Western Australian Bills Western Australian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Family Court Amendment Bill 2022
Contents
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- Family Court Act 1997
amended
3. Act amended 3
4. Section 5 amended 3
5. Section 7B inserted 4
7B. Meaning of debtor subject to a personal
insolvency agreement -- FLA s. 5 4
6. Section 36 amended 5
7. Section 45 amended 5
8. Section 205T amended 5
9. Section 205W amended 6
10. Section 205X amended 6
11. Section 205Y amended 7
12. Section 205ZA amended 7
13. Section 205ZB amended 7
14. Section 205ZC amended 8
15. Section 205ZCA inserted 9
205ZCA. Powers of court in maintenance
proceedings -- FLA s. 74 9
16. Section 205ZD amended 11
17. Section 205ZG amended 14
18. Section 205ZH amended 20
19. Section 205ZHC amended 22
20. Sections 205ZHE to 205ZHH inserted 23
205ZHE. Notifying third parties about application --
FLA s. 79F 23
66--1 page i
Family Court Amendment Bill 2022
Contents
205ZHF. Notifying bankruptcy trustee etc. about
application under section 205ZA, 205ZCA,
205ZG or 205ZH -- FLA s. 79G 23
205ZHG. Notifying court about bankruptcy etc. --
FLA s. 79H 23
205ZHH. Notifying non-bankrupt de facto partner
about application under Bankruptcy Act
section 139A -- FLA s. 79J 26
21. Section 205ZI amended 26
22. Section 205ZL amended 26
23. Sections 205ZPA and 205ZPB inserted 27
205ZPA. Financial agreement may include
agreement that deals with superannuation 27
205ZPB. Need for separation declaration for certain
provisions of financial agreement to take
effect -- FLA s. 90DA 28
24. Section 205ZV amended 29
25. Section 205ZZ amended 31
26. Section 210 amended 31
27. Section 211 amended 31
28. Section 211B amended 31
29. Section 222 amended 32
30. Section 235A amended 34
31. Section 247 amended 34
32. Schedule 2 Division 3 inserted 35
Division 3 -- Provisions for Family Court
Amendment Act 2022
13. Application of amendments 35
Part 3 -- Family Legislation
Amendment Act 2006 amended
33. Act amended 37
34. Part 4 deleted 37
Part 4 -- Duties Act 2008 amended
Division 1 -- Act amended
35. Act amended 38
Division 2 -- Amendments commencing on day
after Royal Assent
36. Section 128 amended 38
page ii
Family Court Amendment Bill 2022
Contents
Division 3 -- Amendments commencing on
proclamation
37. Section 128 amended 39
38. Section 130 amended 40
39. Section 131 amended 40
page iii
Western Australia
LEGISLATIVE ASSEMBLY
Family Court Amendment Bill 2022
A Bill for
An Act to amend the Family Court Act 1997 and to consequentially
amend other Acts.
The Parliament of Western Australia enacts as follows:
page 1
Family Court Amendment Bill 2022
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Family Court Amendment Act 2022.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) Part 1 -- on the day on which this Act receives the
7 Royal Assent (assent day);
8 (b) Part 4 (other than Division 3) -- on the day after assent
9 day;
10 (c) the rest of the Act -- on a day fixed by proclamation,
11 and different days may be fixed for different provisions.
page 2
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 3
1 Part 2 -- Family Court Act 1997 amended
2 3. Act amended
3 This Part amends the Family Court Act 1997.
4 4. Section 5 amended
5 In section 5(1) insert in alphabetical order:
6
7 bankrupt has the same meaning as in the Family Law
8 Act;
9 Bankruptcy Act means the Bankruptcy Act 1966
10 (Commonwealth);
11 (FLA s. 4(1))
12 bankruptcy trustee, in relation to a bankrupt, means
13 the trustee of the bankrupt's estate;
14 (FLA s. 4(1))
15 debtor subject to a personal insolvency agreement has
16 the meaning given in section 7B;
17 (FLA s. 4(1))
18 personal insolvency agreement has the meaning given
19 in the Bankruptcy Act section 5(1);
20 (FLA s. 4(1))
21 property, in relation to de facto partners, or either of
22 them, means property to which those partners are, or
23 that partner is, as the case may be, entitled, whether in
24 possession or reversion;
25 (FLA s. 4(1))
26 property settlement proceedings means proceedings
27 with respect to --
28 (a) the property of de facto partners, or either of
29 them; or
page 3
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 5
1 (b) the vested bankruptcy property in relation to a
2 bankrupt de facto partner;
3 (FLA s. 4(1))
4 trustee, in relation to a personal insolvency agreement,
5 has the same meaning as in the Bankruptcy Act;
6 (FLA s. 4(1))
7 vested bankruptcy property, in relation to a bankrupt,
8 means property, as defined in the Bankruptcy Act
9 section 5(1), of the bankrupt that has vested in the
10 bankruptcy trustee under that Act;
11
12 5. Section 7B inserted
13 After section 7A insert:
14
15 7B. Meaning of debtor subject to a personal insolvency
16 agreement -- FLA s. 5
17 For the purposes of this Act, a person is a debtor
18 subject to a personal insolvency agreement if --
19 (a) the person is a debtor (within the meaning of
20 the Bankruptcy Act Part X); and
21 (b) the person executes a personal insolvency
22 agreement; and
23 (c) the agreement has not come to an end (as
24 defined in the Bankruptcy Act section 5(1)).
