Scrutiny of Acts and Regulations Committee
Report concerning the Maintenance Act 1965, Marriage
Act 1958
and the Perpetuities and Accumulations Act 1968
The Victorian Maintenance Act 1965
The Victorian Maintenance Act 1965
covered the maintenance paid, by one spouse to another, for the care and
upkeep of children of a marriage.
But the introduction of the Family
Law Act 1975 (Cth) radically altered the marriage and divorce landscape
in Australia.
The Family Law Act provided no-fault
divorce but also governed the issue of maintenance paid for the children
of a marriage. This had the effect of rendering redundant the Victorian
Maintenance Act 1965 so far as it related to the children of
a marriage.
But the maintenance provisions of the
Commonwealth legislation (Family Law Act 1975) only related to
the children of a marriage and not to children of other (de facto) relationships.
So ex-nuptial children remained covered
by the Victorian Maintenance Act 1965. This was progressively
seen as less and less satisfactory, especially as less traditional relationships
became increasingly common. Australia was becoming increasingly familiar
with serial marriages, blended and mixed families and a rapid increase
in the number de facto partners having children.
The dual maintenance system (one for children
of a marriage, another for children of de facto relationships) was widely
criticised. Everyone eventually agreed that having disputes about some
children heard under the Family Law Act and disputes about others
heard under state legislation was an unsatisfactory arrangement.
In 1988, four states Victoria, New South
Wales, Tasmania, South Australia referred their powers over ex-nuptial
children to the Commonwealth and the Family Law Act was amended
to give the Family Court jurisdiction over children of de facto relationships.
(Queensland later referred powers and Western Australia has had its own
Family Court since 1976 and did not need to refer powers).
The result of this was that all disputes
pertaining to the children of all relationships fell under the Commonwealth
legislation. Since then the Commonwealth has also passed complementary
legislation, including Child Support legislation.
Taken together this had had the effect
of rendering the Victorian Maintenance Act 1965 wholly redundant.
The Victorian Maintenance Act can therefore
be repealed with the proviso that any existing orders made under the Act
must remain in force. Some orders – made for the very young children
of de facto relationships in the mid-1980s – may still be in force.
Similarly, orders relating to handicapped children may have to remain
in force past the age of 18. In the same vein, any orders made for the
maintenance of wives (or husbands) prior to the Family Law Act
should be preserved.
It is probable that these orders would
remain in force without a specific provision to that effect. The Interpretation
of Legislation Act 1984 is relevant.
14. Provision as to effect of repeal etc.
of Acts
(2) Where an Act or a provision of an
Act-
(a) is repealed or amended; or
(b) expires, lapses or otherwise ceases
to have effect-
the repeal, amendment, expiry, lapsing
or ceasing to have effect of that Act or provision shall not, unless
the contrary intention expressly appears-
(c) revive anything not in force or
existing at the time at which the repeal, amendment, expiry, lapsing
or ceasing to have effect becomes operative;
(d) affect the previous operation of
that Act or provision or anything duly done or suffered under that
Act or provision;
(e) affect any right, privilege, obligation
or liability acquired, accrued or incurred under that Act or provision;
(f) affect any penalty, forfeiture or
punishment incurred in respect of an offence committed against that
Act or provision; or
(g) affect any investigation, legal
proceeding or remedy in respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment as is mentioned in paragraphs
(e) and (f)-
and any such investigation, legal proceeding
or remedy may be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed, as if that Act or provision
had not been repealed or amended or had not expired, lapsed or otherwise
ceased to have effect.
The effect of these provisions would likely
protect any ongoing orders made under the Maintenance Act 1965 (and
their enforcement) even if the Maintenance Act were abolished without
a specific saving clause.
But for the sake of certainty a general
clause should be included in the repealing Act making clear that any orders
made under the previous legislation remain in force and enforceable.
Scrutiny
of Acts and Regulations Committee
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Parliament of Victoria |