Queensland: Maintenance Act 1965 (Qld)

Maintenance Act 1965 An Act to consolidate and amend the law relating to the making of orders for the maintenance of wives, husbands and children, and for confinement, medical and like expenses and funeral expenses, and for the enforcement of such orders and of similar orders made in certain other States, Territories and countries, and for purposes connected therewith Part 1 Preliminary 1 Short title This Act may be cited as the Maintenance Act 1965. 3 [Repealed] 4 Repeals and savings (1) The Acts and enactments set out in the schedule to this Act are hereby repealed to the extent and as from the respective dates indicated in that schedule. (1A) However, except as in this Act expressly or by necessary implication provided, and without limiting the operation of the Acts Interpretation Act 1954— (a) all persons, things and circumstances appointed or created by or under any provision of the repealed Acts or existing or continuing under any provision of the repealed Acts immediately prior to the commencement of this Act or of the corresponding provision of this Act shall, under and subject to this Act, continue to have the same status, operation and effect as they respectively would have had if the repealed Acts had not been repealed; and (b) in particular, and without affecting the generality of paragraph (a)— (i) the repeal of the repealed Acts shall not disturb the continuity of status, operation, or effect of any proclamation, regulation, rule, order, complaint, summons, warrant, application, appeal, determination, decision, endorsement, direction, declaration, certificate, consent, approval, disapproval, confirmation, objection, appointment, registration, condition, recognisance, notice, fee, liability, or right made, effected, issued, served, granted, given, passed, fixed, accrued, incurred, or acquired or existing or continuing by or under any provision of the repealed Acts prior to the commencement of this Act or of the corresponding provision of this Act; and (ii) any proceedings commenced under the Maintenance Act 1949, prior to the commencement of this Act, and not concluded prior to that commencement, shall for all the purposes of this Act be deemed to have been commenced under this Act and may be continued and an order made thereon accordingly; and (iii) where the original or duplicate of an order made in another Australian State or in a Territory has been received, prior to the commencement of part 4, division 2, from that State or Territory, accompanied by a request that the order be made enforceable in Queensland, and that order could, under the Interstate Destitute Persons Relief Act 1914, had that Act not been repealed, have been directed to be enforced in Queensland—the original or duplicate of the order and the request shall be deemed to have been received in Queensland after the commencement of part 4, division 2, and the provisions of that division, with such modifications as are necessary, shall apply to and with respect to every such request accordingly; and (iv) where an application has, prior to the commencement of part 4, division 2, been made by or on behalf of a person for whose benefit an order, as defined in the Interstate Destitute Persons Relief Act 1914, has been made in Queensland to forward the order for enforcement in another Australian State or in a Territory, and that order could have been so forwarded under that Act, had that Act not been repealed—the application shall be deemed to have been made in Queensland after the commencement of part 4, division 2, and the provisions of that division, with such modifications as are necessary, shall apply to and with respect to every such application accordingly; and (v) where a maintenance order, as defined in the Maintenance Orders (Facilities for Enforcement) Act 1921, has, prior to the commencement of part 4, division 3, been transmitted to Queensland from England or Ireland or from a State or country (not being an Australian State or a Territory), that was, immediately prior to the commencement of part 4, division 3, a reciprocating State under the Maintenance Orders (Facilities for Enforcement) Act 1921, and that is a reciprocating country under this Act—the order shall be deemed to have been transmitted to Queensland after the commencement of part 4, division 3, and the provisions of that division, with such modifications as are necessary, shall apply to and with respect to every such order accordingly; and (vi) where a maintenance order, as defined in the Maintenance Orders (Facilities for Enforcement) Act 1921, has, prior to the commencement of part 4, division 2, been transmitted to Queensland from another Australian State or a Territory that was, at the time of that transmission, a reciprocating State under the Maintenance Orders (Facilities for Enforcement) Act 1921—the order shall be deemed to have been received in Queensland for registration and enforcement pursuant to part 4, division 2 and the provisions of that division, with such modifications as are necessary, shall apply to and with respect to every such order accordingly; and (vii) where an application has been made, prior to the commencement of part 4, division 3, under the Maintenance Orders (Facilities for Enforcement) Act 1921, for a maintenance order, as defined in that Act, against a person resident in England or Ireland, or in a State or country (not being an Australian State or a Territory), that was, immediately prior to the commencement of part 4, division 3, a reciprocating State under the Maintenance Orders (Facilities for Enforcement) Act 1921, and that is a reciprocating country under this Act—the application shall be deemed to have been made after the commencement of part 4, division 3, and the provisions of that division, with such modifications as are necessary, shall apply to and with respect to every such application accordingly; and (viii) where a provisional order was made, prior to the commencement of part 4, division 3, in England or Ireland, or in a State or country (not being an Australian State or a Territory) that was, immediately prior to the commencement of part 4, division 3, a reciprocating state under the Maintenance Orders (Facilities for Enforcement) Act 1921, and that is a reciprocating country under this Act, and the provisional order has been received in Queensland for confirmation under the Maintenance Orders (Facilities for Enforcement) Act 1921—the order shall be deemed to have been received in Queensland after the commencement of part 4, division 3, and the provisions of that division, with such modifications as are necessary, shall apply to and with respect to every such provisional order accordingly; and (ix) where an order made under the repealed Acts for the enforcement of an order enforceable under this Act was in force immediately prior to the commencement of this Act—that enforcement order shall, if a like order of enforcement could be made under this Act, continue in force as if it were such like order, and compliance therewith may be enforced or noncompliance therewith punished accordingly; and (x) where an order enforceable under the repealed Acts and enforceable under this Act was, prior to the commencement of this Act, disobeyed or not complied with—that disobedience or noncompliance shall be deemed to have occurred after the commencement of this Act and any proceedings relating to that disobedience or noncompliance may be taken or, if already commenced, may be concluded, under this Act, and the several provisions of this Act, with such modifications as are necessary, shall apply to and with respect to