Western Australian Current Acts Western Australian Current Acts (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) —
(i)
made by a court; or
(ii)
made by a court other than a court exercising
jurisdiction under this Act and registered in a court under this Act;
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 a
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, a court may 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
subsection (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, a 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.
(2) In any other case,
a court may, by order —
(a)
discharge the first order if there is just cause for so doing; or
(b)
suspend the first order’s 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 first order has been suspended under paragraph (b) or
subsection (1a)(b), revive the first order’s operation wholly or in
part; or
(d)
subject to subsection (3), vary the first order —
(i)
so as to increase or decrease any amount ordered to be
paid by the first order; or
(ii)
in any other way.
(3) A court must not
vary the first order so as to increase or decrease any amount ordered to be
paid by the order unless it is satisfied —
(a)
that, since the first 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 first order have changed so as to justify the variation; or
(iii)
the circumstances of the person entitled to receive
payments under the first order have changed so as to justify the variation; or
(iv)
in the case of a first 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 first 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 first 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 first 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 subsection (3)(b), a court must have regard to any
changes that have occurred in the Consumer Price Index published by the
Australian Statistician.
(5) A court must not,
in considering the variation of a first order, have regard to a change in the
cost of living unless at least 12 months have elapsed since the first order
was made or last varied having regard to a change in the cost of living.
(6) In satisfying
itself for the purposes of subsection (3)(c), a 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 first order was made.
(7) An order
decreasing a periodic amount payable under the first order, or discharging the
first order, may be expressed to be retrospective to such day as a 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.
(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.
(10) For the purposes
of this section, a court must have regard to the provisions of Subdivisions 2,
3 and 4 (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.
[Section 128 amended: No. 25 of 2002 s. 59.]
[Heading inserted: No. 25 of 2002 s. 60.]