25
page 4
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 6
1 6. Section 36 amended
2 After section 36(4a)(c) insert:
3
4 (ca) applications for orders under this Act with
5 respect to vested bankruptcy property;
6
7 7. Section 45 amended
8 (1) In section 45 delete "Where" and insert:
9
10 (1) Where
11
12 (2) At the end of section 45 insert:
13
14 (2) For the purposes of subsection (1), if the bankruptcy
15 trustee of a bankrupt de facto partner applies under the
16 Bankruptcy Act section 139A for an order under
17 Part VI Division 4A of that Act, proceedings relating to
18 that application are taken to be related to proceedings
19 in relation to that de facto partner's de facto
20 relationship.
21
22 8. Section 205T amended
23 (1) In section 205T delete the definition of property.
24 (2) In section 205T in the definition of income tested pension,
25 allowance or benefit delete "definition;" and insert:
26
27 definition.
28
page 5
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 9
1 9. Section 205W amended
2 After section 205W(2) insert:
3
4 (3) Subsections (1) and (2) do not apply in relation to --
5 (a) proceedings between the following persons
6 with respect to the maintenance of the person
7 referred to in subparagraph (i) --
8 (i) a de facto partner; and
9 (ii) the bankruptcy trustee of a bankrupt
10 de facto partner;
11 or
12 (b) proceedings between a de facto partner and the
13 bankruptcy trustee of a bankrupt de facto
14 partner, with respect to any vested bankruptcy
15 property in relation to the bankrupt partner,
16 being proceedings arising out of the de facto
17 relationship.
18
19 10. Section 205X amended
20 In section 205X:
21 (a) delete "this Division" and insert:
22
23 section 205ZCA, 205ZE or 205ZG, or a declaration
24 under section 205ZA(1),
25
26 (b) in paragraph (a) delete "parties to the application" and
27 insert:
28
29 de facto partners to whom the application relates
30
page 6
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 11
1 (c) in paragraph (b)(i) delete "parties" and insert:
2
3 de facto partners
4
5 11. Section 205Y amended
6 In section 205Y after "an order" insert:
7
8 or declaration
9
10 12. Section 205ZA amended
11 Delete section 205ZA(3).
12 13. Section 205ZB amended
13 Delete section 205ZB(1) and (2) and insert:
14
15 (1) Subject to subsection (2), a de facto partner whose
16 de facto relationship has ended may apply for an order
17 under section 205ZCA, 205ZE or 205ZG, or a
18 declaration under section 205ZA(1), only if --
19 (a) the application is made within the period (the
20 standard application period) of --
21 (i) 2 years after the end of the de facto
22 partner's de facto relationship; or
23 (ii) 12 months after a financial agreement or
24 former financial agreement between the
25 de facto partners was set aside, or found
26 to be invalid, as the case may be;
27 or
28 (b) both de facto partners consent to the
29 application.
page 7
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 14
1 (1A) However, if proceedings are instituted by an
2 application made with the consent of both de facto
3 partners, the court may dismiss the proceedings if it is
4 satisfied that, because the consent was obtained by
5 fraud, duress or unconscionable conduct, allowing the
6 proceedings to continue would amount to a miscarriage
7 of justice.
8 (2) The court may grant the de facto partner leave to apply
9 after the end of the standard application period if the
10 court is satisfied that hardship would be caused to the
11 de facto partner or a child if leave were not granted.
12
13 14. Section 205ZC amended
14 (1) In section 205ZC:
15 (a) delete "A de facto" and insert:
16
17 (1) A de facto
18
19 (b) delete "party is unable to support herself or himself"
20 and insert:
21
22 partner is unable to support themselves
23
24 (2) At the end of section 205ZC insert:
25
26 (2) The liability under subsection (1) of a bankrupt
27 de facto partner to maintain the other de facto partner
28 may be satisfied, in whole or in part, by way of the
29 transfer of vested bankruptcy property in relation to the
30 bankrupt partner if the court makes an order under this
31 Division for the transfer.
32
page 8
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 15
1 15. Section 205ZCA inserted
2 After section 205ZC insert:
3
4 205ZCA. Powers of court in maintenance proceedings --
5 FLA s. 74
6 (1) In proceedings with respect to the maintenance of a
7 de facto partner, the court may make such order as it
8 considers proper for the provision of maintenance in
9 accordance with this Division.
10 (2) Subsection (3) applies if --
11 (a) an application is made for an order under this
12 section in proceedings between de facto
13 partners with respect to the maintenance of 1 of
14 the partners; and
15 (b) either of the following subparagraphs apply to
16 1 of the de facto partners --
17 (i) when the application was made, the
18 de facto partner was a bankrupt;
19 (ii) after the application was made but
20 before it is finally determined, the
21 de facto partner became a bankrupt;
22 and
23 (c) the bankruptcy trustee applies to the court to be
24 joined as a party to the proceedings; and
25 (d) the court is satisfied that the interests of the
26 bankrupt's creditors may be affected by the
27 making of an order under this section in the
28 proceedings.
29 (3) The court must join the bankruptcy trustee as a party to
30 the proceedings.
31 (4) If a bankruptcy trustee is a party to proceedings with
32 respect to the maintenance of a de facto partner, then,
page 9
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 15
1 except with the leave of the court, the bankrupt de facto
2 partner is not entitled to make a submission to the court
3 in connection with any vested bankruptcy property in
4 relation to the bankrupt partner.
5 (5) The court must not grant leave under subsection (4)
6 unless the court is satisfied that there are exceptional
7 circumstances.
