FAMILY LAW ACT 1975 - SECT 90YZD Other rules relating to proceedings under section 90YX

FAMILY LAW ACT 1975 - SECT 90YZD

  (1)   If a party to a de facto relationship dies after the breakdown of the de facto relationship, an order made under section   90YX in relation to the de facto relationship may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

  (2)   A court must not make an order under section   90YX unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

  (3)   To avoid doubt, for the purposes of being satisfied under subsection   (2) of this section that, in all the circumstances, it is just and equitable to make an order under section   90YX of this Act, the circumstances include any other orders made, or to be made, under section   205ZG of the Family Court Act 1997 (WA) in relation to property of the parties to the de facto relationship.

  (4)   In considering what order (if any) should be made under section   90YX of this Act, the court must take into account:

  (a)   the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

  (i)   to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

  (ii)   otherwise in relation to any of that last - mentioned property;

    whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

  (b)   the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

  (i)   to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

  (ii)   otherwise in relation to any of that last - mentioned property;

    whether or not that last - mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

  (c)   the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and

  (d)   the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and

  (e)   the following matters, so far as they are relevant:

  (i)   the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship );

  (ii)   the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

  (iii)   whether either party has the care or control of a child of the subject de facto relationship who has not attained the age of 18 years;

  (iv)   commitments of each of the parties that are necessary to enable the party to support themselves and a child or another person that the party has a duty to maintain;

  (v)   the responsibilities of either party to support any other person;

  (vi)   the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country or under any superannuation fund or scheme (whether the fund or scheme was established, or operates, within or outside Australia) and the rate of any such pension, allowance or benefit being paid to either party;

  (vii)   a standard of living that in all the circumstances is reasonable;

  (viii)   the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant;

  (ix)   the duration of the subject de facto relationship and the extent to which it has affected the earning capacity of the parties to the subject de facto relationship;

  (x)   the need to protect a party who wishes to continue that party's role as a parent;

  (xi)   if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

  (f)   the terms of any other order made or proposed to be made under section   205ZG of the Family Court Act 1997 (WA) in relation to vested bankruptcy property in relation to a bankrupt de facto party to the subject de facto relationship; and

  (g)   the terms of any other order or declaration made, or proposed to be made, under Part   5A of the Family Court Act 1997 (WA) in relation to vested bankruptcy property in relation to:

  (i)   a party to the subject de facto relationship (in relation to another de facto relationship); or

  (ii)   a person who is a party to another de facto relationship with a party to the subject de facto relationship; and

  (h)   the terms of any order or declaration made, or proposed to be made, under Part   VIII of this Act in relation to vested bankruptcy property in relation to:

  (i)   a party to the subject de facto relationship; or

  (ii)   a person who is a party to a marriage with a party to the subject de facto relationship; and

  (i)   any other order made under Part   5A of the Family Court Act 1997 (WA) affecting a party to the subject de facto relationship or a child of the subject de facto relationship; and

  (j)   any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and

  (k)   any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

  (l)   the terms of any Part   VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and

  (m)   the terms of any financial agreement that is binding on a party to the subject de facto relationship; and

  (n)   the terms of any Western Australian financial agreement that is binding on a party to the subject de facto relationship.

Note:   For child of a de facto relationship , see section   90YE.

  (5)   Without limiting the power of any court to grant an adjournment in proceedings under this Act, if, in proceedings under section   90YX, a court is of the opinion:

  (a)   that there is likely to be a significant change in the financial circumstances of the parties to the de facto relationship or either of them and that, having regard to the time when that change is likely to take place, it is reasonable to adjourn the proceedings; and

  (b)   that an order that the court could make with respect to:

  (i)   the superannuation interests of the parties to the de facto relationship or either of them; or

  (ii)   any vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship;

    if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the de facto relationship than an order that the court could make immediately with respect to:

  (iii)   the superannuation interests of the parties to the de facto relationship or either of them; or

  (iv)   any vested bankruptcy property in relation to a bankrupt party to the de facto relationship;

the court may, if so requested by either party to the de facto relationship or the relevant bankruptcy trustee (if any), adjourn the proceedings until such time, before the expiration of a period specified by the court, as that party to the de facto relationship or the relevant bankruptcy trustee, as the case may be, applies for the proceedings to be determined, but nothing in this subsection requires the court to adjourn any proceedings in any particular circumstances.

  (6)   If a court proposes to adjourn proceedings as provided by subsection   (5), the court may, before so adjourning the proceedings, make such interim order or orders or such other order or orders (if any) as it considers appropriate with respect to:

  (a)   a superannuation interest of the parties to the de facto relationship or of either of them; or

  (b)   any vested bankruptcy property in relation to a bankrupt party to the de facto relationship.

  (7)   The court may, in forming an opinion for the purposes of subsection   (5) as to whether there is likely to be a significant change in the financial circumstances of either or both of the parties to the de facto relationship, have regard to any change in the financial circumstances of a party to the de facto relationship that may occur by reason that the party to the de facto relationship:

  (a)   is a contributor to a superannuation fund or scheme, or participates in any scheme or arrangement that is in the nature of a superannuation scheme; or

  (b)   may become entitled to property as the result of the exercise in the party's favour, by the trustee of a discretionary trust, of a power to distribute trust property;

but nothing in this subsection limits the circumstances in which the court may form the opinion that there is likely to be a significant change in the financial circumstances of a party to the de facto relationship.

