Western Australian Consolidated Acts Western Australian Consolidated Acts1 This is a compilation of the Family Court Act 1997 and
includes the amendments made by the other written laws referred to in the
following table 1a. The table also contains information about
any reprint.
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
40 of 1997 |
10 Dec 1997 |
26 Sep 1998 (see s. 2 and Gazette
25 Sep 1998 p. 5295) |
|
|
State Superannuation (Transitional and Consequential
Provisions) Act 2000 s. 43(1) |
43 of 2000 |
2 Nov 2000 |
17 Feb 2001 (see s. 2(2) and
Gazette 16 Feb 2001 p. 903) |
|
Acts Amendment (Lesbian and Gay Law Reform) Act 2002
Pt. 9 |
3 of 2002 |
17 Apr 2002 |
21 Sep 2002 (see s. 2 and Gazette
20 Sep 2002 p. 4693) |
|
Family Court Amendment
Act 2002 4-6 |
25 of 2002 |
25 Sep 2002 |
1 Dec 2002 (see s. 2 and Gazette
29 Nov 2002 p. 5651) |
|
Acts Amendment (Equality of Status) Act 2003
Pt. 19 7 |
28 of 2003 |
22 May 2003 |
1 Jul 2003 (see s. 2 and Gazette
30 Jun 2003 p. 2579) |
|
Sentencing Legislation Amendment and Repeal Act 2003
s. 60 |
50 of 2003 |
9 Jul 2003 |
15 May 2004 (see s. 2 and Gazette
14 May 2004 p. 1445) |
|
Reprint 1: The Family Court Act 1997 as at
15 Aug 2003 (includes amendments listed above except those in the
Sentencing Legislation Amendment and Repeal
Act 2003) |
|||
|
Acts Amendment and Repeal (Courts and Legal Practice)
Act 2003 s. 126 |
65 of 2003 |
4 Dec 2003 |
1 Jan 2004 (see s. 2 and Gazette
30 Dec 2003 p. 5722) |
|
Criminal Code Amendment Act 2004
s. 58 |
4 of 2004 |
23 Apr 2004 |
21 May 2004 (see s. 2) |
|
34 of 2004 |
20 Oct 2004 |
1 Mar 2006 (see s. 2 and Gazette
14 Feb 2006 p. 695) |
|
|
Acts Amendment (Court of Appeal) Act 2004
s. 37 |
45 of 2004 |
9 Nov 2004 |
1 Feb 2005 (see s. 2 and Gazette
14 Jan 2005 p. 163) |
|
Courts Legislation Amendment and Repeal Act 2004
Pt. 12 8 |
59 of 2004 (as amended by No. 2 of 2008
s. 77(2)) |
23 Nov 2004 |
1 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7128) |
|
Criminal Procedure and Appeals (Consequential and Other
Provisions) Act 2004 s. 80 |
84 of 2004 |
16 Dec 2004 |
2 May 2005 (see s. 2 and Gazette
31 Dec 2004 p. 7129 (correction in Gazette
7 Jan 2005 p. 53)) |
|
Oaths, Affidavits and Statutory Declarations
(Consequential Provisions) Act 2005 Pt. 7 |
24 of 2005 |
2 Dec 2005 |
1 Jan 2006 (see s. 2(1) and Gazette
23 Dec 2005 p. 6244) |
|
Planning and Development (Consequential and Transitional
Provisions) Act 2005 s. 15 |
38 of 2005 |
12 Dec 2005 |
9 Apr 2006 (see s. 2(2) and Gazette
21 Mar 2006 p. 1078) |
|
Reprint 2: The Family Court Act 1997 as at
14 Apr 2006 (includes amendments listed above) |
|||
|
Family Legislation Amendment Act 2006 Pt. 2
and 3 9-11 |
35 of 2006 |
4 Jul 2006 |
Pt. 2: 14 Jul 2006 (see s. 2 and
Gazette 14 Jul 2006
p. 2559); |
|
Reprint 3: The Family Court Act 1997 as at
20 Oct 2006 (includes amendments listed above) |
|||
|
Legal Profession Act 2008 s. 663
|
21 of 2008 |
27 May 2008 |
1 Mar 2009 (see s. 2(b) and Gazette
27 Feb 2009 p. 511) |
|
Surrogacy Act 2008
Pt. 4 Div. 3 |
47 of 2008 |
10 Dec 2008 |
1 Mar 2009 (see s. 2(b) and Gazette
27 Feb 2009 p. 512) |
1a On the date as at which this
compilation was prepared, provisions referred to in the following table had not
come into operation and were therefore not included in this compilation. For
the text of the provisions see the endnotes referred to in the table.
Provisions
that have not come into operation
|
Short title |
Number and year |
Assent |
Commencement |
|---|---|---|---|
|
State Superannuation (Transitional and Consequential
Provisions) Act 2000 s. 43(2) 3 |
43 of 2000 |
2 Nov 2000 |
To be proclaimed (see s. 2(2)) |
|
Family Legislation Amendment Act 2006
Pt. 4 12 |
35 of 2006 |
4 Jul 2006 |
To be proclaimed (see s. 2) |
2 The Superannuation and Family Benefits
Act 1938 was repealed by the State Superannuation Act
2000 s. 39. Certain provisions of that Act continue to apply to and in
relation to certain schemes because of the State Superannuation (Transitional
and Consequential Provisions) Act 2000 s. 26.
