Commonwealth Coat of Arms of Australia

Family Law Act 1975

No. 53, 1975

Compilation No. 97

Compilation date: 28 November 2023

Includes amendments up to: Act No. 102, 2023

Registered: 30 November 2023

This compilation is in 2 volumes

Volume 1: sections 1–90

Volume 2: sections 90AA–125

 Schedule

 Endnotes

Each volume has its own contents

About this compilation

This compilation

This is a compilation of the Family Law Act 1975 that shows the text of the law as amended and in force on 28 November 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.

Selfrepealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

 

 

 

Contents

Part VIIIAA—Orders and injunctions binding third parties

Division 1—Preliminary

Subdivision A—Scope of this Part

90AA Object of this Part

90AB Definitions

90AC This Part overrides other laws, trust deeds etc.

90ACA This Part not to apply to certain annuities

90AD Extended meaning of matrimonial cause and property

90ADA Other provisions of this Act not affected by this Part

Division 2—Orders under section 79

90AE Court may make an order under section 79 binding a third party

Division 3—Orders or injunctions under section 114

90AF Court may make an order or injunction under section 114 binding a third party

Division 4—Other matters

90AG Orders and injunctions binding on trustees

90AH Protection for a third party

90AI Service of documents on a third party

90AJ Expenses of third party

90AK Acquisition of property

Part VIIIA—Financial agreements

90A Definitions

90B Financial agreements before marriage

90C Financial agreements during marriage

90D Financial agreements after divorce order is made

90DA Need for separation declaration for certain provisions of financial agreement to take effect

90DB Whether or when certain other provisions of financial agreements take effect

90E Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

90F Certain provisions in agreements

90G When financial agreements are binding

90H Effect of death of party to financial agreement

90J Termination of financial agreement

90K Circumstances in which court may set aside a financial agreement or termination agreement

90KA Validity, enforceability and effect of financial agreements and termination agreements

90L Financial and other agreements etc. not liable to duty

90M Notification of proceeds of crime orders etc.

90N Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.

90P Lifting a stay

90Q Intervention by proceeds of crime authority

Part VIIIAB—Financial matters relating to de facto relationships

Division 1—Preliminary

Subdivision A—Meaning of key terms

90RA Participating jurisdictions

90RB Meaning of child of a de facto relationship

Subdivision B—Relationship with State and Territory laws

90RC Relationship with State and Territory laws

Subdivision C—Declarations about existence of de facto relationships

90RD Declarations about existence of de facto relationships

90RE Effect of declarations

90RF Applying for declarations

90RG Geographical requirement

90RH Setting aside declarations

Division 2—Maintenance, declarations of property interests and alterations of property interests

Subdivision A—Application of Division

90SA This Division does not apply to certain matters covered by binding financial agreements

90SB When this Division applies—length of relationship etc.

90SC This Division ceases to apply in relation to a de facto relationship if the parties marry each other

Subdivision B—Maintenance

90SD Geographical requirement

90SE Power of court in maintenance proceedings

90SF Matters to be taken into consideration in relation to maintenance

90SG Urgent maintenance cases

90SH Specification in orders of payments etc. for maintenance purposes

90SI Modification of maintenance orders

90SJ Cessation of maintenance orders

Subdivision C—Declarations and alterations of property interests

90SK Geographical requirement

90SL Declaration of interests in property

90SM Alteration of property interests

90SN Varying and setting aside orders altering property interests

Subdivision D—Notification of application

90SO Notifying third parties about application

90SP Notifying bankruptcy trustee etc. about application under section 90SE, 90SL, 90SM or 90SN

90SQ Notifying court about bankruptcy etc.

90SR Notifying nonbankrupt de facto party about application under section 139A of the Bankruptcy Act 1966

Subdivision E—Court powers

90SS General powers of court

90ST Duty of court to end financial relations

Division 3—Orders and injunctions binding third parties

90TA Orders and injunctions binding third parties

Division 4—Financial agreements

90UA Geographical requirement for agreements made in participating jurisdictions

90UB Financial agreements before de facto relationship

90UC Financial agreements during de facto relationship

90UD Financial agreements after breakdown of a de facto relationship

90UE Agreements made in nonreferring States that become Part VIIIAB financial agreements

90UF Need for separation declaration for certain provisions of financial agreement to take effect

90UG Whether or when certain other provisions of financial agreements take effect

90UH Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

90UI Certain provisions in financial agreements

90UJ When financial agreements are binding

90UK Effect of death of party to financial agreement

90UL Termination of financial agreement

90UM Circumstances in which court may set aside a financial agreement or termination agreement

90UN Validity, enforceability and effect of financial agreements and termination agreements

Division 5—Proceeds of crime and forfeiture

90VA Notification of proceeds of crime orders etc.

90VB Court to stay property or maintenance proceedings affected by proceeds of crime orders etc.

90VC Lifting a stay

90VD Intervention by proceeds of crime authority

Division 6—Instruments not liable to duty

90WA Certain instruments not liable to duty

Part VIIIB—Superannuation interests

Division 1—Preliminary

Subdivision A—Scope of this Part

90XA Object of this Part

90XB This Part overrides other laws, trust deeds etc.

90XC Extended meanings of matrimonial cause and de facto financial cause

Subdivision B—Interpretation

90XD Definitions

90XDA Extended meaning of trustee

90XE Splittable payments

90XF Reversionary interest

90XG Meaning of in force

Division 2—Payment splitting or flagging by agreement

Subdivision A—Superannuation agreements

90XH Superannuation agreement to be included in financial agreement if about a marriage

90XHA Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship

Subdivision B—Payment splitting

90XI Operative time for payment split

90XJ Payment split under superannuation agreement or flag lifting agreement

Subdivision C—Payment flagging

90XK Operative time for payment flag

90XL Payment flag

90XLA Some splittable payments payable if payment flag operating

90XM Payment flag may be terminated by court

90XN Flag lifting agreement etc.

Subdivision D—Miscellaneous

90XO Limitation on section 79 or 90SM order

90XP Separation declaration

90XQ Superannuation interests in excess of low rate cap amount

90XR Enforcement by court order

Division 3—Payment splitting or flagging by court order

90XS Order under section 79 or 90SM may include orders in relation to superannuation interests

90XT Splitting order

90XU Flagging order

90XUA Some splittable payments may be made without leave of court

Division 4—General provisions about payment splitting

90XV Court may cancel payment split

90XW Deductions from splittable payment before calculating payment split

90XX Multiple payment splits applying to the same splittable payment

90XY Fees payable to trustee

90XZ Superannuation preservation requirements

90XZA Waiver of rights under payment split

90XZB Trustee to provide information

90XZC Death of nonmember spouse

Division 5—Miscellaneous

90XZD Orders binding on trustee

90XZE Protection for trustee

90XZF Service of documents on trustee

90XZG False declarations

90XZH Terminating employment because of payment flag etc.

90XZJ Requests for Commissioner of Taxation to provide superannuation information

Part VIIIC—Superannuation interests relating to Western Australian de facto relationships

Division 1—Preliminary

Subdivision A—Scope of this Part

90YA Object of this Part

90YB Application of this Part

90YC This Part overrides other laws, trust deeds etc.

Subdivision B—Interpretation

90YD Definitions

90YE Meaning of child of a de facto relationship

90YF Extended meaning of trustee

90YG Splittable payments

90YH Reversionary interest

90YI Meaning of in force

Subdivision C—Rules of Court

90YJ Rules of Court

Division 2—Payment splitting or flagging by agreement

Subdivision A—Superannuation agreements

90YK Superannuation agreement to be included in Western Australian financial agreement if about a de facto relationship

90YL Part VIIIB superannuation agreements that become superannuation agreements for the purposes of this Part

Subdivision B—Payment splitting

90YM Operative time for payment split

90YN Payment split under superannuation agreement or flag lifting agreement

Subdivision C—Payment flagging

90YO Operative time for payment flag

90YP Payment flag

90YQ Some splittable payments payable if payment flag operating

90YR Payment flag may be terminated by court

90YS Flag lifting agreement etc.

Subdivision D—Miscellaneous

90YT Limitation on section 90YX order

90YU Separation declaration

90YV Superannuation interests in excess of low rate cap amount

90YW Enforcement by court order

Division 3—Payment splitting or flagging by court order

Subdivision A—Orders in relation to superannuation interests

90YX Orders in relation to superannuation interests

90YY Splitting order

90YZ Flagging order

90YZA Some splittable payments may be made without leave of court

90YZB Geographical requirement

90YZC Length of relationship etc.

90YZD Other rules relating to proceedings under section 90YX

90YZE Varying and setting aside orders under section 90YX

Subdivision B—Notification of application

90YZF Notifying third parties about application

90YZG Notifying bankruptcy trustee etc. about application under section 90YX or 90YZE

90YZH Notifying court about bankruptcy etc.

90YZI Notifying nonbankrupt de facto party about application under section 139A of the Bankruptcy Act 1966

Subdivision C—Duty of court to end financial relations

90YZJ Duty of court to end financial relations

Subdivision D—Orders and injunctions binding third parties

90YZK Orders and injunctions binding third parties

Division 4—General provisions about payment splitting

90YZL Court may cancel payment split

90YZM Deductions from splittable payment before calculating payment split

90YZN Multiple payment splits applying to the same splittable payment

90YZO Fees payable to trustee

90YZP Superannuation preservation requirements

90YZQ Waiver of rights under payment split

90YZR Trustee to provide information

90YZS Death of nonmember spouse

Division 5—Miscellaneous

90YZT Orders binding on trustee

90YZU Protection for trustee

90YZV Service of documents on trustee

90YZW False declarations

90YZX Terminating employment because of payment flag etc.

90YZY Requests for Commissioner of Taxation to provide superannuation information

Part IX—Intervention

91 Intervention by AttorneyGeneral

91A Delegation by AttorneyGeneral

91B Intervention by child welfare officer

92 Intervention by other persons

92A Intervention in child abuse cases

Part XI—Procedure and evidence

Division 1—General matters concerning procedure and evidence

97 Procedure

98 Evidence by affidavit

98A Proceedings in absence of parties

100 Evidence of husbands, wives or spouses

100B Children swearing affidavits, being called as witnesses or being present in court

101 Protection of witnesses

102 Proof of birth, parentage, death or marriage

102A Restrictions on examination of children

102B Assessors

Division 2—Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.

102C Testimony

102D Appearance of persons

102E Making of submissions

102F Conditions for use of links

102G Putting documents to a person

102J Administration of oaths and affirmations

102K Expenses

102L New Zealand proceedings

Division 3—Crossexamination of parties where allegations of family violence

102NA Mandatory protections for parties in certain cases

102NB Courtordered protections in other cases

102NC Review of this Division

Part XIA—Suppression and nonpublication orders

Division 1—Preliminary

102P Definitions

102PA Powers of a court not affected

102PB Other laws not affected

102PC Relationship with section 121

Division 2—Suppression and nonpublication orders

102PD Safeguarding public interest in open justice

102PE Power to make orders

102PF Grounds for making an order

102PG Procedure for making an order

102PH Interim orders

102PI Duration of orders

102PJ Exception for court officials

102PK Contravention of order

Part XIB—Vexatious proceedings

Division 1—Preliminary

102Q Definitions

102QA Powers of a court not affected

Division 2—Vexatious proceedings orders

102QB Making vexatious proceedings orders

102QC Notification of vexatious proceedings orders

Division 3—Particular consequences of vexatious proceedings orders

102QD Proceedings in contravention of vexatious proceedings order

102QE Application for leave to institute proceedings

102QF Dismissing application for leave

102QG Granting application for leave

Part XII—Recognition of decrees

103 Decrees under this Act

104 Overseas decrees

104A Recognition in external Territories

Part XIII—Enforcement of decrees

105 Enforcement generally

106 Maintenance orders—more than 12 months in arrears

106A Execution of instruments by order of court

106B Transactions to defeat claims

107 People not to be imprisoned for failure to comply with certain orders

109 InterState enforcement of child bearing expenses order

109A Rules of Court relating to enforcement

109AA Rules of Court relating to enforcement—Federal Circuit and Family Court of Australia (Division 1)

109B Rules of Court relating to enforcement—Federal Circuit and Family Court of Australia (Division 2)

Part XIIIAA—International conventions, international agreements and international enforcement

Division 1—International maintenance orders and agreements etc.

110 Overseas enforcement of maintenance orders etc.

110A Registration and enforcement in Australia of overseas maintenance agreements etc.

110B Transmission of agreements etc. to overseas jurisdictions

111 Convention on Recovery Abroad of Maintenance

111A Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations

111AA Maintenance obligations with New Zealand

111AB Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations

Division 2—International child abduction

111B Convention on the Civil Aspects of International Child Abduction

Division 3—International agreements about adoption etc.

111C International agreements about adoption etc.

Division 4—International protection of children

Subdivision A—Preliminary

111CA Definitions

111CB Relationship between this Division and other provisions

Subdivision B—Jurisdiction for the person of a child

111CC Application of this Subdivision

111CD Jurisdiction relating to the person of a child

111CE Limitation when a child is wrongfully removed from or retained outside a Convention country

111CF Limitations when prior proceedings pending in a Convention country

111CG If a court is asked to assume jurisdiction

111CH Limitation if a competent authority of a Convention country is asked to assume jurisdiction

111CI When a certain Commonwealth personal protection measure lapses

Subdivision C—Jurisdiction for decisions about a guardian of a child’s property

111CJ Application of this Subdivision

111CK Jurisdiction to appoint, or determine the powers of, a guardian for a child’s property

111CL Limitation when a child is wrongfully removed from or retained outside a Convention country

111CM Limitations when prior proceedings pending in a Convention country

111CN If a court is asked to assume jurisdiction

111CO Limitation if a competent authority of a Convention country is asked to assume jurisdiction

111CP When a certain Commonwealth property protection measure lapses

Subdivision D—Applicable law

111CQ Meaning of law

111CR Applicable law generally

111CS Applicable law concerning parental responsibility

Subdivision E—Recognition of foreign measures

111CT Effect of registered foreign measures

Subdivision F—Cooperation

111CU Obligation to obtain consent to place child

111CV Obligation to inform competent authority about serious danger to a child

111CW Court proceedings dealing with whom a child spends time with

111CX Jurisdiction for a location order or a Commonwealth information order

111CY Giving information to central authorities and competent authorities in Convention countries

Subdivision G—Regulations

111CZ Regulations to implement the Convention

Division 5—Other matters

111D Regulations may provide for rules of evidence

Part XIIIA—Sanctions for failure to comply with orders, and other obligations, that do not affect children

Division 1—Interpretation

112AA Interpretation

112AB Meaning of contravene an order

112AC Meaning of reasonable excuse for contravening an order

Division 2—Sanctions for failure to comply with orders

112AD Sanctions for failure to comply with orders

112AE Sentences of imprisonment

112AF Bonds

112AG Additional sentencing alternatives

112AH Failure to comply with sentence passed, or order made, pursuant to paragraph 112AD(2)(b)

112AK Variation and discharge of orders

112AM Relationship between Division and other laws

112AN Arrangements with States and Territories for carrying out of sentences and orders

112AO Division does not limit operation of section 105

Part XIIIB—Contempt of court

112AP Contempt

Part XIV—Declarations and injunctions

112A Interpretation

113 Proceedings for declarations

114 Injunctions

114AA Powers of arrest

114AB Operation of State and Territory laws

Part XIVA—The Australian Institute of Family Studies

114A Interpretation

114B Establishment of Institute

114C Minister may give directions to Director

114D Appointment of Director

114E Term of appointment

114F Acting appointments

114G Director’s remuneration

114H Outside employment

114J Leave of absence

114L Other terms and conditions

114LA Resignation

114LB Termination of appointment

114LD Delegation

114M Staff

Part XV—Miscellaneous

115 Family Law Council

117 Costs

117AA Costs in proceedings relating to overseas enforcement and international Conventions

117AC Security for costs

117A Reparation for certain losses and expenses relating to children

117B Interest on moneys ordered to be paid

117C Offers of settlement

119 Married persons may sue each other

120 Criminal conversation, adultery and enticement

121 Restriction on publication of court proceedings

122 Rights of legal practitioners

122AAA Protection of Registrars conducting conferences about property matters

122A Making arrests under this Act or warrants

122AA Powers to enter and search premises, and stop conveyances, for making arrests under this Act or warrants

122B Arrangements with States and Territories

123 Rules of Court

124 Rules Advisory Committee

124A Regulations in relation to overseasrelated maintenance obligations etc.

125 Regulations

Schedule 1—Child Protection Convention

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Endnote 5—Miscellaneous

Part VIIIAAOrders and injunctions binding third parties

Division 1Preliminary

Subdivision AScope of this Part

90AA  Object of this Part

  The object of this Part is to allow the court, in relation to the property of a party to a marriage, to:

 (a) make an order under section 79 or 114; or

 (b) grant an injunction under section 114;

that is directed to, or alters the rights, liabilities or property interests of a third party.

90AB  Definitions

  In this Part:

marriage includes a void marriage.

third party, in relation to a marriage, means a person who is not a party to the marriage.

90AC  This Part overrides other laws, trust deeds etc.

 (1) This Part has effect despite anything to the contrary in any of the following (whether made before or after the commencement of this Part):

 (a) any other law (whether written or unwritten) of the Commonwealth, a State or Territory;

 (b) anything in a trust deed or other instrument.

 (2) Without limiting subsection (1), nothing done in compliance with this Part by a third party in relation to a marriage is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).

90ACA  This Part not to apply to certain annuities

  The powers of the court under this Part do not apply to superannuation annuities (within the meaning of the Income Tax Assessment Act 1997).

90AD  Extended meaning of matrimonial cause and property

 (1) For the purposes of this Part, a debt owed by a party to a marriage is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4.

 (2) For the purposes of paragraph 114(1)(e), property includes a debt owed by a party to a marriage.

90ADA  Other provisions of this Act not affected by this Part

  This Part does not affect the operation of any other provision of this Act.

Example: Paragraph 90AE(3)(e) and subsection 90AE(4) do not limit the operation of any other provisions of this Act that require or permit the court to take matters into account in making an order in proceedings under section 79.

Division 2Orders under section 79

90AE  Court may make an order under section 79 binding a third party

 (1) In proceedings under section 79, the court may make any of the following orders:

 (a) an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor;

 (b) an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt owed to the creditor;

 (c) an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made;

 (d) an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party.

 (2) In proceedings under section 79, the court may make any other order that:

 (a) directs a third party to do a thing in relation to the property of a party to the marriage; or

 (b) alters the rights, liabilities or property interests of a third party in relation to the marriage.

 (3) The court may only make an order under subsection (1) or (2) if:

 (a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

 (b) if the order concerns a debt of a party to the marriage—it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and

 (c) the third party has been accorded procedural fairness in relation to the making of the order; and

 (d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and

 (e) the court is satisfied that the order takes into account the matters mentioned in subsection (4).

 (4) The matters are as follows:

 (a) the taxation effect (if any) of the order on the parties to the marriage;

 (b) the taxation effect (if any) of the order on the third party;

 (c) the social security effect (if any) of the order on the parties to the marriage;

 (d) the third party’s administrative costs in relation to the order;

 (e) if the order concerns a debt of a party to the marriage—the capacity of a party to the marriage to repay the debt after the order is made;

Note: See paragraph (3)(b) for requirements for making the order in these circumstances.

Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.

 (f) the economic, legal or other capacity of the third party to comply with the order;

Example: The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).

 (g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters—those matters;

Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

 (h) any other matter that the court considers relevant.

Division 3Orders or injunctions under section 114

90AF  Court may make an order or injunction under section 114 binding a third party

 (1) In proceedings under section 114, the court may:

 (a) make an order restraining a person from repossessing property of a party to a marriage; or

 (b) grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.

 (2) In proceedings under section 114, the court may make any other order, or grant any other injunction that:

 (a) directs a third party to do a thing in relation to the property of a party to the marriage; or

 (b) alters the rights, liabilities or property interests of a third party in relation to the marriage.

 (3) The court may only make an order or grant an injunction under subsection (1) or (2) if:

 (a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

 (b) if the order or injunction concerns a debt of a party to the marriage—it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

 (c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

 (d) for an injunction or order under subsection 114(1)—the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

 (e) for an injunction under subsection 114(3)—the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

 (f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

 (4) The matters are as follows:

 (a) the taxation effect (if any) of the order or injunction on the parties to the marriage;

 (b) the taxation effect (if any) of the order or injunction on the third party;

 (c) the social security effect (if any) of the order or injunction on the parties to the marriage;

 (d) the third party’s administrative costs in relation to the order or injunction;

 (e) if the order or injunction concerns a debt of a party to the marriage—the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;

Note: See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.

Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.

 (f) the economic, legal or other capacity of the third party to comply with the order or injunction;

Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).

 (g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters—those matters;

Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.

 (h) any other matter that the court considers relevant.

Division 4Other matters

90AG  Orders and injunctions binding on trustees

  If an order or injunction binds a person in the capacity of trustee in relation to property, then the order or injunction is also binding (by force of this section) on any person who subsequently becomes the trustee.

90AH  Protection for a third party

  A third party in relation to a marriage is not liable for loss or damage suffered by any person because of things done (or not done) by the third party in good faith in reliance on an order or injunction made or granted by a court in accordance with this Part.

90AI  Service of documents on a third party

 (1) If a document is required or permitted to be served for the purposes of this Part on a third party in relation to a marriage, the document may be served in any of the ways in which a document may be served under the applicable Rules of Court.

 (2) Subsection (1) is in addition to any other method of service permitted by law.

90AJ  Expenses of third party

 (1) Subsection (2) applies if:

 (a) the court has made an order or granted an injunction in accordance with this Part in relation to a marriage; and

 (b) a third party in relation to the marriage has incurred expense as a necessary result of the order or injunction.

 (2) The court may make such order as it considers just for the payment of the reasonable expenses of the third party incurred as a necessary result of the order or injunction.

 (3) In deciding whether to make an order under subsection (2), subject to what the court considers just, the court must take into account the principle that the parties to the marriage should bear the reasonable expenses of the third party equally.

 (4) The regulations may provide, in situations where the court has not made an order under subsection (2):

 (a) for the charging by the third party of reasonable fees to cover the reasonable expenses of the third party incurred as a necessary result of the order or injunction; and

 (b) if such fees are charged—that each of the parties to the marriage is separately liable to pay the third party an amount equal to half of those fees; and

 (c) for conferring jurisdiction on a particular court or courts in relation to the collection or recovery of such fees.

90AK  Acquisition of property

 (1) The court must not make an order or grant an injunction in accordance with this Part if the order or injunction would:

 (a) result in the acquisition of property from a person otherwise than on just terms; and

 (b) be invalid because of paragraph 51(xxxi) of the Constitution.

 (2) In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

Part VIIIAFinancial agreements

 

90A  Definitions

  In this Part:

dealt with includes the meaning given by subsection 90F(2).

marriage includes a void marriage.

90B  Financial agreements before marriage

 (1) If:

 (a) people who are contemplating entering into a marriage with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and

 (aa) at the time of the making of the agreement, the people are not the spouse parties to any other binding agreement (whether made under this section or section 90C or 90D) with respect to any of those matters; and

 (b) the agreement is expressed to be made under this section;

the agreement is a financial agreement. The people may make the financial agreement with one or more other people.

 (2) The matters referred to in paragraph (1)(a) are the following:

 (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and before divorce, is to be dealt with;

 (b) the maintenance of either of the spouse parties:

 (i) during the marriage; or

 (ii) after divorce; or

 (iii) both during the marriage and after divorce.

