         in any other manner.

        (1A)         A court’s jurisdiction under subsection (1) may be exercised —

            (a)         in any case — in proceedings with respect to the maintenance of a de facto partner; or

            (b)         if there is a bankrupt de facto partner — on the application of the bankruptcy trustee; or

            (c)         if a de facto partner is a debtor subject to a personal insolvency agreement — on the application of the trustee of the agreement.

        (2)         A court must not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied —

            (a)         that, since the order was made or last varied —

                  (i)         the circumstances of a person for whose benefit the order was made have so changed; or

                  (ii)         the circumstances of the person liable to make payments under the order have so changed; or

                  (iii)         in the case of an order that operates in favour of, or is binding on, a legal personal representative, the circumstances of the estate are such,

                as to justify doing so; or

            (b)         that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing (this is expanded on in subsections (3) and (4)); or

            (c)         in a case where the order was made by consent, that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (5)); or

            (d)         that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.

        (3)         In satisfying itself for the purposes of subsection (2)(b), a court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

        (4)         A court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

        (5)         In satisfying itself for the purposes of subsection (2)(c), a court must have regard to any payments, and any transfer or settlement of property, previously made by a de facto partner, or by the bankruptcy trustee of a de facto partner, to —

            (a)         the other de facto partner; or

            (b)         any other person for the benefit of the other de facto partner.

        (6)         An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

        (7)         Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court.

        (8)         Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court.

        (9)         For the purposes of this section, the court must have regard to sections 205ZC and 205ZD.

        (10)         The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

        [Section 205ZL inserted: No. 25 of 2002 s. 47; amended: No. 28 of 2022 s. 22.]

        [Heading inserted: No. 35 of 2006 s. 34.]

        [Heading inserted: No. 35 of 2006 s. 34.]