3 On the date as at which this compilation was prepared, the
State Superannuation (Transitional and Consequential Provisions)
Act 2000 s. 43(2) had not come into operation. It reads as
follows:
“
(2) Section 17 of the Family Court Act 1997 is
repealed.
”.
4 The
Family Court Amendment Act 2002 s. 25 reads as
follows:
“
25. Saving
The amendments effected by this Part do not affect any act or thing done
by a court under Part 10 Division 2 of the Family Court
Act 1997 before the commencement of this Part, and any such act or
thing continues to have effect according to its terms after that commencement as
if those amendments had not been made.
”.
5 The Family Court Amendment Act 2002 s. 61(2)
reads as follows:
“
(2) The amendment effected by subsection (1) does not
apply in relation to child maintenance orders made before the commencement of
this section.
”.
6 The Family Court Amendment Act 2002 s. 62(2)
reads as follows:
“
(2) The amendment made by subsection (1), applies in
relation to arrears that are outstanding on or after the commencement of this
section.
”.
7 The Acts Amendment (Equality of Status) Act 2003
s. 50(2) and (3) read as follows:
“
(2) In subsection (3) —
relevant action means anything done under the Family Court
Act 1997 —
(a) after the commencement of the Family Court Amendment
Act 2002; but
(b) before the commencement of this section.
(3) It is declared that by force of this section —
(a) any relevant action is and has always been as valid and effective as
it would have been; and
(b) the rights and liabilities of all persons are and have always been the
same as they would have been,
if subsection (1) had come into operation on the day on which the
Family Court Amendment Act 2002 came into operation.
”.
8 The Courts Legislation Amendment and Repeal
Act 2004 s. 95 (to amend s. 243(6)) was repealed by the
Criminal Law and Evidence Amendment Act 2008 s. 77(2).
9 The Family Legislation Amendment Act 2006
s. 21, 30, 35, 41, 48, 51, 57, 61, 68(3), 70(3), 77(3), 99, 103 and 107
read as follows:
“
21. Transitional provision
The Family Court Act 1997, as amended by this Division,
applies in relation to proceedings instituted in a court (within the meaning of
that Act section 8) before, on or after the commencement of this
Division.
30. Transitional provisions
(1) Subject to subsection (2), the Family Court Act 1997
as amended by this Division, applies in relation to financial agreements (within
the meaning of that Act section 205T) made at any time, whether before, on
or after the commencement of this Division.
(2) The Family Court Act 1997 as amended by this Division,
does not apply to proceedings that were instituted under that Act before the
commencement of this Division.
35. Transitional provisions
(1) In this section —
commencement means the day on which this Division comes into
operation;
section 205ZG order means an order (other than an
interim or a partial order) made under section 205ZG of the Family Court
Act 1997.
(2) Subject to this section, the Family Court Act 1997, as
amended by this Division, applies in relation to all de facto relationships
to which that Act otherwise applies.
(3) Subject to subsection (4), the Family Court Act 1997,
as amended by this Division, does not apply in relation to a de facto
relationship if a section 205ZG order is in force in relation to the
relationship at the commencement.
(4) If a section 205ZG order that is in force at the commencement is
later set aside under section 205ZH(1)(a), (b), (c) or (d) of the Family
Court Act 1997, then the Family Court Act 1997, as amended
by this Division, applies in relation to the de facto relationship in relation
to which the order was in force, only from the time the order is set
aside.
41. Transitional provision
The Family Court Act 1997, as amended by section 36 of
this Act, applies in relation to proceedings in a court (within the meaning of
that Act section 8) that have not been finally determined before the
commencement of that section, whether the proceedings were instituted in the
court before, on or after the commencement of that section.
48. Transitional provisions
(1) In this section —
commencement means the day on which this Subdivision comes
into operation;
parenting order has the same meaning as it has in the
Family Court Act 1997.
(2) The Family Court Act 1997, as amended by this Subdivision,
applies to —
(a) contraventions, and alleged contraventions, of parenting orders
whether occurring before, at or after the commencement; and
(b) proceedings in a court (within the meaning of that Act section 8)
in which it is alleged that a person committed a contravention of a parenting
order whether those proceedings are commenced before, at or after the
commencement.
51. Savings provision
Despite the amendment effected by section 50, the Family Court
Act 1997, as in force immediately before the commencement of this
Subdivision, continues to apply in respect of offers to settle proceedings made
under section 240 of that Act before the commencement of this
Subdivision.
57. Savings provision
Despite the amendments effected by this Subdivision, the Family Court
Act 1997, as in force immediately before the commencement of this
Subdivision, continues to apply to failures to comply with orders, bonds or
sentencing alternatives made or imposed under that Act before the commencement
of this Subdivision.
61. Savings provision
Despite the amendments effected by section 60, the Family Court
Act 1997, as in force immediately before the commencement of that
section, continues to apply to dispositions made under that Act before the
commencement of that section.
68. Section 64
amended and transitional provision
(3) The Family Court Act 1997, as amended by this section,
does not apply to, or in respect of admissions or disclosures made under that
Act before the commencement of this section.
70. Section 205J
amended and transitional provision
(3) The Family Court Act 1997, as amended by this section,
does not apply to, or in respect of admissions or disclosures made under that
Act before the commencement of this section.