 (3) A financial agreement made as mentioned in subsection (1) may also contain:

 (a) matters incidental or ancillary to those mentioned in subsection (2); and

 (b) other matters.

 (4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

90C  Financial agreements during marriage

 (1) If:

 (a) the parties to a marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and

 (aa) at the time of the making of the agreement, the parties to the marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90D) with respect to any of those matters; and

 (b) the agreement is expressed to be made under this section;

the agreement is a financial agreement. The parties to the marriage may make the financial agreement with one or more other people.

 (2) The matters referred to in paragraph (1)(a) are the following:

 (a) how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the marriage, is to be dealt with;

 (b) the maintenance of either of the spouse parties:

 (i) during the marriage; or

 (ii) after divorce; or

 (iii) both during the marriage and after divorce.

 (2A) For the avoidance of doubt, a financial agreement under this section may be made before or after the marriage has broken down.

 (3) A financial agreement made as mentioned in subsection (1) may also contain:

 (a) matters incidental or ancillary to those mentioned in subsection (2); and

 (b) other matters.

 (4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

90D  Financial agreements after divorce order is made

 (1) If:

 (a) after a divorce order is made in relation to a marriage (whether it has taken effect or not), the parties to the former marriage make a written agreement with respect to any of the matters mentioned in subsection (2); and

 (aa) at the time of the making of the agreement, the parties to the former marriage are not the spouse parties to any other binding agreement (whether made under this section or section 90B or 90C) with respect to any of those matters; and

 (b) the agreement is expressed to be made under this section;

the agreement is a financial agreement. The parties to the former marriage may make the financial agreement with one or more other people.

 (2) The matters referred to in paragraph (1)(a) are the following:

 (a) how all or any of the property or financial resources that either or both of the spouse parties had or acquired during the former marriage is to be dealt with;

 (b) the maintenance of either of the spouse parties.

 (3) A financial agreement made as mentioned in subsection (1) may also contain:

 (a) matters incidental or ancillary to those mentioned in subsection (2); and

 (b) other matters.

 (4) A financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

90DA  Need for separation declaration for certain provisions of financial agreement to take effect

 (1) A financial agreement that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties:

 (a) at the time when the agreement is made; or

 (b) at a later time and before the termination of the marriage by divorce;

are to be dealt with, is of no force or effect until a separation declaration is made.

Note: Before the separation declaration is made, the financial agreement will be of force and effect in relation to the other matters it deals with (except for any matters covered by section 90DB).

 (1A) Subsection (1) ceases to apply if:

 (a) the spouse parties divorce; or

 (b) either or both of them die.

Note: This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the divorce or death(s).

 (2) A separation declaration is a written declaration that complies with subsections (3) and (4), and may be included in the financial agreement to which it relates.

 (3) The declaration must be signed by at least one of the spouse parties to the financial agreement.

 (4) The declaration must state that:

 (a) the spouse parties have separated and are living separately and apart at the declaration time; and

 (b) in the opinion of the spouse parties 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 spouse party to the financial agreement.

separated has the same meaning as in section 48 (as affected by section 49).

90DB  Whether or when certain other provisions of financial agreements take effect

 (1) A financial agreement that is binding on the parties to the agreement, to the extent to which it provides for a third party to contribute to the maintenance of a spouse party during the marriage, is of no force or effect.

 (2) A financial agreement that is binding on the parties to the agreement, to the extent to which it provides for matters covered by paragraph 90B(3)(b) or 90C(3)(b), is of no force or effect unless and until the marriage breaks down.

90E  Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

  A provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:

 (a) the party, or the child or children, for whose maintenance provision is made; and

 (b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.

90F  Certain provisions in agreements

 (1) No provision of a financial agreement excludes or limits the power of a court to make an order in relation to the maintenance of a party to a marriage if subsection (1A) applies.

 (1A) This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.

 (2) To avoid doubt, a provision in an agreement made as mentioned in subsection 90B(1), 90C(1) or 90D(1) that provides for property or financial resources owned by a spouse party to the agreement to continue in the ownership of that party is taken, for the purposes of that section, to be a provision with respect to how the property or financial resources are to be dealt with.

90G  When financial agreements are binding

 (1) Subject to subsection (1A), a financial agreement is binding on the parties to the agreement if, and only if:

 (a) the agreement is signed by all parties; and

 (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

 (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

 (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

 (d) the agreement has not been terminated and has not been set aside by a court.

Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.

 (1A) A financial agreement is binding on the parties to the agreement if:

 (a) the agreement is signed by all parties; and

 (b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and

 (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

 (d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and

 (e) the agreement has not been terminated and has not been set aside by a court.

 (1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.

 (1C) To avoid doubt, section 90KA applies in relation to the enforcement application.

 (2) A court may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary.

90H  Effect of death of party to financial agreement

  A financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party.

90J  Termination of financial agreement

 (1) The parties to a financial agreement may terminate the agreement only by:

 (a) including a provision to that effect in another financial agreement as mentioned in subsection 90B(4), 90C(4) or 90D(4); or

 (b) making a written agreement (a termination agreement) to that effect.

 (2) Subject to subsection (2A), a termination agreement is binding on the parties if, and only if:

 (a) the agreement is signed by all parties to the agreement; and

 (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

 (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

 (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

 (d) the agreement has not been set aside by a court.

 (2A) A termination agreement is binding on the parties if:

 (a) the agreement is signed by all parties to the agreement; and

 (b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the agreement; and

 (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

 (d) the court makes an order under subsection (2B) declaring that the agreement is binding on the parties to the agreement; and

 (e) the agreement has not been set aside by a court.

 (2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.

 (2C) To avoid doubt, section 90KA applies in relation to the enforcement application.

 (3) A court may, on an application by a person who was a party to the financial agreement that has been terminated, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.

90K  Circumstances in which court may set aside a financial agreement or termination agreement

 (1) A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:

 (a) the agreement was obtained by fraud (including nondisclosure of a material matter); or

 (aa) a party to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

 (ii) with reckless disregard of the interests of a creditor or creditors of the party; or

 (ab) a party (the agreement party) to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship with a spouse party; or

 (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship; or

 (iii) with reckless disregard of those interests of that other person; or

 (b) the agreement is void, voidable or unenforceable; or

 (c) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or

 (d) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

 (e) in respect of the making of a financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or

 (f) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or

 (g) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB.

 (1A) For the purposes of paragraph (1)(aa), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

 (2) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:

 (a) the person is a parent of the child with whom the child lives; or

 (b) a parenting order provides that:

 (i) the child is to live with the person; or

 (ii) the person has parental responsibility for the child.

 (3) A court may, on an application by a person who was a party to the financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

 (4) An order under subsection (1) or (3) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (5) If a party to proceedings under this section dies before the proceedings are completed:

 (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 of Court 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:

 (i) that it would have exercised its powers under this section if the deceased party had not died; and

 (ii) that it is still appropriate to exercise those powers;

  the court may make any order that it could have made under subsection (1) or (3); and

 (c) an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (6) The court must not make an order under this section if the order would:

 (a) result in the acquisition of property from a person otherwise than on just terms; and

 (b) be invalid because of paragraph 51(xxxi) of the Constitution.

For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.

90KA  Validity, enforceability and effect of financial agreements and termination agreements

  The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:

 (a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and

 (b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and

 (c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

90L  Financial and other agreements etc. not liable to duty

  None of the following is subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory:

 (a) a financial agreement;

 (b) a termination agreement;

 (c) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order or financial agreement made under this Part.

90M  Notification of proceeds of crime orders etc.

 (1) If:

 (a) a person makes an application for an order, under this Part, with respect to:

 (i) the property of the parties to a marriage or either of them; or

 (ii) the maintenance of a party to a marriage; and

 (b) the person knows that the property of the parties to the marriage or either of them is covered by:

 (i) a proceeds of crime order; or

 (ii) a forfeiture application;

the person must:

 (c) disclose in the application the proceeds of crime order or forfeiture application; and

 (d) give to the court a sealed copy of that order or application.

 (2) A person who does not comply with subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

 (3) If:

 (a) a person is a party to property settlement or spousal maintenance proceedings under this Part; and

 (b) the person is notified by the proceeds of crime authority that the property of the parties to the marriage or either of them is covered by:

 (i) a proceeds of crime order; or

 (iii) a forfeiture application;

the person must:

 (c) notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and

 (d) give the Registry Manager:

 (i) a copy of the notification referred to in paragraph (b) (if the notification is in writing); and

 (ii) a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application).

 (4) A person who does not comply with subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

90N  Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.

 (1) A court in which property settlement or spousal maintenance proceedings are pending must stay those proceedings if notified under section 90M in relation to the proceedings.

 (1A) The court may, before staying proceedings under subsection (1), invite or require the proceeds of crime authority to make submissions relating to staying the proceedings.

 (2) A court must, on the application of the proceeds of crime authority, stay property settlement or spousal maintenance proceedings under this Part if the property of the parties to the marriage or either of them is covered by:

 (a) a proceeds of crime order; or

 (b) a forfeiture application.

 (3) A court must notify the proceeds of crime authority if the court stays property settlement or spousal maintenance proceedings under subsection (1) or (2).

 (4) The proceeds of crime authority must notify the Registry Manager if:

 (a) a proceeds of crime order ceases to be in force; or

 (b) a forfeiture application is finally determined.

 (5) For the purposes of subsection (4), a forfeiture application is taken to be finally determined when:

 (a) the application is withdrawn; or

 (b) if the application is successful—the resulting forfeiture order comes into force; or

 (c) if the application is unsuccessful—the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of.

90P  Lifting a stay

 (1) A court that stayed the property settlement or spousal maintenance proceedings under section 90N must wholly or partially lift the stay if:

 (a) either party to the proceedings makes an application for the stay to be lifted and the proceeds of crime authority consents to such an application; or

 (b) the proceeds of crime authority makes an application for the stay to be lifted.

 (2) A court that stayed the property settlement or spousal maintenance proceedings under section 90N may, on its own motion, wholly or partially lift the stay if the proceeds of crime authority consents to such a motion.

 (3) Giving the Registry Manager written notice of the proceeds of crime authority’s consent under this section is taken to be the giving of that consent, unless the court requires the authority to appear in the proceedings. The notice may be given by the authority or by a party to the proceedings.

90Q  Intervention by proceeds of crime authority

 (1) The proceeds of crime authority may intervene in any property settlement or spousal maintenance proceedings in relation to which a court is notified under section 90M, or in any proceedings under section 90N or 90P in which the authority is not already a party.

 (2) If the proceeds of crime authority intervenes, the authority is taken to be a party to the proceedings with all the rights, duties and liabilities of a party.

Part VIIIABFinancial matters relating to de facto relationships

Division 1Preliminary

Subdivision AMeaning of key terms

90RA  Participating jurisdictions

Participating jurisdictions

 (1) For the purposes of this Act, the following are the participating jurisdictions:

 (a) each referring State;

 (b) each Territory.

Referring States

 (2) A State is a referring State if:

 (a) the Parliament of the State has referred, or refers, to the Parliament of the Commonwealth financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and

 (b) the referral of the financial matters is made:

 (i) for the purposes of paragraph 51(xxxvii) of the Constitution; and

 (ii) to the extent that the financial matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution).

This subsection has effect subject to subsection (5).

 (3) To avoid doubt, a State is not a referring State if its Parliament has referred, or refers, to the Parliament of the Commonwealth only a limited class of the matters referred to in paragraph (2)(a).

Note: Western Australia is not a referring State. Part VIIIC applies if the Parliament of Western Australia has referred to the Parliament of the Commonwealth superannuation matters relating to de facto partners (see paragraphs 4(1)(a) and (b) of the Commonwealth Powers (De Facto Relationships) Act 2006 (WA)).

 (4) A State is a referring State even if a law of the State provides that a reference to the Commonwealth Parliament described in subsection (2) is to terminate in particular circumstances.

 (5) A State ceases to be a referring State if the State’s reference to the Commonwealth Parliament described in subsection (2) terminates.

90RB  Meaning of child of a de facto relationship

  For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.

Note: To determine who is a child of a person see Subdivision D of Division 1 of Part VII.

Subdivision BRelationship with State and Territory laws

90RC  Relationship with State and Territory laws

De facto financial provisions

 (1) In this section:

de facto financial provisions means the following provisions:

 (a) this Part;

 (b) Part VIIIAA (as applied by section 90TA);

 (c) Part VIIIB, to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship;

 (d) subsection 114(2A).

State and Territory laws do not apply to financial matters

 (2) Parliament intends that the de facto financial provisions are to apply to the exclusion of any law of a State or Territory to the extent that the law:

 (a) deals with financial matters relating to the parties to de facto relationships arising out of the breakdown of those de facto relationships; and

 (b) deals with those matters by referring expressly to de facto relationships (regardless of how the State or Territory law describes those relationships).

Note 1: If, for example, both this Part and a law of a nonreferring State deal with the distribution of property between the parties to a de facto relationship that has broken down after the commencement of this section, then the parties can only seek to distribute the property under this Part. Subsection (2) has the effect of preventing the parties from seeking to distribute the property under the State law.

Note 2: For de facto relationship, see section 4AA.

Exception—insufficient link to a participating jurisdiction or Division 2 not applicable because of section 90SB

 (3) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory in relation to a financial matter relating to the parties to a de facto relationship arising out of the breakdown of the relationship if:

 (a) a court cannot make an order under this Part in relation to that financial matter because of section 90SB, 90SD or 90SK; and

 (b) there is no Part VIIIAB financial agreement that is binding on the parties dealing with that financial matter.

Example 1: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction. Subsection (3) has the effect that State law will govern financial matters arising out of the breakdown of their relationship.

Example 2: Cleo and Dan are parties to a de facto relationship that has broken down after the commencement of this section. Early in their relationship, they made a financial agreement under the law of a nonreferring State, but later spent most of their relationship in a participating jurisdiction. Cleo and Dan now have a sufficient geographical link with a participating jurisdiction for either of them to apply for an order under this Part in relation to financial matters arising out of the breakdown of their relationship. This means that subsection (3) will not apply and that their financial agreement will not be enforceable under State law because of subsection (2). However, their financial agreement will be enforceable under this Part as a Part VIIIAB financial agreement (see section 90UE).

Exception—laws facilitating this Act

 (4) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory to the extent that the law facilitates the operation of this Act.

Note: This Part is not intended to apply to the exclusion of, for example, a State law that deals with superannuation entitlements by acknowledging superannuation splitting under Part VIIIB of this Act.

Exception—prescribed State or Territory laws

 (5) Despite subsection (2), Parliament does not intend that the de facto financial provisions are to apply to the exclusion of a law of a State or Territory if the law is prescribed in regulations made for the purposes of this subsection.

Subdivision CDeclarations about existence of de facto relationships

90RD  Declarations about existence of de facto relationships

 (1) If:

 (a) an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and

 (b) a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;

the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.

 (2) A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:

 (a) the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);

 (b) whether there is a child of the de facto relationship;

 (c) whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

 (d) when the de facto relationship ended;

 (e) where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

Note: For child of a de facto relationship, see section 90RB.

90RE  Effect of declarations

 (1) A section 90RD declaration has effect as a judgment of the court.

 (2) For the purposes of this Act (other than Part VII), a section 90RD declaration has effect according to its terms.

90RF  Applying for declarations

  Any party to the primary proceedings may apply for a section 90RD declaration.

90RG  Geographical requirement

  A court may make a section 90RD declaration only if the court is satisfied that a person referred to in paragraph 90RD(1)(b), or both of those persons, were ordinarily resident in a participating jurisdiction when the primary proceedings commenced.

90RH  Setting aside declarations

 (1) If, in the primary proceedings, a person (the affected person) affected by a section 90RD declaration made in those proceedings applies under this subsection, and the court is satisfied that:

 (a) a fact or circumstance has arisen that has not previously been disclosed to the court; and

 (b) if the affected person was a party to the primary proceedings at the time the application for the declaration was made—the fact or circumstance was not within the affected person’s knowledge at that time;

the court may do any of the following:

 (c) vary the declaration;

 (d) set the declaration aside;

 (e) set the declaration aside and make another section 90RD declaration in substitution for the declaration so set aside.

 (2) The setting aside of a declaration does not affect anything done in reliance on the declaration while it remained in force.

 (3) If the court sets aside a section 90RD declaration, the court may, on application by the affected person or any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of placing as far as practicable any person affected by the setting aside of the declaration in the same position as that person would have been in if the declaration had not been made.

Division 2Maintenance, declarations of property interests and alterations of property interests

Subdivision AApplication of Division

90SA  This Division does not apply to certain matters covered by binding financial agreements

 (1) This Division does not apply to any of the following matters to which a Part VIIIAB financial agreement that is binding on the parties to the agreement applies:

 (a) the maintenance of one of the spouse parties;

 (b) the property of the spouse parties or of either of them;

 (c) the financial resources of the spouse parties or of either of them.

 (2) Subsection (1) does not apply in relation to:

 (a) proceedings between:

 (i) a party to a de facto relationship; and

 (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;

  with respect to the maintenance of the firstmentioned party after the breakdown of the de facto relationship; or

 (b) proceedings between:

 (i) a party to a de facto relationship; and

 (ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;

  with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party.

 (3) Despite subsection (1), a party to a de facto relationship is not prevented from bringing property settlement proceedings under this Part if a Part VIIIAB financial agreement is not binding on that party.

Example: Before Amy and Ben’s de facto relationship breaks down, Ben and Cathy make a Part VIIIAB financial agreement. Ben and Cathy’s Part VIIIAB financial agreement does not prevent Amy from bringing property settlement proceedings against Ben.

90SB  When this Division applies—length of relationship etc.

  A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:

 (a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or

 (b) that there is a child of the de facto relationship; or

 (c) that:

 (i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and

 (ii) a failure to make the order or declaration would result in serious injustice to the applicant; or

 (d) that the relationship is or was registered under a prescribed law of a State or Territory.

Note: For child of a de facto relationship, see section 90RB.

90SC  This Division ceases to apply in relation to a de facto relationship if the parties marry each other

 (1) This Division (other than subsections 90SJ(2) to (5)) ceases to apply in relation to a de facto relationship if the parties to the de facto relationship later marry each other.

 (2) Despite subsection (1), a declaration, order or injunction:

 (a) made in property settlement proceedings under this Division in relation to the de facto relationship; and

 (b) in force when the parties marry each other;

may, after the marriage, be enforced, varied or set aside in accordance with this Act.

 (3) If a declaration, order or injunction is set aside as described in subsection (2), another declaration, order or injunction may be made under this Division in substitution for that declaration, order or injunction.

Subdivision BMaintenance

90SD  Geographical requirement

 (1) A court may make an order under section 90SE or 90SG in relation to a de facto relationship only if the court is satisfied:

 (a) that either or both of the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the order was made (the application time); and

 (b) that either:

 (i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

 (ii) the applicant for the order made substantial contributions, in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

  in one or more States or Territories that are participating jurisdictions at the application time;

or that the alternative condition in subsection (1A) is met.

 (1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

 (2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship.

 (3) If each State is a referring State, the GovernorGeneral may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

 (4) If:

 (a) a Proclamation under subsection (3) is in force; and

 (b) a State ceases to be a referring State on a particular day;

the Proclamation is revoked by force of this subsection on and from that day.

 (5) If, under subsection (4), a Proclamation under subsection (3) is revoked:

 (a) this section has effect as if the revoked Proclamation had not been made; but

 (b) the effect of the revoked Proclamation on applications made before the specified day is not affected.

90SE  Power of court in maintenance proceedings

 (1) After the breakdown of a de facto relationship, a court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship in accordance with this Division.

Note 1: The geographical requirement in section 90SD must be satisfied.

Note 2: The court must be satisfied of at least one of the matters in section 90SB.

 (2) If:

 (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the maintenance of a party to the de facto relationship; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the application was made, the party was a bankrupt;

 (ii) after the application was made but before the proceedings are finally determined, the party 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, under subsection (2), a bankruptcy trustee is a party to proceedings with respect to the maintenance of a party to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship 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 the parties to a de facto relationship with respect to the maintenance of a party to the de facto relationship; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship (the debtor party):

 (i) when the application was made, the debtor party was a debtor subject to a personal insolvency agreement;

 (ii) after the application was made but before it is finally determined, the debtor party 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, under subsection (5), the trustee of a personal insolvency agreement is a party to proceedings with respect to the maintenance of a party to a de facto relationship, then, except with the leave of the court, the debtor party 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.

90SF  Matters to be taken into consideration in relation to maintenance

 (1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:

 (a) only to the extent that the firstmentioned party is reasonably able to do so; and

 (b) only if the secondmentioned party is unable to support himself or herself adequately whether:

 (i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or

 (ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or

 (iii) for any other adequate reason.

Note: For child of a de facto relationship, see section 90RB.

 (2) In applying this principle, the court must take into account only the matters referred to in subsection (3).

 (3) The matters to be so taken into account are:

 (a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and

 (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

 (c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and

 (d) commitments of each of the parties that are necessary to enable the party to support:

 (i) himself or herself; and

 (ii) a child or another person that the party has a duty to maintain; and

 (e) the responsibilities of either party to support any other person; and

 (f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:

 (i) any law of the Commonwealth, of a State or Territory or of another country; or

 (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

  and the rate of any such pension, allowance or benefit being paid to either party; and

 (g) a standard of living that in all the circumstances is reasonable; and

 (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

 (i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

 (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

 (k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

 (l) the need to protect a party who wishes to continue that party’s role as a parent; and

 (m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

 (n) the terms of any order made or proposed to be made under section 90SM in relation to:

 (i) the property of the parties; or

 (ii) vested bankruptcy property in relation to a bankrupt party; and

 (o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:

 (i) a party to the subject de facto relationship (in relation to another de facto relationship); or

 (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or

 (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

 (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

 (p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:

 (i) a party to the subject de facto relationship; or

 (ii) a person who is a party to a marriage with a party to the subject de facto relationship; or

 (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

 (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

 (q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and

 (r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

 (s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and

 (t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.

 (4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

90SG  Urgent maintenance cases

  If, in proceedings with respect to the maintenance of a party to a de facto relationship in accordance with this Division, it appears to the court that:

 (a) the party is in immediate need of financial assistance; and

 (b) it is not practicable in the circumstances to determine immediately what order, if any, should be made;

the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable.

Note 1: The geographical requirement in section 90SD must be satisfied.

Note 2: The court must be satisfied of at least one of the matters in section 90SB.

90SH  Specification in orders of payments etc. for maintenance purposes

 (1) If:

 (a) a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a party to a de facto relationship in accordance with this Division, is made by consent or varies an earlier order), and the order has the effect of requiring:

 (i) payment of a lump sum, whether in one amount or by instalments; or

 (ii) the transfer or settlement of property; and

 (b) the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a de facto relationship in relation to the breakdown of the de facto relationship;

the court must:

 (c) express the order to be an order to which this section applies; and

 (d) specify the portion of the payment, or the value of the portion of the property, attributable to the maintenance of the party.

 (2) If:

 (a) a court makes an order of a kind referred to in paragraph (1)(a); and

 (b) the order:

 (i) is not expressed to be an order to which this section applies; or

 (ii) is expressed to be an order to which this section applies, but does not comply with paragraph (1)(d);

any payment, transfer or settlement of a kind referred to in paragraph (1)(a), that the order has the effect of requiring, must be taken not to make provision for the maintenance of a party to the relevant de facto relationship.

