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Understanding Section 90 of The Family Law Act

The Family Law Act 1975 is known to be an act patterned on the basis of the protection, security, and welfare of a child. It is primarily focused on a child’s rights and the responsibilities of both de-facto and married parents. Under this Act, matters on a property, financial support, and maintenance agreements between parties are intensively addressed and these issues could be found on Part VIII of the Act. 

Now, you might have gone over the Family Law Act 1975 and stopped tracks on Section 90 of Part VIII. You might have found it baffling. Isn’t it clear on the earlier parts of the provision that child support should be given under certain conditions? How could a party be exempted from legal duties? Well, yes, this section of the Act could quite be the puzzle to some, as it was for us. Thus, allow us to guide you in fitting the pieces together. 

What does It Say?

In this section, we could find the stipulated conditions by which agreements, deeds, and instruments can be deemed not subjected to any duty under any law of the State or Territory, or any law of the Commonwealth that is applicable to or concerning a Territory only. Here is a roster of the conditions of the agreements, deeds, and/or instruments under this section:

  • A deed or an instrument performed by a party for or in accordance with any order made under Part VIII. 
  • An important maintenance agreement that grants benefit upon a party to or a child in the marriage to which the maintenance agreement applies.
  • A deed or an instrument executed by a party for the purposes of or in accordance with any relevant maintenance agreement that grants benefit upon a party to or a child in the marriage to which the maintenance agreement applies.

Moreover, there are maintenance agreements that are relevant to section 90. Here is a different roster that shows such agreements as found on the Act itself:

  • A valid and registered maintenance agreement that has been made in connection with the dissolution of the marriage, whether by divorce or annulment, to which the said agreement relates.
  • A registered maintenance agreement, aside from the agreement referred to on the previous point, made in contemplation of the dissolution of the marriage.
  • A registered maintenance agreement, aside from the agreement referred to on the previous two points, made in contemplation of the dissolution of the marriage.
  • A maintenance agreement that has been approved in connection with the dissolution of the marriage, whether by divorce or annulment.
  • A maintenance agreement that has been approved, aside from that being referred to in the point preceding this point, in connection with the dissolution of the marriage, whether by divorce or annulment.
  • Another maintenance agreement that has been approved, aside from the reference made on the two preceding points, that is still in connection with the dissolution of marriage. 

Basically, all the different registered and approved maintenance agreements based on the entirety of the Part serve their respective relevance to this section. As found in this section, an approved maintenance agreement refers to the approved maintenance agreement by court order under section 89, while a registered maintenance agreement refers to a maintenance agreement registered in a court under section 86 or registered under regulations pursuant to section 89.

For this section’s purposes, a maintenance agreement, deed, or instrument that grants an entitlement of property to a party, may be taken to grant a benefit on the party regardless of the fact that the maintenance agreement, deed, or instrument also deprives the party of entitlement to another property of equal or greater value. 

What transactions are exempted from duty? How are they exempted? Transactions executed in accordance with court orders that apply the following conditions are exempted, the conditions are as follows: the court order must pre-date the transaction; the court order must provide a clear direction, and the property must be specified; the transaction must be made in accordance with the court orders. Transactions that do not reflect or do not meet the enlisted conditions are not exempted from duty. 

When a transaction includes a real property–e.g. houses, apartments, lands, etc.–it is a must that the transferor or transferee declare whether they are either an Australian or a non-Australian entity. A non-Australian transferor or transferee is obliged to accomplish an identity details annexure. An identity details annexure is a form that contains extensive details about the non-Australian transferor or transferee. Several records should be kept under this transaction, and they are the following: a sealed court order or its certified true copy; a completed dutiable transaction statement; a copy of the endorsed transaction; and an identity details annexure for non-Australian applicants if the transaction involves a real estate property. 

Here is one detailed example of a transaction made under this section of the Family Law Act: a married couple owns an investment property, and consent orders were made in the Federal Court of Australia under Part VIII of the Family Law Act with respects to property settlement between the husband and the wife. 

Under the consent order’s terms, the court orders the husband to transfer his share of the property to the wife’s trustee company. Obeying the order of the court, the husband then transfers his share of the property to his wife’s trustee company. The instrument used in transferring the husband’s interest in the company to the wife’s trustee company is exempt from duty under section 90 (1) (a) of the Family Law Act and must be self-assessed. 

Moreover, to make things more clear and precise to you here is another detailed example that showcases a dutiable transaction: a property is owned by a wife and her business partner. Consent orders were made in the Federal Magistrates Court of Australia under Part VIII of the Family Law Act 1975, with respect to the property settlement of a husband and wife. Under the terms of the consent order, the wife is being ordered by the court to pay the husband a lump sum of $100,000. In order to raise the said amount, the wife willingly transfers her interest in her property to her partner in the business. 

The instrument transferring the interest of the wife in the property to her partner in the business is not exempt under section 90 (1) (a) of the Family Law Act of 1975 for the reason that the order does not require the transfer of interests of the wife in the property to her business partners. Therefore, the instrument cannot be said to have been executed for the purposes of, or in accordance with and order made under Part VIII of the said Act. 