77. Section 237
amended and transitional provision
(3) The Family Court Act 1997, as amended by this section,
does not apply to, or in respect of, proceedings instituted under that Act
before the commencement of this section.
99. Transitional provisions
(1) In this section —
commencement means the day on which this Division comes into
operation;
new Act means the Family Court Act 1997 as in
force after commencement;
parenting order has the same meaning as in the Family Court
Act 1997.
(2) Section 66C of the new Act applies to orders made on or after
commencement.
(3) The amendments effected by sections 84 and 94 apply in
respect of parenting orders made on or after commencement.
(4) The amendment effected by section 85 applies to proceedings under
Part 5 of the Family Court Act 1997, whether the proceedings
were initiated before, on or after commencement.
(5) The amendment effected by section 86 applies to directions given
under section 73(2) of the new Act on or after commencement.
(6) The amendment effected by section 87 applies to parenting plans
made on or after commencement.
(7) The amendment effected by section 90 applies to parenting orders
made on or after commencement.
(8) The amendment effected by section 91 applies to parenting orders
made on or after commencement (this includes, without limitation, a parenting
order that varies an earlier parenting order, whether the earlier parenting
order was made before or after commencement).
(9) Sections 89AA, 89AB, 89AC and 89AD of the new Act apply to
parenting orders made on or after commencement.
(10) The amendment effected by section 97 applies to a court
proposing to make an order mentioned in section 92(1) of the new Act,
whether the proceedings to which the order relates were initiated before or
after commencement.
(11) The amendments effected by this Division are taken not to constitute
changed circumstances that would justify making an order to discharge or vary,
or to suspend or revive the operation of, some or all of a parenting order that
was made before commencement.
103. Transitional provisions
(1) In this section —
commencement means the day on which this Division comes into
operation;
parenting order has the same meaning as in the Family
Court Act 1997.
(2) The amendments effected by this Division apply to a contravention, or
alleged contravention of a parenting order —
(a) if the contravention occurs, or the alleged contravention is alleged
to occur, on or after commencement; and
(b) do not apply if the contravention occurs, or the alleged contravention
is alleged to occur, before commencement.
107. Transitional provision
The amendments effected by this Division —
(a) apply to proceedings commenced by an application filed on or after
1 July 2006; and
(b) apply to proceedings commenced by an application filed before
1 July 2006, if the parties to the proceedings consent and the court
grants leave.
”.
10 The Family Legislation Amendment Act 2006
Pt. 3 Div. 4 Subdiv. 2 reads as follows:
“
Subdivision 2 — Transitional
provisions
127. Interpretation
In this Division —
commencement means the day on which this Division comes into
operation.
128. Arbitration awards registered under section 60A or 60B are
taken to be registered under section 65P
If —
(a) at any time before commencement, an award in an arbitration had been
registered under section 60A or 60B of the Family Court
Act 1997; and
(b) the award is still registered immediately before
commencement,
the registration of the award continues to have effect after commencement
as if it had been done under section 65P of that Act.
129. Powers under Part 4C Division 4 of the Family Court
Act 1997 may be exercised in relation to section 60A arbitration
and private arbitration
For the purposes of sections 65O, 65P, 65Q and 65R —
(a) a reference to section 65M arbitration includes a reference to
section 60A arbitration (within the meaning of the Family Court
Act 1997 as in force immediately before commencement); and
(b) a reference to relevant property or financial arbitration includes a
reference to private arbitration of a dispute (within the meaning of the
Family Court Act 1997 as in force immediately before
commencement).
130. Request for counselling under section 52
If, at commencement, a notice filed under section 52 of the
Family Court Act 1997 has not been acted on, an appropriate officer
of the court in which the notice is filed must arrange for the parties to the
proceedings to which the notice relates (and the child and any other persons the
officer thinks appropriate) to be interviewed by a family counsellor to assess
whether counselling is appropriate in all the circumstances, and, if it
is —
(a) to discuss the care, welfare and development of the child;
and
(b) if there are differences between the parties in relation to matters
affecting the care, welfare and development of the child, to try to resolve
those differences.
131. Orders under section 72(2)
If, at commencement, an order under section 72(2) of the Family
Court Act 1997 has not yet been complied with, the order is taken to
have been complied with if the parties to which the order relate attend a
conference with a family counsellor (within the meaning of the Family Court
Act 1997 as amended by this Division).
132. Reports under section 73
If, at commencement, a family and child counsellor or welfare officer
(within the meaning of the Family Court Act 1997 as in force
immediately before commencement) has been directed to give a report under
section 73(2) of that Act and has not yet given that report —
(a) the person must still provide the report; and
(b) references in section 73 of that Act (as amended by this
Division) to a family consultant are taken to be references to the person who
provides the report.
133. Pre-parenting order counselling for the purposes of
section 72
If, before commencement, parties to proceedings attended a conference
with a family and child counsellor or a welfare officer to discuss the matter to
which the proceedings relate, the attendance at that conference is taken to
satisfy the requirement in section 72(2) of the Family Court
Act 1997 (as amended by this Division) to attend a conference with a
family counsellor.
134. Supervision etc. of parenting orders
If —
(a) under a court order made before commencement under section 95 of
the Family Court Act 1997, a person is required to do either or both
of the following —
(i) supervise compliance with a parenting order;
(ii) give any party to the parenting order such assistance as is
reasonably requested by that party in relation to compliance with, and the
carrying out of, the parenting order;
and
(b) immediately after commencement, the person is not a family consultant
within the meaning of the Family Court Act 1997 as amended by this
Division,
then the court may make another order substituting a family consultant
for the person.