90SI  Modification of maintenance orders

 (1) If there is in force an order with respect to the maintenance of a party to a de facto relationship in accordance with this Division:

 (a) made by the court; or

 (b) made by another court and registered in the firstmentioned court in accordance with the applicable Rules of Court;

the court may:

 (c) discharge the order if there is any just cause for so doing; or

 (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; or

 (e) revive wholly or in part an order suspended under paragraph (d); or

 (f) subject to subsection (3), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.

 (2) The court’s jurisdiction under subsection (1) may be exercised:

 (a) in any case—in proceedings with respect to the maintenance of a party to the de facto relationship in accordance with this Division; or

 (b) if there is a bankrupt party to the de facto relationship—on the application of the bankruptcy trustee; or

 (c) if a party to the de facto relationship is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.

 (3) The court must not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:

 (a) that, since the order was made or last varied:

 (i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship); or

 (ii) the circumstances of the person liable to make payments under the order have so changed; or

 (iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;

  as to justify its so doing; or

 (b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing; or

 (c) in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate; or

 (d) that:

 (i) material facts were withheld from the court that made the order, or from a court that varied the order; or

 (ii) material evidence previously given before such a court was false.

 (4) In satisfying itself for the purposes of paragraph (3)(b), the court must have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.

 (5) The court must not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.

 (6) In satisfying itself for the purposes of paragraph (3)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by a party to the de facto relationship, or by the bankruptcy trustee of a party to the de facto relationship, to:

 (a) the other party; or

 (b) any other person for the benefit of the other party.

 (7) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.

 (8) If, as provided by subsection (7), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any money paid under the secondmentioned order since the specified date, being money that would not have been required to be paid under the secondmentioned order as varied by the firstmentioned order, may be recovered in a court having jurisdiction under this Act.

 (9) If, as provided by subsection (7), an order discharging an order is expressed to be retrospective to a specified date, any money paid under the secondmentioned order since the specified date may be recovered in a court having jurisdiction under this Act.

 (10) For the purposes of this section, the court must have regard to the provisions of section 90SF.

 (11) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

90SJ  Cessation of maintenance orders

 (1) An order with respect to the maintenance of a party to a de facto relationship in accordance with this Division ceases to have effect upon:

 (a) the death of the party; or

 (b) the death of the person liable to make payments under the order.

 (2) An order with respect to the maintenance of a party to a de facto relationship in accordance with this Division ceases to have effect upon the marriage of the party unless in special circumstances a court having jurisdiction under this Act otherwise orders.

 (3) If a marriage referred to in subsection (2) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the marriage.

 (4) Any money paid in respect of a period after the event referred to in subsection (2) may be recovered in a court having jurisdiction under this Act.

 (5) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.

Subdivision CDeclarations and alterations of property interests

90SK  Geographical requirement

 (1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:

 (a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and

 (b) that either:

 (i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

 (ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);

  in one or more States or Territories that are participating jurisdictions at the application time;

or that the alternative condition in subsection (1A) is met.

 (1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.

 (2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship.

 (3) If each State is a referring State, the GovernorGeneral may, by Proclamation, fix a day as the day on which paragraph (1)(b), and the alternative condition in subsection (1A), cease to apply in relation to new applications.

Note: Paragraph (1)(b) and subsection (1A) will continue to apply in relation to applications made before the proclaimed day.

 (4) If:

 (a) a Proclamation under subsection (3) is in force; and

 (b) a State ceases to be a referring State on a particular day;

the Proclamation is revoked by force of this subsection on and from that day.

 (5) If, under subsection (4), a Proclamation under subsection (3) is revoked:

 (a) this section has effect as if the revoked Proclamation had not been made; but

 (b) the effect of the revoked Proclamation on applications made before the specified day is not affected.

90SL  Declaration of interests in property

 (1) In proceedings between the parties to a de facto relationship:

 (a) after the breakdown of the de facto relationship; and

 (b) with respect to existing title or rights in respect of property;

the court may declare the title or rights, if any, that a party has in respect of the property.

Note 1: The geographical requirement in section 90SK must be satisfied.

Note 2: The court must be satisfied of at least one of the matters in section 90SB.

 (2) If a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.

90SM  Alteration of property interests

 (1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:

 (a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or

 (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship—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 parties to the de facto relationship; or

 (ii) the relevant bankruptcy trustee (if any);

  to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.

Note 1: The geographical requirement in section 90SK must be satisfied.

Note 2: The court must be satisfied of at least one of the matters in section 90SB.

Note 3: For child of a de facto relationship, see section 90RB.

 (2) If a party to the de facto relationship dies after the breakdown of the de facto relationship, an order made under subsection (1) in property settlement proceedings may 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 party to the de facto relationship, or a child of the de facto relationship:

 (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

 (ii) otherwise in relation to any of that lastmentioned property;

  whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

 (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

 (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

 (ii) otherwise in relation to any of that lastmentioned property;

  whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

 (c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 party to the de facto relationship; and

 (e) the matters referred to in subsection 90SF(3) so far as they are relevant; and

 (f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and

 (g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.

 (5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, if, in property settlement proceedings in relation to the parties to a de facto relationship, a court is of the opinion:

 (a) that there is likely to be a significant change in the financial circumstances of the parties to the de facto relationship 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 an order that the court could make with respect to:

 (i) the property of the parties to the de facto relationship or either of them; or

 (ii) the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship;

  if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the de facto relationship than an order that the court could make immediately with respect to:

 (iii) the property of the parties to the de facto relationship or either of them; or

 (iv) the vested bankruptcy property in relation to a bankrupt party to the de facto relationship;

the court may, if so requested by either party to the de facto relationship 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 party to the de facto relationship 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) If a court proposes to adjourn proceedings as provided by subsection (5), 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 parties to the de facto relationship or of either of them; or

 (b) any of the vested bankruptcy property in relation to a bankrupt party to the de facto relationship.

 (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 parties to the de facto relationship, have regard to any change in the financial circumstances of a party to the de facto relationship that may occur by reason that the party to the de facto relationship:

 (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 limits 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 party to the de facto relationship.

 (8) If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before property settlement proceedings are completed:

 (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 of Court 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:

 (i) that it would have made an order with respect to property if the deceased party had not died; and

 (ii) 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:

 (iii) any of the property of the parties to the de facto relationship or either of them; or

 (iv) any of the vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; 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) The Federal Circuit and Family Court of Australia (Division 1) 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 Chief Executive Officer, or a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1); 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 by a party to a de facto relationship (the subject de facto relationship):

 (a) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;

 (b) a person:

 (i) who is a party to a de facto relationship (the other de facto relationship) with a party to the subject de facto relationship; and

 (ii) who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship;

 (c) a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) with a party to the subject de facto relationship;

 (d) a person:

 (i) who is a party to a marriage with a party to the subject de facto relationship; and

 (ii) who could apply, or has an application pending, for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage);

 (e) a person who is a party to a financial agreement (that is binding on the person) with a party to the subject de facto relationship;

 (f) 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 1966); 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 person becomes a party to proceedings under this section because of paragraph (10)(b), the person may, in the proceedings, apply for:

 (a) an order under section 90SM; or

 (b) a declaration under section 90SL;

in relation to the other de facto relationship described in that paragraph.

 (13) If a person becomes a party to proceedings under this section because of paragraph (10)(d), the person may, in the proceedings, apply for:

 (a) an order under section 79; or

 (b) a declaration under section 78;

in relation to the marriage (or void marriage) described in that paragraph.

 (14) If:

 (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the property of the parties to the de facto relationship or either of them; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the application was made, the party was a bankrupt;

 (ii) after the application was made but before it is finally determined, the party 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.

 (15) If a bankruptcy trustee is a party to property settlement proceedings in relation to the parties to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

 (16) The court must not grant leave under subsection (15) unless the court is satisfied that there are exceptional circumstances.

 (17) If:

 (a) an application is made for an order under this section in proceedings between the parties to a de facto relationship with respect to the property of the parties to the de facto relationship or either of them; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship (the debtor party):

 (i) when the application was made, the party was a debtor subject to a personal insolvency agreement;

 (ii) after the application was made but before it is finally determined, the party 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.

 (18) If the trustee of a personal insolvency agreement is a party to property settlement proceedings in relation to the parties to a de facto relationship, then, except with the leave of the court, the party to the de facto relationship 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.

 (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 (14) and (17), 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.

90SN  Varying and setting aside orders altering property interests

 (1) If, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, the court is satisfied that:

 (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

 (b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or

 (c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

 (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or

 (e) a proceeds of crime order has been made covering property of the parties to the de facto relationship or either of them, or a proceeds of crime order has been made against a party to the de facto relationship;

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.

Note: For child of a de facto relationship, see section 90RB.

 (2) A court may, on application by a person affected by an order made by a court under section 90SM in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 90SM in substitution for the order so set aside.

 (3) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:

 (a) the person is a parent of the child with whom the child lives; or

 (b) a parenting order provides that:

 (i) the child is to live with the person; or

 (ii) the person has parental responsibility for the child.

 (4) An order varied or made under subsection (1) or (2) may, after the death of a party to the de facto relationship in relation to which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (5) If, before proceedings under this section in relation to an order made under section 90SM are completed, a party to the de facto relationship 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 of Court 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:

 (i) that it would have exercised its powers under subsection (1) or (2) in relation to the order if the deceased party had not died; and

 (ii) that it is still appropriate to exercise its powers under subsection (1) or (2) in relation to the order;

  the court may vary the order, set the order aside, or set the order aside and make another order under section 90SM in substitution for the order so set aside; and

 (c) an order varied or 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.

 (6) In the exercise of its powers under subsection (1), (2) or (5), a court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested.

 (7) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 90SM 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 90SM in proceedings with respect to the property of the parties to a de facto relationship or either of them; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the order was made, the party was a bankrupt;

 (ii) after the order was made, the party 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 party to a de facto relationship is a bankrupt; and

 (b) an order is made by a court under section 90SM 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 90SM in proceedings with respect to the property of the parties to a de facto relationship or either of them; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the order was made, the party was a debtor subject to a personal insolvency agreement;

 (ii) after the order was made, the party 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.

Subdivision DNotification of application

90SO  Notifying third parties about application

  The applicable Rules of Court may specify the circumstances in which a person who:

 (a) applies for an order under this Division; or

 (b) is a party to a proceeding for an order under this Division;

is to give notice of the application to a person who is not a party to the proceedings.

Note: The applicable Rules of Court may, for example, make provision for the notification of a person married to, or in a de facto relationship with, the applicant or respondent to the proceedings.

90SP  Notifying bankruptcy trustee etc. about application under section 90SE, 90SL, 90SM or 90SN

 (1) The applicable Rules of Court may make provision for a bankrupt who becomes a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN to give notice of the application to the bankruptcy trustee.

 (2) The applicable Rules of Court may make provision for a debtor subject to a personal insolvency agreement who becomes a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN to give notice of the application to the trustee of the agreement.

90SQ  Notifying court about bankruptcy etc.

Bankruptcy

 (1) The applicable Rules of Court may make provision for a person who:

 (a) is a party to a de facto relationship that has broken down; and

 (b) is a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN; 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.

Debtor subject to a personal insolvency agreement

 (2) The applicable Rules of Court may make provision for a person who:

 (a) is a party to a de facto relationship that has broken down; and

 (b) is a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN; 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.

Institution of proceeding under the Bankruptcy Act 1966

 (3) The applicable Rules of Court may make provision for a person who:

 (a) is a party to a de facto relationship that has broken down; and

 (b) is a party to a proceeding for an application under section 90SE, 90SL, 90SM or 90SN; and

 (c) before that application is finally determined, becomes a party to a proceeding before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under the Bankruptcy Act 1966 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 1966.

 (4) The applicable Rules of Court may make provision for a person who:

 (a) is the bankruptcy trustee of a bankrupt party to a de facto relationship; and

 (b) the de facto relationship has broken down; and

 (c) applies under section 139A of the Bankruptcy Act 1966 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.

When application finally determined

 (5) For the purposes of this section, an application for an order under section 90SE, 90SM or 90SN 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 90SL 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.

90SR  Notifying nonbankrupt de facto party about application under section 139A of the Bankruptcy Act 1966

  The applicable Rules of Court may make provision for a person who:

 (a) is the bankruptcy trustee of a bankrupt party to a de facto relationship; and

 (b) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act in relation to an entity (other than the other party to the de facto relationship);

to notify the other party to the de facto relationship of the making of the application if that bankruptcy trustee is aware that the de facto relationship has broken down.

Subdivision ECourt powers

90SS  General powers of court

General powers

 (1) The court, in exercising its powers under this Division, may do any or all of the following:

 (a) order payment of a lump sum, whether in one amount or by instalments;

 (b) order payment of a weekly, monthly, yearly or other periodic sum;

 (c) order that a specified transfer or settlement of property be made by way of maintenance for a party to a de facto relationship;

 (d) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

 (e) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

 (f) appoint or remove trustees;

 (g) order that payments be made direct to a party to the de facto relationship, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the de facto relationship;

 (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

 (i) impose terms and conditions;

 (j) make an order by consent;

 (k) make any other order, or grant any other injunction, (whether or not of the same nature as those mentioned in the preceding paragraphs of this section) which it thinks it is necessary to make to do justice;

 (l) subject to this Act and the applicable Rules of Court, make an order under this Division at any time before or after the making of a decree under another provision of this Act.

Note: The court also has specific powers in relation to third parties (see Division 3 of Part VIIIAA (as that Division has effect because of section 90TA)).

Limitation for orders or injunctions covered by section 90AF

 (2) Subsection (1) has effect subject to subsection 90AF(3) (as that subsection has effect because of section 90TA).

Note: An order or injunction made or granted under subsection (1) that is of a kind covered by subsection 90AF(1) or (2) can only be made or granted in accordance with subsection 90AF(3).

Maintenance orders

 (3) The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Division, in relation to the maintenance of a party to a de facto relationship does not prevent a court from making a subsequent order in relation to the maintenance of the party.

 (4) The applicable Rules of Court may make provision with respect to the making of orders under this Division in relation to the maintenance of parties to de facto relationships (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of maintenance payable under them.

Injunctions

 (5) Without limiting paragraph (1)(k), the court may:

 (a) grant:

 (i) an interlocutory injunction; or

 (ii) an injunction in aid of the enforcement of a decree;

  in any case in which it appears to the court to be just or convenient to do so; and

 (b) grant an injunction either unconditionally or upon such terms and conditions as the court considers appropriate.

Bankruptcy and insolvency

 (6) If a bankruptcy trustee is a party to a proceeding before the court, the court may make an order under paragraph (1)(e) directed to the bankrupt.

 (7) If the trustee of a personal insolvency agreement is a party to a proceeding before the court, the court may make an order under paragraph (1)(e) directed to the debtor subject to the agreement.

 (8) Subsections (6) and (7) do not limit paragraph (1)(e).

 (9) If a party to a de facto relationship is a bankrupt, a court may, on the application of the other party to the de facto relationship, by interlocutory order, grant an injunction under subsection (1) restraining the bankruptcy trustee from declaring and distributing dividends amongst the bankrupt’s creditors.

 (10) If a party to a de facto relationship is a debtor subject to a personal insolvency agreement, a court may, on the application of the other party to the de facto relationship, by interlocutory order, grant an injunction under subsection (1) restraining the trustee of the agreement from disposing of (whether by sale, gift or otherwise) property subject to the agreement.

 (11) Subsections (9) and (10) do not limit subsections (1) and (5).

90ST  Duty of court to end financial relations

  In proceedings under this Division, other than proceedings under section 90SL, the court must, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the de facto relationship and avoid further proceedings between them.

Division 3Orders and injunctions binding third parties

90TA  Orders and injunctions binding third parties

 (1) In addition to the effect Part VIIIAA has apart from this section, that Part also has effect in relation to:

 (a) orders and injunctions under Division 2; and

 (b) proceedings for orders or injunctions under Division 2;

with the modifications provided for in subsections (2) and (3).

 (2) Part VIIIAA has effect in accordance with subsection (1) as if the following substitutions were made:

 

Substitutions to be made

Item

For a reference in Part VIIIAA to ...

substitute a reference to ...

1

marriage

de facto relationship

2

section 79

section 90SM

3

section 114

section 90SS

4

paragraph (ca) of the definition of matrimonial cause

paragraph (c) of the definition of de facto financial cause

5

orders or injunctions under section 114

orders or injunctions under Division 2 of Part VIIIAB

6

proceedings under section 114

proceedings under Division 2 of Part VIIIAB

7

an injunction under subsection 114(3)

an injunction covered by subsection 90SS(5)

 (3) Part VIIIAA has effect in accordance with subsection (1) as if:

 (a) subsection 90AD(2) were replaced with the following:

 “(2) For the purposes of section 90SS (to the extent that it provides for the granting of an injunction in relation to the property of a party to a de facto relationship), property includes a debt owed by a party to the de facto relationship.”; and

 (b) paragraph 90AF(3)(d) were omitted; and

 (c) the following paragraph were inserted after paragraph 90AF(3)(e):

 “(ea) for any other injunction—the court is satisfied that, in all the circumstances, it is necessary to grant the injunction to do justice; and”; and

 (d) the following subsection were added at the end of section 90AF:

 “(5) Subsections (1) and (2) do not limit subsection 90SS(1).”.

Division 4Financial agreements

90UA  Geographical requirement for agreements made in participating jurisdictions

  Two or more people can make a Part VIIIAB financial agreement under section 90UB, 90UC or 90UD only if the spouse parties are ordinarily resident in a participating jurisdiction when they make the agreement.

90UB  Financial agreements before de facto relationship

 (1) If:

 (a) people who are contemplating entering into a de facto relationship with each other make a written agreement with respect to any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and

 (b) at the time of the making of the agreement, the people are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and

 (c) the agreement is expressed to be made under this section;

the agreement is a Part VIIIAB financial agreement. The people may make the Part VIIIAB financial agreement with one or more other people.

 (2) The matters referred to in paragraph (1)(a) are the following:

 (a) how all or any of the:

 (i) property; or

 (ii) financial resources;

  of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed;

 (b) the maintenance of either of the spouse parties.

 (3) A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2).

 (4) A Part VIIIAB financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

90UC  Financial agreements during de facto relationship

 (1) If:

 (a) while in a de facto relationship, the parties to the de facto relationship make a written agreement about any of the matters mentioned in subsection (2) in the event of the breakdown of the de facto relationship; and

 (b) at the time of the making of the agreement, the parties to the de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and

 (c) the agreement is expressed to be made under this section;

the agreement is a Part VIIIAB financial agreement. The parties to the de facto relationship may make the Part VIIIAB financial agreement with one or more other people.

 (2) The matters referred to in paragraph (1)(a) are the following:

 (a) how all or any of the:

 (i) property; or

 (ii) financial resources;

  of either or both of the spouse parties at the time when the agreement is made, or at a later time and during the de facto relationship, is to be distributed;

 (b) the maintenance of either of the spouse parties.

 (3) A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2).

 (4) A Part VIIIAB financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

90UD  Financial agreements after breakdown of a de facto relationship

 (1) If:

 (a) after the breakdown of a de facto relationship, the parties to the former de facto relationship make a written agreement with respect to any of the matters mentioned in subsection (2); and

 (b) at the time of the making of the agreement, the parties to the former de facto relationship are not the spouse parties to any other Part VIIIAB financial agreement that is binding on them with respect to any of those matters; and

 (c) the agreement is expressed to be made under this section;

the agreement is a Part VIIIAB financial agreement. The parties to the former de facto relationship may make the Part VIIIAB financial agreement with one or more other people.

 (2) The matters referred to in paragraph (1)(a) are the following:

 (a) how all or any of the:

 (i) property; or

 (ii) financial resources;

  that either or both of the spouse parties had or acquired during the former de facto relationship is to be distributed;

 (b) the maintenance of either of the spouse parties.

 (3) A Part VIIIAB financial agreement made as mentioned in subsection (1) may also contain matters incidental or ancillary to those mentioned in subsection (2).

 (4) A Part VIIIAB financial agreement (the new agreement) made as mentioned in subsection (1) may terminate a previous Part VIIIAB financial agreement (however made) if all of the parties to the previous agreement are parties to the new agreement.

90UE  Agreements made in nonreferring States that become Part VIIIAB financial agreements

How State agreements can become Part VIIIAB financial agreements

 (1) This section applies if:

 (a) 2 people (the couple) have made a written agreement, signed by both of them, with respect to any of the matters (the eligible agreed matters) mentioned in subsection (3); and

 (b) the agreement was made under a nonreferring State de facto financial law; and

 (c) either:

 (i) a court could not, because of that law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters; or

 (ii) a court could not, because of that law, make an order under that law that is with respect to any of the eligible agreed matters to which the agreement applies; and

 (d) at the time the agreement was made, the members of the couple were not the spouse parties to any Part VIIIAB financial agreement that is binding on them with respect to any of the eligible agreed matters; and

 (e) at a later time (the transition time), the couple’s circumstances change so that:

 (i) if the de facto relationship has not broken down—sections 90SB, 90SD and 90SK would not prevent a court from making an order or declaration under this Part in relation to the eligible agreed matters if the de facto relationship were to break down; or

 (ii) if the de facto relationship has broken down—sections 90SB, 90SD and 90SK do not prevent a court from making an order or declaration under this Part in relation to the eligible agreed matters; and

 (f) immediately before the transition time:

 (i) the agreement was in force under the nonreferring State de facto financial law; and

 (ii) the couple were not married to each other.

Paragraph (a) extends to agreements made before the commencement of this section, and to agreements made with one or more other people.

Note 1: This section extends to agreements made in contemplation of a de facto relationship, during a de facto relationship or after a de facto relationship has broken down.

Note 2: Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deems certain agreements, made under a law of a State that is or becomes a participating jurisdiction, or made under a law of a Territory, to be Part VIIIAB financial agreements.

 (2) For the purposes of this Act, the agreement is taken, on and after the transition time, to be a Part VIIIAB financial agreement to the extent that the agreement deals with:

 (a) the eligible agreed matters; and

 (b) matters incidental or ancillary to the eligible agreed matters.

Note: This means that, after the transition time, the agreement can only be enforced, varied, terminated or otherwise set aside under this Act.

Eligible agreed matters

 (3) The matters referred to in paragraph (1)(a) are the following:

 (a) how all or any of the:

 (i) property; or

 (ii) financial resources;

  of either member, or both members, of the couple at the time when the agreement is made, or at a later time and during a de facto relationship between them, is to be distributed;

 (b) the maintenance of either member of the couple;

in the event of the breakdown of a de facto relationship between them, or in relation to a de facto relationship between them that has broken down, as the case requires.

 (4) For the purposes of paragraph (1)(c), disregard whether the nonreferring State de facto financial law permits the court to make such an order if the court varies or sets aside the agreement.

90UF  Need for separation declaration for certain provisions of financial agreement to take effect

 (1) A Part VIIIAB financial agreement that is binding on the parties to the agreement, to the extent to which it deals with 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 the spouse parties:

 (a) at the time when the agreement is made; or

 (b) at a later time and during the de facto relationship;

are to be dealt with, is of no force or effect until a separation declaration is made.

Note: Before the separation declaration is made, the financial agreement will be of force and effect in relation to the other matters it deals with (except for any matters covered by section 90UG).

 (2) Subsection (1) ceases to apply if either or both of the spouse parties die.

Note: This means the financial agreement will be of force and effect in relation to the matters mentioned in subsection (1) from the time of the death(s).

Requirements for a valid separation declaration

 (3) A separation declaration is a written declaration that complies with subsections (4) and (5), and may be included in the Part VIIIAB financial agreement to which it relates.

