Family Court Act Amendment Act 1978 (WA)

WESTERN AUSTRALIA.

FAMILY COURT.

No. 30 of 1978.

AN ACT to amend the Family Court Act, 1975-1976.

[Assented to 22nd May, 1978.]

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

1. (1) This Act may be cited as the Family Court faliciririgon.

Act Amendment Act, 1978.

(2) In this Act the Family Court Act, 1975-1976 /07Tig. 106

amended by

is referred to as the principal Act. Acts Nos. 16 of 1976 and 111 of 1978.

(3) The principal Act as amended by this Act may

be cited as the Family Court Act, 1975-1978.

No. 30.] Family Court. [1978.

Commence-

ment. 2. This Act shall come into operation on a date

to be fixed by proclamation.

Section 4

amended. 3. Section 4 of the principal Act is amended

(a) by adding after the interpretation "Chair- man" the following interpretation

"child of the marriage", in relation to the

parties to a marriage, means

(a) any child of both parties; and

(b) any child of either party who has been accepted as one of the family by the other party;

(b)	by adding after the expression "26" in line two of the interpretation "non-federal jurisdictions of the Court" the passage "to section 26G, inclusive";
(c)	by adding after the interpretation "non-

federal jurisdictions of the Court" the

following interpretation

"party to a marriage" includes a person

who was party to a void marriage; .

Section 25	4. Section 25 of the principal Act is amended
amended.

(a) by deleting the word "federal" in line one

and substituting the passage "non-federal";

(b)	by deleting the word "and" after paragraph (c);
(c)	by deleting the passage "marriage." in the last line of paragraph (d) and substituting the passage "marriage; and"; and
(d)	by adding after paragraph (d) the follow- ing paragraph

(e) the effect of any order on the stabil- ity of the marriage and the welfare of the children of the marriage. .

1978.] Family Court. [No. 30.

Section 26

5. Section 26 of the principal Act is amended by amended.

adding after the word "under" in line two the words

"this or". .

6.    The principal Act is amended by adding after to alliscid6elet

section 26 the following sections-

26A. (1) In proceedings between the parties ggatretisi,:

to a marriage with respect to existing title or InPr"enY'

rights in respect of the property of such parties

or either of them except the interest of a party

to the marriage in a partnership with a person

who is neither a party to the marriage nor a

child of the marriage, the Court may declare

the title or rights, if any, that a party has in

respect of the property.

(2) Where the Court makes a declaration under subsection (1), it may, if it thinks fit having regard to the principles set out in sec- tion 25 and all the circumstances of the case that it is just and equitable to do so, make con- sequential orders to give effect to the declara- tion, including orders as to sale or partition and interim or permanent orders as to posses- sion.

26B. (1) In proceedings between the parties Nt=rty

to a marriage with respect to the property of interests.

such parties or either of them except the

interest of a party to the marriage in a partner-

ship with a person who is neither a party to the

marriage nor a child of the marriage, the Court

may make such order as it thinks fit altering

the interests of the parties in the property,

including an order for a settlement of property

in substitution for any interest in the property

and including an order requiring either or both

of the parties to make, for the benefit of either

or both parties or a child of the marriage, such

settlement or transfer of property as the Court

determines.

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(2)

In proceedings under this section the Court may adjourn the proceedings upon such terms and conditions as it thinks fit for any period including such period as may be expedi- ent to enable the Court to consider the likely effect if any of an order on the marriage and the children of the marriage, and shall not make an order unless it is satisfied having regard to the principles set out in section 25 and all the circumstances of the case that it is just and equitable to do so.

(3) In considering what order should be made under this section the Court shall take into account

(a)	the financial contribution made directly or indirectly by or on behalf of a party or a child to the acquisition, conservation or improvement of the property, or otherwise in relation to the property;
(b)	the contribution made directly or indirectly to the acquision, conserva- tion or improvement of the property by either party, including any contribu- tion made in the capacity of home- maker or parent;
(c)	the effect of any proposed order upon the earning capacity of either party;
(d)	the matters referred to in subsection (2) of section 75 of the Family Law Act so far as they are relevant; and
(e)	any other order made under this or any other Act affecting a party.

Setting aside

of orders	26C. (1) Where, on application by a person section 26B, the Court is satisfied that the order was obtained by fraud, by duress, by the giving of false evidence or by the suppression of evi- dence, the court may, in its discretion, set aside the order and, if it thinks fit, but subject to
altering
property	affected by an order made by the Court under
interests.

1978.] Family Court. [No. 30.

subsections (2) and (3) of section 26B, make another order under section 26B in substitution for the order so set aside.

(2) In the exercise of its powers under sub- section (1), the Court shall have regard to the interests of, and shall make any order proper

for the protection of, a bona fide purchaser or

other person interested.