135. Transitional regulations
(1) If this Division does not provide sufficiently for a matter or issue
of a transitional nature that arises as a result of the amendments made by this
Division, the Governor may make regulations prescribing all matters that are
required, necessary or convenient to be prescribed for providing for that matter
or issue.
(2) If regulations made under subsection (1) provide that a specified
state of affairs is taken to have existed, or not to have existed, on and from a
day that is earlier than the day on which the regulations are published in the
Gazette but not earlier than commencement, the regulations have effect
according to their terms.
(3) In subsection (2) —
specified means specified or described in the
regulations.
(4) If regulations contain a provision referred to in subsection (2),
the provision does not operate so as —
(a) to affect in a manner prejudicial to any person (other than the State
or an authority of the State) the rights of that person existing before the day
of publication; or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to be done before
the day of publication.
”.
11 The Family Legislation Amendment Act 2006
s. 141 and 143 read as follows:
“
141. Transitional provisions
(1) In this section —
commencement means the day on which this Division comes
into operation;
new provision means section 164 of the Family Court
Act 1997 as in force after commencement;
old provision means section 171 of the Family Court
Act 1997 as in force immediately before commencement.
(2) The amendments effected by this Division apply to proceedings
initiated under Part 5 of the Family Court Act 1997 before, on
or after commencement.
(3) If —
(a) a court made an order under the old provision for separate
representation of a child; and
(b) immediately before commencement, the proceedings in which the order
was made have not been concluded,
then —
(c) the person who was appointed as the child’s representative under
the old provision is taken to be appointed as the independent children’s
lawyer under the new provision; and
(d) the order under the old provision for separate representation of the
child is taken to be an order under the new provision for independent
representation of the child’s interests.
143. Transitional provisions
(1) In this section —
commencement means the day on which this Division comes into
operation.
(2) The amendments effected by this Division —
(a) apply to orders made after commencement; and
(b) do not apply to orders made before commencement.
”.
12 On the date as at which this compilation was prepared, the
Family Legislation Amendment Act 2006 Pt. 4 had not come into
operation. It reads as follows:
“
Part 4 — Amendments
about the interaction between family law and bankruptcy law
178. Section 5
amended
Section 5(1) is amended as follows:
(a) by inserting in the appropriate alphabetical positions —
“
(FLA s. 4(1))
bankrupt has the same meaning as in the Bankruptcy
Act;
“Bankruptcy Act” means the Bankruptcy Act 1966 of the
Commonwealth;
(FLA s. 4(1))
bankruptcy trustee, in relation to a bankrupt, means the
trustee of the bankrupt’s estate;
(FLA s. 4(1))
debtor subject to a personal insolvency agreement has the
meaning given by section 7B;
(FLA s. 4(1))
personal insolvency agreement has the same meaning as in the
Bankruptcy Act;
(FLA s. 4(1))
property, in relation to de facto partners, or either
of them, means property to which those partners are, or that partner is, as the
case may be, entitled, whether in possession or reversion;
(FLA s. 4(1))
property settlement proceedings means proceedings with
respect to —
(a) the property of de facto partners, or either of them;
or
(b) the vested bankruptcy property in relation to a bankrupt de facto
partner;
(FLA s. 4(1))
trustee, in relation to a personal insolvency agreement, has
the same meaning as in the Bankruptcy Act;
(FLA s. 4(1))
vested bankruptcy property, in relation to a bankrupt, means
property, within the meaning of the Bankruptcy Act, of the bankrupt that has
vested in the bankruptcy trustee under that Act;
”;
(b) by deleting the definition of “Part 5A proceedings”
and inserting instead —
“
Part 5A proceedings means proceedings under
Part 5A for orders with respect to —
(a) the property of de facto partners, or either of them;
or
(b) the vested bankruptcy property in relation to a bankrupt de facto
partner; or
(c) the maintenance of a de facto partner,
but does not include any proceedings specified in the regulations for the
purposes of this definition;
”.
Before section 8 the following section is inserted —
“
7B. Meaning
of “debtor subject to a personal insolvency agreement” —
FLA s. 4A
For the purposes of this Act, if —
(a) a person who is a debtor (within the meaning of Part X of the
Bankruptcy Act) executes a personal insolvency agreement; and
(b) the agreement has not ended (within the meaning of the Bankruptcy
Act),
the person is a debtor subject to the personal insolvency
agreement.
”.
180. Section 45
amended
(1) Section 45 is amended by inserting before “Where” the
subsection designation “(1)”.
(2) At the end of section 45 the following subsection is
inserted —
“
(2) For the purposes of subsection (1), if the bankruptcy trustee of
a bankrupt de facto partner applies under section 139A of the
Bankruptcy Act for an order under Division 4A of Part VI of that Act,
proceedings relating to that application are taken to be related
proceedings.
”.
181. Section 205T
amended
Section 205T is amended as follows:
(a) at the end of the definition of “income tested pension,
allowance or benefit” by deleting the semicolon and inserting instead a
full stop;
(b) by deleting the definition of “property”.