8 (6) Subsection (7) applies if --
9 (a) an application is made for an order under this
10 section in proceedings between de facto
11 partners with respect to the maintenance of 1 of
12 the partners; and
13 (b) either of the following subparagraphs apply to
14 1 of the de facto partners (the debtor party) --
15 (i) when the application was made, the
16 de facto partner was a debtor subject to
17 a personal insolvency agreement;
18 (ii) after the application was made but
19 before it is finally determined, the
20 de facto partner becomes a debtor
21 subject to a personal insolvency
22 agreement;
23 and
24 (c) the trustee of the agreement applies to the court
25 to be joined as a party to the proceedings; and
26 (d) the court is satisfied that the interests of the
27 debtor party's creditors may be affected by the
28 making of an order under this section in the
29 proceedings.
30 (7) The court must join the trustee of the agreement as a
31 party to the proceedings.
page 10
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 16
1 (8) If the trustee of a personal insolvency agreement is a
2 party to proceedings with respect to the maintenance of
3 a de facto partner then, except with the leave of the
4 court, the de facto partner who is the debtor subject to
5 the personal insolvency agreement is not entitled to
6 make a submission to the court in connection with any
7 property subject to the agreement.
8 (9) The court must not grant leave under subsection (8)
9 unless the court is satisfied that there are exceptional
10 circumstances.
11 (10) For the purposes of subsections (2) and (6), an
12 application for an order under this section is taken to be
13 finally determined when --
14 (a) the application is withdrawn or dismissed; or
15 (b) an order (other than an interim order) is made
16 as a result of the application.
17
18 16. Section 205ZD amended
19 (1) Delete section 205ZD(1).
20 (2) In section 205ZD(2) delete "this section," and insert:
21
22 section 205ZCA,
23
24 (3) In section 205ZD(3):
25 (a) in paragraph (d)(ii) delete "party" and insert:
26
27 partner
28
page 11
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 16
1 (b) in paragraphs (e) and (f) delete "party" and insert:
2
3 de facto partner
4
5 (c) in paragraph (f) delete "party; and" and insert:
6
7 de facto partner; and
8
9 (d) in paragraph (h) delete "the party" and insert:
10
11 the de facto partner
12
13 (e) in paragraph (h) delete "that party" (each occurrence)
14 and insert:
15
16 that partner
17
18 (f) after paragraph (h) insert:
19
20 (ha) the effect of any proposed order on the ability
21 of a creditor of a de facto partner to recover the
22 creditor's debt, so far as that effect is relevant;
23 and
24
25 (g) in paragraph (i) delete "party" and insert:
26
27 de facto partner
28
29 (h) in paragraph (i) delete "party; and" and insert:
30
31 de facto partner; and
32
page 12
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 16
1 (i) in paragraphs (j) and (k) delete "party" and insert:
2
3 de facto partner
4
5 (j) in paragraph (k) delete "party's" and insert:
6
7 partner's
8
9 (k) in paragraph (l) delete "party" and insert:
10
11 de facto partner
12
13 (l) delete paragraph (m) and insert:
14
15 (m) the terms of any order made or proposed to be
16 made under section 205ZG in relation to --
17 (i) the property of the de facto partners; or
18 (ii) vested bankruptcy property in relation
19 to a bankrupt de facto partner;
20 and
21 (ma) the terms of any order or declaration made or
22 proposed to be made under the Family Law Act
23 Part VIIIC in relation to a de facto partner; and
24
25 (m) in paragraph (p) delete "the parties." and insert:
26
27 the de facto partners; and
28
29 (n) after paragraph (p) insert:
30
31 (q) without limiting paragraph (p), the terms of any
32 superannuation agreement between the de facto
page 13
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 17
1 partners that is in force (as those terms are
2 defined in the Family Law Act section 90YD).
3
4 (4) In section 205ZD(4) delete "this section," and insert:
5
6 section 205ZCA,
7
8 Note: The heading to amended section 205ZD is to read:
9 Matters to be taken into consideration in relation to
10 maintenance -- FLA s. 75
11 17. Section 205ZG amended
12 (1) Delete section 205ZG(1) and insert:
13
14 (1) In property settlement proceedings, the court may
15 make such order as it considers appropriate --
16 (a) in the case of proceedings with respect to the
17 property of the de facto partners, or either of
18 them -- altering the interests of the partners in
19 the property; or
20 (b) in the case of proceedings with respect to the
21 vested bankruptcy property in relation to a
22 bankrupt de facto partner -- altering the
23 interests of the bankruptcy trustee in the vested
24 bankruptcy property.
25 (1A) An order made under subsection (1) may include --
26 (a) an order for a settlement of property in
27 substitution for any interest in the property; and
28 (b) an order requiring either or both of the de facto
29 partners, or the relevant bankruptcy trustee (if
30 any), to make, for the benefit of either or both
31 of the de facto partners or a child of the de facto
page 14
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 17
1 relationship, such settlement or transfer of
2 property as the court determines.
3
4 (2) In section 205ZG(2) delete "proceedings with respect to the
5 property of de facto partners, or either of them may, after the
6 death of a partner to the proceedings," and insert
7
8 property settlement proceedings may, after the death of 1 of the
9 de facto partners,
10
11 (3) In section 205ZG(4):
12 (a) delete "proceedings with respect to any property of
13 de facto partners, or either of them," and insert:
14
15 property settlement proceedings
16
17 (b) in paragraph (a) delete "to the de facto relationship".