 (4) The declaration must be signed by at least one of the spouse parties to the Part VIIIAB financial agreement.

 (5) The declaration must state that:

 (a) the spouse parties lived in a de facto relationship; and

 (b) the spouse parties have separated and are living separately and apart at the declaration time; and

 (c) in the opinion of the spouse parties making the declaration, there is no reasonable likelihood of cohabitation being resumed.

Meaning of declaration time

 (6) In this section:

declaration time means the time when the declaration was signed by a spouse party to the Part VIIIAB financial agreement.

90UG  Whether or when certain other provisions of financial agreements take effect

  A Part VIIIAB financial agreement that is binding on the parties to the agreement, to the extent to which it provides for matters covered by subsection 90UB(3) or 90UC(3) or paragraph 90UE(2)(b), is of no force or effect unless and until the de facto relationship breaks down.

90UH  Requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children

 (1) A provision of a Part VIIIAB financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:

 (a) the party, or the child or children, for whose maintenance provision is made; and

 (b) the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.

Note: While Part VIIIAB financial agreements are not made with respect to child maintenance, provisions about child maintenance could be included in the same document for child support (or other nonPart VIIIAB) purposes.

 (2) Subsection (1) does not apply in relation to a Part VIIIAB financial agreement covered by section 90UE.

90UI  Certain provisions in financial agreements

 (1) No provision of a Part VIIIAB financial agreement excludes or limits the power of a court to make an order under Division 2 in relation to the maintenance of a party to the agreement if subsection (2) applies.

 (2) This subsection applies if the court is satisfied that, when the agreement came into effect, the circumstances of the party were such that, taking into account the terms and effect of the agreement, the party was unable to support himself or herself without an income tested pension, allowance or benefit.

 (3) To avoid doubt, a provision in a Part VIIIAB financial agreement:

 (a) made as mentioned in subsection 90UB(1), 90UC(1) or 90UD(1); or

 (b) covered by section 90UE;

that provides for property or financial resources owned by a spouse party to the agreement to continue in the ownership of that party is taken, for the purposes of that subsection or section, to be a provision with respect to how the property or financial resources are to be distributed.

90UJ  When financial agreements are binding

 (1) Subject to subsection (1A), a Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if, and only if:

 (a) the agreement is signed by all parties; and

 (b) before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement; and

 (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and

 (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

 (d) the agreement has not been terminated and has not been set aside by a court.

Note: For the manner in which the contents of a financial agreement may be proved, see section 48 of the Evidence Act 1995.

 (1A) A Part VIIIAB financial agreement (other than an agreement covered by section 90UE) is binding on the parties to the agreement if:

 (a) the agreement is signed by all parties; and

 (b) one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and

 (c) a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

 (d) the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and

 (e) the agreement has not been terminated and has not been set aside by a court.

 (1B) For the purposes of paragraph (1A)(d), a court may make an order declaring that a Part VIIIAB financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.

 (1C) To avoid doubt, section 90UN applies in relation to the enforcement application.

 (2) A Part VIIIAB financial agreement covered by section 90UE is binding on the parties to the agreement if, and only if, the agreement has not been terminated and has not been set aside by a court.

 (3) A Part VIIIAB financial agreement ceases to be binding if, after making the agreement, the parties to the agreement marry each other.

 (4) A court may make such orders for the enforcement of a Part VIIIAB financial agreement that is binding on the parties to the agreement as it thinks necessary.

90UK  Effect of death of party to financial agreement

  A Part VIIIAB financial agreement that is binding on the parties to the agreement continues to operate despite the death of a party to the agreement and operates in favour of, and is binding on, the legal personal representative of that party.

Note: If the parties are still in the de facto relationship when one of them dies, the de facto relationship is not taken to have broken down for the purposes of enforcing the matters mentioned in the financial agreement (see the definition of breakdown in subsection 4(1)).

90UL  Termination of financial agreement

 (1) The parties to a Part VIIIAB financial agreement may terminate the agreement for the purposes of this Act only by:

 (a) including a provision to that effect in another Part VIIIAB financial agreement as mentioned in subsection 90UB(4), 90UC(4) or 90UD(4); or

 (b) making a written agreement (a Part VIIIAB termination agreement) to that effect.

 (2) Subject to subsection (2A), a Part VIIIAB termination agreement is binding on the parties if, and only if:

 (a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and

 (b) before signing the termination agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the termination agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the termination agreement; and

 (c) either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the termination agreement); and

 (ca) a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and

 (d) the termination agreement has not been set aside by a court.

 (2A) A Part VIIIAB termination agreement is binding on the parties if:

 (a) the termination agreement is signed by all parties to the Part VIIIAB financial agreement; and

 (b) one or more of paragraphs (2)(b), (c) and (ca) are not satisfied in relation to the termination agreement; and

 (c) a court is satisfied that it would be unjust and inequitable if the termination agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and

 (d) the court makes an order under subsection (2B) declaring that the termination agreement is binding on the parties to the agreement; and

 (e) the termination agreement has not been set aside by a court.

 (2B) For the purposes of paragraph (2A)(d), a court may make an order declaring that a Part VIIIAB termination agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.

 (2C) To avoid doubt, section 90UN applies in relation to the enforcement application.

 (3) A court may, on an application by:

 (a) a person who was a party to the Part VIIIAB financial agreement; or

 (b) any other interested person;

make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of:

 (c) persons who were parties to the Part VIIIAB financial agreement; and

 (d) any other interested persons.

Note: For the manner in which the contents of a Part VIIIAB financial agreement may be proved, see section 48 of the Evidence Act 1995.

90UM  Circumstances in which court may set aside a financial agreement or termination agreement

 (1) A court may make an order setting aside, for the purposes of this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:

 (a) the agreement was obtained by fraud (including nondisclosure of a material matter); or

 (b) a party to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

 (ii) with reckless disregard of the interests of a creditor or creditors of the party; or

 (c) a party (the agreement party) to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party; or

 (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM, or a declaration under section 90SL, in relation to the other de facto relationship; or

 (iii) with reckless disregard of those interests of that other person; or

 (d) a party (the agreement party) to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a spouse party; or

 (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or

 (iii) with reckless disregard of those interests of that other person; or

 (e) the agreement is void, voidable or unenforceable; or

 (f) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or

 (g) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (4)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

 (h) in respect of the making of a Part VIIIAB financial agreement—a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or

 (i) a payment flag is operating under Part VIIIB on a superannuation interest covered by the agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or

 (j) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB; or

 (k) if the agreement is a Part VIIIAB financial agreement covered by section 90UE—subsection (5) applies.

Note: For child of a de facto relationship, see section 90RB.

 (2) For the purposes of paragraph (1)(b), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

 (3) For the purposes of the application of subparagraph (1)(c)(ii) to a Part VIIIAB financial agreement covered by section 90UE:

 (a) the reference in that subparagraph to an order under section 90SM is taken to include a reference to an order (however described) under a corresponding provision (if any) of the nonreferring State de facto financial law concerned; and

 (b) the reference in that subparagraph to a declaration under section 90SL is taken to include a reference to a declaration (however described) under a corresponding provision (if any) of the nonreferring State de facto financial law concerned.

 (4) For the purposes of paragraph (1)(g), a person has caring responsibility for a child if:

 (a) the person is a parent of the child with whom the child lives; or

 (b) a parenting order provides that:

 (i) the child is to live with the person; or

 (ii) the person has parental responsibility for the child.

 (5) This subsection applies if:

 (a) at least one of the spouse parties to the agreement was not provided, before signing the agreement, with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages to that party of making the agreement; or

 (b) if this advice was provided to at least one of the spouse parties to the agreement—that party was not provided with a signed statement by the legal practitioner stating that this advice was given to that party;

and it would be unjust and inequitable, having regard to the eligible agreed matters (within the meaning of section 90UE) for the agreement, if the court does not set the agreement aside.

 (6) A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

 (7) An order under subsection (1) or (6) may, after the death of a party to the proceedings in which the order was made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (8) If a party to proceedings under this section dies before the proceedings are completed:

 (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 of Court 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:

 (i) that it would have exercised its powers under this section if the deceased party had not died; and

 (ii) that it is still appropriate to exercise those powers;

  the court may make any order that it could have made under subsection (1) or (6); and

 (c) an order under paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (9) The court must not make an order under this section if the order would:

 (a) result in the acquisition of property from a person otherwise than on just terms; and

 (b) be invalid because of paragraph 51(xxxi) of the Constitution.

For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.

90UN  Validity, enforceability and effect of financial agreements and termination agreements

  The question whether a Part VIIIAB financial agreement or a Part VIIIAB termination agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings relating to such an agreement, the court:

 (a) subject to paragraph (b), has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction; and

 (b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and

 (c) in addition to, or instead of, making an order or orders under paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.

Division 5Proceeds of crime and forfeiture

90VA  Notification of proceeds of crime orders etc.

 (1) If:

 (a) a person makes an application for an order, under this Part, with respect to:

 (i) the property of the parties to a de facto relationship or either of them; or

 (ii) the maintenance of a party to a de facto relationship; and

 (b) the person knows that the property of the parties to the de facto relationship or either of them is covered by:

 (i) a proceeds of crime order; or

 (ii) a forfeiture application;

the person must:

 (c) disclose in the application the proceeds of crime order or forfeiture application; and

 (d) give to the court a sealed copy of that order or application.

 (2) A person who does not comply with subsection (1) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

 (3) If:

 (a) a person is a party to de facto property settlement or maintenance proceedings under this Part; and

 (b) the person is notified by the proceeds of crime authority that the property of the parties to the de facto relationship or either of them is covered by:

 (i) a proceeds of crime order; or

 (ii) a forfeiture application;

the person must:

 (c) notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and

 (d) give the Registry Manager:

 (i) a copy of the notification referred to in paragraph (b) (if the notification is in writing); and

 (ii) a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application).

 (4) A person who does not comply with subsection (3) commits an offence punishable, on conviction, by a fine not exceeding 50 penalty units.

90VB  Court to stay property or maintenance proceedings affected by proceeds of crime orders etc.

 (1) A court in which property settlement, or maintenance proceedings, are pending must stay those proceedings if notified under section 90VA in relation to the proceedings.

 (2) The court may, before staying proceedings under subsection (1), invite or require the proceeds of crime authority to make submissions relating to staying the proceedings.

 (3) A court must, on the application of the proceeds of crime authority, stay de facto property settlement or maintenance proceedings under this Part if the property of the parties to the de facto relationship or either of them is covered by:

 (a) a proceeds of crime order; or

 (b) a forfeiture application.

 (4) A court must notify the proceeds of crime authority if the court stays de facto property settlement or maintenance proceedings under subsection (1) or (3).

 (5) The proceeds of crime authority must notify the Registry Manager if:

 (a) a proceeds of crime order ceases to be in force; or

 (b) a forfeiture application is finally determined.

 (6) For the purposes of subsection (5), a forfeiture application is taken to be finally determined when:

 (a) the application is withdrawn; or

 (b) if the application is successful—the resulting forfeiture order comes into force; or

 (c) if the application is unsuccessful—the time within which an appeal can be made has expired and any appeals have been finally determined or otherwise disposed of.

90VC  Lifting a stay

 (1) A court that stayed the de facto property settlement or maintenance proceedings under section 90VB must wholly or partially lift the stay if:

 (a) either party to the proceedings makes an application for the stay to be lifted and the proceeds of crime authority consents to such an application; or

 (b) the proceeds of crime authority makes an application for the stay to be lifted.

 (2) A court that stayed the de facto property settlement or maintenance proceedings under section 90VB may, on its own motion, wholly or partially lift the stay if the proceeds of crime authority consents to such a motion.

 (3) Giving the Registry Manager written notice of the proceeds of crime authority’s consent under this section is taken to be the giving of that consent, unless the court requires the authority to appear in the proceedings. The notice may be given by the authority or by a party to the proceedings.

90VD  Intervention by proceeds of crime authority

 (1) The proceeds of crime authority may intervene in any de facto property settlement or maintenance proceedings in relation to which a court is notified under section 90VA, or in any proceedings under section 90VB or 90VC in which the authority is not already a party.

 (2) If the proceeds of crime authority intervenes, the authority is taken to be a party to the proceedings with all the rights, duties and liabilities of a party.

Division 6Instruments not liable to duty

90WA  Certain instruments not liable to duty

 (1) None of the following is subject to any duty or charge under any law of a State or Territory or any law of the Commonwealth that applies only in relation to a Territory:

 (a) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order made under Division 2;

 (b) a Part VIIIAB financial agreement;

 (c) a Part VIIIAB termination agreement;

 (d) a deed or other instrument executed by a person for the purposes of, or in accordance with, an order or Part VIIIAB financial agreement made under Division 4.

 (2) Subsection (1) does not apply to a liability to pay duty or charge (if any) in relation to a Part VIIIAB financial agreement covered by section 90UE if the liability arises before the transition time (within the meaning of that section) for the agreement.

 (3) Despite any State law, a failure to discharge a liability covered by subsection (2) in relation to an agreement has no effect for the purposes of this Act. In particular, the failure does not affect whether the agreement may be presented in evidence in a court for the purposes of this Act.

Part VIIIBSuperannuation interests

Division 1Preliminary

Subdivision AScope of this Part

90XA  Object of this Part

  The object of this Part is to allow certain payments (splittable payments) in respect of a superannuation interest to be allocated between:

 (a) the parties to a marriage; or

 (b) the parties to a de facto relationship;

either by agreement or by court order.

90XB  This Part overrides other laws, trust deeds etc.

 (1) Subject to subsection (3), this Part has effect despite anything to the contrary in any of the following instruments (whether made before or after the commencement of this Part):

 (a) any other law of the Commonwealth;

 (b) any law of a State or Territory;

 (c) anything in a trust deed or other instrument.

 (2) Without limiting subsection (1), nothing done in compliance with this Part by the trustee of an eligible superannuation plan is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).

 (3) This Part has effect subject to the Superannuation (Unclaimed Money and Lost Members) Act 1999.

90XC  Extended meanings of matrimonial cause and de facto financial cause

 (1) A superannuation interest is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in section 4.

 (2) A superannuation interest is to be treated as property for the purposes of paragraph (c) of the definition of de facto financial cause in section 4.

Subdivision BInterpretation

90XD  Definitions

  In this Part, unless the contrary intention appears:

approved deposit fund has the same meaning as in the SIS Act.

declaration time, in relation to a separation declaration, means the time when the declaration was signed by a spouse (or last signed by a spouse, if both spouses have signed).

Note: If a spouse has died, the spouse’s legal personal representative may sign a declaration (see subsection 90XP(2)).

eligible superannuation plan means any of the following:

 (a) a superannuation fund within the meaning of the SIS Act;

 (b) an approved deposit fund;

 (c) an RSA;

 (d) an account within the meaning of the Small Superannuation Accounts Act 1995;

 (e) a superannuation annuity (within the meaning of the Income Tax Assessment Act 1997).

flagging order means an order mentioned in subsection 90XU(1).

flag lifting agreement has the meaning given by section 90XN.

in force, in relation to an agreement, has the meaning given by section 90XG.

interest includes a prospective or contingent interest, and also includes an expectancy.

marriage includes a void marriage.

member, in relation to an eligible superannuation plan, includes a beneficiary (including a contingent or prospective beneficiary).

member spouse, in relation to a superannuation interest, means the spouse who has the superannuation interest.

nonmember spouse, in relation to a superannuation interest, means the spouse who is not the member spouse in relation to that interest.

operative time:

 (a) in relation to a payment split under a superannuation agreement or flag lifting agreement—has the meaning given by section 90XI; or

 (b) in relation to a payment flag under a superannuation agreement—has the meaning given by section 90XK or paragraph 90XLA(2)(c) as appropriate; or

 (c) in relation to a payment split under a court order—means the time specified in the order.

payment flag means:

 (a) the application of section 90XL in relation to a superannuation interest; or

 (b) the application of a flagging order in relation to a superannuation interest.

payment split means:

 (a) the application of section 90XJ in relation to a splittable payment; or

 (b) the application of a splitting order in relation to a splittable payment.

percentageonly interest means a superannuation interest prescribed by the regulations for the purposes of this definition.

regulated superannuation fund has the same meaning as in the SIS Act.

reversionary beneficiary means a person who becomes entitled to a benefit in respect of a superannuation interest of a spouse, after the spouse dies.

reversionary interest has the meaning given by section 90XF.

RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997.

secondary government trustee means a trustee that:

 (a) is the Commonwealth, a State or Territory; and

 (b) is a trustee only because of the operation of section 90XDA.

separation declaration has the meaning given by section 90XP.

SIS Act means the Superannuation Industry (Supervision) Act 1993.

splittable payment has the meaning given by section 90XE.

splitting order means an order mentioned in subsection 90XT(1).

spouse means:

 (a) a party to a marriage; or

 (b) a party to a de facto relationship.

superannuation agreement has the meaning given by sections 90XH and 90XHA.

superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest.

trustee, in relation to an eligible superannuation plan, means:

 (a) if the plan is a fund that has a trustee (within the ordinary meaning of that word)—the trustee of the plan; or

 (b) if paragraph (a) does not apply and a person is identified in accordance with the regulations as the trustee of the plan for the purposes of this definition—the person identified in accordance with the regulations; or

 (c) in any other case—the person who manages the plan.

unflaggable interest means a superannuation interest prescribed by the regulations for the purposes of this definition.

unsplittable interest means a superannuation interest prescribed by the regulations for the purposes of this definition.

90XDA  Extended meaning of trustee

  If a person who is not the trustee of an eligible superannuation plan nevertheless has the power to make payments to members of the plan, then references in this Part to the trustee of the plan include references to that person.

90XE  Splittable payments

 (1) Each of the following payments in respect of a superannuation interest of a spouse is a splittable payment:

 (a) a payment to the spouse;

 (b) a payment to another person for the benefit of the spouse;

 (c) a payment to the legal personal representative of the spouse, after the death of the spouse;

 (d) a payment to a reversionary beneficiary, after the death of the spouse;

 (e) a payment to the legal personal representative of a reversionary beneficiary covered by paragraph (d), after the death of the reversionary beneficiary.

 (2) A payment is not a splittable payment if it is prescribed by the regulations for the purposes of this subsection. The regulations may prescribe a payment either:

 (a) generally (that is, for the purposes of all payment splits in respect of a superannuation interest); or

 (b) only for the purposes of applying this Part to a particular payment split in respect of a superannuation interest.

 (3) If a payment is made to another person for the benefit of 2 or more persons who include the spouse, then the payment is nevertheless a splittable payment, to the extent to which it is paid for the benefit of the spouse.

90XF  Reversionary interest

  For the purposes of this Part, a person’s interest in an eligible superannuation plan is a reversionary interest at any time while the person’s entitlement to benefits in respect of the interest is conditional on the death of another person who is still living.

90XG  Meaning of in force

 (1) A financial agreement is in force at any time when it is binding on the parties in accordance with section 90G.

 (1A) A Part VIIIAB financial agreement is in force at any time when it is binding on the parties in accordance with section 90UJ.

 (2) A superannuation agreement is in force at any time when the relevant financial agreement, or relevant Part VIIIAB financial agreement, is in force.

 (3) A flag lifting agreement is in force if, and only if:

 (a) it meets the requirements set out in subsection 90XN(3); and

 (b) it has not been set aside by a court and has not been terminated.

Division 2Payment splitting or flagging by agreement

Subdivision ASuperannuation agreements

90XH  Superannuation agreement to be included in financial agreement if about a marriage

 (1) A financial agreement under Part VIIIA may include an agreement that deals with superannuation interests of either or both of the spouse parties to the agreement as if those interests were property. It does not matter whether or not the superannuation interests are in existence at the time the agreement is made.

 (2) The part of the financial agreement that deals with superannuation interests is a superannuation agreement for the purposes of this Part.

 (3) A superannuation agreement has effect only in accordance with this Part. In particular, it cannot be enforced under Part VIIIA.

 (4) A superannuation agreement that is included in a financial agreement under section 90B (in contemplation of marriage) has no effect unless and until the spouse parties marry.

 (5) In applying sections 90B, 90C and 90D for the purposes of this Division, a superannuation interest of a spouse party to a financial agreement is treated as being acquired at the time when that party first becomes a member of the eligible superannuation plan in respect of that interest.

90XHA  Superannuation agreement to be included in Part VIIIAB financial agreement if about a de facto relationship

 (1) A Part VIIIAB financial agreement may include an agreement that deals with superannuation interests of either or both of the spouse parties to the agreement as if those interests were property. It does not matter whether or not the superannuation interests are in existence at the time the agreement is made.

 (2) The part of the Part VIIIAB financial agreement that deals with superannuation interests is a superannuation agreement for the purposes of this Part.

 (3) A superannuation agreement has effect only in accordance with this Part. In particular, it cannot be enforced under Part VIIIAB.

 (4) A superannuation agreement that is included in a Part VIIIAB financial agreement under section 90UB (in contemplation of a de facto relationship) has no effect unless and until the spouse parties enter into that de facto relationship.

 (5) In applying sections 90UB, 90UC, 90UD and 90UE for the purposes of this Division, a superannuation interest of a spouse party to a Part VIIIAB financial agreement is treated as being acquired at the time when that party first becomes a member of the eligible superannuation plan in respect of that interest.

Subdivision BPayment splitting

90XI  Operative time for payment split

 (1) The operative time for a payment split under a superannuation agreement or flag lifting agreement is the beginning of the fourth business day after the day on which a copy of the agreement is served on the trustee, accompanied by:

 (a) if the parties are divorced—a copy of the divorce order that has terminated the marriage; and

 (aa) if, in the case of a payment split under a superannuation agreement:

 (i) the parties are not divorced; and

 (ii) a separation declaration is not part of the superannuation agreement;

  a separation declaration; and

 (b) if the agreement specifies a method for calculating a base amount—a document setting out the amount calculated using that method; and

 (c) if a form of declaration is prescribed for the purposes of this paragraph—a declaration in that form.

Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

 (2) For the purposes of subsection (1), the separation declaration must have a declaration time that is not more than 28 days before the service on the trustee.

90XJ  Payment split under superannuation agreement or flag lifting agreement

 (1) This section applies to a superannuation interest if:

 (a) the interest is identified in a superannuation agreement or flag lifting agreement; and

 (b) if the interest is a percentageonly interest—the agreement does one of the following:

 (i) it specifies a percentage that is to apply for the purposes of this subparagraph;

 (ii) it specifies a percentage that is to apply to all splittable payments in respect of the interest; and

 (c) if the interest is not a percentageonly interest—the agreement does one of the following:

 (i) it specifies an amount as a base amount in relation to the interest for the purposes of this Part;

 (ii) it specifies a method by which such a base amount can be calculated at the time when the agreement is served on the trustee under section 90XI;

 (iii) it specifies a percentage that is to apply to all splittable payments in respect of the interest; and

 (d) the agreement is in force at the operative time; and

 (da) if the agreement relates to a marriage—the marriage is broken down at the operative time; and

 (db) if the agreement relates to a de facto relationship—the de facto relationship is broken down at the operative time; and

 (e) the interest is not an unsplittable interest.

Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

 (2) The following provisions begin to apply to the interest at the operative time.

 (3) Whenever a splittable payment becomes payable in respect of the interest:

 (a) the nonmember spouse is entitled to be paid the amount (if any) that is calculated under subsection (4); and

 (b) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the payment split.