182. Section 205W
amended
After section 205W(2) the following subsection is
inserted —
“
(3) Subsections (1) and (2) do not apply in relation to —
(a) proceedings between —
(i) a de facto partner; and
(ii) the bankruptcy trustee of a bankrupt de facto partner,
with respect to the maintenance of the partner referred to in
subparagraph (ii); or
(b) proceedings between —
(i) a de facto partner; and
(ii) the bankruptcy trustee of a bankrupt de facto partner,
with respect to any vested bankruptcy property in relation to the
bankrupt partner, being proceedings arising out of the de facto
relationship.
”.
183. Section 205ZC
amended
(1) Section 205ZC is amended as follows:
(a) by inserting before “A de facto partner” the
subsection designation “(1)”;
(b) by deleting “party” and inserting instead —
“ partner ”.
(2) At the end of section 205ZC the following subsection is
inserted —
“
(2) The liability under subsection (1) of a bankrupt de facto
partner to maintain the other de facto partner may be satisfied, in whole
or in part, by way of the transfer of vested bankruptcy property in relation to
the bankrupt partner if the court makes an order under this Part for the
transfer.
”.
After section 205ZC the following section is inserted —
“
205ZCA.
Powers of court in maintenance proceedings — FLA
s. 74
(1) In proceedings with respect to the maintenance of a de facto
partner, the court may make such order as it considers proper for the provision
of maintenance in accordance with this Division.
(2) If —
(a) an application is made for an order under this section in proceedings
between de facto partners with respect to the maintenance of one of the
partners; and
(b) either of the following subparagraphs apply to one of the
de facto partners —
(i) when the application was made, the de facto partner was a
bankrupt; and
(ii) after the application was made but before the proceedings are finally
determined, the de facto partner 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 this section in the
proceedings,
the court must join the bankruptcy trustee as a party to the proceedings.
(3) If a bankruptcy trustee is a party to proceedings with respect to the
maintenance of a de facto partner, then, except with the leave of the
court, the bankrupt de facto partner is not entitled to make a submission
to the court in connection with any vested bankruptcy property in relation to
the bankrupt party.
(4) The court must not grant leave under subsection (3) unless the
court is satisfied that there are exceptional circumstances.
(5) If —
(a) an application is made for an order under this section in proceedings
between de facto partners with respect to the maintenance of one of the
de facto partners; and
(b) either of the following subparagraphs apply to one of the
de facto partners (the debtor party) —
(i) when the application was made, the de facto partner was a debtor
subject to a personal insolvency agreement; or
(ii) after the application was made but before it is finally determined,
the de facto partner 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.
(6) If the trustee of a personal insolvency agreement is a party to
proceedings with respect to the maintenance of a de facto partner then,
except with the leave of the court, the de facto partner who is the debtor
subject to the agreement is not entitled to make a submission to the court in
connection with any property subject to the agreement.
(7) The court must not grant leave under subsection (6) unless the
court is satisfied that there are exceptional circumstances.
(8) For the purposes of subsections (2) and (5), an application for
an order under this section 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.
”.
185. Section 205ZD
amended
(1) Section 205ZD(1) is repealed.
(2) Section 205ZD(3) is amended as follows:
(a) in paragraph (d)(ii) by deleting “party” and
inserting instead —
“ partner ”;
(b) in paragraph (e) by deleting “party” and inserting
instead —
“ de facto partner ”;
(c) in paragraph (f) by deleting “party” in both places
where it occurs and inserting instead —
“ de facto partner ”;
(d) in paragraph (h) —
(i) by deleting “party” in the first place where it occurs and
inserting instead —
“ de facto partner ”; and
(ii) by deleting “that party” in both places where it occurs
and inserting instead —
“ that partner ”;
(e) after paragraph (h) by inserting —
“
(ha) the effect of any proposed order on the ability of a creditor of a
de facto partner to recover the creditor’s debt, so far as that
effect is relevant; and
”;
(f) in paragraph (i) by deleting “party” in both places
where it occurs and inserting instead —
“ de facto partner ”;
(g) in paragraph (j) by deleting “party” and inserting
instead —
“ de facto partner ”;
(h) in paragraph (k) by deleting “party” and inserting
instead —
“ de facto partner ”;
(i) in paragraph (l) by deleting “party” and inserting
instead —
“ de facto partner ”;
(j) in paragraph (m) by deleting “section 205ZG in
relation to the property of the parties;” and inserting
instead —
“
section 205ZG in relation to —
(i) the property of the de facto partners; or
(ii) vested bankruptcy property in relation to a bankrupt de facto
partner;
”;
(k) in paragraph (p) by deleting “parties.” and inserting
instead —
“ de facto partners. ”;
(l) after each of paragraphs (a) to (h) and (i) to (n) by
inserting —
“ and ”.
186. Section 205ZG
amended
(1) Section 205ZG(1) is repealed and the following subsection is
inserted instead —
“
(1) In property settlement proceedings, the court may make such order as
it considers appropriate —
(a) in the case of proceedings with respect to the property of the
de facto partners, or either of them, altering the interests of the
partners in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy
property in relation to a bankrupt de facto partner, altering the interests
of the bankruptcy trustee in the vested bankruptcy property,
including —
(c) an order for a settlement of property in substitution for any interest
in the property; and
(d) an order requiring —
(i) either or both of the de facto partners; or
(ii) the relevant bankruptcy trustee (if any),
to make, for the benefit of either or both of the de facto partners
or a child of the de facto partner, such settlement or transfer of property
as the court determines.
”.
