FAMILY COURT ACT 1997 - SECT 205ZG
FAMILY COURT ACT 1997 - SECT 205ZG
205ZG . Alteration of property interests — FLA s. 79
(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.
(1A) An order made
under subsection (1) may include —
(a) an
order for a settlement of property in substitution for any interest in the
property; and
(b) an
order requiring either or both of the de facto partners, or 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 relationship, such settlement or
transfer of property as the court determines.
(2) An order made
under subsection (1) in property settlement proceedings may, after the death
of 1 of the de facto partners, be enforced on behalf of, or against, as the
case may be, the estate of the deceased party.
(3) The court must not
make an order under this section unless it is satisfied that, in all the
circumstances, it is just and equitable to make the order.
(4) In considering
what order (if any) should be made under this section in property settlement
proceedings the court must take into account —
(a) the
financial contribution made directly or indirectly by or on behalf of a de
facto partner or a child of the de facto relationship to the acquisition,
conservation or improvement of any of the property of the de facto partners,
or either of them, or 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 de facto partners or either
of them; and
(b) the
contribution (other than a financial contribution) made directly or indirectly
by or on behalf of a de facto partner or a child of the de facto relationship
to the acquisition, conservation or improvement of any of the property of the
de facto partners or either of them, or 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 de
facto partners or either of them; and
(c) the
contribution made by a de facto partner to the welfare of the family
constituted by the de facto partners and any children of the de facto
partners, 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 de facto
partner; and
(e) the
matters referred to in section 205ZD(3) so far as they are relevant; and
(f) any
other order made under this Act affecting a de facto partner or a child of the
de facto relationship; and
(g) any
child support under the Child Support (Assessment) Act that a de facto partner
has provided, is to provide, or might be liable to provide in the future, for
a child of the de facto relationship.
(5) Subsection (5A)
applies if, in property settlement proceedings, a court is of the opinion
—
(a) that
there is likely to be a significant change in the financial circumstances of
the de facto partners, 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, if that significant change in financial circumstances occurs, an order
that the court could make with respect to the following matters is more likely
to do justice as between the de facto partners than an order that the court
could make immediately with respect to those following matters —
(i)
the property of the de facto partners, or either of them;
(ii)
the vested bankruptcy property in relation to a bankrupt
de facto partner.
(5A) Without limiting
the power of any court to grant an adjournment in proceedings under this Act,
the court may, if so requested by either de facto partner 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 de facto partner 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) Where a court
proposes to adjourn proceedings as provided by subsection (5A), 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) 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.
(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 de facto partners, have regard to any change in the financial
circumstances of a de facto partner that may occur by reason that the partner
—
(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 his or her
favour, by the trustee of a discretionary trust, of a power to distribute
trust property,
but nothing in this
subsection is to be taken to limit 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 de facto partner.
(8) Where, before
property settlement proceedings are completed, either de facto partner dies
—
(a) the
proceedings may be continued by or against, as the case may be, the legal
personal representative of the deceased party and the applicable rules 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 that it would have made an order with respect to
property if the deceased party had not died, and that it is still appropriate
to make an order with respect to property, the court may make such order as it
considers appropriate with respect to —
(i)
any of the property of the de facto partners, or either
of them; or
(ii)
any of the vested bankruptcy property in relation to a
bankrupt de facto partner;
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 this section in property settlement proceedings (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 the Principal Registrar, a
registrar or a deputy registrar; 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); 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).
(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 not be able to
recover the creditor’s 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) Subsection (13)
applies 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 —
(i)
when the application was made, the de facto partner was a
bankrupt;
(ii)
after the application was made but before it is 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.
(13) The court must
join the bankruptcy trustee as a party to the proceedings.
(14) 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 partner.
(15) The court must
not grant leave under subsection (14) unless the court is satisfied that there
are exceptional circumstances.
(16) Subsection (17)
applies 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;
(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.
(17) 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 property settlement proceedings,
then, except with the leave of the court, the de facto partner who is the
debtor subject to the personal insolvency agreement is not entitled to make a
submission to the court in connection with any property 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 (12) and (16), 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.
[Section 205ZG inserted: No. 25 of 2002 s. 47;
amended: No. 28 of 2022 s. 17.]