 (4) The amount is calculated as follows:

 (a) if the agreement specifies a percentage as mentioned in subparagraph (1)(b)(ii) or subparagraph (1)(c)(iii)—the amount is calculated by applying the specified percentage to the splittable payment; or

 (b) otherwise—the amount is calculated in accordance with the regulations.

 (5) Subject to section 90XV, this section continues to apply to the superannuation interest even if the agreement referred to in subsection (1) later ceases to be in force.

Subdivision CPayment flagging

90XK  Operative time for payment flag

 (1) The operative time for a payment flag under a superannuation agreement is:

 (a) the service time, if the eligible superannuation plan is a selfmanaged superannuation fund; or

 (b) otherwise, the beginning of the fourth business day after the day on which the service time occurs.

 (2) In this section:

selfmanaged superannuation fund has the same meaning as in the SIS Act.

service time means the time when a copy of the agreement is served on the trustee, accompanied by:

 (a) if the parties are divorced—a copy of the divorce order that has terminated the marriage; and

 (aa) if the parties are not divorced—a separation declaration with a declaration time that is not more than 28 days before the service on the trustee; and

 (b) if a form of declaration is prescribed for the purposes of this paragraph—a declaration in that form.

90XL  Payment flag

 (1) This section applies to a superannuation interest if:

 (a) the interest is identified in a superannuation agreement; and

 (b) the agreement provides that the interest is to be subject to a payment flag under this Part; and

 (c) the agreement is in force at the operative time; and

 (d) the interest is not an unflaggable interest.

 (2) A payment flag starts to operate on the superannuation interest at the operative time and continues to operate until either:

 (a) a court terminates the operation of the payment flag by an order mentioned in section 90XM; or

 (b) a flag lifting agreement is served on the trustee as mentioned in section 90XI in respect of the superannuation interest.

 (3) If a payment flag ceases to operate because of paragraph (2)(b), the cessation is not affected by a later termination of the flag lifting agreement.

 (4) While a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

 (4A) Subsection (4) does not apply if the splittable payment is made in circumstances in which section 90XLA applies.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4A) (see subsection 13.3(3) of the Criminal Code).

 (5) If a splittable payment becomes payable in respect of a superannuation interest while a payment flag is operating, the trustee must, within 14 days after it became payable, give written notice to the member spouse and the nonmember spouse.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

 (6) Subsection (5) does not apply if the trustee has previously given a notice under that subsection, for an earlier splittable payment, in respect of the payment flag.

 (7) If either spouse dies while a payment flag is operating:

 (a) the payment flag nevertheless continues to operate; and

 (b) the legal personal representative of the deceased spouse has all the rights the deceased spouse would have had in respect of the payment flag.

Note: The rights of the legal personal representative under paragraph (b) include the right to enter into a flag lifting agreement under section 90XN.

90XLA  Some splittable payments payable if payment flag operating

 (1) This section applies if:

 (a) a superannuation interest (original interest) a person has in an eligible superannuation plan (old ESP) is identified in a superannuation agreement; and

 (b) a payment flag under section 90XL is operating on the original interest; and

 (c) a splittable payment is made by the trustee of the old ESP to the trustee of another eligible superannuation plan (new ESP) in respect of the original interest as part of a successor fund transfer.

 (2) If this section applies, then:

 (a) the new interest in the new ESP is taken to be the original interest identified in the superannuation agreement; and

 (b) the payment flag operates on the new interest; and

 (c) despite section 90XK, the operative time for the payment flag in respect of the new interest is the time that the payment to the trustee of the new ESP is made.

 (3) In this section:

successor fund transfer means the transfer of a person’s superannuation interest in the old ESP in circumstances where:

 (a) the new ESP confers on the person, in relation to the new interest, equivalent rights to the rights the person had in relation to the original interest; and

 (b) before the transfer, the trustee of the new ESP had agreed with the trustee of the old ESP to the conferral of such rights.

90XM  Payment flag may be terminated by court

 (1) If a court makes an order under section 90K setting aside a financial agreement in respect of which a payment flag is operating, the court may also make an order terminating the operation of the flag.

Note: Under section 90XH, a superannuation agreement must be part of a financial agreement. Therefore, setting aside the financial agreement also has the effect of setting aside the superannuation agreement.

 (2) If a court makes an order under section 90UM setting aside a Part VIIIAB financial agreement in respect of which a payment flag is operating, the court may also make an order terminating the operation of the flag.

Note: Under section 90XHA, a superannuation agreement relating to a de facto relationship must be part of a Part VIIIAB financial agreement. Therefore, setting aside the financial agreement also has the effect of setting aside the superannuation agreement.

90XN  Flag lifting agreement etc.

 (1) At any time when a payment flag is operating on a superannuation interest, the spouses may make an agreement (a flag lifting agreement) that either:

 (a) provides that the flag is to cease operating without any payment split; or

 (b) specifies an amount, method or percentage in accordance with subsection 90XJ(1).

 (2) If the flag lifting agreement provides for a payment split, the spouses may at any time make an agreement (a termination agreement) that terminates the flag lifting agreement.

 (3) A flag lifting agreement or termination agreement has no effect unless it complies with the following requirements:

 (a) the agreement must be signed by both spouses;

 (b) for each spouse, the agreement must contain a statement that the spouse has been provided with independent legal advice from a legal practitioner as to the legal effect of the agreement;

 (c) a certificate must be attached to the agreement, signed by the person who provided the legal advice and stating that the advice was provided;

 (d) after the agreement is signed by the spouses, each spouse must be provided with a copy of the agreement.

 (4) A court may make an order setting aside a flag lifting agreement or termination agreement if, and only if, the court is satisfied as to:

 (a) if the spouses are parties to a marriage—any of the grounds set out in subsection 90K(1) (other than paragraph 90K(1)(f)); or

 (b) if the spouses are parties to a de facto relationship—any of the grounds set out in subsection 90UM(1) (other than paragraph 90UM(1)(i)).

 (5) An order setting aside a flag lifting agreement also operates to set aside the related financial agreement or Part VIIIAB financial agreement.

 (6) An order under section 90K setting aside a financial agreement also operates to set aside the related flag lifting agreement.

 (7) An order under section 90UM setting aside a Part VIIIAB financial agreement also operates to set aside the related flag lifting agreement.

Subdivision DMiscellaneous

90XO  Limitation on section 79 or 90SM order

 (1) A court cannot make an order under section 79 or 90SM with respect to a superannuation interest if:

 (a) the superannuation interest is covered by a superannuation agreement that is in force; or

 (b) the nonmember spouse has served a waiver notice on the trustee under section 90XZA in respect of the interest; or

 (c) a payment flag is operating on the superannuation interest.

Note: Under section 90XM, the court can terminate the operation of a payment flag in certain circumstances.

 (2) Subsection (1) does not prevent the court taking superannuation interests into account when making an order with respect to other property of the spouses.

90XP  Separation declaration

 (1) A separation declaration is a written declaration that complies with this section, and may be included in the superannuation agreement to which it relates.

 (2) The declaration must be signed by at least one of the spouses. For this purpose, if a spouse has died the spouse’s legal personal representative may sign the declaration.

Spouses who are parties to a marriage

 (2A) Subsections (3) to (5) apply if the spouses are parties to a marriage.

 (3) If section 90XQ applies to the declaration, then the declaration must state that:

 (a) the spouses are married; and

 (b) the spouses separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and

 (c) in the opinion of the spouse (or spouses) making the declaration, there is no reasonable likelihood of cohabitation being resumed.

 (4) If section 90XQ does not apply to the declaration, then the declaration must state that the spouses are married, but are separated, at the declaration time.

 (4A) If either or both of the spouses have died, then the declaration must state:

 (a) if section 90XQ applies to the declaration—that at the most recent time when both spouses were alive:

 (i) the spouses were married; but

 (ii) the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or

 (b) if section 90XQ does not apply to the declaration—that the spouses were married, but separated, at the most recent time when both spouses were alive.

Subsections (3) and (4) have effect subject to this subsection.

 (5) For the purposes of subsections (3) to (4A), the question whether spouses lived separately and apart for a continuous period of not less than 12 months before a particular date is to be determined in the same way as it is under section 48.

 (6) In subsections (3) to (5):

separated has the same meaning as in section 48 (as affected by sections 49 and 50).

Spouses who are parties to a de facto relationship

 (7) Subsections (8) to (12) apply if the spouses are parties to a de facto relationship.

 (8) If section 90XQ applies to the declaration, then the declaration must state that:

 (a) the spouses lived in a de facto relationship; and

 (b) the spouses separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and

 (c) in the opinion of the spouse (or spouses) making the declaration, there is no reasonable likelihood of cohabitation being resumed.

 (9) If section 90XQ does not apply to the declaration, then the declaration must state that the spouses lived in a de facto relationship, but are separated, at the declaration time.

 (10) If either or both of the spouses have died, then the declaration must state:

 (a) if section 90XQ applies to the declaration—that:

 (i) the spouses lived in a de facto relationship; but

 (ii) at the most recent time when both spouses were alive, the spouses were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or

 (b) if section 90XQ does not apply to the declaration—that the spouses:

 (i) lived in a de facto relationship; but

 (ii) were separated at the most recent time when both spouses were alive.

Subsections (8) and (9) have effect subject to this subsection.

 (11) For the purposes of subsection (8) and paragraph (10)(a), the spouses can have separated and be living separately and apart even if:

 (a) their cohabitation was brought to an end by the action or conduct of one only of them; or

 (b) they have continued to reside in the same residence; or

 (c) either of them has rendered some household services to the other.

 (12) For the purposes of subsection (8) and paragraph (10)(a), if, after the spouses separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the relevant time referred to in paragraph (8)(b) or (10)(a):

 (a) the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period; but

 (b) the period of cohabitation shall not be taken to be part of the period of living separately and apart.

90XQ  Superannuation interests in excess of low rate cap amount

 (1) This section applies to a declaration if:

 (a) if both spouses are alive at the declaration time—at the declaration time; or

 (b) otherwise—at the most recent time when both spouses were alive;

the total withdrawal value for all the superannuation interests of the member spouse is more than the member spouse’s low rate cap amount for the income year in which that time occurs.

 (2) This section does not apply in the circumstances (if any) prescribed by the regulations.

 (3) In this section:

low rate cap amount has the meaning given by the Income Tax Assessment Act 1997 (disregarding subsection 307345(2) of that Act and section 307345 of the Income Tax (Transitional Provisions) Act 1997).

total withdrawal value means the amount determined in accordance with the regulations.

90XR  Enforcement by court order

 (1) A court may make such orders as it thinks necessary for the enforcement of a payment split or payment flag under this Division.

 (2) The question whether a superannuation agreement or flag lifting agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts.

 (3) Without limiting subsection (2), in proceedings relating to a superannuation agreement or flag lifting agreement, the court has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction.

Division 3Payment splitting or flagging by court order

90XS  Order under section 79 or 90SM may include orders in relation to superannuation interests

 (1) In proceedings under section 79 or 90SM with respect to the property of spouses, the court may, in accordance with this Division, also make orders in relation to superannuation interests of the spouses.

Note 1: Although the orders are made in accordance with this Division, they will be made under either section 79 or 90SM. Therefore they will be generally subject to all the same provisions as other orders made under that section.

Note 2: Sections 71A and 90XO limit the scope of section 79.

Note 3: Subsections 44(5) and (6) and sections 90SB, 90SK and 90XO limit the scope of section 90SM.

 (2) A court cannot make an order under section 79 or 90SM in relation to a superannuation interest except in accordance with this Part.

90XT  Splitting order

 (1) A court, in accordance with section 90XS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest):

 (a) if the interest is not a percentageonly interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

 (i) the nonmember spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and

 (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

 (b) an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

 (i) the nonmember spouse is entitled to be paid a specified percentage of the splittable payment; and

 (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

 (c) if the interest is a percentageonly interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

 (i) the nonmember spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order;

 (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

 (d) such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).

 (2) Before making an order referred to in subsection (1), the court must make a determination under paragraph (a) or (b) as follows:

 (a) if the regulations provide for the determination of an amount in relation to the interest, the court must determine the amount in accordance with the regulations;

 (b) otherwise, the court must determine the value of the interest by such method as the court considers appropriate.

 (2A) The amount determined under paragraph (2)(a) is taken to be the value of the interest.

 (3) Regulations for the purposes of paragraph (2)(a) may provide for the amount to be determined wholly or partly by reference to methods or factors that are approved in writing by the Minister for the purposes of the regulations.

 (4) Before making an order referred to in paragraph (1)(a), the court must allocate a base amount to the nonmember spouse, not exceeding the value determined under subsection (2).

Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

90XU  Flagging order

 (1) A court, in accordance with section 90XS, may make an order in relation to a superannuation interest (other than an unflaggable interest):

 (a) directing the trustee not to make any splittable payment in respect of the interest without the leave of the court; and

 (b) requiring the trustee to notify the member spouse and the nonmember spouse, within a period specified in the order, of the next occasion when a splittable payment becomes payable in respect of the interest.

 (2) In deciding whether to make an order in accordance with this section, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a splittable payment will soon become payable in respect of the superannuation interest.

90XUA  Some splittable payments may be made without leave of court

 (1) A flagging order made under subsection 90XU(1) in relation to a superannuation interest (original interest) a person has in an eligible superannuation plan (old ESP) does not apply to a splittable payment if the splittable payment is made by the trustee of the old ESP to the trustee of another eligible superannuation plan (new ESP) in respect of the original interest as part of a successor fund transfer.

 (2) If the splittable payment is made, then the flagging order is taken to be made in relation to the new interest from the time that the payment to the trustee of the new ESP is made.

 (3) In this section:

successor fund transfer means the transfer of a person’s superannuation interest in the old ESP in circumstances where:

 (a) the new ESP confers on the person, in relation to the new interest, equivalent rights to the rights the person had in relation to the original interest; and

 (b) before the transfer, the trustee of the new ESP had agreed with the trustee of the old ESP to the conferral of such rights.

Division 4General provisions about payment splitting

90XV  Court may cancel payment split

 (1) A court may, under section 79 or 90SM, make an order terminating the operation of a payment split if:

 (a) the superannuation agreement in respect of the payment split has ceased to be in force; and

 (b) the nonmember spouse has not served a waiver notice on the trustee under section 90XZA in respect of the payment split.

 (2) The termination has effect for splittable payments that become payable after the date specified in the order.

90XW  Deductions from splittable payment before calculating payment split

  Any deduction that the trustee is entitled to make from a splittable payment is to be deducted from the splittable payment before calculating any payment split and before applying section 90XX.

90XX  Multiple payment splits applying to the same splittable payment

 (1) This section applies if 2 or more payment splits apply to the same splittable payment.

 (2) The payments splits are to be calculated in order of their operative times, starting with the earliest time.

 (3) For the purpose of calculating each of those payment splits (other than the one with the earliest operative time), the amount of the splittable payment is taken to be reduced by the amount to which a person other than the member spouse is entitled under the payment split with the next earlier operative time.

Example 1: W has a superannuation interest that is subject to 3 payment splits in respect of W’s marriages to X, Y and Z (in that order). The operative times of the payment splits are in the same order as the marriages. Assume each payment split provides for a 50% share to the nonmember spouse. W becomes entitled to a splittable payment of $100. The final payment entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the remaining $12.50.

Example 2: W has a superannuation interest that is subject to 3 payment splits in respect of W’s de facto relationship with X, W’s marriage to Y and W’s de facto relationship with Z (in that order). The operative times of the payment splits are in the same order as the relationships. Assume each payment split provides for a 50% share to the nonmember spouse. W becomes entitled to a splittable payment of $100. The final payment entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the remaining $12.50.

90XY  Fees payable to trustee

 (1) The regulations may:

 (a) allow trustees to charge reasonable fees:

 (i) in respect of a payment split; or

 (ii) otherwise in respect of the operation of this Part in relation to a superannuation interest; and

 (b) prescribe the person or persons liable to pay those fees.

 (2) If any such fee remains unpaid after the time it is due for payment, then the trustee may recover any unpaid amount by deduction from amounts that would otherwise become payable by the trustee, in respect of the superannuation interest, to the person who is liable to pay the fee.

90XZ  Superannuation preservation requirements

 (1) If the eligible superannuation plan for a payment split is a regulated superannuation fund or approved deposit fund, then the entitlement of the nonmember spouse is subject to any regulations made under the SIS Act that provide for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the nonmember spouse.

 (2) If the eligible superannuation plan for a payment split is an RSA, then the entitlement of the nonmember spouse is subject to any regulations made under the Retirement Savings Accounts Act 1997 that provide for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the nonmember spouse.

 (3) If the eligible superannuation plan for a payment split is a constitutionally protected fund (within the meaning of the Income Tax Assessment Act 1997) or an exempt public sector superannuation scheme within the meaning of the SIS Act, then the entitlement of the nonmember spouse is subject to any law or other instrument that provides for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the nonmember spouse.

90XZA  Waiver of rights under payment split

 (1) If the nonmember spouse serves a waiver notice on the trustee in respect of a payment split, then the following provisions apply for each splittable payment that becomes payable after the date specified in the waiver notice:

 (a) the nonmember spouse is not entitled to be paid any amount under the payment split in respect of the splittable payment;

 (b) the entitlement of the person to whom the splittable payment would have been made but for the payment split continues to be reduced in the same way as it would have been reduced if the entitlement of the nonmember spouse had not been terminated.

Example: X has a superannuation interest that is subject to a 50:50 payment split in favour of Y. Y serves a waiver notice on the trustee, in exchange for a lump sum payment made by the trustee to another fund for the benefit of Y. The effect is that X’s payments will continue to be reduced by half, but Y will receive no further payments under the payment split.

 (2) To be effective for the purposes of this section, a waiver notice must be in the prescribed form and must be accompanied by:

 (a) a statement to the effect that the nonmember spouse has been provided with independent financial advice from a prescribed financial adviser as to the financial effect of the waiver notice; and

 (b) a certificate signed by the person who provided the financial advice, stating that the advice was provided.

90XZB  Trustee to provide information

 (1) An eligible person may make an application to the trustee of an eligible superannuation plan for information about a superannuation interest of a member of the plan.

 (2) The application must be accompanied by:

 (a) a declaration, in the prescribed form, stating that the applicant requires the information for either or both of the following purposes:

 (i) to assist the applicant to properly negotiate a superannuation agreement;

 (ii) to assist the applicant in connection with the operation of this Part in relation to the applicant; and

 (b) the fee (if any) payable under regulations made for the purposes of section 90XY.

 (3) If the trustee receives an application that complies with this section, the trustee must, in accordance with the regulations, provide information about the superannuation interest to the applicant.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

 (4) Regulations for the purposes of subsection (3) may specify circumstances in which the trustee is not required to provide information.

Example: The regulations might provide that a secondary government trustee is not required to provide information where there is another trustee of the eligible superannuation plan who is better able to provide the information.

 (5) The trustee must not, in response to an application under this section by a spouse of the member, provide the spouse with any address of the member. For this purpose, address includes a postal address.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

 (6) If the trustee receives an application under this section from a person other than the member, the trustee must not inform the member that the application has been received.

Penalty: 50 penalty units.

Note: The penalty for a body corporate is 250 penalty units. See subsection 4B(3) of the Crimes Act 1914.

 (7) The regulations may require the trustee of an eligible superannuation plan, after the operative time for a payment split, to provide information to the nonmember spouse about the superannuation interest concerned. Such regulations may prescribe penalties for contravention, not exceeding 10 penalty units.

 (8) In this section:

eligible person, in relation to a superannuation interest of a member of an eligible superannuation plan, means:

 (a) the member; or

 (aa) if the member has died—the legal personal representative of the member; or

 (b) a spouse of the member; or

 (ba) if a spouse of the member has died—the legal personal representative of the spouse; or

 (c) a person who intends to enter into a superannuation agreement with the member.

90XZC  Death of nonmember spouse

  If the nonmember spouse dies after the operative time for a payment split:

 (a) the payment split nevertheless continues to operate; and

 (b) the payment split then operates in favour of the legal personal representative of the deceased spouse and is binding on that legal personal representative; and

 (c) the legal personal representative has all the rights the deceased spouse would have had in respect of the payment split, including the right to serve a waiver notice under section 90XZA.

Division 5Miscellaneous

90XZD  Orders binding on trustee

 (1) An order under this Part in relation to a superannuation interest may be expressed to bind the person who is the trustee of the eligible superannuation plan at the time when the order takes effect. However:

 (a) in the case of a trustee who is not a secondary government trustee—the court cannot make such an order unless the trustee has been accorded procedural fairness in relation to the making of the order; and

 (b) in the case of a secondary government trustee:

 (i) the court cannot make such an order unless another trustee of the eligible superannuation plan has been accorded procedural fairness in relation to the making of the order; and

 (ii) the court may, if it thinks fit, require that the secondary government trustee also be accorded procedural fairness.

 (2) If an order is binding on the person who is the trustee of an eligible superannuation plan at the time when the order takes effect, then the order is also binding (by force of this subsection) on:

 (a) any person who subsequently becomes the trustee of that eligible superannuation plan; or

 (b) in a case where section 90XUA applies—a person who is the trustee, or any person who subsequently becomes the trustee, of the new ESP.

90XZE  Protection for trustee

  The trustee of an eligible superannuation plan is not liable for loss or damage suffered by any person because of things done (or not done) by the trustee in good faith in reliance on:

 (a) any document served on the trustee for the purposes of this Part; or

 (b) an order made by a court in accordance with this Part.

90XZF  Service of documents on trustee

 (1) If a document is required or permitted to be served for the purposes of this Part on the trustee of an eligible superannuation plan, the document may be served in any of the ways in which a document may be served under the Rules of Court.

 (2) Subsection (1) is in addition to any other method of service permitted by law.

90XZG  False declarations

 (1) A person commits an offence if:

 (a) the person makes a statement in a declaration, knowing that the statement is false or misleading; and

 (b) the declaration is served on the trustee of an eligible superannuation plan for the purposes of this Part.

 (2) An offence against subsection (1) is punishable by imprisonment for a period of up to 12 months.

 (3) Subsection (1) does not apply if the statement is not false or misleading in a material particular.

 (4) Subsection (1) does not apply in relation to a declaration if a spouse to which the declaration relates died before the declaration was made.

90XZH  Terminating employment because of payment flag etc.

  A person must not terminate the employment of an employee on either of the following grounds:

 (a) a payment flag is operating in respect of a superannuation interest of the employee;

 (b) a superannuation agreement or splitting order is in force in respect of a superannuation interest of the employee.

Penalty: 100 penalty units.

Note: The penalty for a body corporate is 500 penalty units. See subsection 4B(3) of the Crimes Act 1914.

90XZJ  Requests for Commissioner of Taxation to provide superannuation information

Application for superannuation information

 (1) A person who is a party to property settlement proceedings:

 (a) in the Federal Circuit and Family Court of Australia in relation to the person’s marriage or de facto relationship with another person; or

 (b) in the Family Court of Western Australia in relation to the person’s marriage with another person;

may apply, in the approved form, to a Senior Registry official of that Court for that official to request the superannuation information of that other person (the other party).

Request for superannuation information

 (2) If a Senior Registry official of a Court receives an application from a person under subsection (1) for the superannuation information of the other party, the official may:

 (a) request the Commissioner of Taxation to disclose that superannuation information for the purpose of those proceedings; and

 (b) if the Commissioner of Taxation discloses that superannuation information to the official for the purpose of those proceedings—disclose the superannuation information to the following:

 (i) the person and each lawyer of the person;

 (ii) the other party and each lawyer of the other party;

  for the person, other party or lawyer to make a record of, or disclose, for the purpose of those proceedings.