18 (4) Delete section 205ZG(5) and insert:
19
20 (5) Subsection (5A) applies if, in property settlement
21 proceedings, a court is of the opinion --
22 (a) that there is likely to be a significant change in
23 the financial circumstances of the de facto
24 partners, or either of them and that, having
25 regard to the time when that change is likely to
26 take place, it is reasonable to adjourn the
27 proceedings; and
28 (b) that, if that significant change in financial
29 circumstances occurs, an order that the court
30 could make with respect to the following
31 matters is more likely to do justice as between
32 the de facto partners than an order that the court
page 15
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 17
1 could make immediately with respect to those
2 following matters --
3 (i) the property of the de facto partners, or
4 either of them;
5 (ii) the vested bankruptcy property in
6 relation to a bankrupt de facto partner.
7 (5A) Without limiting the power of any court to grant an
8 adjournment in proceedings under this Act, the court
9 may, if so requested by either de facto partner or the
10 relevant bankruptcy trustee (if any), adjourn the
11 proceedings until such time, before the expiration of a
12 period specified by the court, as that de facto partner or
13 the relevant bankruptcy trustee, as the case may be,
14 applies for the proceedings to be determined, but
15 nothing in this subsection requires the court to adjourn
16 any proceedings in any particular circumstances.
17
18 (5) In section 205ZG(6):
19 (a) delete "(5)," and insert:
20
21 (5A),
22
23 (b) delete "with respect to any of the property of the
24 de facto partners or of either of them." and insert:
25
26 with respect to --
27 (a) any of the property of the de facto partners, or
28 of either of them; or
29 (b) any of the vested bankruptcy property in
30 relation to a bankrupt de facto partner.
31
page 16
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 17
1 (6) In section 205ZG(8):
2 (a) delete "proceedings with respect to the property of
3 de facto partners, or either of them are completed, either
4 party to the proceedings" and insert:
5
6 property settlement proceedings are completed, either
7 de facto partner
8
9 (b) delete paragraph (b) and insert:
10
11 (b) if the court is of the opinion that it would have
12 made an order with respect to property if the
13 deceased party had not died, and that it is still
14 appropriate to make an order with respect to
15 property, the court may make such order as it
16 considers appropriate with respect to --
17 (i) any of the property of the de facto
18 partners, or either of them; or
19 (ii) any of the vested bankruptcy property in
20 relation to a bankrupt de facto partner;
21 and
22
23 (7) In section 205ZG(9) delete "proceedings with respect to the
24 property of de facto partners, or either of them" and insert:
25
26 property settlement proceedings
27
page 17
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 17
1 (8) After section 205ZG(9) insert:
2
3 (10) The following are entitled to become a party to
4 proceedings in which an application is made for an
5 order under this section --
6 (a) a creditor of a party to the proceedings if the
7 creditor may not be able to recover the
8 creditor's debt if the order were made;
9 (b) any other person whose interests would be
10 affected by the making of the order.
11 (11) Subsection (10) does not apply to a creditor of a party
12 to the proceedings --
13 (a) if the party is a bankrupt, to the extent to which
14 the debt is a provable debt (within the meaning
15 of the Bankruptcy Act); or
16 (b) if the party is a debtor subject to a personal
17 insolvency agreement, to the extent to which
18 the debt is covered by the personal insolvency
19 agreement.
20 (12) Subsection (13) applies if --
21 (a) an application is made for an order under this
22 section in proceedings between de facto
23 partners with respect to the property of the
24 de facto partners, or either of them; and
25 (b) either of the following subparagraphs apply to a
26 de facto partner --
27 (i) when the application was made, the
28 de facto partner was a bankrupt;
29 (ii) after the application was made but
30 before it is finally determined, the
31 de facto partner became a bankrupt;
32 and
page 18
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 17
1 (c) the bankruptcy trustee applies to the court to be
2 joined as a party to the proceedings; and
3 (d) the court is satisfied that the interests of the
4 bankrupt's creditors may be affected by the
5 making of an order under this section in the
6 proceedings.
7 (13) The court must join the bankruptcy trustee as a party to
8 the proceedings.
9 (14) If a bankruptcy trustee is a party to property settlement
10 proceedings, then, except with the leave of the court,
11 the bankrupt de facto partner is not entitled to make a
12 submission to the court in connection with any vested
13 bankruptcy property in relation to the bankrupt partner.
14 (15) The court must not grant leave under subsection (14)
15 unless the court is satisfied that there are exceptional
16 circumstances.
17 (16) Subsection (17) applies if --
18 (a) an application is made for an order under this
19 section in proceedings between de facto
20 partners with respect to the property of the
21 de facto partners, or either of them; and
22 (b) either of the following subparagraphs apply to a
23 de facto partner (the debtor party) --
24 (i) when the application was made, the
25 de facto partner was a debtor subject to
26 a personal insolvency agreement;
27 (ii) after the application was made but
28 before it is finally determined, the
29 de facto partner becomes a debtor
30 subject to a personal insolvency
31 agreement;
32 and
page 19
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 18
1 (c) the trustee of the agreement applies to the court
2 to be joined as a party to the proceedings; and
3 (d) the court is satisfied that the interests of the
4 debtor party's creditors may be affected by the
5 making of an order under this section in the
6 proceedings.
7 (17) The court must join the trustee of the agreement as a
8 party to the proceedings.
9 (18) If the trustee of a personal insolvency agreement is a
10 party to property settlement proceedings, then, except
11 with the leave of the court, the de facto partner who is
12 the debtor subject to the personal insolvency agreement
13 is not entitled to make a submission to the court in
14 connection with any property subject to the agreement.
15 (19) The court must not grant leave under subsection (18)
16 unless the court is satisfied that there are exceptional
17 circumstances.