(2) Section 205ZG(2) is amended as follows:
(a) by deleting “proceedings with respect to the property of
de facto partners, or either of them” and inserting
instead —
“ property settlement proceedings ”;
(b) by deleting “a partner to the proceedings,” and inserting
instead —
“ one of the de facto partners, ”.
(3) Section 205ZG(4) is amended by deleting “proceedings with
respect to any property of de facto partners, or either of them,” and
inserting instead —
“ property settlement proceedings ”.
(4) Section 205ZG(5) is amended as follows:
(a) by deleting “proceedings with respect to the property of the
de facto partners, or either of them,” and inserting
instead —
“ property settlement proceedings ”;
(b) by deleting paragraph (b) and inserting the following paragraph
instead —
“
(b) that an order that the court could make with respect to —
(i) the property of the de facto partners, or either of them;
or
(ii) the vested bankruptcy property in relation to a bankrupt
de facto partner,
if that significant change in financial circumstances occurs is more
likely to do justice as between the de facto partners than an order that
the court could make immediately with respect to —
(iii) the property of the de facto partners, or either of them;
or
(iv) the vested bankruptcy property in relation to a bankrupt
de facto partner,
”;
(c) by inserting after “either de facto
partner” —
“ or the relevant bankruptcy trustee (if any)
”;
(d) by inserting after “that de facto
partner” —
“ or the relevant bankruptcy trustee, as the case may
be”.
(5) Section 205ZG(6) is amended by deleting “with respect to
any of the property of the de facto partners or of either of them.”
and inserting instead —
“
with respect to —
(a) any of the property of the de facto partners, or of either of
them; or
(b) any of the vested bankruptcy property in relation to a bankrupt
de facto partner.
”.
(6) Section 205ZG(8) is amended as follows:
(a) by deleting “proceedings with respect to the property of
de facto partners, or either of them are completed, either party to the
proceedings” and inserting instead —
“
property settlement proceedings are completed, either de facto
partner
”;
(b) after paragraph (a) by inserting —
“ and ”;
(c) in paragraph (b) by deleting “with respect to any of the
property of the de facto partners, or either of them; and” and
inserting instead —
“
with respect to —
(iii) any of the property of the de facto partners, or either of
them; or
(iv) any of the vested bankruptcy property in relation to a bankrupt
de facto partner;
and
”.
(7) Section 205ZG(9) is amended by deleting “proceedings with
respect to the property of de facto partners, or either of them” and
inserting instead —
“ property settlement proceedings ”.
(8) After section 205ZG(9) the following subsections are
inserted —
“
(10) The following are entitled to become a party to proceedings in which
an application is made for an order under this section —
(a) a creditor of a party to the proceedings if the creditor may be able
to recover his or her debt if the order were made;
(b) 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); 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) an application is made for an order under this section in proceedings
between the de facto partners with respect to the property of the
de facto partners, or either of them; and
(b) either of the following subparagraphs apply to a de facto
partner —
(i) when the application was made, the partner was a bankrupt;
(ii) after the application was made but before it is finally determined,
the partner 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 this section in the
proceedings,
the court must join the bankruptcy trustee as a party to the
proceedings.
(13) If a bankruptcy trustee is a party to property settlement
proceedings, then, except with the leave of the court, the bankrupt
de facto partner is not entitled to make a submission to the court in
connection with any vested bankruptcy property in relation to the bankrupt
party.
(14) The court must not grant leave under subsection (13) unless the
court is satisfied that there are exceptional circumstances.
(15) If —
(a) an application is made for an order under this section in proceedings
between de facto partners with respect to the property of the de facto
partners, or either of them; and
(b) either of the following subparagraphs apply to a de facto partner
(the debtor party) —
(i) when the application was made, the de facto partner was a debtor
subject to a personal insolvency agreement; or
(ii) after the application was made but before it is finally determined,
the de facto partner 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.
(16) If the trustee of a personal insolvency agreement is a party to
property settlement proceedings, then, except with the leave of the court, the
de facto partner who is the debtor subject to the agreement is not entitled
to make a submission to the court in connection with any property subject to the
agreement.
(17) The court must not grant leave under subsection (16) unless the
court is satisfied that there are exceptional circumstances.
(18) For the purposes of subsections (12) and (15), an application
for an order under this section 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.
”.
187. Section 205ZH
amended
(1) Section 205ZH(1) is amended by deleting “proceedings with
respect to the property of de facto partners, or either of them,” and
inserting instead —
“ property settlement proceedings, ”.
(2) Section 205ZH(2) is amended by deleting “proceedings with
respect to the property of de facto partners, or either of them,” and
inserting instead —
“ property settlement proceedings, ”.
(3) Section 205ZH(5) is amended by deleting “party to the
proceedings” and inserting instead —
“ de facto partner ”.
(4) After section 205ZH(6) the following subsections are
inserted —
“
(7) For the purposes of this section, a creditor of a party
to the proceedings in which the order under section 205ZG was made is taken
to be a person whose interests are affected by the order if the creditor may not
be able to recover his or her debt because the order has been made.
(8) For the purposes of this section, if —
(a) an order is made by a court under section 205ZG in proceedings
with respect to the property of de facto partners or either of them;
and
(b) either of the following subparagraphs apply to a de facto
partner —
(i) when the order was made, the de facto partner was a
bankrupt;
(ii) after the order was made, the de facto partner became a
bankrupt,
the bankruptcy trustee is taken to be a person whose interests are
affected by the order.