General

26D. The Court, in exercising its powers under this Division, may do any or all of the	powers of
Court.
following

(a)	order payment of a lump sum, whether in one amount or by instalments;
(b)	order payment of a weekly, monthly, yearly or other periodic sum;
(c)	order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the Court directs;
(d)	order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(e) appoint or remove trustees;

(f)	order that payments be made direct to a party to the marriage, to a trustee to be appointed or into Court or to a pub- lic authority for the benefit of a party to the marriage;
(g)	order that payment of maintenance in respect of a child be made to such per- son or public authority as the Court specifies;
(h)	make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

No. 30.] Family Court. [1978.

(i) impose terms and conditions;

(j)	make an order by consent;
(k)	make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice.

Execution of

instruments 26E. (1) Where

by order of Court.	(a)	an order under this Division has directed a person to execute a deed or instrument; and
(b)	that person has refused or neglected to comply with the direction or, for any other reason, the Court thinks it neces- sary to exercise the powers of the Court under this subsection,

the Court may appoint an officer of the Court or other person to execute the deed or instru- ment in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

(2) The execution of the deed or instrument by the person so appointed has the same force and validity as if it had been executed by the person directed by the order to execute it.

The Court may make such order as it thinks just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution.

(3)

Transactions

to defeat

26F. (1) In proceedings under this Division, the Court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party which is made or proposed to be made to defeat an existing or anticipated order in proceedings for costs, maintenance or the declaration or alteration of any interests in property or which, irrespective of intention, is likely to defeat any such order.

claims.

1978.] Family Court. [No. 30.

(2) The Court may order that any money or real or personal property dealt with by any such instrument or disposition may be taken in execution or charged with the payment of such sums for costs or maintenance as the Court directs, or that the proceeds of a sale shall be paid into Court to abide its order.

(3) The Court shall have regard to the

interests of, and shall make any order proper for

the protection of, a bona fide purchaser or other

person interested.

(4)

A party or a person acting in collusion with a party may be ordered to pay the costs

of any other party or of a bona fide purchaser

or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.

(5) In this section, "disposition" includes a

sale and a gift.

26G. (1) The Court in exercising its non- Injunctions.

federal jurisdictions under this Act may grant an injunction, either unconditionally or upon such terms and conditions as the Court thinks appropriate, by interlocutory order or otherwise (including an injunction in aid of the enforce- ment of an order), in any case in which it appears to the Court, having regard to the principles set out in section 25, to be just or convenient to do so.

(2) If the Court in the exercise of its non- federal jurisdictions is satisfied that a person has knowingly and without reasonable cause contravened or failed to comply with an injunc- tion or order under this section, the Court may

(a)	order that person to pay a fine not exceeding $1 000;
(b)	require that person to enter into a recognizance, with or without sureties, in such reasonable amount as the

No. 30.] Family Court. [1978.

Court thinks fit, that he will comply with the injunction or order, or order him to be imprisoned until he enters into such a recognizance or until the expiration of three months, whichever first occurs;

(c)	order that person to deliver up to the Court such documents as the Court thinks fit; and
(d)	make such other orders as the Court considers necessary to enforce compli- ance with the injunction or order.

(3) Where an act or omission referred to in subsection (2) is an offence against any other law, the person committing the offence may be prosecuted and convicted under that law, but nothing in this section renders any person liable to be punished twice in respect of the same offence.

Section 20

amended. 7. Section 29 of the principal Act is amended by

deleting the expression "(d)" in line seven and

substituting the expression "(e)".

Section 30

amended. 8. Section 30 of the principal Act is amended

(a)	by deleting the word "Courts" in line one and substituting the passage "(1) Subject to subsection (2) of this section, courts";
(b)	by deleting the passage "1896." in the last line and substituting the passage "1896, and in exercising such jurisdiction, shall have regard to the principles mentioned in paragraphs (a) to (e) inclusive of section 25.";

(c) by adding the following subsections

(2) Where proceedings are instituted in a court of summary jurisdiction with respect to property of a value exceeding $1 000, and the respondent, in an answer

1978.] Family Court. [No. 30.

to the application by which the proceed- ings were instituted, seeks an order different from that sought in the applica- tion the court of summary jurisdiction shall, unless the parties agree to the court of summary jurisdiction hearing and determining the proceedings, trans- fer the proceedings to the Court.

(3) Where proceedings referred to in subsection (2) are before it, the court of summary jurisdiction may transfer the proceedings of its own motion, notwith- standing that the parties would be will- ing for the court of summary jurisdiction to hear and determine the proceedings.

(4) Before transferring proceedings under subsection (2), the court of sum- mary jurisdiction may make such orders as it considers necessary pending the dis- posal of the proceedings by the Court.

(5) Where proceedings are transferred to the Court in pursuance of this section the Court shall proceed as if the proceed- ings had been originally instituted in the Court.

(6) Without prejudice to the duty of a court of summary jurisdiction to com- ply with this section, failure by such a court so to comply does not invalidate any order of the Court in the proceed- ings. .