those proceedings accordingly; and (xi) every penalty imposed under any provision of the repealed Acts and not enforced or recovered prior to the commencement of the corresponding provision of this Act may be enforced or recovered as if the repealed Acts had not been repealed; and (xii) every proceeding for an offence against any provision of the repealed Acts (other than an offence of failing to comply with an order) commenced or pending immediately prior to the commencement of the corresponding provision of this Act may be carried on and prosecuted as if the repealed Acts had not been repealed and no such proceeding shall abate or be discontinued or prejudicially affected by anything in this Act contained; and (xiii) every investigation or inquiry commenced under the repealed Acts may be continued and concluded as if the repealed Acts had not been repealed, and any offence against any provision of the repealed Acts (other than an offence of failing to comply with an order) committed prior to the commencement of the corresponding provision of this Act may be investigated and prosecuted and any penalty may be imposed and enforced with respect thereto as if the repealed Acts had not been repealed. (2) Notwithstanding the provisions of subsections (1) and (1A), where a State or country (not being an Australian State or a Territory) that was, immediately prior to the commencement of part 4, division 3, a reciprocating State under the Maintenance Orders (Facilities for Enforcement) Act 1921 (in this subsection called the repealed Acts) is not a reciprocating country under this Act— (a) a maintenance order made in that State or country and enforceable in Queensland under or pursuant to the repealed Acts is not enforceable in Queensland under this Act; and (b) every warrant or other process arising out of any such order previously issued in Queensland and not executed ceases to have effect; but this subsection does not affect the validity of anything done for the enforcement of the order under or in pursuance of the repealed Act while that State or country was a reciprocating State under the repealed Act. 5 Transitional (1) Where, immediately prior to the commencement of this Act, an order made under the Maintenance Act 1949, was enforceable in Queensland under that Act, that order shall, on and from the commencement of this Act, and for all the purposes of this Act, be deemed to be an order made under part 2. (1A) Where, immediately prior to the commencement of this Act, an order for the payment of moneys made by a court in Queensland under any other Act was enforceable in Queensland under the Maintenance Act 1949, that order shall, on and from the commencement of this Act, be enforceable under this Act as if it were an order made under part 2. (2) Where, immediately prior to the commencement of part 4, division 2, an order was enforceable in Queensland under the Interstate Destitute Persons Relief Act 1914, that order shall, on and from the commencement of that division, and for all the purposes of this Act, be deemed to be an order registered under that division in the court for the place where payments under the order were required to be made. (3) Where— (a) immediately prior to the commencement of part 4, division 3, an order made by a court of summary jurisdiction in England or Ireland, or in a State or country (not being an Australian State or a Territory) that was, immediately prior to the commencement of that division, a reciprocating State under the Maintenance Orders (Facilities for Enforcement) Act 1921, and that is a reciprocating country under this Act, was enforceable in a court of summary jurisdiction in Queensland, that order shall, on and from the commencement of that division, and for all the purposes of this Act, be deemed to be an order registered or, as the case may require, confirmed, under that division; and (b) immediately prior to the commencement of part 4, division 2, an order made by a court of summary jurisdiction in another Australian State or in a Territory was enforceable in Queensland under the Maintenance Orders (Facilities for Enforcement) Act 1921, that order shall, for the purposes of subsection (2), be deemed to be an order that was, immediately prior to the commencement of that division, an order enforceable in Queensland under the Interstate Destitute Persons Relief Act 1914, and the provisions of that subsection shall apply to and with respect to every such order accordingly. (4) Where, immediately prior to the commencement of part 4, division 3, an order was enforceable in the Supreme Court under the Maintenance Orders (Facilities for Enforcement) Act 1921, that order continues to be enforceable in that court as if that Act had not been repealed and the provisions of that Act continue to apply in relation to that order accordingly. (5) Where— (a) immediately prior to the commencement of this Act, an order of the Supreme Court; or (b) immediately prior to the commencement of part 4, division 3, an order registered in the Supreme Court under the Maintenance Orders (Facilities for Enforcement) Act 1921; was enforceable in a court of summary jurisdiction in Queensland by reason of a direction given under the Matrimonial Causes Act 1864, section 47A(1) or under the Guardianship and Custody of Infants Act 1891, section 6B(1) that order shall— (c) in the case of an order referred to in paragraph (a)—on and from the commencement of this Act be enforceable as if it were an order made under part 2 by the court for the place where payments under the order were, by virtue of the direction, required to be made; or (d) in the case of an order referred to in paragraph (b)—on and from the commencement of part 4, division 3 be enforceable as if it were an order registered under that division in the court for the place where payments under the order were, by virtue of the direction, required to be made; but nothing in this Act contained shall prejudice the operation of the said section 47A or the said section 6B or the Maintenance Orders (Facilities for Enforcement) Act 1921, as the case may be, with respect to the discharge, suspension or variation of the order or the substitution of a new order therefor. (6) On and from the commencement of this Act, an order that was, immediately prior to the commencement of this Act, enforceable in a court of summary jurisdiction in Queensland under any of the following— (a) the Interstate Destitute Persons Relief Act 1914; (b) the Maintenance Orders (Facilities for Enforcement) Act 1921; (c) the Matrimonial Causes Act 1864; (d) the Guardianship and Custody of Infants Act 1891; (e) the Matrimonial Causes Act 1959 (Cwlth); may be enforced in Queensland by any of the means provided for in part 3 and that part shall apply to and with respect to every such order accordingly. (7) This Act shall apply to all complaints and applications made under any provision of this Act, whether the matter of the complaint or application arose before or after the commencement of that provision. (8) For the purposes of this section, an order that is suspended for the time being shall be deemed to be an order that is enforceable. (9) Where, immediately prior to the commencement of this Act, an order made under the Maintenance Act 1949, was enforceable in any other Australian State, or any Territory or any other country, by virtue of any laws corresponding to the Interstate Destitute Persons Relief Act 1914, or the Maintenance Orders (Facilities for Enforcement) Act 1921, that order shall, for the purposes of this section, be deemed to have been, immediately prior to the commencement of this Act, enforceable in Queensland. 