18 (20) For the purposes of subsections (12) and (16), an
19 application for an order under this section is taken to be
20 finally determined when --
21 (a) the application is withdrawn or dismissed; or
22 (b) an order (other than an interim order) is made
23 as a result of the application.
24
25 18. Section 205ZH amended
26 (1) In section 205ZH(1) delete "proceedings with respect to the
27 property of de facto partners, or either of them," and insert:
28
29 property settlement proceedings,
30
page 20
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 18
1 (2) In section 205ZH(2) delete "proceedings with respect to the
2 property of de facto partners, or either of them," and insert:
3
4 property settlement proceedings
5
6 (3) In section 205ZH(5) delete "either party to the proceedings" and
7 insert:
8
9 either de facto partner
10
11 (4) After section 205ZH(6) insert:
12
13 (7) For the purposes of this section, a creditor of a party to
14 the proceedings in which the order under
15 section 205ZG was made is taken to be a person whose
16 interests are affected by the order if the creditor may
17 not be able to recover the creditor's debt because the
18 order has been made.
19 (8) Subsection (9) applies if --
20 (a) an order is made by a court under
21 section 205ZG in proceedings with respect to
22 the property of de facto partners or either of
23 them; and
24 (b) either of the following subparagraphs apply to a
25 de facto partner --
26 (i) when the order was made, the de facto
27 partner was a bankrupt;
28 (ii) after the order was made, the de facto
29 partner became a bankrupt.
30 (9) For the purposes of this section, the bankruptcy trustee
31 is taken to be a person whose interests are affected by
32 the order.
page 21
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 19
1 (10) Subsection (11) applies if --
2 (a) a de facto partner is a bankrupt; and
3 (b) an order is made by a court under
4 section 205ZG in proceedings with respect to
5 the vested bankruptcy property in relation to the
6 bankrupt partner.
7 (11) For the purposes of this section, the bankruptcy trustee
8 is taken to be a person whose interests are affected by
9 the order.
10 (12) Subsection (13) applies if --
11 (a) an order is made by a court under
12 section 205ZG in proceedings with respect to
13 the property of de facto partners or either of
14 them; and
15 (b) either of the following subparagraphs apply to a
16 de facto partner --
17 (i) when the order was made, the de facto
18 partner was a debtor subject to a
19 personal insolvency agreement;
20 (ii) after the order was made, the de facto
21 partner became a debtor subject to a
22 personal insolvency agreement.
23 (13) For the purposes of this section, the trustee of the
24 agreement is taken to be a person whose interests are
25 affected by the order.
26
27 19. Section 205ZHC amended
28 In section 205ZHC(1)(a) delete "either party" and insert:
29
30 a party
31
page 22
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 20
1 20. Sections 205ZHE to 205ZHH inserted
2 After section 205ZHD insert:
3
4 205ZHE. Notifying third parties about application -- FLA
5 s. 79F
6 (1) Subsection (2) applies in relation to a person who --
7 (a) applies for an order under this Division; or
8 (b) is a party to proceedings for an order under this
9 Division.
10 (2) The rules may specify the circumstances in which a
11 person referred to in subsection (1) is to give notice of
12 the application to a person who is not a party to the
13 proceedings.
14 205ZHF. Notifying bankruptcy trustee etc. about
15 application under section 205ZA, 205ZCA, 205ZG
16 or 205ZH -- FLA s. 79G
17 (1) The rules may make provision for a bankrupt who
18 becomes a party to a proceeding for an application
19 under section 205ZA, 205ZCA, 205ZG or 205ZH to
20 give notice of the application to the bankruptcy trustee.
21 (2) The rules may make provision for a debtor subject to a
22 personal insolvency agreement who becomes a party to
23 a proceeding for an application under section 205ZA,
24 205ZCA, 205ZG or 205ZH to give notice of the
25 application to the trustee of the agreement.
26 205ZHG. Notifying court about bankruptcy etc. -- FLA
27 s. 79H
28 (1) Subsection (2) applies in relation to a person who --
29 (a) is a de facto partner; and
page 23
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 20
1 (b) is a party to a proceeding for an application
2 under section 205ZA, 205ZCA, 205ZG
3 or 205ZH; and
4 (c) before that application is finally determined,
5 becomes a bankrupt.
6 (2) The rules may make provision for a person referred to
7 in subsection (1) to notify a court exercising
8 jurisdiction under this Act that the person has become a
9 bankrupt.
10 (3) Subsection (4) applies in relation to a person who --
11 (a) is a de facto partner; and
12 (b) is a party to a proceeding for an application
13 under section 205ZA, 205ZCA, 205ZG or
14 205ZH; and
15 (c) before that application is finally determined,
16 becomes a debtor subject to a personal
17 insolvency agreement.
18 (4) The rules may make provision for a person referred to
19 in subsection (3) to notify a court exercising
20 jurisdiction under this Act that the person has become a
21 debtor subject to a personal insolvency agreement.
22 (5) Subsection (6) applies in relation to a person who --
23 (a) is a de facto partner; and
24 (b) is a party to a proceeding for an application
25 under section 205ZA, 205ZCA, 205ZG
26 or 205ZH; and
27 (c) before that application is finally determined,
28 becomes a party to a proceeding before a court
29 (whether of a kind referred to in section 8(a) or
30 (b) or otherwise) under the Bankruptcy Act that
31 relates to --
32 (i) the bankruptcy of the person; or
page 24
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 20
1 (ii) the person's capacity as a debtor subject
2 to a personal insolvency agreement.
3 (6) The rules may make provision for a person referred to
4 in subsection (5) to notify a court exercising
5 jurisdiction under this Act of the institution of the
6 proceeding under the Bankruptcy Act.