Note 1: Making a record of, or ondisclosing, that superannuation information may be an offence unless it is for the purpose of those proceedings, see sections 355155 and 355175 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: Disclosing superannuation information for the purpose of those proceedings extends to disclosing the superannuation information to the trustee of an eligible superannuation plan as part of an application under section 90XZB for the purpose of those proceedings.

Approved form

 (3) An application made by a person under subsection (1) is in the approved form if and only if:

 (a) for an application to a Senior Registry official of the Federal Circuit and Family Court of Australia—it is:

 (i) in the form approved in writing by the Chief Executive Officer; and

 (ii) given in the manner required by the Chief Executive Officer (which may include electronically); and

 (b) for an application to a Senior Registry official of the Family Court of Western Australia—it is:

 (i) in the form approved in writing by the official; and

 (ii) given in the manner required by the official (which may include electronically); and

 (c) it contains the information (including any declaration) that the form requires.

Delegation

 (4) The Senior Registry official of the Family Court of Western Australia may, in writing, delegate any of the Senior Registry official’s functions or powers under this section to any other appropriate officer or staff member of that Court.

Definitions

 (5) In this section:

Senior Registry official:

 (a) of the Federal Circuit and Family Court of Australia—means a Registry Manager of that Court; or

 (b) of the Family Court of Western Australia—means the Principal Registrar of that Court.

superannuation information, of a person, means information about the following:

 (a) the identity of each superannuation interest (within the meaning of the Income Tax Assessment Act 1997) held by the person and the value of that interest most recently reported to the Commissioner of Taxation under a taxation law (within the meaning of that Act);

 (b) the identity and value of any account (within the meaning of the Small Superannuation Accounts Act 1995) in the person’s name;

 (c) any amounts payable by the Commissioner of Taxation to the person, or for the benefit of the person, under the Superannuation (Unclaimed Money and Lost Members) Act 1999;

 (d) any amounts of a shortfall component (within the meaning of Part 8 of the Superannuation Guarantee (Administration) Act 1992) that is payable to the person, or for the benefit of the person, under that Part;

 (e) any amounts payable by the Commissioner of Taxation to the person, or for the benefit of the person, under the Superannuation (Government Cocontribution for Low Income Earners) Act 2003.

Note: Paragraphs (c) to (e) of the definition of superannuation information cover amounts that are payable, but have not been paid, at the time a request for superannuation information is considered by the Commissioner of Taxation.

Part VIIICSuperannuation interests relating to Western Australian de facto relationships

Division 1Preliminary

Subdivision AScope of this Part

90YA  Object of this Part

  The object of this Part is to allow certain payments (splittable payments) in respect of a superannuation interest to be allocated between de facto partners in a de facto relationship in Western Australia, either by agreement or by court order.

90YB  Application of this Part

 (1) This Part applies if:

 (a) the Parliament of Western Australia has referred to the Parliament of the Commonwealth superannuation matters relating to de facto partners arising out of the breakdown of de facto relationships; and

 (b) the referral of the superannuation matters is made:

 (i) for the purposes of paragraph 51(xxxvii) of the Constitution; and

 (ii) to the extent that the superannuation matters are not otherwise included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution).

This subsection has effect subject to subsection (4).

 (2) For the purposes of subsection (1), superannuation matters, in relation to de facto partners, means the distribution of superannuation benefits or prospective superannuation entitlements of or relating to de facto partners.

 (3) This Part applies even if a law of Western Australia provides that a reference to the Commonwealth Parliament described in subsection (1) is to terminate in particular circumstances.

 (4) This Part ceases to apply if Western Australia’s reference to the Commonwealth Parliament described in subsection (1) terminates.

90YC  This Part overrides other laws, trust deeds etc.

 (1) Subject to subsection (3), this Part has effect despite anything to the contrary in any of the following instruments (whether made before or after the commencement of this Part):

 (a) any other law of the Commonwealth;

 (b) any law of a State or Territory;

 (c) anything in a trust deed or other instrument.

 (2) Without limiting subsection (1), nothing done in compliance with this Part by the trustee of an eligible superannuation plan is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).

 (3) This Part has effect subject to the Superannuation (Unclaimed Money and Lost Members) Act 1999.

Subdivision BInterpretation

90YD  Definitions

  In this Part:

approved deposit fund has the same meaning as in the SIS Act.

declaration time, in relation to a separation declaration, means the time when the declaration was signed by a party to the de facto relationship (or last signed by a party, if both parties have signed).

Note: If a party has died, the party’s legal personal representative may sign a declaration (see subsection 90YU(2)).

eligible superannuation plan means any of the following:

 (a) a superannuation fund within the meaning of the SIS Act;

 (b) an approved deposit fund;

 (c) an RSA;

 (d) an account within the meaning of the Small Superannuation Accounts Act 1995;

 (e) a superannuation annuity (within the meaning of the Income Tax Assessment Act 1997).

flagging order means an order mentioned in subsection 90YZ(1).

flag lifting agreement has the meaning given by section 90YS.

in force, in relation to a superannuation agreement or flag lifting agreement, has the meaning given by section 90YI.

interest includes a prospective or contingent interest, and also includes an expectancy.

member, in relation to an eligible superannuation plan, includes a beneficiary (including a contingent or prospective beneficiary).

member spouse, in relation to a superannuation interest, means the party to the de facto relationship who has the superannuation interest.

nonmember spouse, in relation to a superannuation interest, means the party to the de facto relationship who is not the member spouse in relation to that interest.

operative time:

 (a) in relation to a payment split under a superannuation agreement or flag lifting agreement—has the meaning given by section 90YM; or

 (b) in relation to a payment flag under a superannuation agreement—has the meaning given by section 90YO or paragraph 90YQ(2)(c) as appropriate; or

 (c) in relation to a payment split under a court order—means the time specified in the order.

payment flag means:

 (a) the application of section 90YP in relation to a superannuation interest; or

 (b) the application of a flagging order in relation to a superannuation interest.

payment split means:

 (a) the application of section 90YN in relation to a splittable payment; or

 (b) the application of a splitting order in relation to a splittable payment.

percentageonly interest means a superannuation interest prescribed by the regulations for the purposes of this definition.

regulated superannuation fund has the same meaning as in the SIS Act.

reversionary beneficiary means a person who becomes entitled to a benefit in respect of a superannuation interest of a party to a de facto relationship, after the party dies.

reversionary interest has the meaning given by section 90YH.

RSA means a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997.

secondary government trustee means a trustee that:

 (a) is the Commonwealth, a State or a Territory; and

 (b) is a trustee only because of the operation of section 90YF.

separation declaration has the meaning given by section 90YU.

SIS Act means the Superannuation Industry (Supervision) Act 1993.

splittable payment has the meaning given by section 90YG.

splitting order means an order mentioned in subsection 90YY(1).

superannuation agreement has the meaning given by section 90YK.

Note: See also subsection 90YL(2).

superannuation interest means an interest that a person has as a member of an eligible superannuation plan, but does not include a reversionary interest.

trustee, in relation to an eligible superannuation plan, means:

 (a) if the plan is a fund that has a trustee (within the ordinary meaning of that word)—the trustee of the plan; or

 (b) if paragraph (a) does not apply and a person is identified in accordance with the regulations as the trustee of the plan for the purposes of this definition—the person identified in accordance with the regulations; or

 (c) in any other case—the person who manages the plan.

unflaggable interest means a superannuation interest prescribed by the regulations for the purposes of this definition.

unsplittable interest means a superannuation interest prescribed by the regulations for the purposes of this definition.

Western Australian financial agreement means an agreement that is a financial agreement within the meaning of Part 5A of the Family Court Act 1997 (WA).

Western Australian Rules of Court means rules made under section 244 of the Family Court Act 1997 (WA) as in force from time to time.

90YE  Meaning of child of a de facto relationship

  For the purposes of this Part, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship.

Note: To determine who is a child of a person, see Subdivision D of Division 1 of Part VII.

90YF  Extended meaning of trustee

  If a person who is not the trustee of an eligible superannuation plan nevertheless has the power to make payments to members of the plan, then references in this Part to the trustee of the plan include references to that person.

90YG  Splittable payments

 (1) Each of the following payments in respect of a superannuation interest of a party to a de facto relationship is a splittable payment:

 (a) a payment to the party;

 (b) a payment to another person for the benefit of the party;

 (c) a payment to the legal personal representative of the party, after the death of the party;

 (d) a payment to a reversionary beneficiary, after the death of the party;

 (e) a payment to the legal personal representative of a reversionary beneficiary covered by paragraph (d), after the death of the reversionary beneficiary.

 (2) A payment is not a splittable payment if it is prescribed by the regulations for the purposes of this subsection. The regulations may prescribe a payment either:

 (a) generally (that is, for the purposes of all payment splits in respect of a superannuation interest); or

 (b) only for the purposes of applying this Part to a particular payment split in respect of a superannuation interest.

 (3) If a payment is made to another person for the benefit of 2 or more persons who include the party to the de facto relationship, then the payment is nevertheless a splittable payment, to the extent to which it is paid for the benefit of the party.

90YH  Reversionary interest

  For the purposes of this Part, a person’s interest in an eligible superannuation plan is a reversionary interest at any time while the person’s entitlement to benefits in respect of the interest is conditional on the death of another person who is still living.

90YI  Meaning of in force

 (1) Subject to subsection 90YS(7), a superannuation agreement is in force at any time when the relevant Western Australian financial agreement is binding on the parties to the Western Australian financial agreement in accordance with the Family Court Act 1997 (WA).

 (2) A flag lifting agreement is in force if, and only if:

 (a) it meets the requirements set out in subsection 90YS(3); and

 (b) it has not been set aside by a court and has not been terminated.

Subdivision CRules of Court

90YJ  Rules of Court

 (1) The power of the judges (within the meaning of the Family Court Act 1997 (WA)), or a majority of them, to make rules regulating the practice and procedure of the Family Court of Western Australia or the Magistrates Court of Western Australia extends to making any rules, not inconsistent with this Part or with any regulations made under this Part, prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Part.

 (2) This section does not affect any power to make rules under any other law.

Division 2Payment splitting or flagging by agreement

Subdivision ASuperannuation agreements

90YK  Superannuation agreement to be included in Western Australian financial agreement if about a de facto relationship

 (1) This section applies if a Western Australian financial agreement includes an agreement that deals with superannuation interests of either or both of the parties to the Western Australian financial agreement. It does not matter whether or not the superannuation interests are in existence at the time the agreement is made.

 (2) The part of the Western Australian financial agreement that deals with superannuation interests is a superannuation agreement for the purposes of this Part.

 (3) A superannuation agreement has effect only in accordance with this Part. In particular, it cannot be enforced under the Family Court Act 1997 (WA).

 (4) A superannuation agreement that is included in a Western Australian financial agreement made under the Family Court Act 1997 (WA) in contemplation of a de facto relationship has no effect unless and until the parties enter into that de facto relationship.

 (5) In applying the provisions of the Family Court Act 1997 (WA) relating to making a Western Australian financial agreement for the purposes of this Division, a superannuation interest of a party to a Western Australian financial agreement is treated as being acquired at the time when that party first becomes a member of the eligible superannuation plan in respect of that interest.

90YL  Part VIIIB superannuation agreements that become superannuation agreements for the purposes of this Part

 (1) Subsection (2) applies if:

 (a) 2 people (the couple) have made a superannuation agreement within the meaning of Part VIIIB (the Part VIIIB superannuation agreement) that is included in a Part VIIIAB financial agreement; and

 (b) at a later time after the commencement of this section (the transition time), the couple’s circumstances change so that:

 (i) if the de facto relationship has not broken down—sections 90YZB and 90YZC would not prevent a court from making an order or declaration under this Part in relation to the de facto relationship if the de facto relationship were to break down; or

 (ii) if the de facto relationship has broken down—sections 90YZB and 90YZC do not prevent a court from making an order or declaration under this Part in relation to the de facto relationship; and

 (c) immediately before the transition time:

 (i) the Part VIIIB superannuation agreement was in force; and

 (ii) the couple were not married to each other; and

 (d) as at the transition time, the Part VIIIAB financial agreement is taken, under a law of Western Australia, to be a Western Australian financial agreement.

Paragraph (a) extends to agreements made before the commencement of this section, and to agreements made with one or more other people.

 (2) The Part VIIIB superannuation agreement is taken, from the transition time, to be a superannuation agreement within the meaning of this Part.

Note: Subsection (2) means that, from the transition time, the agreement has effect only in accordance with this Part.

 (3) This Part applies in relation to a superannuation agreement covered by subsection (2) with such modifications as are necessary.

Subdivision BPayment splitting

90YM  Operative time for payment split

 (1) The operative time for a payment split under a superannuation agreement or flag lifting agreement is the beginning of the fourth business day after the day on which a copy of the agreement is served on the trustee, accompanied by:

 (a) for a payment split under a superannuation agreement if a separation declaration is not part of the superannuation agreement—a separation declaration; and

 (b) if the agreement specifies a method for calculating a base amount—a document setting out the amount calculated using that method; and

 (c) if a form of declaration is prescribed for the purposes of this paragraph—a declaration in that form.

Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

 (2) For the purposes of subsection (1), the separation declaration must have a declaration time that is not more than 28 days before the service on the trustee.

90YN  Payment split under superannuation agreement or flag lifting agreement

 (1) This section applies to a superannuation interest if:

 (a) the interest is identified in a superannuation agreement or flag lifting agreement; and

 (b) if the interest is a percentageonly interest—the agreement does one of the following:

 (i) it specifies a percentage that is to apply for the purposes of this subparagraph;

 (ii) it specifies a percentage that is to apply to all splittable payments in respect of the interest; and

 (c) if the interest is not a percentageonly interest—the agreement does one of the following:

 (i) it specifies an amount as a base amount in relation to the interest for the purposes of this Part;

 (ii) it specifies a method by which such a base amount can be calculated at the time when the agreement is served on the trustee under section 90YM;

 (iii) it specifies a percentage that is to apply to all splittable payments in respect of the interest; and

 (d) the agreement is in force at the operative time; and

 (e) the de facto relationship to which the agreement relates is broken down at the operative time; and

 (f) the interest is not an unsplittable interest.

Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

 (2) The following provisions begin to apply to the interest at the operative time.

 (3) Whenever a splittable payment becomes payable in respect of the interest:

 (a) the nonmember spouse is entitled to be paid the amount (if any) that is calculated under subsection (4); and

 (b) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the payment split.

 (4) The amount is calculated as follows:

 (a) if the agreement specifies a percentage as mentioned in subparagraph (1)(b)(ii) or (c)(iii)—the amount is calculated by applying the specified percentage to the splittable payment;

 (b) otherwise—the amount is calculated in accordance with the regulations.

 (5) Subject to section 90YZL, this section continues to apply to the superannuation interest even if the agreement referred to in subsection (1) of this section later ceases to be in force.

Subdivision CPayment flagging

90YO  Operative time for payment flag

 (1) The operative time for a payment flag under a superannuation agreement is:

 (a) the service time, if the eligible superannuation plan is a selfmanaged superannuation fund; or

 (b) otherwise, the beginning of the fourth business day after the day on which the service time occurs.

 (2) In this section:

selfmanaged superannuation fund has the same meaning as in the SIS Act.

service time means the time when a copy of the agreement is served on the trustee, accompanied by:

 (a) a separation declaration with a declaration time that is not more than 28 days before the service on the trustee; and

 (b) if a form of declaration is prescribed for the purposes of this paragraph—a declaration in that form.

90YP  Payment flag

 (1) This section applies to a superannuation interest if:

 (a) the interest is identified in a superannuation agreement; and

 (b) the agreement provides that the interest is to be subject to a payment flag under this Part; and

 (c) the agreement is in force at the operative time; and

 (d) the interest is not an unflaggable interest.

 (2) A payment flag starts to operate on the superannuation interest at the operative time and continues to operate until either:

 (a) a court terminates the operation of the payment flag by an order mentioned in section 90YR; or

 (b) a flag lifting agreement is served on the trustee as mentioned in section 90YM in respect of the superannuation interest.

 (3) If a payment flag ceases to operate because of paragraph (2)(b), the cessation is not affected by a later termination of the flag lifting agreement.

 (4) While a payment flag is operating on a superannuation interest, the trustee must not make any splittable payment to any person in respect of the interest.

Penalty: 50 penalty units.

 (5) Subsection (4) does not apply if the splittable payment is made in circumstances in which section 90YQ applies.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

 (6) If a splittable payment becomes payable in respect of a superannuation interest while a payment flag is operating, the trustee must, within 14 days after it became payable, give written notice to the member spouse and the nonmember spouse.

Penalty: 50 penalty units.

 (7) Subsection (6) does not apply if the trustee has previously given a notice under that subsection, for an earlier splittable payment, in respect of the payment flag.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

 (8) If either party to the de facto relationship dies while a payment flag is operating:

 (a) the payment flag nevertheless continues to operate; and

 (b) the legal personal representative of the deceased party has all the rights the deceased party would have had in respect of the payment flag.

Note: The rights of the legal personal representative under paragraph (b) include the right to enter into a flag lifting agreement under section 90YS.

90YQ  Some splittable payments payable if payment flag operating

 (1) This section applies if:

 (a) a superannuation interest (original interest) a person has in an eligible superannuation plan (old ESP) is identified in a superannuation agreement; and

 (b) a payment flag under section 90YP is operating on the original interest; and

 (c) a splittable payment is made by the trustee of the old ESP to the trustee of another eligible superannuation plan (new ESP) in respect of the original interest as part of a successor fund transfer.

 (2) If this section applies, then:

 (a) the new interest in the new ESP is taken to be the original interest identified in the superannuation agreement; and

 (b) the payment flag operates on the new interest; and

 (c) despite section 90YO, the operative time for the payment flag in respect of the new interest is the time that the payment to the trustee of the new ESP is made.

 (3) In this section:

successor fund transfer means the transfer of a person’s superannuation interest in the old ESP in circumstances where:

 (a) the new ESP confers on the person, in relation to the new interest, equivalent rights to the rights the person had in relation to the original interest; and

 (b) before the transfer, the trustee of the new ESP had agreed with the trustee of the old ESP to the conferral of such rights.

90YR  Payment flag may be terminated by court

  If the Family Court of Western Australia, or the Magistrates Court of Western Australia, makes an order under the Family Court Act 1997 (WA) setting aside a Western Australian financial agreement in respect of which a payment flag is operating, the court may also make an order terminating the operation of the flag.

Note: Under section 90YK, a superannuation agreement relating to a de facto relationship must be part of a Western Australian financial agreement. Therefore, setting aside the Western Australian financial agreement also has the effect of setting aside the superannuation agreement.

90YS  Flag lifting agreement etc.

 (1) At any time when a payment flag is operating on a superannuation interest, the parties to the de facto relationship may make an agreement (a flag lifting agreement) that either:

 (a) provides that the flag is to cease operating without any payment split; or

 (b) specifies an amount, method or percentage in accordance with subsection 90YN(1).

 (2) If the flag lifting agreement provides for a payment split, the parties to the de facto relationship may at any time make an agreement (a termination agreement) that terminates the flag lifting agreement.

 (3) A flag lifting agreement or termination agreement has no effect unless it complies with the following requirements:

 (a) the agreement must be signed by both parties to the de facto relationship;

 (b) for each party, the agreement must contain a statement that the party has been provided with independent legal advice from a legal practitioner as to the legal effect of the agreement;

 (c) a certificate must be attached to the agreement, signed by the person who provided the legal advice and stating that the advice was provided;

 (d) after the agreement is signed by the parties, each party must be provided with a copy of the agreement.

 (4) The Family Court of Western Australia or the Magistrates Court of Western Australia may make an order setting aside a flag lifting agreement or termination agreement if, and only if, the court is satisfied that:

 (a) the agreement was obtained by fraud (including nondisclosure of a material matter); or

 (b) a party to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

 (ii) with reckless disregard of the interests of a creditor or creditors of the party; or

 (c) a party (the agreement party) to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a party to the agreement; or

 (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 90SM or 90YX of this Act or section 205ZG of the Family Court Act 1997 (WA), or a declaration under section 90SL of this Act or section 205ZA of the Family Court Act 1997 (WA), in relation to the other de facto relationship; or

 (iii) with reckless disregard of those interests of that other person; or

 (d) a party (the agreement party) to the agreement entered into the agreement:

 (i) for the purpose, or for purposes that included the purpose, of defrauding another person who is a party to a marriage with a party to the agreement; or

 (ii) for the purpose, or for purposes that included the purpose, of defeating the interests of that other person in relation to any possible or pending application for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage); or

 (iii) with reckless disregard of those interests of that other person; or

 (e) the agreement is void, voidable or unenforceable; or

 (f) in the circumstances that have arisen since the agreement was made it is impracticable for the agreement or a part of the agreement to be carried out; or

 (g) since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the de facto relationship) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (6)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or

 (h) a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or

 (i) the agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of this Part.

Note: If a court makes an order setting aside a flag lifting agreement, the court may then make an order under section 90YX in relation to the superannuation interest.

 (5) For the purposes of paragraph (4)(b), creditor, in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

 (6) For the purposes of paragraph (4)(g), a person has caring responsibility for a child if:

 (a) the person is a parent of the child with whom the child lives; or

 (b) a parenting order provides that:

 (i) the child is to live with the person; or

 (ii) the person has parental responsibility for the child.

 (7) An order setting aside a flag lifting agreement also operates to set aside the related superannuation agreement.

 (8) If the Family Court of Western Australia, or the Magistrates Court of Western Australia, makes an order under the Family Court Act 1997 (WA) setting aside a Western Australian financial agreement that has a related flag lifting agreement, the court must also make an order setting aside the flag lifting agreement. Subsection (4) of this section does not apply to the order setting aside the flag lifting agreement.

Note: If a court makes an order setting aside a flag lifting agreement, the court may then make an order under section 90YX in relation to the superannuation interest.

Subdivision DMiscellaneous

90YT  Limitation on section 90YX order

 (1) A court cannot make an order under section 90YX with respect to a superannuation interest if:

 (a) the superannuation interest is covered by a superannuation agreement that is in force; or

 (b) the nonmember spouse has served a waiver notice on the trustee under section 90YZQ in respect of the interest; or

 (c) a payment flag is operating on the superannuation interest.

Note: Under section 90YR, the Family Court of Western Australia or the Magistrates Court of Western Australia can terminate the operation of a payment flag in certain circumstances.

 (2) Subsection (1) does not prevent the court taking superannuation interests into account when making an order under the Family Court Act 1997 (WA) with respect to other property of the parties to the de facto relationship.

90YU  Separation declaration

 (1) A separation declaration is a written declaration that complies with this section, and may be included in the superannuation agreement to which it relates.

 (2) The declaration must be signed by at least one of the parties to the de facto relationship. For this purpose, if a party has died the party’s legal personal representative may sign the declaration.

 (3) If section 90YV applies to the declaration, then the declaration must state that:

 (a) the parties lived in a de facto relationship; and

 (b) the parties separated and thereafter lived separately and apart for a continuous period of at least 12 months immediately before the declaration time; and

 (c) in the opinion of the party (or parties) making the declaration, there is no reasonable likelihood of cohabitation being resumed.

 (4) If section 90YV does not apply to the declaration, then the declaration must state that the parties lived in a de facto relationship, but are separated, at the declaration time.