(9) For the purposes of this section, if —
(a) a de facto partner is a bankrupt; and
(b) an order is made by a court under section 205ZG in proceedings
with respect to the vested bankruptcy property in relation to the bankrupt
party,
the bankruptcy trustee is taken to be a person whose interests are
affected by the order.
(10) For the purposes of this section, if —
(a) an order is made by a court under section 205ZG in proceedings
with respect to the property of de facto partners or either of them;
and
(b) either of the following subparagraphs apply to a de facto
partner —
(i) when the order was made, the de facto partner was a debtor
subject to a personal insolvency agreement;
(ii) after the order was made, the de facto partner became a debtor
subject to a personal insolvency agreement,
the trustee of the agreement is taken to be a person whose interests are
affected by the order.
”.
188. Sections 205ZHE,
205ZHF, 205ZHG and 205ZHH inserted
Before section 205ZI the following sections are
inserted —
“
205ZHE.
Notifying third parties about application — FLA
s. 79F
The rules may specify the circumstances in which a person
who —
(a) applies for an order under this Part; or
(b) is a party to proceedings for an order under this Part,
is to give notice of the application to a person who is not a party to
the proceedings.
205ZHF.
Notifying bankruptcy trustee etc. about application under section 205ZA,
205ZCA, 205ZG or 205ZH — FLA s. 79G
(1) The rules may make provision for a bankrupt who becomes a party to a
proceeding for an application under section 205ZA, 205ZCA, 205ZG or 205ZH
to give notice of the application to the bankruptcy trustee.
(2) The rules may make provision for a debtor subject to a personal
insolvency agreement who becomes a party to a proceeding for an application
under section 205ZA, 205ZCA, 205ZG or 205ZH to give notice of the
application to the trustee of the agreement.
205ZHG.
Notifying court about bankruptcy etc. — FLA
s. 79H
(1) The rules may make provision for a person who —
(a) is a de facto partner; and
(b) is a party to a proceeding for an application under
section 205ZA, 205ZCA, 205ZG or 205ZH; and
(c) before that application is finally determined, becomes a
bankrupt,
to notify a court exercising jurisdiction under this Act that the person
has become a bankrupt.
(2) The rules may make provision for a person who —
(a) is a de facto partner; and
(b) is a party to a proceeding for an application under
section 205ZA, 205ZCA, 205ZG or 205ZH; and
(c) before that application is finally determined, becomes a debtor
subject to a personal insolvency agreement,
to notify a court exercising jurisdiction under this Act that the person
has become a debtor subject to a personal insolvency agreement.
(3) The rules may make provision for a person who —
(a) is a de facto partner; and
(b) is a party to a proceeding for an application under
section 205ZA, 205ZCA, 205ZG or 205ZH; and
(c) before that application is finally determined, becomes a party to a
proceeding before the Federal Court or the Federal Magistrates Court under the
Bankruptcy Act that relates to —
(i) the bankruptcy of the person; or
(ii) the person’s capacity as a debtor subject to a personal
insolvency agreement,
to notify a court exercising jurisdiction under this Act of the
institution of the proceeding under the Bankruptcy Act.
(4) The rules may make provision for a person who —
(a) is the bankruptcy trustee of a bankrupt de facto partner; and
(b) applies under section 139A of the Bankruptcy Act for an order
under Division 4A of Part VI of that Act,
to notify a court exercising jurisdiction under this Act of the making of
the application.
(5) For the purposes of this section, an application for an order under
section 205ZCA, 205ZG or 205ZH 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.
(6) For the purposes of this section, an application for a declaration
under section 205ZA is taken to be finally determined when —
(a) the application is withdrawn or dismissed; or
(b) a declaration is made as a result of the application.
205ZHH.
Notifying non-bankrupt de facto partner about application under
section 139A of the Bankruptcy Act — FLA
s. 79J
The rules may make provision for a person who —
(a) is the bankruptcy trustee of a bankrupt de facto partner;
and
(b) applies under section 139A of the Bankruptcy Act for an order
under Division 4A of Part VI of that Act in relation to an entity (other
than the other de facto partner),
to notify the other de facto partner of the making of the
application.
”.
189. Section 205ZI
amended
After section 205ZI(3) the following subsections are
inserted —
“
(4) If a bankruptcy trustee is a party to a proceeding before the court,
the court may make an order under subsection (1)(e) directed to the
bankrupt.
(5) If the trustee of a personal insolvency agreement is a party to a
proceeding before the court, the court may make an order under
subsection (1)(e) directed to the debtor subject to the
agreement.
(6) Subsections (4) and (5) do not limit subsection (1)(e).
”.
190. Section 205ZL
amended and transitional provision
(1) Section 205ZL(1) is amended by deleting “In proceedings
with respect to the maintenance of a de facto partner, if there is in force
an order with respect to the maintenance of that person by the de facto
partner of that person” and inserting instead —
“
If there is in force an order with respect to the maintenance of a
de facto partner
”.
(2) After section 205ZL(1) the following subsection is
inserted —
“
(1a) The court’s jurisdiction under subsection (1) may be
exercised —
(a) in any case, in proceedings with respect to the maintenance of a
de facto partner; or
(b) if there is a bankrupt de facto partner, on the application of
the bankruptcy trustee; or
(c) if a de facto partner is a debtor subject to a personal
insolvency agreement, on the application of the trustee of the agreement.