6 [Repealed] 7 Interpretation (1) In this Act— adopted— (a) adopted in accordance with the law of Queensland, or the law of another State or of a Territory; or (b) adopted in a country outside Australia and the Territories, if the adoption was effective according to the law of that country and the adoption is recognised by the law of Queensland as having effect in Queensland. child, in relation to any person or persons, includes an adopted child of that person, or as the case may be, of those persons, but does not include a child of that person or those persons adopted by another person or persons; and mother, father and parent, in relation to a child, shall be construed accordingly. child of the family, in relation to the parties to a marriage or to either of them and whether or not either party to the marriage is dead, 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; and mother, father, and parent, in relation to a child of the family, shall be construed accordingly. clerk of the court means a clerk of the court as defined in the Justices Act 1886, and includes the clerk (maintenance), Magistrates Courts Office, Brisbane and any person who for the time being occupies, or performs the duties of, that office. court means a Magistrates Court constituted by a magistrate sitting alone or, in the case of a Magistrates Court referred to in an order in council under subsection (8), by any 2 justices of the peace. preliminary expenses, in respect of the confinement of a woman, means— (a) the expenses of the maintenance of the woman during the period of 2 months immediately preceding the confinement; and (b) reasonable medical, surgical, hospital and nursing expenses attendant upon the confinement; and (c) the expenses of the maintenance of the woman and the child or children born to the woman during the confinement for 3 months immediately after birth. repealed Acts means the Acts repealed by section 4, or any of them. unmarried father, in relation to a child, means the child's father being a person who was not married to its mother at the time of its conception and who has not since married her. unmarried mother, in relation to a child, means the child's mother being a person who was not married to its father at the time of its conception and who has not since married him. woman includes girl. (2) For the purposes of the interpretation of child of the family, a child of either party to the marriage shall, in the absence of proof to the contrary, be taken to have been accepted by the other party as one of the family if it is proved that at any time the child was ordinarily a member of the family household. (3) For the purposes of this Act, a man and a woman married by a subsisting marriage, whether monogamous or polygamous, shall, if the marriage is lawful and binding in the place where it was solemnised, be regarded as husband and wife. (4) For the purposes of this Act— (a) in determining whether a person has been left without adequate means of support provided by another person, the court shall have regard to the accustomed condition in life, but not the means (not being means provided by that other person), or earning capacity, of the firstmentioned person; and (b) the fact that payments have been made by the defendant for or towards the maintenance of a person for whose benefit an order is sought since the date of the complaint may be disregarded by the court in determining whether that person is left without adequate means of support provided by the defendant at the date of the hearing of the complaint, unless the court is satisfied that the defendant bona fide intends to continue to provide adequate means of support for that person. (5) A reference in this Act to a person for whose benefit an order is sought or made shall not be construed as a reference to a person who makes a complaint or application on behalf of another person. (6) A reference in this Act to an order shall be read and construed, where the order has been varied, as a reference to the order as varied from time to time. (7) Where an order enforceable under this Act is for the benefit of 2 or more persons it shall be deemed to be a separate order in respect of each of the persons for whose benefit the order was made. (8) The Governor in Council may, by order in council, declare that, in respect of a Magistrates Court held within a Magistrates Court district specified in that order in council, that court may, whenever a magistrate is not available, or it is not practicable for the magistrate to constitute the court, be constituted by 2 justices of the peace. (9) Where a court is so constituted, and notwithstanding any other provision of this Act, all the powers, duties and authorities conferred or imposed upon a Magistrates Court by or under this Act may and where necessary shall be exercised by that court as so constituted. Part 2 Maintenance and other orders Division 1 Jurisdiction and powers of Magistrates Courts Subdivision 1 General 8 General jurisdiction of Magistrates Court in respect of maintenance orders (1) Subject to this Act, a court shall have jurisdiction to make and to discharge, suspend, or vary any of the following kinds of orders— (a) an order against a husband for the maintenance of his wife; (b) an order against a father for the maintenance of children of the family; (c) an order against a wife for the maintenance of her husband; (d) an order against a mother for the maintenance of children of the family; (e) an order against an unmarried father for the maintenance of his child; (f) an order against an unmarried mother for the maintenance of her child; (g) an order against an unmarried father for preliminary expenses in respect of the birth of his child; (h) an order against an unmarried father for funeral expenses in respect of the death of his child, or of the mother of such a child; (i) an order against a husband, wife, father, or mother for or towards the cost of medical, surgical, psychiatric, dental, hospital, or nursing care or treatment of a wife, husband, or child, or of funeral expenses in relation to any such person; (j) such nominal, preliminary and interim orders as are provided for by this part. (2) A court shall have jurisdiction to make an order under this part— (a) if the person against whom the order is sought is resident in Queensland; or (b) if the person for whose benefit the order is sought is resident in Queensland. (2A) However, where proceedings are taken under section 10, 11, 12, 13, 14, 15, 16, 18, 19 or 20 and the court, on objection taken by or on behalf of the defendant, is of opinion that the proceedings should have been taken in another court of similar jurisdiction in Queensland, it may remit the proceedings to that other court for hearing and determination and the proceedings shall then be deemed to have been taken in that other court and the hearing of the objection so taken shall be deemed not to be a commencement of the hearing of the complaint. (3) Subject to this section, a court shall have jurisdiction to make an order under this part whether or not the facts or circumstances, or any of them, the existence or occurrence of which is necessary for the making of the order, took place before the commencement of this Act or outside Queensland. (4) Nothing in this Act shall limit or affect the operation of any provision of any other Act (whether relating to child welfare or family welfare or children's services or social services, or otherwise), or any law, by which any person is or may be required to make contribution to or payment on account of the maintenance or support of any other person. (5) Where it is necessary for the court to be satisfied, before making an order under this Act, that the complainant has been, is, or is about to be, left without adequate means of support provided by the defendant, the court shall not make the order if, upon the evidence before the court, it is satisfied that the defendant had, has, or will have, as the case may be, just cause or excuse for so leaving the complainant. 