ByLawyers News and Updates

Family Court Act – WA

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The Family Court Act 1997 (WA) has been amended to reflect recent changes to Commonwealth family law legislation and facilitate the exercise of federal jurisdiction by the Family Court of Western Australia.

The combined WA and Federal amendments provide for the exercise by the Family Court of Western Australia of federal jurisdiction in family law property proceedings to:

  • determine the superannuation interests of separating de facto couples; and
  • hear bankruptcy proceedings concurrently with family law proceedings, where appropriate.

Superannuation splitting

The Commonwealth family law legislation has allowed the superannuation interests of married parties in proceedings before the previous Family Court of Australia, now the Federal Family and Circuit Court of Australia, to be treated as property for distribution since 2001. However, this was restricted to parties to the breakdown of a marriage.

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) inserts a new Part VlllC into the Family Law Act 1975 (Cth). This section provides for the distribution of superannuation entitlements between separating de facto couples in the Family Court of Western Australia. It allows superannuation matters under the Family Law Act 1975 (Cth) to be heard concurrently with other matters under the property provisions of the Family Court Act 1997 (WA).

Bankruptcy jurisdiction

The Family Court Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) also amends the Bankruptcy Act 1966 (Cth) to enable bankruptcy matters related to de facto couples to be heard by the Family Court of Western Australia in conjunction with family law proceedings. This is possible where:

(a) a party to a marriage or de facto relationship is bankrupt, and the trustee of the bankrupt’s estate is a party or an applicant in property settlement or spousal maintenance proceedings; or

(b) proceedings before the Federal Court or the Federal Circuit Court are transferred to the Family Court of Western Australia.

The Commonwealth Act also provides that appeals about concurrent family law and bankruptcy proceedings for Western Australian de facto couples will mirror existing appeal pathways for married and de facto couples in other jurisdictions.

The By Lawyers Family Law publications have been amended accordingly.

Temporary changes to insolvency laws – FED

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The Federal Government has made temporary changes to insolvency laws under the Coronavirus Economic Response Package Omnibus Act 2020, aimed at relieving current economic pressures on individuals and companies.

The Act commenced on 25 March 2020.

These temporary changes to insolvency laws are as follows:

Bankruptcy

The time for a debtor to comply with a bankruptcy notice has been extended from 21 days to six months. The threshold for initiating bankruptcy proceedings increases from $5,000 to $20,000. These changes will apply for six months from commencement of the Act.

The same six month time extension applies to the time within which a debtor is protected from enforcement action by a creditor, following their presentation of a declaration of intention to present a debtor’s petition, under s 54A Bankruptcy Act.

Liquidation

The time for a debtor company to comply with a statutory demand has been extended from 21 days to six months. The threshold to issue a statutory demand has been increased from $2,000 to $20,000. These changes will apply until 25 September 2020.

Safe harbour

A new, temporary, s 588GAAA ‘Safe harbour—temporary relief in response to the coronavirus’, of the Corporations Act 2001 provides that the existing civil penalties for directors failing to prevent insolvent trading under ss 588G(2) do not apply in relation to a debt incurred by a company if the debt is incurred in the ordinary course of the company’s business and until 25 September 2020.

Practitioners should keep these changes in mind for the next six months and be aware of the end date, which is 25 September 2020.

Alerts have been added to the By Lawyers Insolvency – Bankruptcy of Individuals, Insolvency – Company Liquidation and Companies commentaries notifying subscribers of these changes.

 

Keep up-to-date with our latest COVID-19 News & Updates

Insolvency – Bankruptcy of individuals – FED

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Author review

A full review of the By Lawyers Insolvency – Bankruptcy of Individuals guide has been conducted. The review ensures that all content is in line with current law and practice.

This review was conducted by our highly experienced author, Michael Murray.

Updates and enhancements include:

  • New commentary on recent law changes to debt agreements;
  • New commentary on the Federal Court and Federal Circuit Court processes for creditor’s petitions, applications to set aside bankruptcy notices and examinations; and
  • New commentary and matter plan additions because of new online processes for voluntary bankruptcy.

Keep up to date with By Lawyers

This review of our Insolvency – Bankruptcy of Individuals guide is part of By Lawyers commitment to regular updating and enhancement of our publications. By Lawyers always keeps you up to date so you can enjoy practice more.

Insolvency To Do lists – FED

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The By Lawyers Bankruptcy and Liquidation guides have been updated with the inclusion of four Insolvency To do lists.

These new precedents provide practical guidance for practitioners as they progress through a matter.

The To Do lists provide helpful prompts for each important step to be taken in a matter when acting for either the creditor or the debtor in both personal and corporate insolvency matters, including:

  • Liquidation;
  • Winding up;
  • Deeds of company arrangement;
  • Debt agreements;
  • Personal insolvency agreements; and
  • Bankruptcy proceedings.

The new To Do lists can be found in folder A. Getting the Matter Underway in the By Lawyers Bankruptcy and Insolvency guides and will assist practitioners in safely and efficiently managing their matters.

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