7 (7) Subsection (8) applies in relation to a person who --
8 (a) is the bankruptcy trustee of a bankrupt de facto
9 partner; and
10 (b) applies under the Bankruptcy Act section 139A
11 for an order under Part VI Division 4A of that
12 Act.
13 (8) The rules may make provision for a person referred to
14 in subsection (7) to notify a court exercising
15 jurisdiction under this Act of the making of the
16 application.
17 (9) For the purposes of this section, an application for an
18 order under section 205ZCA, 205ZG or 205ZH is taken
19 to be finally determined when --
20 (a) the application is withdrawn or dismissed; or
21 (b) an order (other than an interim order) is made
22 as a result of the application.
23 (10) For the purposes of this section, an application for a
24 declaration under section 205ZA is taken to be finally
25 determined when --
26 (a) the application is withdrawn or dismissed; or
27 (b) a declaration is made as a result of the
28 application.
page 25
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 21
1 205ZHH. Notifying non-bankrupt de facto partner about
2 application under Bankruptcy Act section 139A --
3 FLA s. 79J
4 (1) Subsection (2) applies in relation to a person who --
5 (a) is the bankruptcy trustee of a bankrupt de facto
6 partner; and
7 (b) applies under the Bankruptcy Act section 139A
8 for an order under Part VI Division 4A of that
9 Act in relation to an entity (other than the other
10 de facto partner).
11 (2) The rules may make provision for a person referred to
12 in subsection (1) who is aware that either de facto
13 partner is a party to proceedings under this Act, to
14 notify the other de facto partner of the making of the
15 application.
16
17 21. Section 205ZI amended
18 After section 205ZI(3) insert:
19
20 (4) If a bankruptcy trustee is a party to a proceeding before
21 the court, the court may make an order under
22 subsection (1)(e) directed to the bankrupt.
23 (5) If the trustee of a personal insolvency agreement is a
24 party to a proceeding before the court, the court may
25 make an order under subsection (1)(e) directed to the
26 debtor subject to the personal insolvency agreement.
27 (6) Subsections (4) and (5) do not limit subsection (1)(e).
28
29 22. Section 205ZL amended
30 (1) In section 205ZL(1) delete "In proceedings with respect to the
31 maintenance of a de facto partner, if there is in force an order
page 26
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 23
1 with respect to the maintenance of that person by the de facto
2 partner of that person" and insert:
3
4 If there is in force an order, whenever made, with respect to the
5 maintenance of a de facto partner
6
7 (2) After section 205ZL(1) insert:
8
9 (1A) A court's jurisdiction under subsection (1) may be
10 exercised --
11 (a) in any case -- in proceedings with respect to
12 the maintenance of a de facto partner; or
13 (b) if there is a bankrupt de facto partner -- on the
14 application of the bankruptcy trustee; or
15 (c) if a de facto partner is a debtor subject to a
16 personal insolvency agreement -- on the
17 application of the trustee of the agreement.
18
19 (3) In section 205ZL(5) delete "partner to -- " and insert:
20
21 partner, or by the bankruptcy trustee of a de facto partner, to --
22
23 23. Sections 205ZPA and 205ZPB inserted
24 After section 205ZP insert:
25
26 205ZPA. Financial agreement may include agreement that
27 deals with superannuation
28 (1) A financial agreement may include an agreement that
29 deals with superannuation interests (as defined in the
30 Family Law Act section 90YD) of either or both of the
page 27
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 23
1 parties to the financial agreement as if those interests
2 were property.
3 (2) For the purposes of subsection (1), it does not matter
4 whether or not the superannuation interests are in
5 existence at the time the agreement is made.
6 Note for this section:
7 The Family Law Act section 90YK(3) provides that the part
8 of the financial agreement that deals with superannuation
9 interests has effect only in accordance with the Family Law
10 Act Part VIIIC. In particular, it cannot be enforced under this
11 Act.
12 205ZPB. Need for separation declaration for certain
13 provisions of financial agreement or former
14 financial agreement to take effect -- FLA s. 90DA
15 (1) A financial agreement or former financial agreement
16 that is binding on the parties to the agreement, to the
17 extent to which it deals with how, in the event of the
18 breakdown of the de facto relationship, all or any of the
19 property or financial resources of either or both of the
20 parties at the time when the agreement is made, or at a
21 later time and during the de facto relationship, is to be
22 dealt with, is of no force or effect until a separation
23 declaration is made.
24 (2) Subsection (1) ceases to apply if either or both of the
25 parties die.
26 (3) A separation declaration is a written declaration that
27 complies with subsections (4) and (5), and may be
28 included in the financial agreement to which it relates.
29 (4) The declaration must be signed by at least 1 of the
30 parties to the financial agreement or former financial
31 agreement.
32 (5) The declaration must state that --
33 (a) the parties lived in a de facto relationship; and
page 28
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 24
1 (b) the parties have separated and are living
2 separately and apart at the declaration time; and
3 (c) in the opinion of the party (or parties) making
4 the declaration, there is no reasonable
5 likelihood of cohabitation being resumed.
6 (6) For the purposes of subsection (5)(b), the parties to the
7 de facto relationship can have separated and be living
8 separately and apart even if --
9 (a) their cohabitation was brought to an end by the
10 action or conduct of 1 only of them; or
11 (b) they have continued to reside in the same
12 residence; or
13 (c) either of them has rendered some household
14 services to the other.
15 (7) In subsection (5)(b) --
16 declaration time means the time when the declaration
17 was signed by a party to the financial agreement or
18 former financial agreement.