9 Matters affecting amount of orders (1) In determining the amount that a defendant is to be ordered to pay by an order under section 10, 11, 12, 14, 15 or 17, the court shall have regard, where appropriate, to— (a) the accustomed condition in life of the person for whose benefit the order is to be made; and (b) any evidence before the court as to the means and earning capacity of the defendant and that person and the ability of the defendant to pay maintenance; but may, in its discretion, disregard— (c) the earnings or savings from earnings from an occupation engaged in by that person, or any part of those earnings or savings, if it is satisfied that that person engaged in that occupation solely or mainly because that person was, or reasonably expected to be, left without adequate means of support; and (d) the earning capacity of that person, if it is satisfied that that person would engage in an occupation solely or mainly because that person is, or reasonably expects to be, left without adequate means of support. (2) In the case of an order for the benefit of a child of the family or a child whose parents were not married to each other at the time of its conception and have not since married each other, the expressions— (a) 'defendant', in subsection (1)(b); and (b) 'that person', in subsection (1)(c) and (d); include the parent of the child, not being the parent who is the defendant. (3) In determining the amount that a defendant is to be ordered to pay by an order under this part for a child in custody, no regard shall be had to the fact that the child is a child in custody. (4) In this section— chief executive for child protection means the chief executive of the department in which the Child Protection Act 1999 is administered. child in custody means a child in the custody or under the guardianship of the chief executive for child protection under a court assessment order or child protection order under the Child Protection Act 1999. Subdivision 2 Orders against husbands for maintenance of wives, and against parents for maintenance of children 10 Court may order husband to maintain wife Where the court, upon complaint made by or on behalf of a wife, is satisfied— (a) that she is left by her husband without adequate means of support provided by him and was so left on the date alleged in the complaint; or (b) that her husband is about to remove out of Queensland or into a distant part of Queensland and leave her without adequate means of support provided by him; the court may order the husband to pay for or towards her maintenance such amount as it thinks reasonable. 11 Court may order father to maintain children Where the court, upon complaint made on behalf of a child of the family, is satisfied— (a) that the child is left by the father without adequate means of support provided by him and was so left on the date alleged in the complaint; or (b) that the father is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by him; the court may order the father to pay for or towards the maintenance of the child such amount as it thinks reasonable. 12 Court may order mother to maintain children Where the court, upon complaint made on behalf of a child of the family, is satisfied— (a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that the mother is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by her; the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable. Subdivision 3 Orders against wives for maintenance of husbands 13 Court may order wife to maintain husband Where the court, upon complaint made by or on behalf of a husband, is satisfied that the husband is unable to support himself adequately and— (a) that he is left by his wife without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that his wife is about to remove out of Queensland or into a distant part of Queensland and leave him without adequate means of support provided by her; the court may order the wife to pay for or towards his maintenance such amount as it thinks reasonable, having regard to his accustomed condition in life, his means and earning capacity at the time of the hearing, and any evidence before the court as to his wife's means, earning capacity and ability to pay maintenance. Subdivision 4 Orders against unmarried fathers or mothers for maintenance of children 14 Court may order unmarried father to maintain child Where the court, upon complaint made on behalf of a child whose parents were not married to each other at the time of its conception and have not since married each other, is satisfied that the defendant is the father of the child and— (a) that the child is left by the defendant without adequate means of support provided by him and was so left on the date alleged in the complaint; or (b) that the defendant is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by the defendant; the court may order the defendant to pay for or towards the maintenance of the child such amount as it thinks reasonable. 15 Court may order unmarried mother to maintain child Where the court, upon complaint made on behalf of a child whose parents were not married to each other at the time of its conception and have not since married each other is satisfied— (a) that the child is left by the mother without adequate means of support provided by her and was so left on the date alleged in the complaint; or (b) that the mother is about to remove out of Queensland or into a distant part of Queensland and leave the child without adequate means of support provided by the mother; the court may order the mother to pay for or towards the maintenance of the child such amount as it thinks reasonable. 15A Court may make order by consent (1) Notwithstanding any jurisdiction otherwise had, a court may, subject to this section, make an order under this part for the payment of maintenance— (a) where the defendant states that he or she has no cause to show why an order should not be made against him or her; and (b) where the defendant admits the truth of the complaint; and (c) where both the complainant and the defendant consent to the amount that the defendant is to be ordered to pay and inform the court of that consent. (2) A court shall not make an order under this section unless the complainant and the defendant adduce, by admissions, either orally or in writing— (a) in the case of a person for whose benefit the order is to be made—full particulars of the means, reasonable needs and accustomed condition in life of that person; and (b) in the case of a person against whom an order is to be made—full particulars of that person's means, earning capacity and ability to pay maintenance; and (c) in either case—any relevant particulars that the court considers necessary or desirable. (3) The court may, in its discretion, refuse to make the order for the amount referred to in subsection (1)(c), whereupon— (a) with the consent of the complainant and the defendant, the amount the defendant is to be ordered to pay shall be determined by the court; or (b) if the complainant and the defendant do not give the consent specified in paragraph (a)—the hearing upon the complaint shall commence de novo. (3A) Where the hearing upon a complaint is commenced de novo pursuant to subsection (3)(b), evidence