 (5) If either or both of the parties to the de facto relationship have died, then the declaration must state:

 (a) if section 90YV applies to the declaration—that:

 (i) the parties lived in a de facto relationship; but

 (ii) at the most recent time when both parties were alive, the parties were separated and had lived separately and apart for a continuous period of at least 12 months immediately before that time; or

 (b) if section 90YV does not apply to the declaration—that the parties:

 (i) lived in a de facto relationship; but

 (ii) were separated at the most recent time when both parties were alive.

Subsections (3) and (4) have effect subject to this subsection.

 (6) For the purposes of subsection (3) and paragraph (5)(a), the parties to the de facto relationship can have separated and be living separately and apart even if:

 (a) their cohabitation was brought to an end by the action or conduct of one only of them; or

 (b) they have continued to reside in the same residence; or

 (c) either of them has rendered some household services to the other.

 (7) For the purposes of subsection (3) and paragraph (5)(a), if, after the parties to the de facto relationship separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the relevant time referred to in paragraph (3)(b) or (5)(a):

 (a) the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period; but

 (b) the period of cohabitation shall not be taken to be part of the period of living separately and apart.

90YV  Superannuation interests in excess of low rate cap amount

 (1) This section applies to a declaration if:

 (a) if both parties to the de facto relationship are alive at the declaration time—at the declaration time; or

 (b) otherwise—at the most recent time when both parties to the de facto relationship were alive;

the total withdrawal value for all the superannuation interests of the member spouse is more than the member spouse’s low rate cap amount for the income year in which that time occurs.

 (2) This section does not apply in the circumstances (if any) prescribed by the regulations.

 (3) In this section:

low rate cap amount has the meaning given by the Income Tax Assessment Act 1997 (disregarding subsection 307345(2) of that Act and section 307345 of the Income Tax (Transitional Provisions) Act 1997).

total withdrawal value means the amount determined in accordance with the regulations.

90YW  Enforcement by court order

 (1) The Family Court of Western Australia or the Magistrates Court of Western Australia may make such orders as it thinks necessary for the enforcement of a payment split or payment flag under this Division.

 (2) The question whether a superannuation agreement or flag lifting agreement is valid, enforceable or effective is to be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts.

 (3) Without limiting subsection (2), in proceedings relating to a superannuation agreement or flag lifting agreement, the Family Court of Western Australia, or the Magistrates Court of Western Australia, has the same powers, may grant the same remedies and must have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction.

Division 3Payment splitting or flagging by court order

Subdivision AOrders in relation to superannuation interests

90YX  Orders in relation to superannuation interests

 (1) In proceedings between the parties to a de facto relationship with respect to a superannuation interest of either or both of the parties, the Family Court of Western Australia or the Magistrates Court of Western Australia may, in accordance with this Division, make orders in relation to the superannuation interest.

Note 1: The geographical requirement in section 90YZB must be satisfied.

Note 2: The court must be satisfied of at least one of the matters in section 90YZC.

Note 3: Subsections 44(7) and (9) and sections 90YT and 90YZD limit the scope of this section.

 (2) A court cannot make an order under this section in relation to a superannuation interest except in accordance with this Part.

90YY  Splitting order

 (1) The Family Court of Western Australia or the Magistrates Court of Western Australia may, under section 90YX, make the following orders in relation to a superannuation interest (other than an unsplittable interest):

 (a) if the interest is not a percentageonly interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

 (i) the nonmember spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and

 (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

 (b) an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

 (i) the nonmember spouse is entitled to be paid a specified percentage of the splittable payment; and

 (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

 (c) if the interest is a percentageonly interest—an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:

 (i) the nonmember spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order; and

 (ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;

 (d) such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).

 (2) Before making an order referred to in subsection (1), the court must make a determination under paragraph (a) or (b) of this subsection as follows:

 (a) if the regulations provide for the determination of an amount in relation to the interest, the court must determine the amount in accordance with the regulations;

 (b) otherwise, the court must determine the value of the interest by such method as the court considers appropriate.

 (3) The amount determined under paragraph (2)(a) is taken to be the value of the interest.

 (4) Regulations for the purposes of paragraph (2)(a) may provide for the amount to be determined wholly or partly by reference to methods or factors that are approved in writing by the Minister for the purposes of the regulations.

 (5) Before making an order referred to in paragraph (1)(a), the court must allocate a base amount to the nonmember spouse, not exceeding the value determined under subsection (2).

Note: The base amount is used to calculate the entitlement of the nonmember spouse under the regulations.

90YZ  Flagging order

 (1) The Family Court of Western Australia or the Magistrates Court of Western Australia may, under section 90YX, make an order in relation to a superannuation interest (other than an unflaggable interest):

 (a) directing the trustee not to make any splittable payment in respect of the interest without the leave of the court; and

 (b) requiring the trustee to notify the member spouse and the nonmember spouse, within a period specified in the order, of the next occasion when a splittable payment becomes payable in respect of the interest.

 (2) In deciding whether to make an order in accordance with this section, the court may take into account such matters as it considers relevant and, in particular, may take into account the likelihood that a splittable payment will soon become payable in respect of the superannuation interest.

90YZA  Some splittable payments may be made without leave of court

 (1) A flagging order made under subsection 90YZ(1) in relation to a superannuation interest (original interest) a person has in an eligible superannuation plan (old ESP) does not apply to a splittable payment if the splittable payment is made by the trustee of the old ESP to the trustee of another eligible superannuation plan (new ESP) in respect of the original interest as part of a successor fund transfer.

 (2) If the splittable payment is made, then the flagging order is taken to be made in relation to the new interest from the time that the payment to the trustee of the new ESP is made.

 (3) In this section:

successor fund transfer means the transfer of a person’s superannuation interest in the old ESP in circumstances where:

 (a) the new ESP confers on the person, in relation to the new interest, equivalent rights to the rights the person had in relation to the original interest; and

 (b) before the transfer, the trustee of the new ESP had agreed with the trustee of the old ESP to the conferral of such rights.

90YZB  Geographical requirement

  Before making an order under section 90YX, a court must be satisfied:

 (a) that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

 (b) that:

 (i) both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

 (ii) substantial contributions of the kind referred to in paragraph 205ZG(4)(a), (b) or (c) of the Family Court Act 1997 (WA) have been made in the State by the applicant.

90YZC  Length of relationship etc.

 (1) A court may make an order under section 90YX in relation to a de facto relationship only if satisfied:

 (a) that there has been a de facto relationship between the parties to the de facto relationship for at least 2 years; or

 (b) that there is a child (within the meaning of the Family Court Act 1997 (WA)) of the de facto relationship and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

 (c) that the party to the de facto relationship who applies for the order made substantial contributions of a kind mentioned in paragraph 205ZG(4)(a), (b) or (c) of the Family Court Act 1997 (WA) and failure to make the order would result in serious injustice to that party.

 (2) In deciding whether there has been a de facto relationship between the parties to the de facto relationship for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.

 (3) Subsection (2) does not limit the matters the court may consider.

90YZD  Other rules relating to proceedings under section 90YX

 (1) If a party to a de facto relationship dies after the breakdown of the de facto relationship, an order made under section 90YX in relation to the de facto relationship may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (2) A court must not make an order under section 90YX unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

 (3) To avoid doubt, for the purposes of being satisfied under subsection (2) of this section that, in all the circumstances, it is just and equitable to make an order under section 90YX of this Act, the circumstances include any other orders made, or to be made, under section 205ZG of the Family Court Act 1997 (WA) in relation to property of the parties to the de facto relationship.

 (4) In considering what order (if any) should be made under section 90YX of this Act, the court must take into account:

 (a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

 (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

 (ii) otherwise in relation to any of that lastmentioned property;

  whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

 (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

 (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

 (ii) otherwise in relation to any of that lastmentioned property;

  whether or not that lastmentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

 (c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, 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 party to the de facto relationship; and

 (e) the following matters, so far as they are relevant:

 (i) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship);

 (ii) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

 (iii) whether either party has the care or control of a child of the subject de facto relationship who has not attained the age of 18 years;

 (iv) commitments of each of the parties that are necessary to enable the party to support themselves and a child or another person that the party has a duty to maintain;

 (v) the responsibilities of either party to support any other person;

 (vi) the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country or under any superannuation fund or scheme (whether the fund or scheme was established, or operates, within or outside Australia) and the rate of any such pension, allowance or benefit being paid to either party;

 (vii) a standard of living that in all the circumstances is reasonable;

 (viii) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;

 (ix) the duration of the subject de facto relationship and the extent to which it has affected the earning capacity of the parties to the subject de facto relationship;

 (x) the need to protect a party who wishes to continue that party’s role as a parent;

 (xi) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and

 (f) the terms of any other order made or proposed to be made under section 205ZG of the Family Court Act 1997 (WA) in relation to vested bankruptcy property in relation to a bankrupt de facto party to the subject de facto relationship; and

 (g) the terms of any other order or declaration made, or proposed to be made, under Part 5A of the Family Court Act 1997 (WA) in relation to vested bankruptcy property in relation to:

 (i) a party to the subject de facto relationship (in relation to another de facto relationship); or

 (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; and

 (h) the terms of any order or declaration made, or proposed to be made, under Part VIII of this Act in relation to vested bankruptcy property in relation to:

 (i) a party to the subject de facto relationship; or

 (ii) a person who is a party to a marriage with a party to the subject de facto relationship; and

 (i) any other order made under Part 5A of the Family Court Act 1997 (WA) affecting a party to the subject de facto relationship or a child of the subject de facto relationship; and

 (j) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and

 (k) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

 (l) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and

 (m) the terms of any financial agreement that is binding on a party to the subject de facto relationship; and

 (n) the terms of any Western Australian financial agreement that is binding on a party to the subject de facto relationship.

Note: For child of a de facto relationship, see section 90YE.

 (5) Without limiting the power of any court to grant an adjournment in proceedings under this Act, if, in proceedings under section 90YX, a court is of the opinion:

 (a) that there is likely to be a significant change in the financial circumstances of the parties to the de facto relationship 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 an order that the court could make with respect to:

 (i) the superannuation interests of the parties to the de facto relationship or either of them; or

 (ii) any vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship;

  if that significant change in financial circumstances occurs is more likely to do justice as between the parties to the de facto relationship than an order that the court could make immediately with respect to:

 (iii) the superannuation interests of the parties to the de facto relationship or either of them; or

 (iv) any vested bankruptcy property in relation to a bankrupt party to the de facto relationship;

the court may, if so requested by either party to the de facto relationship 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 party to the de facto relationship 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) If a court proposes to adjourn proceedings as provided by subsection (5), 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) a superannuation interest of the parties to the de facto relationship or of either of them; or

 (b) any vested bankruptcy property in relation to a bankrupt party to the de facto relationship.

 (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 parties to the de facto relationship, have regard to any change in the financial circumstances of a party to the de facto relationship that may occur by reason that the party to the de facto relationship:

 (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 the party’s favour, by the trustee of a discretionary trust, of a power to distribute trust property;

but nothing in this subsection limits 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 party to the de facto relationship.

 (8) If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before proceedings under section 90YX are completed:

 (a) the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the Western Australian Rules of Court 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:

 (i) that it would have made an order with respect to a superannuation interest if the deceased party had not died; and

 (ii) that it is still appropriate to make an order with respect to a superannuation interest;

  the court may make such order as it considers appropriate with respect to:

 (iii) a superannuation interest of the parties to the de facto relationship or either of them; or

 (iv) any vested bankruptcy property in relation to a bankrupt de facto party to the de facto relationship; 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 section 90YX (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 a person referred to in paragraph 205ZG(9)(a) of the Family Court Act 1997 (WA); 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) of this subsection; 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) of this subsection.

 (10) The following are entitled to become a party to proceedings in which an application is made for an order under section 90YX by a party to a de facto relationship (the subject de facto relationship):

 (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) a person:

 (i) who is a party to a de facto relationship (the other de facto relationship) with a party to the subject de facto relationship; and

 (ii) who could apply, or has an application pending, for an order under section 90YX in relation to the other de facto relationship;

 (c) a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) or a Western Australian financial agreement with a party to the subject de facto relationship;

 (d) a person:

 (i) who is a party to a marriage with a party to the subject de facto relationship; and

 (ii) who could apply, or has an application pending, for an order under section 79, or a declaration under section 78, in relation to the marriage (or void marriage);

 (e) a person who is a party to a financial agreement (that is binding on the person) with a party to the subject de facto relationship;

 (f) 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 1966); 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 person becomes a party to proceedings under section 90YX because of paragraph (10)(b) of this section, the person may, in the proceedings, apply for an order under that section in relation to the other de facto relationship described in that paragraph.

 (13) If a person becomes a party to proceedings under section 90YX because of paragraph (10)(d) of this section, the person may, in the proceedings, apply for:

 (a) an order under section 79; or

 (b) a declaration under section 78;

in relation to the marriage (or void marriage) described in that paragraph.

 (14) If:

 (a) an application is made for an order under section 90YX in proceedings between the parties to a de facto relationship with respect to a superannuation interest of either or both of the parties; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the application was made, the party was a bankrupt;

 (ii) after the application was made but before it is finally determined, the party 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 section 90YX in the proceedings;

the court must join the bankruptcy trustee as a party to the proceedings.

 (15) If a bankruptcy trustee is a party to proceedings under this Part in relation to a superannuation interest of either or both of the parties to a de facto relationship, then, except with the leave of the court, the bankrupt party to the de facto relationship is not entitled to make a submission to the court in connection with any vested bankruptcy property in relation to the bankrupt party.

 (16) The court must not grant leave under subsection (15) unless the court is satisfied that there are exceptional circumstances.

 (17) If:

 (a) an application is made for an order under section 90YX in proceedings between the parties to a de facto relationship with respect to a superannuation interest of either or both of the parties; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship (the debtor party):

 (i) when the application was made, the party was a debtor subject to a personal insolvency agreement;

 (ii) after the application was made but before it is finally determined, the party 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.

 (18) If the trustee of a personal insolvency agreement is a party to proceedings under this Part in relation to a superannuation interest of either or both of the parties to a de facto relationship, then, except with the leave of the court, the party to the de facto relationship who is the debtor subject to the agreement is not entitled to make a submission to the court in connection with any superannuation interest 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 (14) and (17), an application for an order under section 90YX 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.

90YZE  Varying and setting aside orders under section 90YX

 (1) If, on application by a person affected by an order made by the Family Court of Western Australia or the Magistrates Court of Western Australia under section 90YX, the court is satisfied that:

 (a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or

 (b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or

 (c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or

 (d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the de facto relationship, the child or, where the applicant has caring responsibility for the child (as defined in subsection (3)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or

 (e) a proceeds of crime order has been made covering property of the parties to the de facto relationship or either of them, or a proceeds of crime order has been made against a party to the de facto relationship;

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 90YX in substitution for the order so set aside.

Note: For child of a de facto relationship, see section 90YE.

 (2) A court may, on application by a person affected by an order under section 90YX, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 90YX in substitution for the order so set aside.

 (3) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:

 (a) the person is a parent of the child with whom the child lives; or

 (b) a parenting order provides that:

 (i) the child is to live with the person; or

 (ii) the person has parental responsibility for the child.

 (4) An order varied or made under subsection (1) or (2) may, after the death of a party to the de facto relationship in relation to which the order was so varied or made, be enforced on behalf of, or against, as the case may be, the estate of the deceased party.

 (5) If, before proceedings under this section in relation to an order made under section 90YX are completed, a party to the de facto relationship 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 Western Australian Rules of Court 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:

 (i) that it would have exercised its powers under subsection (1) or (2) of this section in relation to the order if the deceased party had not died; and

 (ii) that it is still appropriate to exercise its powers under subsection (1) or (2) of this section in relation to the order;

  the court may vary the order, set the order aside, or set the order aside and make another order under section 90YX in substitution for the order so set aside; and

 (c) an order varied or 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.

 (6) In the exercise of its powers under subsection (1), (2) or (5), a court must have regard to the interests of, and must make any order proper for the protection of, a bona fide purchaser or other person interested.

 (7) For the purposes of this section, a creditor of a party to the proceedings in which the order under section 90YX was made is taken to be a person whose interests are affected by the order if the creditor may not be able to recover the creditor’s 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 90YX in proceedings with respect to a superannuation interest of the parties to a de facto relationship or either of them; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the order was made, the party was a bankrupt;

 (ii) after the order was made, the party 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 party to a de facto relationship is a bankrupt; and

 (b) an order is made by a court under section 90YX in proceedings with respect to any 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 90YX in proceedings with respect to a superannuation interest of the parties to a de facto relationship or either of them; and

 (b) either of the following subparagraphs apply to a party to the de facto relationship:

 (i) when the order was made, the party was a debtor subject to a personal insolvency agreement;

 (ii) after the order was made, the party 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.

Subdivision BNotification of application

90YZF  Notifying third parties about application

  The Western Australian Rules of Court may specify the circumstances in which a person who:

 (a) applies for an order under this Division; or

 (b) is a party to a proceeding for an order under this Division;

is to give notice of the application to a person who is not a party to the proceedings.

Note: The Western Australian Rules of Court may, for example, make provision for the notification of a person married to, or in a de facto relationship with, the applicant or respondent to the proceedings.

90YZG  Notifying bankruptcy trustee etc. about application under section 90YX or 90YZE

 (1) The Western Australian Rules of Court may make provision for a bankrupt who becomes a party to a proceeding for an application under section 90YX or 90YZE to give notice of the application to the bankruptcy trustee.

 (2) The Western Australian Rules of Court may make provision for a debtor subject to a personal insolvency agreement who becomes a party to a proceeding for an application under section 90YX or 90YZE to give notice of the application to the trustee of the agreement.

90YZH  Notifying court about bankruptcy etc.

Bankruptcy

 (1) The Western Australian Rules of Court may make provision for a person who:

 (a) is a party to a de facto relationship that has broken down; and

 (b) is a party to a proceeding for an application under section 90YX or 90YZE; and

 (c) before that application is finally determined, becomes a bankrupt;

to notify a court exercising jurisdiction under this Part that the person has become a bankrupt.

Debtor subject to a personal insolvency agreement

 (2) The Western Australian Rules of Court may make provision for a person who:

 (a) is a party to a de facto relationship that has broken down; and

 (b) is a party to a proceeding for an application under section 90YX or 90YZE; 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 Part that the person has become a debtor subject to a personal insolvency agreement.

Institution of proceeding under the Bankruptcy Act 1966

 (3) The Western Australian Rules of Court may make provision for a person who:

 (a) is a party to a de facto relationship that has broken down; and

 (b) is a party to a proceeding for an application under section 90YX or 90YZE; and

 (c) before that application is finally determined, becomes a party to a proceeding before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under the Bankruptcy Act 1966 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 Part of the institution of the proceeding under the Bankruptcy Act 1966.

 (4) The Western Australian Rules of Court may make provision for a person who:

 (a) is the bankruptcy trustee of a bankrupt party to a de facto relationship that has broken down; and

 (b) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act;

to notify a court exercising jurisdiction under this Part of the making of the application.

When application finally determined

 (5) For the purposes of this section, an application for an order under section 90YX or 90YZE 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.

90YZI  Notifying nonbankrupt de facto party about application under section 139A of the Bankruptcy Act 1966

  The Western Australian Rules of Court may make provision for a person who:

 (a) is the bankruptcy trustee of a bankrupt party to a de facto relationship; and

 (b) applies under section 139A of the Bankruptcy Act 1966 for an order under Division 4A of Part VI of that Act in relation to an entity (other than the other party to the de facto relationship);

to notify the other party to the de facto relationship of the making of the application if that bankruptcy trustee is aware:

 (c) that the de facto relationship has broken down; and

 (d) that either party to the de facto relationship is a party to proceedings under this Part.

Subdivision CDuty of court to end financial relations

90YZJ  Duty of court to end financial relations

  In proceedings under this Division, the court must, as far as practicable, make such orders as will finally determine the distribution of superannuation benefits or prospective superannuation entitlements of the parties to the de facto relationship or either of them.

Subdivision DOrders and injunctions binding third parties

90YZK  Orders and injunctions binding third parties

 (1) In addition to the effect Part VIIIAA has apart from this section, that Part also has effect in relation to:

 (a) orders under this Division; and

 (b) proceedings for orders under this Division;

with the modifications provided for in subsections (2) and (3).

 (2) Part VIIIAA has effect in accordance with subsection (1) as if the following substitutions were made:

 

Substitutions to be made

Item

For a reference in Part VIIIAA to ...

substitute a reference to ...

1

marriage

de facto relationship

2

section 79

section 90YX

3

property (other than a reference in section 90AK)

superannuation

 (3) Part VIIIAA has effect in accordance with subsection (1) as if:

 (a) section 90AD were omitted; and

 (b) paragraph 90AF(3)(d) were omitted.

Division 4General provisions about payment splitting

90YZL  Court may cancel payment split

 (1) The Family Court of Western Australia or the Magistrates Court of Western Australia may, under section 90YX, make an order terminating the operation of a payment split if:

 (a) the superannuation agreement in respect of the payment split has ceased to be in force; and

 (b) the nonmember spouse has not served a waiver notice on the trustee under section 90YZQ in respect of the payment split.

 (2) The termination has effect for splittable payments that become payable after the date specified in the order.

90YZM  Deductions from splittable payment before calculating payment split

  Any deduction that the trustee is entitled to make from a splittable payment is to be deducted from the splittable payment before calculating any payment split and before applying section 90YZN.

90YZN  Multiple payment splits applying to the same splittable payment

 (1) This section applies if 2 or more payment splits apply to the same splittable payment.

 (2) The payments splits are to be calculated in order of their operative times, starting with the earliest time.

 (3) For the purpose of calculating each of those payment splits (other than the one with the earliest operative time), the amount of the splittable payment is taken to be reduced by the amount to which a person other than the member spouse is entitled under the payment split with the next earlier operative time.

Example: W has a superannuation interest that is subject to 3 payment splits in respect of W’s de facto relationship with X, W’s de facto relationship with Y and W’s de facto relationship with Z (in that order). The operative times of the payment splits are in the same order as the relationships. Assume each payment split provides for a 50% share to the nonmember spouse. W becomes entitled to a splittable payment of $100. The final payment entitlements are as follows: X gets $50. Y gets $25. Z gets $12.50. W gets the remaining $12.50.

90YZO  Fees payable to trustee

 (1) The regulations may:

 (a) allow trustees to charge reasonable fees:

 (i) in respect of a payment split; or

 (ii) otherwise in respect of the operation of this Part in relation to a superannuation interest; and

 (b) prescribe the person or persons liable to pay those fees.

 (2) If any such fee remains unpaid after the time it is due for payment, then the trustee may recover any unpaid amount by deduction from amounts that would otherwise become payable by the trustee, in respect of the superannuation interest, to the person who is liable to pay the fee.

90YZP  Superannuation preservation requirements

 (1) If the eligible superannuation plan for a payment split is a regulated superannuation fund or approved deposit fund, then the entitlement of the nonmember spouse is subject to any regulations made under the SIS Act that provide for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the nonmember spouse.

 (2) If the eligible superannuation plan for a payment split is an RSA, then the entitlement of the nonmember spouse is subject to any regulations made under the Retirement Savings Accounts Act 1997 that provide for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the nonmember spouse.

 (3) If the eligible superannuation plan for a payment split is a constitutionally protected fund (within the meaning of the Income Tax Assessment Act 1997) or an exempt public sector superannuation scheme within the meaning of the SIS Act, then the entitlement of the nonmember spouse is subject to any law or other instrument that provides for payment of that entitlement to a regulated superannuation fund, approved deposit fund, RSA or exempt public sector superannuation scheme within the meaning of the SIS Act for the benefit of the nonmember spouse.