19
20 24. Section 205ZV amended
21 (1) In section 205ZV(1):
22 (a) after "the financial agreement," insert:
23
24 termination agreement or former financial agreement,
25
26 (b) in paragraph (e) delete "unconscionable." and insert:
27
28 unconscionable; or
29
page 29
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 24
1 (c) after paragraph (e) insert:
2
3 (f) a payment flag is operating under the Family
4 Law Act Part VIIIC on a superannuation
5 interest (as defined in section 90YD of that
6 Act) covered by the agreement and there is no
7 reasonable likelihood that the operation of the
8 flag will be terminated by a flag lifting
9 agreement under that Part.
10
11 (2) In section 205ZV(3) after "financial agreement" (each
12 occurrence) insert:
13
14 or former financial agreement
15
16 (3) In section 205ZV(6) in the definition of creditor paragraph (b)
17 delete "financial agreement;" and insert:
18
19 agreement;
20
21 (4) In section 205ZV(6) in the definition of interested person:
22 (a) delete "a financial agreement" and insert:
23
24 a financial agreement, termination agreement or former
25 financial agreement
26
27 (b) in paragraph (a) delete "financial agreement; or" and
28 insert:
29
30 agreement; or
31
page 30
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 25
1 25. Section 205ZZ amended
2 In section 205ZZ(1)(a) delete "either party" and insert:
3
4 a party
5
6 26. Section 210 amended
7 In section 210 delete "Act" and insert:
8
9 Act, the Federal Circuit and Family Court of Australia
10 Act 2021 (Commonwealth) and the Bankruptcy Act
11
12 27. Section 211 amended
13 After section 211(5) insert:
14
15 (6) If, in dismissing an appeal under subsection (2), the
16 Family Court of Western Australia is of the opinion
17 that the appeal does not raise any question of general
18 principle, it may give reasons for its decision in short
19 form.
20
21 28. Section 211B amended
22 Delete section 211B(1) and insert:
23
24 (1) Subsection (1A) applies if --
25 (a) an appeal has been instituted in a court under
26 this Part; and
27 (b) it appears to the court that the appeal has no
28 reasonable prospect of success.
page 31
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 29
1 (1A) The court may, at any time, order that the proceedings
2 on the appeal be dismissed.
3
4 29. Section 222 amended
5 (1) After section 222(1) insert:
6
7 (1A) If a de facto partner is a bankrupt and the bankruptcy
8 trustee is a party to proceedings under this Act, the
9 court hearing the proceedings may set aside or restrain
10 the making of an instrument or disposition --
11 (a) which is made or proposed to be made by or on
12 behalf of, or by direction or in the interest of,
13 the bankrupt; and
14 (b) which is made or proposed to be made to defeat
15 an existing or anticipated order in those
16 proceedings or which, irrespective of intention,
17 is likely to defeat any such order.
18 (1B) If a de facto partner is a debtor subject to a personal
19 insolvency agreement and the trustee of the agreement
20 is a party to proceedings under this Act, the court
21 hearing the proceedings may set aside or restrain the
22 making of an instrument or disposition --
23 (a) which is made or proposed to be made by or on
24 behalf of, or by direction or in the interest of,
25 the debtor; and
26 (b) which is made or proposed to be made to defeat
27 an existing or anticipated order in those
28 proceedings or which, irrespective of intention,
29 is likely to defeat any such order.
30
page 32
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 29
1 (2) In section 222(2):
2 (a) delete "(1)" and insert:
3
4 (1), (1A) or (1B)
5
6 (b) delete "such instrument or disposition" and insert:
7
8 instrument or disposition referred to in subsection (1),
9 (1A) or (1B)
10
11 (3) In section 222(3) delete "(1)" and insert:
12
13 (1), (1A) or (1B)
14
15 (4) After section 222(4) insert:
16
17 (4AA) An application may be made to a court for an order
18 under this section by --
19 (a) a party to the proceedings; or
20 (b) a creditor of a party to the proceedings if the
21 creditor may not be able to recover their debt if
22 the instrument or disposition were made; or
23 (c) any other person whose interests would be
24 affected by the making of the instrument or
25 disposition.
26
27 (5) In section 222(4a) delete "(1) has under this section, such a
28 court" and insert:
29
30 (1), (1A) or (1B) has under this section, the court
31
page 33
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 30
1 30. Section 235A amended
2 After section 235A(3) insert:
3
4 (4) If a de facto partner is a bankrupt, a court may, on the
5 application of the other de facto partner, by
6 interlocutory order, grant an injunction under this
7 section restraining the bankruptcy trustee from
8 declaring and distributing dividends amongst the
9 bankrupt's creditors.
10 (5) If a de facto partner is a debtor subject to a personal
11 insolvency agreement, a court may, on the application
12 of the other de facto partner, by interlocutory order,
13 grant an injunction under this section restraining the
14 trustee of the agreement from disposing of (whether by
15 sale, gift or otherwise) property subject to the
16 agreement.
17 (6) Subsections (4) and (5) do not limit the rest of this
18 section.