of admissions made for the purpose of obtaining an order by consent under this section shall not be admissible at that hearing. (4) Upon the hearing of a complaint under this section the complainant and the defendant shall appear before the court in person or be represented before it by counsel or solicitor. (5) Any oral admission made under this section shall be recorded by the court and if an order is made by consent under this section become part of the record of that consent proceeding. Subdivision 5 Orders against putative fathers for preliminary expenses and for maintenance of unborn children 16 Court may order payment of preliminary expenses etc. (1) Where the court, upon complaint made by or on behalf of a woman, is satisfied— (a) that she is pregnant by the defendant (not being her husband) or has been delivered of a child or a stillborn child of whom the defendant (not being her husband) is the father; and (b) that the defendant has not made adequate provision for the payment of her preliminary expenses; the court may order the defendant to pay for preliminary expenses such amount as it thinks reasonable. (1A) Where a woman might, but for her death, have made a complaint under subsection (1), the complaint may be made by any person who has paid or is liable to pay the preliminary expenses. (2) A complaint referred to in subsection (1) or (1A) or a claim referred to in subsection (8) shall not be made after the expiration of 12 months after the birth or stillbirth of the child. (3) An order shall not be made under subsection (1) where the woman for whose benefit the order is sought is pregnant unless the court is satisfied by the evidence or a certificate of a medical practitioner that the woman is quick with child. (4) Where an order under subsection (1) was made in the case of a woman who was pregnant by the defendant and— (a) the woman is not delivered of a child or a stillborn child before a date specified in the order for the purposes of this subsection, being a date not later than 6 months after the order was made; or (b) the woman is delivered of a stillborn child before the date so specified; the order ceases to have effect on the date so specified or on the delivery of the stillborn child, as the case may be. (5) Where an order ceases to have effect on the date specified in the order for the purposes of subsection (4) any moneys paid under the order and not disbursed shall be repaid to the defendant. (6) Where an order ceases to have effect on the delivery of a stillborn child, any moneys paid under the order and not disbursed shall, as directed by the court— (a) be paid to the woman; or (b) be repaid to the defendant; or (c) be divided between the woman and the defendant in such proportions as the court thinks fit. (7) Where an order is made under subsection (1) in the case of a woman who is pregnant by the defendant— (a) the court may, at any time while the order is in force, with or without any application for that purpose, and, if upon application, after notice of such application given in such manner and to such persons as the court may direct, give such directions as the court thinks proper with respect to the disbursement of any amounts paid under the order, but not so as to direct the disbursement, before the woman is delivered of a child or stillborn child, of amounts aggregating more than one-half of the amount to be paid under the order; and (b) amounts paid under the order shall not be disbursed otherwise than in accordance with directions so given. (8) Where a complaint has been made under section 14, the court may, if a claim for preliminary expenses is made at the hearing of the complaint, and subject to subsection (2), make an order under subsection (1) for the payment of those expenses, notwithstanding that a complaint has not been made under this section. (9) Where a claim referred to in subsection (8) is made, the court shall, on the application of the defendant, if it is of opinion that the defendant would be prejudiced unless the hearing were adjourned, adjourn the hearing for such period as it thinks fit. (10) The adoption of a child, whether before or after the commencement of this Act, does not prevent the making of an order for preliminary expenses in the same manner as if the child had not been adopted and does not affect the validity or operation of any order for preliminary expenses in respect of the child. (11) The death of a child, whether before or after the commencement of this Act, does not prevent the making of an order for preliminary expenses in the same manner as if the child had not died. (12) In this section— child includes an adopted child. 17 Court may order future maintenance of child upon complaint for preliminary expenses (1) Where a court makes an order under section 16 for or towards the payment of preliminary expenses, being an order made before the birth of the child to which it relates, the court may, upon complaint made by or on behalf of the person who made the complaint under section 16, if it appears probable that the child will, at the expiration of 3 months after birth, be without adequate means of support provided by the father of the child, order the father to pay for or towards the maintenance of the child such amount as it thinks reasonable. (2) An order under subsection (1) takes effect— (a) where a certified copy of the registration of the birth of the child is produced to the clerk of the court by which the order is made within a period of 3 months after the birth of the child—at the expiration of that period; or (b) where such a certified copy is not so produced—upon the production to the clerk of that certified copy. (3) An order under subsection (1) does not take effect if the child to whom it relates is stillborn or dies or is adopted before the order would otherwise take effect. (4) An order under subsection (1) shall not be made requiring a person to make payments for or towards the maintenance a child unless— (a) the person has consented to the making of the order; or (b) the person has been given notice of the complainant's intention to apply for the order. (5) Where a certified copy of the registration of the birth of the child in relation to whom an order has been made under subsection (1) is produced to the clerk of the court, the clerk shall forthwith send by post to the defendant at the defendant's usual or last-known place of residence or business notice in writing of the name of the child, if shown in the certified copy, and of the date and place of birth of the child and the date on which and place at which the first payment under the order is required to be made. Subdivision 6 Orders for funeral expenses 18 Court may order payment of funeral expenses of children (1) Where— (a) the court, upon complaint made by or on behalf of a parent (in this paragraph called the complainant) of a child (including an adopted child) is satisfied that the child was a child of the family who died before attaining the age of 16 years, and— (i) that the complainant was, at the date of the death, entitled to receive payments from the other parent under an order for the maintenance of the child; or (ii) that an order for the maintenance of the complainant was, at the date of the death, in force under which the other parent was directed to make payments for the benefit of the complainant; or (iii) that at the date of death there was in force an order under section 21 directing the payment by the other parent of a nominal amount in respect of the child or the complainant; or (b) the court, upon complaint made by or on behalf of a parent of a stillborn child, is