Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (112 of 2020)

Schedule 2   Amendment of the Bankruptcy Act 1966

Bankruptcy Act 1966

2   Section 35B

Repeal the section, substitute:

35B Family Court of Western Australia

Bankruptcy courts

(1) Section 27 applies to the Family Court of Western Australia in a corresponding way to the way in which it applies to the Family Court of Australia.

Jurisdiction in bankruptcy - bankrupt is a party to a marriage

(2) Subject to subsection (3) of this section, subsection 35(1) (and subsection 35(3) so far as it relates to subsection 35(1)) applies to the Family Court of Western Australia in a corresponding way to the way in which it applies to the Family Court of Australia.

(3) Appeals lie to the Family Court of Australia from a judgment of the Family Court of Western Australia exercising jurisdiction under subsection 35(1) as applied by subsection (2) of this section, and do not otherwise lie.

Jurisdiction in bankruptcy - bankrupt is a party to a de facto relationship

(4) If, at a particular time:

(a) a party to a de facto relationship is a bankrupt; and

(b) the trustee of the bankrupt's estate is:

(i) a party to proceedings under Part 5A of the Family Court Act 1997 (WA), or Part VIIIC of the Family Law Act 1975, in relation to either or both of the parties to the de facto relationship; or

(ii) an applicant under section 205ZH of the Family Court Act 1997 (WA) for the variation or setting aside of an order made under section 205ZG of that Act in proceedings with respect to the property of either or both of the parties to the de facto relationship; or

(iii) an applicant under section 90YZE of the Family Law Act 1975 for the setting aside of an order made under section 90YX of that Act in proceedings between the parties to the de facto relationship with respect to a superannuation interest of either or both of the parties to the de facto relationship; or

(iv) an applicant for an order under subsection 205ZV(1) or (3) of the Family Court Act 1997 (WA) in relation to the setting aside of a financial agreement (within the meaning of Part 5A of that Act) of the parties to the de facto relationship;

then, at and after that time, the Family Court of Western Australia has jurisdiction in bankruptcy in relation to any matter connected with, or arising out of, the bankruptcy of the bankrupt.

(5) An expression used in subsection (4) that is also used in the Family Law Act 1975 has the same meaning in that subsection as it has in that Act.

(6) Appeals lie to the Court of Appeal established under the Supreme Court Act 1935 (WA) from a judgment of the Family Court of Western Australia exercising jurisdiction under subsection (4) of this section, and do not otherwise lie.

(7) The Court of Appeal established under the Supreme Court Act 1935 (WA) is invested with federal jurisdiction with respect to matters in respect of which appeals are instituted under subsection (6) of this section.

Transfer of proceedings

(8) If a proceeding is pending in the Federal Court, the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court of Western Australia.

(9) If a proceeding is pending in the Federal Circuit Court, the Federal Circuit Court may, on the application of a party to the proceeding or on its own initiative, transfer the proceeding to the Family Court of Western Australia.

(10) Subject to subsection (11), where a proceeding is transferred to the Family Court of Western Australia:

(a) the Family Court of Western Australia has jurisdiction to hear and determine the proceeding; and

(b) the Family Court of Western Australia also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether by virtue of paragraph (a) or otherwise):

(i) that are associated with matters arising in the proceeding; or

(ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding; and

(c) the Family Court of Western Australia may, in and in relation to the proceeding:

(i) grant such remedies; and

(ii) make orders of such kinds; and

(iii) issue, and direct the issue of, writs of such kinds;

as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding; and

(d) remedies, orders and writs granted, made or issued by the Family Court of Western Australia in and in relation to the proceeding have effect, and may be enforced by the Family Court of Western Australia, as if they had been granted, made or issued by the Federal Court; and

(e) appeals lie from judgments of the Family Court of Western Australia given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge, and do not otherwise lie; and

(f) subject to paragraphs (a) to (e) (inclusive), this Act, the Federal Court of Australia Act 1976, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:

(i) a reference to the Federal Court (other than in the expression "the Court or a Judge") included a reference to the Family Court of Western Australia; and

(ii) a reference to a Judge of the Federal Court (other than in the expression "the Court or a Judge") included a reference to a judge of the Family Court of Western Australia; and

(iii) a reference to the expression "the Court or a Judge" when used in relation to the Federal Court included a reference to a judge of the Family Court of Western Australia sitting in Chambers; and

(iv) a reference to a Registrar included a reference to a registrar of the Family Court of Western Australia; and

(v) any other necessary changes were made.

(11) Where any difficulty arises in the application of paragraphs (10)(c), (d) and (f) in or in relation to a particular proceeding, the Family Court of Western Australia may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

(12) An appeal does not lie from a decision of the Federal Court or the Federal Circuit Court in relation to the transfer of a proceeding under this Act to the Family Court of Western Australia.