19
20 31. Section 247 amended
21 After section 247(2) insert:
22
23 (3) Schedule 2 Division 3 has effect in relation to the
24 amendments made by the Family Court Amendment
25 Act 2022.
26
page 34
Family Court Amendment Bill 2022
Family Court Act 1997 amended Part 2
s. 32
1 32. Schedule 2 Division 3 inserted
2 After Schedule 2 Division 2 insert:
3
4 Division 3 -- Provisions for Family Court Amendment
5 Act 2022
6 13. Application of amendments
7 (1) In this clause --
8 commencement day means the day on which the Family
9 Court Amendment Act 2022 Part 2 comes into operation.
10 (2) Subject to subclause (3), the amendments to this Act made
11 by the Family Court Amendment Act 2022
12 sections 4, 5, 7, 9, 14, 15, 16, 17, 18, 20, 21, 22, 23, 29
13 and 30, to the extent to which they relate to bankruptcies or
14 personal insolvency agreements, apply in relation to --
15 (a) bankruptcies for which the date of the bankruptcy is
16 on or after the commencement day; and
17 (b) personal insolvency agreements, whether executed
18 before, on or after the commencement day.
19 (3) The following provisions, as inserted by the Family Court
20 Amendment Act 2022, apply to proceedings instituted on or
21 after the commencement day, whether the date of the
22 bankruptcy is before, on or after the commencement day --
23 (a) section 205ZCA(2), (3), (4) and (5);
24 (b) section 205ZCA(10), to the extent to which it
25 relates to section 205ZCA(2);
26 (c) the definitions in section 5(1), to the extent to which
27 they relate to section 205ZCA(2), (3), (4) and (5);
28 (d) section 205ZG(12), (13), (14) and (15);
29 (e) section 205ZG(20), to the extent to which it relates
30 to section 205ZG(12);
31 (f) the definitions in section 5(1), to the extent to which
32 they relate to section 205ZG(12), (13), (14)
33 and (15).
page 35
Family Court Amendment Bill 2022
Part 2 Family Court Act 1997 amended
s. 32
1 (4) Section 205ZA(3), as in force immediately before the
2 commencement day, continues to apply on and after that day
3 to a declaration or order made under section 205ZA before
4 that day.
5 (5) The amendment to section 205ZB made by the Family
6 Court Amendment Act 2022 section 13 applies in relation to
7 applications made on or after the commencement day.
8 (6) Section 205ZPA applies in relation to a financial agreement
9 made on or after the commencement day.
10 (7) Section 205ZPB applies in relation to a financial agreement
11 or former financial agreement made between parties whose
12 de facto relationship breaks down on or after the
13 commencement day.
14 (8) Section 211(6) applies in relation to appeals whether
15 instituted before, on or after the commencement day.
16 (9) The amendment to section 211B made by the Family Court
17 Amendment Act 2022 section 28 applies in relation to
18 appeals whether instituted before, on or after the
19 commencement day.
20
page 36
Family Court Amendment Bill 2022
Family Legislation Amendment Act 2006 amended Part 3
s. 33
1 Part 3 -- Family Legislation Amendment Act 2006
2 amended
3 33. Act amended
4 This Part amends the Family Legislation Amendment Act 2006.
5 34. Part 4 deleted
6 Delete Part 4.
page 37
Family Court Amendment Bill 2022
Part 4 Duties Act 2008 amended
Division 1 Act amended
s. 35
1 Part 4 -- Duties Act 2008 amended
2 Division 1 -- Act amended
3 35. Act amended
4 This Part amends the Duties Act 2008.
5 Division 2 -- Amendments commencing on day after
6 Royal Assent
7 36. Section 128 amended
8 (1) In section 128(1) delete the definition of superannuation
9 interest.
10 (2) In section 128(1) in the definition of flag lifting agreement
11 delete "90MN;" and insert:
12
13 90XN;
14
15 (3) In section 128(1) in the definition of matrimonial property
16 delete "interest;" and insert:
17
18 interest as defined in the Family Law Act section 90XD;
19
20 (4) In section 128(1) in the definition of superannuation
21 agreement delete "90MH;" and insert:
22
23 90XH;
24
page 38
Family Court Amendment Bill 2022
Duties Act 2008 amended Part 4
Amendments commencing on proclamation Division 3
s. 37
1 (5) In section 128(1) in the definition of superannuation fund
2 delete "121;" and insert:
3
4 121.
5
6 Division 3 -- Amendments commencing on proclamation
7 37. Section 128 amended
8 (1) In section 128(1) insert in alphabetical order:
9
10 de facto flag lifting agreement means a flag lifting
11 agreement as defined in the Family Law Act
12 section 90YS;
13 de facto splitting agreement means --
14 (a) a de facto superannuation agreement that has
15 effect under the Family Law Act Part VIIIC; or
16 (b) a de facto flag lifting agreement that has effect
17 under the Family Law Act Part VIIIC;
18 de facto superannuation agreement means a
19 superannuation agreement as defined in the Family
20 Law Act section 90YK;
21
22 (2) In section 128(1) in the definition of de facto relationship
23 property delete "them;" and insert:
24
25 them and includes a superannuation interest as defined in the
26 Family Law Act section 90YD;
27
page 39
Family Court Amendment Bill 2022
Part 4 Duties Act 2008 amended
Division 3 Amendments commencing on proclamation
s. 38
1 38. Section 130 amended
2 In section 130:
3 (a) in paragraph (a) delete "205T;" and insert:
4
5 205T, or a de facto splitting agreement;
6
7 (b) after paragraph (b)(i) insert:
8
9 (ia) the Family Law Act Part VIIIC; or
10
11 (c) in paragraph (b)(ii) delete "the Family Court Act
12 Part 5A." and insert:
13
14 a provision referred to in subparagraph (i) or (ia).
15
16 39. Section 131 amended
17 In section 131(2)(d):
18 (a) in subparagraph (ii) delete "children." and insert:
19
20 children; or
21
22 (b) after subparagraph (ii) insert:
23
24 (iii) a trustee of a superannuation fund.
25
[Index] [Search] [Download] [Related Items] [Help]