satisfied that the child quickened and that an order for the maintenance of the parent was in force at the date of the stillbirth; and the court is also satisfied that the other parent of the child has not made adequate provision for the funeral expenses of the child, the court may order the other parent to pay such amount as it thinks reasonable for or towards the funeral expenses of the child. (2) Where a parent of a child might, but for that parent's death, have made a complaint under subsection (1), the complaint may be made by any person who has paid or is liable to pay the funeral expenses of the child. (3) Where the court, upon complaint made by or on behalf of the mother of a child to whose father she was not married at the time of its conception and whom she has not since married, is satisfied that the child was stillborn or died either before attaining the age of 16 years or, in the case of a child for whose maintenance an order had been made in the lifetime of the child, while the mother was entitled to receive payments under the order, and that the defendant— (a) was the father of the child or had been adjudged to be the father of the child in any other legal proceedings; and (b) has not made adequate provision for the funeral expenses of the child; the court may order the defendant to pay such amount as it thinks reasonable for towards the funeral expenses of the child. (4) Where the mother of a child (including a stillborn child) to whose father she was not married at the time of its conception and whom she did not subsequently marry has died, a complaint under subsection (3) may be made by any person who has paid or is liable to pay the funeral expenses of the child. (5) An order shall not be made under subsection (3) in relation to a stillborn child unless the court is satisfied that the child quickened. (6) An order shall not be made under this section upon a complaint made more than 12 months after the stillbirth or the death of the child to whom it relates. (7) An order shall not be made under subsection (1) in respect of the funeral expenses of a child whose death occurred before the commencement of this Act. 19 Court may order father to pay funeral expenses of mother of child (1) Where the court, upon complaint made by any person, is satisfied— (a) that the defendant is the father of a child to whose mother he was not married at the time of its conception and whom he did not subsequently marry (including a child that quickened but was stillborn) or has been so adjudged in any other legal proceedings; and (b) that the mother of the child died during and in consequence of her pregnancy or in consequence of the birth or stillbirth of the child; and (c) that the defendant has not made adequate provision for the funeral expenses of the mother; the court may order the defendant to pay such amount for or towards the funeral expenses of the mother as it thinks reasonable. (2) An order shall not be made under this section upon a complaint made more than 12 months after the death of the mother. Subdivision 7 Orders for medical and like expenses 20 Orders for medical and like expenses (1) Where the court, upon complaint made by or on behalf of— (a) a person for whose maintenance an order (not being an order for preliminary expenses) has taken effect and is in force under this part; or (b) a person in respect of whom there has been made an order under section 21 that is in force under this part; is satisfied— (c) that any medical, surgical, psychiatric, dental, hospital, or nursing care or treatment is or was reasonably required to be rendered in respect of that person; (d) that the amount ordered to be paid for the maintenance of that person is not sufficient to enable adequate provision to be made thereout for or towards the cost of that care or treatment; (e) that the person against whom the order was made has not made adequate provision for or towards that cost, and it is just and equitable in all the circumstances of the case that the person pay or contribute towards that cost; the court may order the person to pay for or towards that cost such amount as it thinks reasonable. (2) Where the court, upon complaint made on behalf of a child in respect of whom an order for preliminary expenses has been made, is satisfied— (a) that any care or treatment referred to in subsection (1)(c)— (i) where the child has not attained the age of 3 months—is reasonably required to be rendered in respect of that child; or (ii) where the child has attained that age—was reasonably required and was in fact rendered in respect of that child before the child attained that age; and (b) that the amount ordered to be paid for preliminary expenses was not sufficient to enable adequate provision to be made thereout for or towards the cost of that care or treatment; and (c) the person against whom the order was made has not made adequate provision for or towards that cost and it is just and equitable in all the circumstances of the case that the person pay or contribute towards that cost; the court may order the person to pay for or towards that cost such amount as it thinks reasonable. (3) Where an order is made under this section for the payment of moneys for or towards the cost of any care or treatment referred to in subsection (1)(c), the court may, at any time, with or without any application for that purpose, and, if upon application, after notice of such application given in such manner and to such persons as the court may direct, give such directions as the court thinks proper with respect to the disbursement of the amount ordered to be paid but so that no moneys are disbursed before the care or treatment to which the payment relates has been rendered. (4) The adoption of a child does not prevent the making of an order under this section in the same manner as if the child had not been adopted and does not affect the validity or operation of any such order in respect of the child. (5) Where complaint might have been made under this section by or on behalf of a person but for that person's death, the complaint may be made by any person who has paid or is liable to pay the cost of any care or treatment referred to in subsection (1)(c). (6) An order shall not be made under this section in respect of the cost of any care or treatment that was rendered before the commencement of this Act, or upon a complaint made more than 12 months after the care or treatment to which the complaint relates was rendered. Division 2 Nominal, preliminary and interim orders Subdivision 1 Nominal orders 21 Nominal orders Where, upon the hearing of a complaint under this part for the maintenance of a person, the court is satisfied that it would make an order for the maintenance of that person but for the fact— (a) that that person is not presently left without adequate means of support; or (b) that the defendant is not presently able to contribute to the support of that person; the court may nevertheless make an order setting out its findings on the complaint and directing the payment by the defendant of a merely nominal amount in respect of that person. 