”.
(3) Section 205ZL(5) is amended by inserting after “a
de facto partner” —
“ , or by the bankruptcy trustee of a de facto partner
”.
(4) Section 205ZL(1) of the Family Court Act 1997, as
amended by subsection (1), applies to an order made before, on or after the
commencement of this Part.
191. Section 205ZP
amended
(1) Section 205ZP(1)(a) is amended by deleting “parties”
and inserting instead —
“ de facto partners ”.
(2) Section 205ZP(1)(b) is amended by deleting “parties”
and inserting instead —
“ de facto partners ”.
After section 205ZP the following section is inserted —
“
205ZPA.
Need for separation declaration for certain provisions of financial agreement to
take effect — FLA s. 90DA
(1) A financial agreement between 2 people, to the extent to which it
deals with —
(a) how, in the event of the breakdown of the de facto relationship,
all or any of the property or financial resources of either or both of them at
the time when the agreement is made, or at a later time and during the
de facto relationship, is to be dealt with; or
(b) the maintenance of either of them after the de facto relationship
has ended,
is of no force or effect until a separation declaration is made.
(2) A separation declaration is a written declaration that complies with
subsections (3) and (4).
(3) The declaration must be signed by at least one of the parties to the
financial agreement.
(4) The declaration must state that —
(a) the de facto partners have separated and are living separately
and apart at the declaration time; and
(b) in the opinion of the de facto partners making the declaration,
there is no reasonable likelihood of cohabitation being resumed.
(5) In this section —
declaration time means the time when the declaration was
signed by a party to the financial agreement (or last signed by a party to the
agreement, if both parties to the agreement have signed);
separated has the same meaning in relation to a
de facto relationship as it has for the purposes of section 48 of the
Family Law Act, as affected by section 49 of that Act, in relation to a
marriage.
”.
193. Section 222
amended
(1) After section 222(1) the following subsections are
inserted —
“
(1a) If —
(a) a de facto partner is a bankrupt; and
(b) the bankrupt trustee is a party to proceedings under this
Act,
the court may set aside or restrain the making of an instrument or
disposition —
(c) which is made or proposed to be made by or on behalf of, or by
direction or in the interests of, the bankrupt; and
(d) which is made or proposed to be made to defeat an existing or
anticipated order in those proceedings or which, irrespective of intention, is
likely to defeat any such order.
(1b) If —
(a) a de facto partner is a debtor subject to a personal insolvency
agreement; and
(b) the trustee of the agreement is a party to proceedings under this
Act,
the court may set aside or restrain the making of an instrument or
disposition —
(c) which is made or proposed to be made by or on behalf of, or by
direction or in the interest of, the debtor; and
(d) which is made or proposed to be made to defeat an existing or
anticipated order in those proceedings or which, irrespective of intention, is
likely to defeat any such order.
”.
(2) Section 222(2) is amended by deleting “such instrument or
disposition” and inserting instead —
“
instrument or disposition referred to in subsection (1), (1a) or
(1b)
”.
(3) After section 222(4) the following subsection is
inserted —
“
(4aa) An application may be made to the court for an order under this
section by —
(a) a party to the proceedings; or
(b) a creditor to the party to the proceedings if the creditor may not be
able to recover his or her debt if the instrument or disposition were made;
or
(c) any other person whose interests would be affected by the making of
the instrument or disposition.
”.
194. Section 235A
amended
After section 235A(3) the following subsections are
inserted —
“
(4) If a de facto partner is a bankrupt, a court may, on the
application of the other de facto partner, by interlocutory order, grant an
injunction under subsection (3) restraining the bankruptcy trustee from
declaring and distributing dividends amongst the bankrupt’s creditors.
(5) Subsection (4) does not limit subsection (3).
(6) If a de facto partner is a debtor subject to a personal
insolvency agreement, a court may, on the application of the other de facto
partner, by interlocutory order, grant an injunction under subsection (3)
restraining the trustee of the agreement from disposing of (whether by sale,
gift or otherwise) property subject to the agreement.
(7) Subsection (6) does not limit subsection (3).
”.
(1) In this section —
commencement means the day on which this Part comes into
operation;
relevant provisions means the following provisions of the
Family Court Act 1997, as amended by this Part —
(a) section 205ZCA(2), (3) and (4); and
(b) section 205ZCA(8), to the extent to which it relates to
section 205ZCA(2); and
(c) the definitions in section 5(1), to the extent to which those
definitions relate to section 205ZCA(2), (3) and (4); and
(d) section 205ZG(11), (12) and (13); and
(e) section 205ZG(17), to the extent to which it relates to
section 205ZG(11); and
(f) the definitions in section 5(1) to the extent to which those
definitions relate to section 205ZG(11), (12) and (13).
(2) Subject to subsection (3), the Family Court Act 1997,
as amended by this Part, to the extent to which it relates to bankruptcies or
personal insolvency agreements —
(a) applies in relation to —
(i) bankruptcies for which the date of the bankruptcy is after the
commencement; and
(ii) personal insolvency agreements, whether executed before, at or after
the commencement;
and
(b) does not apply in relation to bankruptcies for which the date of the
bankruptcy is before the commencement.
(3) The relevant provisions apply to proceedings instituted after the
commencement, whether the date of the bankruptcy is before, on or after the
commencement.
”.