  (8)   If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before proceedings under section   90YX are completed:

  (a)   the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Western Australian Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings; and

  (b)   if the court is of the opinion:

  (i)   that it would have made an order with respect to a superannuation interest if the deceased party had not died; and

  (ii)   that it is still appropriate to make an order with respect to a superannuation interest;

    the court may make such order as it considers appropriate with respect to:

  (iii)   a superannuation interest of the parties to the de facto relationship or either of them; or

  (iv)   any vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; and

  (c)   an order made by the court pursuant to paragraph   (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

  (9)   A court must not make an order under section   90YX (other than an order until further order or an order made with the consent of all the parties to the proceedings) unless:

  (a)   the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a person referred to in paragraph   205ZG(9)(a) of the Family Court Act 1997 (WA); or

  (b)   the court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstance, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph   (a) of this subsection; or

  (c)   the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph   (a) of this subsection.

  (10)   The following are entitled to become a party to proceedings in which an application is made for an order under section   90YX by a party to a de facto relationship (the subject de facto relationship ):

  (a)   a creditor of a party to the proceedings if the creditor may not be able to recover the creditor's debt if the order were made;

  (b)   a person:

  (i)   who is a party to a de facto relationship (the other de facto relationship ) with a party to the subject de facto relationship; and

  (ii)   who could apply, or has an application pending, for an order under section   90YX in relation to the other de facto relationship;

  (c)   a person who is a party to a Part   VIIIAB financial agreement (that is binding on the person) or a Western Australian financial agreement with a party to the subject de facto relationship;

  (d)   a person:

  (i)   who is a party to a marriage with a party to the subject de facto relationship; and

  (ii)   who could apply, or has an application pending, for an order under section   79, or a declaration under section   78, in relation to the marriage (or void marriage);

  (e)   a person who is a party to a financial agreement (that is binding on the person) with a party to the subject de facto relationship;

  (f)   any other person whose interests would be affected by the making of the order.

  (11)   Subsection   (10) does not apply to a creditor of a party to the proceedings:

  (a)   if the party is a bankrupt--to the extent to which the debt is a provable debt (within the meaning of the Bankruptcy Act 1966 ); or

  (b)   if the party is a debtor subject to a personal insolvency agreement--to the extent to which the debt is covered by the personal insolvency agreement.

  (12)   If a person becomes a party to proceedings under section   90YX because of paragraph   (10)(b) of this section, the person may, in the proceedings, apply for an order under that section in relation to the other de facto relationship described in that paragraph.

  (13)   If a person becomes a party to proceedings under section   90YX because of paragraph   (10)(d) of this section, the person may, in the proceedings, apply for:

  (a)   an order under section   79; or

  (b)   a declaration under section   78;

in relation to the marriage (or void marriage) described in that paragraph.

  (14)   If:

  (a)   an application is made for an order under section   90YX in proceedings between the parties to a de facto relationship with respect to a superannuation interest of either or both of the parties; and

  (b)   either of the following subparagraphs apply to a party to the de facto relationship:

  (i)   when the application was made, the party was a bankrupt;

  (ii)   after the application was made but before it is finally determined, the party became a bankrupt; and

  (c)   the bankruptcy trustee applies to the court to be joined as a party to the proceedings; and

  (d)   the court is satisfied that the interests of the bankrupt's creditors may be affected by the making of an order under section   90YX in the proceedings;

the court must join the bankruptcy trustee as a party to the proceedings.

  (15)   If a bankruptcy trustee is a party to proceedings under this Part   in relation to a superannuation interest of either or both of the parties to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

  (16)   The court must not grant leave under subsection   (15) unless the court is satisfied that there are exceptional circumstances.

  (17)   If:

  (a)   an application is made for an order under section   90YX in proceedings between the parties to a de facto relationship with respect to a superannuation interest of either or both of the parties; and

  (b)   either of the following subparagraphs apply to a party to the de facto relationship (the debtor party ):

  (i)   when the application was made, the party was a debtor subject to a personal insolvency agreement;

  (ii)   after the application was made but before it is finally determined, the party becomes a debtor subject to a personal insolvency agreement; and

  (c)   the trustee of the agreement applies to the court to be joined as a party to the proceedings; and

  (d)   the court is satisfied that the interests of the debtor party's creditors may be affected by the making of an order under this section in the proceedings;

the court must join the trustee of the agreement as a party to the proceedings.

  (18)   If the trustee of a personal insolvency agreement is a party to proceedings under this Part   in relation to a superannuation interest of either or both of the parties to a de facto relationship, then, except with the leave of the court, the party to the de facto relationship who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any superannuation interest subject to the agreement.

  (19)   The court must not grant leave under subsection   (18) unless the court is satisfied that there are exceptional circumstances.

  (20)   For the purposes of subsections   (14) and (17), an application for an order under section   90YX is taken to be finally determined when:

  (a)   the application is withdrawn or dismissed; or

  (b)   an order (other than an interim order) is made as a result of the application.