22 Nominal orders not to be enforced Proceedings shall not be taken under this Act to enforce payment of the nominal amount directed to be paid by an order made under section 21, but, if that amount is varied under section 31, proceedings may be taken to enforce payment of any amount payable under the order as varied. Subdivision 2 Preliminary and interim maintenance orders 23 Ex parte order for preliminary maintenance of child (1) Upon ex parte application made to a magistrate or to any 2 justices (whether sitting as a Magistrate Court or otherwise) at any time after the making of a complaint made under division 1, subdivision 2 for the maintenance of the child of the family, the magistrate or justices may order the defendant to pay weekly for the maintenance of the child such amount as the magistrate or justices may think reasonable. (1A) An order under this section shall remain in force until the commencement of the hearing of the complaint referred to in subsection (1). (2) The evidence of any person who is examined on an application under subsection (1) shall be taken down in writing and shall be read over and signed by that person. (3) An order under this section shall be in writing, signed by the magistrate or by the justices, shall forthwith be sent, together with the depositions of the witnesses who gave evidence in support of the application, to the clerk of the court at which the summons issued upon the complaint is returnable, and shall, subject to subsection (1), be enforceable as if it were an order made by that court. (4) An order under this section may be made without prior notice being given to the defendant and shall not be subject to suspension, variation, or appeal, and any moneys paid thereunder shall not, irrespective of the outcome of the proceedings upon the complaint, be recoverable. (5) The hearing of an application under this section shall be deemed not to be a commencement of the hearing of the complaint, and the complaint may be heard and determined by a court whether constituted by the magistrate who heard the application or by any other magistrate. 24 Interim orders for payment of maintenance pending determination of case (1) Upon any occasion when the hearing of a complaint made for the purpose of obtaining an order for the maintenance of a wife, husband, or child of the family is adjourned for a period of not less than 7 days (whether or not the hearing has previously been so adjourned), the court may, after such inquiry as it thinks necessary, order the defendant to pay, for or towards the maintenance of the wife, husband, or child such amount as it thinks reasonable. (2) An order under this section shall not be subject to suspension, variation, or appeal, and shall remain in force until the expiration of a period of 3 months from the date on which the order is made or until the complaint again comes before the court (whichever first occurs), and any moneys paid thereunder shall not, irrespective of the outcome of the proceedings upon the complaint, be recoverable. (3) The making of an order under this section shall, unless the hearing of the complaint has otherwise commenced, be deemed not to be a commencement of the hearing of the complaint, and the complaint may be heard and determined by a court whether constituted by the magistrate who constituted the court that made the order by any other magistrate. Division 3 General Subdivision 1 Commencement and duration of orders 25 Orders for maintenance of children Subject to this Act— (a) an order shall not be made under this part in respect of a child who has attained the age of 16 years; and (b) an order for the maintenance of a child ceases to have effect when the child attains the age of 16 years, or dies, or is adopted, or the person against whom the order was made dies (whichever first occurs). 26 Extension of maintenance order after child's 16th birthday (1) This section applies to any child for whose maintenance an order (in this section called a maintenance order) is or, at the time the child attained the age of 16 years, was in force under this Act or under the repealed Acts. (2) Where, upon application made to a court on behalf of a child to whom this section applies, it appears to the court that, in the case of a child who has not attained the age of 16 years, the child will, after the child attains that age, be engaged in a course of education or training or, in the case of a child who has attained that age, the child is or will be so engaged, and that the maintenance order made in respect of the child should be continued or revived, as the case may require, with or without variation, for the purpose of making provision for or towards the maintenance of the child while the child is so engaged and for or towards the meeting of the expenses of the course, the court may order— (a) where the child has not attained the age of 16 years—that the maintenance order continue and be in force for such amount and for such period (not exceeding 2 years from the date on which the child attains that age, unless the defendant consents to a longer period) as may be specified in the order under this section; or (b) where the child has attained the age of 16 years—that the maintenance order revive on and from a date to be specified in the order under this section (not being a date earlier than the date on which the order is made) and that the maintenance order thereafter be in force for such amount and for such period (not exceeding 2 years from the date so specified, unless the defendant consents to a longer period) as may be specified in the order so made. (3) A court may, from time to time, by a subsequent order under this section, extend the period specified in any previous order so made for such further period (not exceeding 2 years, unless the defendant consents to a longer period) from the date of expiry of the previous order as may be specified in the subsequent order. (4) An order under this section shall not require payments to be made under a maintenance order after the date on which the child attains the age of 21 years. (5) An application under this section shall be heard by the court for the place where payments under the maintenance order are or were required to be made, unless— (a) the parties to the application consent to the hearing of the application by a court sitting at another place; or (b) the hearing of the application is adjourned, upon the application of either party, to a court sitting at another place. 27 Orders for maintenance of wife, husband, or child may include limited provision for past maintenance Subject to this part, an order under this part for the maintenance of a person may, whether or not any application in that behalf has been made, be made to take effect from a past date, not being earlier than 3 months before the date on which the order is made, and where an order takes effect from a past date, the court may direct the past maintenance to be paid in one sum or by instalments as the court directs. 28 Duration of order for support of wife or husband An order under this part for the maintenance of a wife or husband ceases to have effect, if not earlier discharged or terminated, upon the death of the wife or husband (whichever death first occurs). 