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FAMILY LAW ACT 1975 - SECT 66S

Modification of child maintenance orders

             (1)  This section applies if:

                     (a)  there is in force an order (the first order ), for the maintenance of a child (whether or not made under this Act and whether made before or after the commencement of this section):

                              (i)  made by a court; or

                             (ii)  registered in a court; and

                     (b)  a person (being someone who could apply for a child maintenance order in relation to the child) or persons (each of whom could do that) apply to the court for an order under this section in relation to the first order.

          (1A)  With the consent of all the parties to the first order, the court may, subject to section 111AA, make an order:

                     (a)  discharging the first order; or

                     (b)  suspending 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)  if the operation of the order has been suspended under paragraph (b) or (2)(b)--reviving its operation wholly or in part; or

                     (d)  varying the order:

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

                             (ii)  in any other way.

          (1B)  However, the court must not make an order under subsection (1A) that allows any entitlement of a child or another person to an income tested pension, allowance or benefit, to affect the duty of that child's parents to maintain the child.

Note:          For the duty of a parent to maintain a child, see section 66C.

             (2)  In any other case, the court may, by order:

                     (a)  discharge the first order if there is 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)  if the operation of the order has been suspended under paragraph (b) or (1A)(b), revive its operation wholly or in part; or

                     (d)  subject to subsection (3), vary the order:

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

                             (ii)  in any other way.

             (3)  The court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied:

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

                              (i)  the circumstances of the child have changed so as to justify the variation; or

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

                            (iii)  the circumstances of the person entitled to receive payments under the order have changed so as to justify the variation; or

                            (iv)  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 the variation; 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 (4) and (5)); or

                     (c)  if the order was made by consent--that the amount ordered to be paid is not proper or adequate (this is expanded on in subsection (6)); 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.

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

             (5)  The 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 last varied having regard to a change in the cost of living.

             (6)  In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made to the child, or to any other person for the benefit of the child, by the person against whom the order was made.

             (7)  An order decreasing a periodic amount payable under the order, or discharging the order, may be expressed to be retrospective to such day as the court considers appropriate.

             (8)  If an order (the subsequent order ) decreasing a periodic amount payable under the first order is expressed to be retrospective, amounts paid under the first order that are not payable under the first order as varied by the subsequent order may be recovered in a court having jurisdiction under this Part.

             (9)  If an order discharging the first order is expressed to be retrospective to a specified day, amounts paid under the first order since the specified day may be recovered in a court having jurisdiction under this Part.

           (10)  For the purposes of this section, the court must have regard to the provisions of Subdivisions B, C and D (to the extent applicable).

           (11)  The discharge of the first order does not affect the recovery of arrears due under the order when the discharge takes effect.



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