Furthermore, this instrument must be assessed for duty on the dutiable value of the entire property. However, if the tables were turned, and the wife was ordered by the court to transfer her interests to her business partner for her to raise the amount of money, then the instrument transferring her interest will be exempt under this section of the Act.

What are the Other Applications?

When a party asks a Judge to reconsider the current order for the child under his or her care, that is called a section 90 application. Dependent on the child’s best interest, the current order may stay the same, be changed, canceled, or a new order may be completely made. Another concrete example of this is when an order of providing one-half of the party’s property would be conferred to the other party, and the owning party does not want to give such a huge part of the property. 

So, the party would then file a section 90 application, with hopes that the Judge would hear his or her plea and reconsider. For the purpose of consistency and the preservation of justice and fairness, the Judge’s verdict will be based on what is best for the child. The filing party may or may not be reconsidered. 

Knowing that the Family Law Act 1975 places high importance on the interest and welfare of the child when the court makes its final orders, it has to be satisfied that the parties have desirable and long-term plans for the care and development of the child. In such a case, the parties should not only think of the benefits they could get out of the whole situation, but their chief concern should be geared towards what positive benefits the child could receive. 

Pleas to alter final orders would only be considered if the court is satisfied that significant changes that are relevant to the child’s situation have taken place. The court would review the problems that led to the original orders and would decide whether enough changes took place to justify the alteration or cancellation of the orders. Prior to the cancellation or alteration, the Judge takes into consideration the following: 

  • the age of the child
  • the wishes and desires of the child
  • the length of the child’s stay in the current placement
  • the relationship of the child towards his or her birth family and some other people who share a significant relationship with the child, including the current caretaker 
  • the capacity of the party filing an application to take care of the child
  • the effect of the alteration on several arrangements towards the child’s psychology 

So, to those parties who have been granted an order and are thinking of applying for alterations, do go over the given list and allow yourself the time to ponder on each point conscientiously. It is also noteworthy that the applying party is obliged to provide details and relevant pieces of evidence so that the decision can be made in light of the child’s welfare.

No decisions are made hastily, and the party would be granted the time to consult the supervising agency regarding the case. The party would be asked to provide details as well as views that are deemed relevant to any decisions concerning the future of the child. Both the carer or the party to which the child’s care is placed, the child and the child would be given the case management and support from the agency. 

The agency will function as the formal link to the DCJ or Minister of Communities and Justice lawyer. The agency should be available to support the party through the entire process and should be a source of answers to any questions the party has. One major responsibility of the agency is to keep the party up to date with court proceedings and to ensure that the party’s views are available to the DCJ lawyer. 

What is in It for the Carer?

What expectations should stem out of the carer? Similar to any other normal day, the care of the child should remain as is throughout the court proceedings. If the case and any effect that it has is causing stress and anxiety towards the carer and the child, they are both encouraged to seek guidance and support from their supervising agency. 

It is best for the carer to continually work with the agency and to provide it with whatever significant information is needed to allow the DCJ lawyer to present the desired pieces of evidence to make the best possible decision in the child’s interests. The carer and child are not alone in hurdling their battles, because the supervising agency is placed to provide them the maximum guidance and support they need. 

The carer’s views are relevant to the decision that the magistrate or judge makes, and he or she has the right to express his or her views. The carer should not be afraid to express his or her view, because it is a right that he or she possesses, and that right should be exercised for whatever purpose it serves. In most cases, the carer could rely on the DCJ lawyer to have his or her rights presented to the court. However, if the carer feels that the rights are not heard or are misrepresented, the supervising agency could help in resolving this issue. Should further concerns continually arise, the carer has the liberty to seek the aid of an independent legal adviser. 

In some circumstances, the court allows the carer to appear in court proceedings as a party, and that is another right that the carer has. If the carer deems this necessary, the carer is obliged to obtain an independent legal adviser. The fees for the independent legal adviser will be under the responsibility of the carer. So, if the carer has the monetary resources to secure another lawyer, by all means, he or she could do so. 

Conclusion

Mostly in life, there are some things and situations that are difficult to do and bear. Often, we are faced with the challenge of giving up a part of us to someone else, and most of the time, we refuse to do so. However, when faced with such challenges, it is momentous that we place lofty importance to the welfare and the best interest of others, even if it brings about drastic changes to our lives. 

Equal rights are given to each one of us, and no law is in conflict with each other, so do not ever think for one second that the upholding of one’s rights is the trampling of another. The FLA is there to give us the rights we deserve, but above all, it is there to ensure that one’s protection and benefits are considered and well taken care of, particularly that of a child’s. 

To those who are facing such challenges, we are proud of your bravery and strength. We believe that you have gone a long away and you are going even farther. Take all the opportunities of support and guidance that are available, and make use of these opportunities for your betterment and for the benefit of those surrounding you. It might be strenuous and taxing in the beginning, but if you have sufficient knowledge of how the provision and the case work, together with your legal support, you will be on the right track.

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