29 Recovery of arrears after cessation of order (1) The fact that an order under this part for the maintenance of a person ceases to have effect does not prevent the enforcement of the order so far as it relates to any period before it ceased to have effect. (2) Subsection (1) does not apply where the order ceases to have effect by reason of the death of the defendant. Subdivision 2 [Repealed] 30 [Repealed] Division 4 Discharge, suspension, variation, and annulment of orders 31 Court may discharge, suspend, or vary order (1) Upon application made by or on behalf of a party to an order (including an order as varied) made under this part, a court may, subject to this division, at any time make an order— (a) discharging the order; or (b) suspending the order in whole or in part until a specified day or until further order; or (c) varying the order in any specified particular. (2) An application under subsection (1) shall be heard by the court for the place where payments under the order are required to be made unless— (a) the parties to the application consent to the hearing of the application by a court sitting at another place; or (b) the hearing of the application is adjourned, upon the application of either party, to a court sitting at another place. (3) An order shall not be discharged, suspended, or varied under this division unless the court is satisfied— (a) that the order or, if the order has been varied, the original order or any order varying the original order was obtained by fraud or upon the basis of the existence of a marriage that did not in fact exist; or (b) that new facts or circumstances have arisen that have not previously been disclosed to a court and that by reason of those facts or circumstances it is reasonable to discharge, suspend or vary the order; or (c) that facts or circumstances were in existence at the time of the making of the order or, if the order has been varied, the original order or any order varying the original order that have not previously been disclosed to a court and that were not and could not by the exercise of reasonable diligence have previously been known to the party presently seeking the discharge, suspension, or variation of the order, and that by reason of those facts or circumstances it is reasonable to discharge, suspend or vary the order. (4) An order— (a) that is in force under this part may be— (i) discharged, suspended, or varied as from any past or future day; or (ii) suspended in respect of any past or future period; or (b) that has ceased to have effect, may be discharged, suspended, or varied from any past day, or suspended in respect of any past period; specified in the order that effects the discharge, suspension, or variation. (5) The fact that the defendant is in default in complying with an order shall not preclude the discharge, suspension, or variation of that order. (5A) However, where under this Act proceedings for enforcement have been instituted in respect of a maintenance order enforceable under this Act, an application for discharge, suspension or variation of that order shall not be made, by or on behalf of the person against whom that order was made, prior to the completion of those proceedings for enforcement. (6) Notwithstanding subsection (3) an order that is in force under this part may, subject to this subsection and subsections (7) to (9), be discharged, suspended or varied by the court where the parties to the application consent to the terms and conditions of a discharge, suspension or, as the case may be, variation and inform the court of that consent. (7) A court shall not make an order under subsection (6) unless the parties to the application— (a) appear before the court in person or are represented before it by counsel or solicitor; and (b) adduce, by admissions made orally or in writing, evidence of the facts and circumstances upon which that order is to be based. (8) The court may, in its discretion, refuse to make the order sought by the parties whereupon— (a) the hearing upon the application shall commence de novo, and in such case evidence of admissions made for the purpose of obtaining an order by consent under subsection (6) shall not be admissible at that hearing; or (b) with the consent of the parties to the application the court may proceed to hear and determine the application. (9) Any oral admission made under subsection (7) shall be recorded by the court and if an order is made by consent under subsection (6) become part of the record of that consent proceeding. 32 Effect of suspension of order (1) Where an order is suspended under this division until a specified day, the order, unless earlier revived pursuant to section 34, shall without any further or other order revive and again take effect upon the specified day. (2) Where an order is suspended until further order it shall not again take effect unless and until an order reviving it is made under section 34. (3) Subject to subsection (4), the fact that an order is suspended under this division shall not prevent the enforcement of the order so far as it relates to any period before the day as from which the suspension took or takes effect. (4) Where an order is suspended under this division, the court may order that the whole or any part of any moneys owing under the order as at the day from which the suspension took or takes effect shall not be recoverable under this Act during the period of the suspension, and thereupon no certificate in relation to those moneys shall be granted under section 45 during that period. 33 Plural births Where an order is made under section 17 before the birth of the child and 2 or more children are born, an application may be made under this division for variation of the order to provide for the maintenance of the additional child or children. 34 Court may revive suspended order (1) Upon application made by or on behalf of any person for whose benefit an order was made that has been suspended under this division until a specified day or until further order, a court may make an order reviving the suspended order in whole or in part, with or without variation, as the court thinks fit. (2) An application under subsection (1) shall be heard by the court for the place where the suspending order was made unless— (a) the parties to the application consent to the hearing of the application by a court sitting at another place; or (b) the hearing of the application is adjourned, upon the application of either party, to a court sitting at another place. (3) A suspended order may be revived from any past day, or, subject to section 31(1), any future day, specified in the reviving order, and shall from that day have and (where necessary) be deemed to have had effect accordingly. (4) Where the court revives an order from a past day, the court may direct that payment in respect of any period before the date of the reviving order be made in one sum or by such instalments as the court specifies in the reviving order. 35 Court may annul affiliation order (1) Where— (a) an order has been made under this part; and (b) it was necessary to satisfy the court making the order that the defendant was the father of a child to whose mother he was not married at the time of its conception and whom he has not since married or that a woman was with child by the defendant (not being her husband); the defendant may at any time make an ex parte application to the court for the annulment of the order. (2) If evidence is given to the court on oath, either orally or on affidavit— (a) showing that evidence material to the question of the paternity of the child is available and that the evidence was not produced at the time the order was made; and (b) disclosing the nature of that evidence and the names and addresses of the witnesses who are to be called to give that evidence; the court may, upon such terms as to costs or otherwise as it thinks fit, issue a notice directed to all persons (other than the child) to be affected thereby, calling upon them to show cause why the order should not be annulled. (3) An application under this section for the annulment of an order shall be heard and determined by the court for the place where payments under the order are required to be made unless— (a) the applicant and every person to whom a notice referred to in subsection (2) is directed, consent to the hearing of the application by a court sitting at another place; or (b) the hearing of the application is adjourned, upon the application of the applicant or any such person, to a court sitting at another place.