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FAMILY LAW ACT 1975 - SECT 90SI

Modification of maintenance orders

             (1)  If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:

                     (a)  made by the court; or

                     (b)  made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court;

the court may:

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

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

                     (e)  revive wholly or in part an order suspended under paragraph (d); or

                      (f)  subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

             (2)  The court's jurisdiction under subsection (1) may be exercised:

                     (a)  in any case--in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or

                     (b)  if there is a bankrupt party to the de facto relationship--on the application of the bankruptcy trustee; or

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

             (3)  The 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 (including the person entering into a stable and continuing de facto relationship); 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 its so doing; 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; or

                     (c)  in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate; or

                     (d)  that:

                              (i)  material facts were withheld from the court that made the order, or from a court that varied the order; or

                             (ii)  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 was 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 by a party to the de facto relationship, or by the bankruptcy trustee of a party to the de facto relationship, to:

                     (a)  the other party; or

                     (b)  any other person for the benefit of the other party.

             (7)  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.

             (8)  If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date, being money 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 having jurisdiction under this Act.

             (9)  If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

           (10)  For the purposes of this section, the court must have regard to the provisions of section 90SF.

           (11)  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.



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