90YZQ  Waiver of rights under payment split

 (1) If the nonmember spouse serves a waiver notice on the trustee in respect of a payment split, then the following provisions apply for each splittable payment that becomes payable after the date specified in the waiver notice:

 (a) the nonmember spouse is not entitled to be paid any amount under the payment split in respect of the splittable payment;

 (b) the entitlement of the person to whom the splittable payment would have been made but for the payment split continues to be reduced in the same way as it would have been reduced if the entitlement of the nonmember spouse had not been terminated.

Example: X has a superannuation interest that is subject to a 50:50 payment split in favour of Y. Y serves a waiver notice on the trustee, in exchange for a lump sum payment made by the trustee to another fund for the benefit of Y. The effect is that X’s payments will continue to be reduced by half, but Y will receive no further payments under the payment split.

 (2) To be effective for the purposes of this section, a waiver notice must be in the prescribed form and must be accompanied by:

 (a) a statement to the effect that the nonmember spouse has been provided with independent financial advice from a prescribed financial adviser as to the financial effect of the waiver notice; and

 (b) a certificate signed by the person who provided the financial advice, stating that the advice was provided.

90YZR  Trustee to provide information

 (1) An eligible person may make an application to the trustee of an eligible superannuation plan for information about a superannuation interest of a member of the plan.

 (2) The application must be accompanied by:

 (a) a declaration, in the prescribed form, stating that the applicant requires the information for either or both of the following purposes:

 (i) to assist the applicant to properly negotiate a superannuation agreement;

 (ii) to assist the applicant in connection with the operation of this Part in relation to the applicant; and

 (b) the fee (if any) payable under regulations made for the purposes of section 90YZO.

 (3) If the trustee receives an application that complies with this section, the trustee must, in accordance with the regulations, provide information about the superannuation interest to the applicant.

Penalty: 50 penalty units.

 (4) Regulations for the purposes of subsection (3) may specify circumstances in which the trustee is not required to provide information.

Example: The regulations might provide that a secondary government trustee is not required to provide information where there is another trustee of the eligible superannuation plan who is better able to provide the information.

 (5) The trustee must not, in response to an application under this section by a party to a de facto relationship with the member, provide the party with any address of the member. For this purpose, address includes a postal address.

Penalty: 50 penalty units.

 (6) If the trustee receives an application under this section from a person other than the member, the trustee must not inform the member that the application has been received.

Penalty: 50 penalty units.

 (7) The regulations may require the trustee of an eligible superannuation plan, after the operative time for a payment split, to provide information to the nonmember spouse about the superannuation interest concerned. Such regulations may prescribe penalties for contravention, not exceeding 10 penalty units.

 (8) In this section:

eligible person, in relation to a superannuation interest of a member of an eligible superannuation plan, means:

 (a) the member; or

 (b) if the member has died—the legal personal representative of the member; or

 (c) a party to a de facto relationship with the member; or

 (d) if a party to a de facto relationship with the member has died—the legal personal representative of the party; or

 (e) a person who intends to enter into a superannuation agreement with the member.

90YZS  Death of nonmember spouse

  If the nonmember spouse dies after the operative time for a payment split:

 (a) the payment split nevertheless continues to operate; and

 (b) the payment split then operates in favour of the legal personal representative of the deceased nonmember spouse and is binding on that legal personal representative; and

 (c) the legal personal representative has all the rights the deceased nonmember spouse would have had in respect of the payment split, including the right to serve a waiver notice under section 90YZQ.

Division 5Miscellaneous

90YZT  Orders binding on trustee

 (1) An order under this Part in relation to a superannuation interest may be expressed to bind the person who is the trustee of the eligible superannuation plan at the time when the order takes effect. However:

 (a) in the case of a trustee who is not a secondary government trustee—the court cannot make such an order unless the trustee has been accorded procedural fairness in relation to the making of the order; and

 (b) in the case of a secondary government trustee:

 (i) the court cannot make such an order unless another trustee of the eligible superannuation plan has been accorded procedural fairness in relation to the making of the order; and

 (ii) the court may, if it thinks fit, require that the secondary government trustee also be accorded procedural fairness.

 (2) If an order is binding on the person who is the trustee of an eligible superannuation plan at the time when the order takes effect, then the order is also binding (by force of this subsection) on:

 (a) any person who subsequently becomes the trustee of that eligible superannuation plan; or

 (b) in a case where section 90YZA applies—a person who is the trustee, or any person who subsequently becomes the trustee, of the new ESP.

90YZU  Protection for trustee

  The trustee of an eligible superannuation plan is not liable for loss or damage suffered by any person because of things done (or not done) by the trustee in good faith in reliance on:

 (a) any document served on the trustee for the purposes of this Part; or

 (b) an order made by a court in accordance with this Part.

90YZV  Service of documents on trustee

 (1) If a document is required or permitted to be served for the purposes of this Part on the trustee of an eligible superannuation plan, the document may be served in any of the ways in which a document may be served under the Western Australian Rules of Court.

 (2) Subsection (1) is in addition to any other method of service permitted by law.

90YZW  False declarations

 (1) A person commits an offence if:

 (a) the person makes a statement in a declaration, knowing that the statement is false or misleading; and

 (b) the declaration is served on the trustee of an eligible superannuation plan for the purposes of this Part.

Penalty: Imprisonment for 12 months.

 (2) Subsection (1) does not apply if the statement is not false or misleading in a material particular.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

 (3) Subsection (1) does not apply in relation to a declaration if a party to the de facto relationship to whom the declaration relates died before the declaration was made.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

90YZX  Terminating employment because of payment flag etc.

  A person must not terminate the employment of an employee on either of the following grounds:

 (a) a payment flag is operating in respect of a superannuation interest of the employee;

 (b) a superannuation agreement or splitting order is in force in respect of a superannuation interest of the employee.

Penalty: 100 penalty units.

90YZY  Requests for Commissioner of Taxation to provide superannuation information

Application for superannuation information

 (1) A person who is a party to either of the following proceedings in the Family Court of Western Australia, in relation to the person’s de facto relationship with another person (the other party):

 (a) proceedings in relation to matters arising under this Part;

 (b) proceedings under the Family Court Act 1997 (WA) with respect to the property of the parties to the de facto relationship or either of them, if the person is considering bringing, or is a party to, related proceedings in relation to matters arising under this Part;

may apply, in the approved form, to the Principal Registrar of that Court for the Principal Registrar to request the superannuation information of that other party.

Request for superannuation information

 (2) If the Principal Registrar of that Court receives an application from a person under subsection (1) for the superannuation information of the other party, the Principal Registrar may:

 (a) request the Commissioner of Taxation to disclose that superannuation information for the purpose of all of the following proceedings (the relevant proceedings) in relation to the person’s de facto relationship with the other party:

 (i) any proceedings in relation to matters arising under this Part;

 (ii) any proceedings under the Family Court Act 1997 (WA) with respect to the property of the parties to the de facto relationship or either of them, if the person is considering bringing, or is a party to, related proceedings in relation to matters arising under this Part; and

 (b) if the Commissioner of Taxation discloses that superannuation information to the Principal Registrar for the purpose of the relevant proceedings—disclose the superannuation information to the following:

 (i) the person and each lawyer of the person;

 (ii) the other party and each lawyer of the other party;

  for the person, other party or lawyer to make a record of, or disclose, for the purpose of the relevant proceedings.

Note 1: Making a record of, or ondisclosing, that superannuation information may be an offence unless it is for the purpose of the relevant proceedings, see sections 355155 and 355175 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: Disclosing superannuation information for the purpose of proceedings relating to matters arising under this Part extends to disclosing the superannuation information to the trustee of an eligible superannuation plan as part of an application under section 90YZR for the purpose of those proceedings.

Approved form

 (3) An application made by a person under subsection (1) is in the approved form if and only if:

 (a) it is in the form approved for the purposes of subparagraph 90XZJ(3)(b)(i); and

 (b) it contains the information (including any declaration) that the form requires; and

 (c) it is given in the manner required for the purposes of subparagraph 90XZJ(3)(b)(ii) (which may include electronically).

Delegation

 (4) The Principal Registrar of the Family Court of Western Australia may, in writing, delegate any of the Principal Registrar’s functions or powers under this section to any other appropriate officer or staff member of that Court.

Definitions

 (5) In this section:

relevant proceedings has the meaning given by paragraph (2)(a).

superannuation information has the same meaning as in subsection 90XZJ(5).

Part IXIntervention

 

91  Intervention by AttorneyGeneral

 (1) The AttorneyGeneral may intervene in, and contest or argue any question arising in:

 (a) any proceedings under this Act where the court requests the AttorneyGeneral to do so or a matter arises that affects the public interest; or

 (b) any proceedings under this Act for or in relation to:

 (i) a parenting order, other than a child maintenance order; or

 (ii) an order under section 67ZC.

 (1A) At any time after a divorce order has been made in any proceedings and before it has taken effect, the AttorneyGeneral may intervene in the proceedings for the purpose of bringing to the notice of the court matters relevant to the exercise of its powers under section 58.

 (2) Where the AttorneyGeneral intervenes in any proceedings, the AttorneyGeneral shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

91A  Delegation by AttorneyGeneral

 (1) Where, in a State, there is a Family Court of the State, the AttorneyGeneral may, either generally or as otherwise provided by the instrument of delegation, by writing, delegate all or any of his or her powers and functions under section 91 in respect of intervention in proceedings in the Family Court of that State and in other courts of that State to the person occupying from time to time, while the delegation is in force, the office of AttorneyGeneral of that State.

 (2) A power or function so delegated may be exercised or performed by the delegate in accordance with the instrument of delegation.

 (3) A delegation under this section does not prevent the exercise of a power or the performance of a function by the AttorneyGeneral.

 (4) Where the AttorneyGeneral of a State intervenes in any proceedings in accordance with a delegation under this section, the AttorneyGeneral of the State shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

91B  Intervention by child welfare officer

 (1) In any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State, of a Territory or of the Commonwealth, being the officer who is responsible for the administration of the laws of the State or Territory in which the proceedings are being heard that relate to child welfare.

 (2) Where the court has, under subsection (1), requested an officer to intervene in proceedings:

 (a) the officer may intervene in those proceedings; and

 (b) where the officer so intervenes, the officer shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

Note: If an officer intervenes in proceedings and acts in good faith in relation to the proceedings, an order for costs, or for security for costs, cannot be made under subsection 117(2) against the officer: see subsection 117(4A).

92  Intervention by other persons

 (1) In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.

 (1A) In divorce or validity of marriage proceedings, a person in relation to whom an order has been made under subsection 69W(1) requiring a parentage testing procedure to be carried out may apply for leave to intervene in the proceedings, and the court may make an order entitling the person to intervene in the proceedings.

 (2) An order under this section may be made upon such conditions as the court considers appropriate.

 (3) Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

92A  Intervention in child abuse cases

 (1) This section applies to proceedings under this Act in which it has been alleged that a child has been abused or is at risk of being abused.

 (2) Each of the following persons is entitled to intervene in the proceedings:

 (a) a guardian of the child;

 (b) a parent of the child with whom the child lives;

 (ba) a person with whom the child is to live under a parenting order;

 (bb) a person who has parental responsibility for the child under a parenting order;

 (c) any other person responsible for the care, welfare or development of the child;

 (d) a prescribed child welfare authority;

 (e) a person who is alleged to have abused the child or from whom the child is alleged to be at risk of abuse.

 (3) Where a person intervenes in proceedings pursuant to this section, the person is, unless the court otherwise orders, to be taken to be a party to the proceedings with all the rights, duties and liabilities of a party.

Part XIProcedure and evidence

Note: Division 12A of Part VII has provisions about procedure and evidence that apply to childrelated proceedings (within the meaning of Part VII).

Division 1General matters concerning procedure and evidence

97  Procedure

 (1) Subject to this Act, to the regulations and to the applicable Rules of Court, all proceedings in the Federal Circuit and Family Court of Australia or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, shall be heard in open court.

 (1AA) For the purposes of subsection (1), the circumstances in which a proceeding in the Federal Circuit and Family Court of Australia, or in a court of a Territory (other than the Northern Territory) when exercising jurisdiction under this Act, is heard in open court include where the proceeding is made accessible to the public by way of video link, audio link or other appropriate means.

 (1A) The regulations and the applicable Rules of Court may authorise proceedings to be heard by:

 (a) in the case of the Federal Circuit and Family Court of Australia (Division 1)—a Judge, the Chief Executive Officer, or a Senior Registrar or Registrar of the Court, sitting in Chambers; and

 (b) in the case of the Federal Circuit and Family Court of Australia (Division 2)—a Judge, the Chief Executive Officer, or a Senior Registrar or Registrar of the Court, sitting in Chambers; and

 (c) in any other case—a Judge, Registrar or magistrate sitting in Chambers.

 (2) In any proceedings in the Federal Circuit and Family Court of Australia, or in another court when exercising jurisdiction under this Act, the court may, of its own motion or on the application of a party to the proceedings, make one or more of the following orders:

 (a) an order that a specified person is not, or specified persons are not, to be present in court during the proceedings or during a specified part of the proceedings;

 (b) an order that persons included in a specified class of persons are not to be present in court during the proceedings or during a specified part of the proceedings;

 (c) an order that only the parties to the proceedings, their legal representatives and such other persons (if any) as are specified by the court may be present in court during the proceedings or during a specified part of the proceedings.

 (2A) For the purposes of subsection (2), a person is taken to be present in court during a proceeding if the person accesses the proceeding by way of video link, audio link or any other means.

 (3) In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.

98  Evidence by affidavit

  The applicable Rules of Court may provide for evidence of any material matter to be given on affidavit at the hearing of:

 (a) divorce or validity of marriage proceedings that are undefended at the time of hearing; and

 (b) proceedings other than divorce or validity of marriage proceedings.

98A  Proceedings in absence of parties

 (1) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage:

 (a) the proceedings are undefended;

 (b) there are no children of the marriage who have not attained the age of 18 years;

 (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and

 (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties;

the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.

 (2) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted jointly by the parties to the marriage:

 (a) one of the parties to the marriage has requested the court to determine the proceedings in the absence of the parties and the other party to the marriage has not requested the court not to determine the proceedings in the absence of the parties; or

 (b) both parties to the marriage have requested the court to determine the proceedings in the absence of the parties;

the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.

 (2A) The court must not determine proceedings for the divorce order in relation to the marriage under subsection (2) if:

 (a) there are any children of the marriage who are under 18; and

 (b) the court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children.

 (2B) The court may determine proceedings under subsection (1) or (2) in chambers.

 (3) For the purposes of this section, a child (including an exnuptial child of either party to the marriage, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by both parties to the marriage as a child of their family at the relevant time.

 (4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the parties to the marriage separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings for the divorce order in relation to the marriage.

100  Evidence of husbands, wives or spouses

 (1) The parties to proceedings under this Act are competent and compellable witnesses.

 (2) In proceedings under this Act, the parties to a marriage are competent and compellable to disclose communications made between them during the marriage.

 (3) Subsection (2) applies to communications made before, as well as to communications made after, the date of commencement of this Act.

100B  Children swearing affidavits, being called as witnesses or being present in court

 (1) A child, other than a child who is or is seeking to become a party to proceedings, must not swear an affidavit for the purposes of proceedings, unless the court makes an order allowing the child to do so.

 (2) A child must not be called as a witness in, or be present during, proceedings in the Federal Circuit and Family Court of Australia, or in another court when exercising jurisdiction under this Act, unless the court makes an order allowing the child to be called as a witness or to be present (as the case may be).

 (3) In this section:

child means a child under 18 years of age.

101  Protection of witnesses

 (1) The court shall forbid the asking of, or excuse a witness from answering, a question that it regards as offensive, scandalous, insulting, abusive or humiliating, unless the court is satisfied that it is essential in the interests of justice that the question be answered.

 (2) The court must forbid an examination of a witness that it regards as oppressive, repetitive or hectoring, or excuse a witness from answering questions asked during such an examination, unless the court is satisfied that it is essential in the interests of justice for the examination to continue or for the questions to be answered.

102  Proof of birth, parentage, death or marriage

  In proceedings under this Act, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of:

 (a) a certificate, entry or record of a birth, death or marriage alleged to have taken place, whether in Australia or elsewhere; or

 (b) an entry in a register of parentage information kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction.

102A  Restrictions on examination of children

 (1) Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.

 (2) Where a person causes a child to be examined for the purpose of deciding:

 (a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or

 (b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused;

subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.

 (3) In considering whether to give leave for a child to be examined, the court must have regard to the following matters:

 (a) whether the proposed examination is likely to provide relevant information that is unlikely to be obtained otherwise;

 (b) the qualifications of the person who proposes to conduct the examination to conduct that examination;

 (c) whether any distress likely to be caused to the child by the examination will be outweighed by the value of the information that might be obtained from the examination;

 (d) any distress already caused to the child by any previous examination associated with the proceedings or with related proceedings;

 (e) any other matter that the court thinks is relevant.

 (4) In proceedings under this Act, a court may admit evidence which is otherwise inadmissible under this section where it is satisfied that:

 (a) the evidence relates to relevant matters on which the evidence already before the court is inadequate; and

 (b) the court will not be able to determine the proceedings properly unless the evidence is admitted; and

 (c) the welfare of the child concerned is likely to be served by the admission of the evidence.

 (5) In this section:

examined, in relation to a child, means:

 (a) subjected to a medical procedure; or

 (b) examined or assessed by a psychiatrist or psychologist (other than by a family counsellor or family consultant).

Note: Section 69ZV is relevant to evidence of a representation by a child, if the admissibility of the evidence would otherwise be affected by the law against hearsay.

102B  Assessors

  In any proceedings under this Act (other than prescribed proceedings), the court may, in accordance with the applicable Rules of Court, get an assessor to help it in the hearing and determination of the proceedings, or any part of them or any matter arising under them.

Division 2Use of video link, audio link or other appropriate means to give testimony, make appearances and give submissions etc.

102C  Testimony

 (1) The court or a Judge may, for the purposes of any proceedings, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note: See also section 102F.

 (2) The testimony must be given on oath or affirmation unless:

 (a) the person giving the testimony is in a foreign country; and

 (b) either:

 (i) the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceedings; or

 (ii) the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceedings; and

 (c) the court or a Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

 (3) If the testimony is given otherwise than on oath or affirmation, the court or a Judge must give the testimony such weight as the court or the Judge thinks fit in the circumstances.

 (4) The power conferred on the court or a Judge by subsection (1) may be exercised:

 (a) on the application of a party to the proceedings concerned; or

 (b) on the court’s own initiative or on the Judge’s own initiative, as the case may be.

 (5) This section applies whether the person giving testimony is in or outside Australia, but does not allow testimony to be given by a person who is in New Zealand.

Note: See Part 6 of the TransTasman Proceedings Act 2010.

102D  Appearance of persons

 (1) The court or a Judge may, for the purposes of any proceedings, direct or allow a person to appear before the court or the Judge by way of video link, audio link or other appropriate means.

Note: See also section 102F.

 (2) The power conferred on the court or a Judge by subsection (1) may be exercised:

 (a) on the application of a party to the proceedings concerned; or

 (b) on the court’s own initiative or on the Judge’s own initiative, as the case may be.

 (3) This section applies whether the person appearing is in or outside Australia, but does not apply if the person appearing is in New Zealand.

Note: See Part 6 of the TransTasman Proceedings Act 2010.

102E  Making of submissions

 (1) The court or a Judge may, for the purposes of any proceedings, direct or allow a person to make a submission to the court or the Judge by way of video link, audio link or other appropriate means.

Note: See also section 102F.

 (2) The power conferred on the court or a Judge by subsection (1) may be exercised:

 (a) on the application of a party to the proceedings concerned; or

 (b) on the court’s own initiative or on the Judge’s own initiative, as the case may be.

 (3) This section applies whether the person making the submission is in or outside Australia, but does not apply if the person making the submission is in New Zealand.

Note: See Part 6 of the TransTasman Proceedings Act 2010.

102F  Conditions for use of links

Video link

 (1) The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to a video link unless the court or the Judge is satisfied that the following conditions are met in relation to the video link:

 (a) the courtroom is equipped with facilities (for example, television monitors) that enable all eligible persons present in that courtroom to see and hear the person (the remote person) who is:

 (i) giving the testimony; or

 (ii) appearing; or

 (iii) making the submission;

  as the case may be, by way of the video link;

 (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom;

 (c) such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the video link;

 (d) such other conditions (if any) as are imposed by the court or a Judge.

 (2) The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (1)(c) include conditions relating to:

 (a) the form of the video link; and

 (b) the equipment, or class of equipment, used to establish the link; and

 (c) the layout of cameras; and

 (d) the standard of transmission; and

 (e) the speed of transmission; and

 (f) the quality of communication.

Audio link

 (3) The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to an audio link unless the court or a Judge is satisfied that the following conditions are met in relation to the audio link:

 (a) the courtroom is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that courtroom to hear the person (the remote person) who is:

 (i) giving the testimony; or

 (ii) appearing; or

 (iii) making the submission;

  as the case may be, by way of the audio link;

 (b) the place at which the remote person is located is equipped with facilities (for example, loudspeakers) that enable all eligible persons present in that place to hear each eligible person who is present in the courtroom or other place where the court or the Judge is sitting;

 (c) such other conditions (if any) as are prescribed by the applicable Rules of Court in relation to the audio link;

 (d) such other conditions (if any) as are imposed by the court or a Judge.

 (4) The conditions that may be prescribed by the applicable Rules of Court in accordance with paragraph (3)(c) include conditions relating to:

 (a) the form of the audio link; and

 (b) the equipment, or class of equipment, used to establish the audio link; and

 (c) the standard of transmission; and

 (d) the speed of transmission; and

 (e) the quality of communication.

Other appropriate means

 (5) The court or a Judge must not exercise the power conferred by subsection 102C(1), 102D(1) or 102E(1) in relation to appropriate means other than video link or audio link unless the court or the Judge is satisfied that the following conditions are met in relation to that means:

 (a) the conditions (if any) as are prescribed by the applicable Rules of Court in relation to that other appropriate means;

 (b) such other conditions (if any) as are imposed by the court or the Judge.

Eligible persons

 (6) For the purposes of the application of this section to particular proceedings, eligible persons are such persons as the court or the Judge considers should be treated as eligible persons for the purposes of the proceedings.

Meaning of courtroom

 (7) In this section:

courtroom, in relation to a Judge or a court, means the courtroom or other place where the Judge or court is sitting.

102G  Putting documents to a person

 (1) This section applies if, in the course of an examination or appearance of a person by video link, audio link or other appropriate means in accordance with this Division, it is necessary to put a document to the person.

 (2) A court or a Judge may direct or allow the document to be put to the person:

 (a) if the document is physically present in the courtroom or other place where the court or the Judge is sitting:

 (i) by causing a copy of the document to be transmitted to the place where the person is located; and

 (ii) by causing the transmitted copy to be put to the person; or

 (b) if the document is physically present in the place where the person is located:

 (i) by causing the document to be put to the person; and

 (ii) by causing a copy of the document to be transmitted to the courtroom or other place where the court or the Judge is sitting.

102J  Administration of oaths and affirmations

  An oath to be sworn, or an affirmation to be made, by a person (the remote person) who is to give testimony by video link, audio link or other appropriate means in accordance with this Division may be administered:

 (a) by means of the video link or audio link, as the case may be, in a way that, as nearly as practicable, corresponds to the way in which the oath or affirmation would be administered if the remote person were to give testimony in the courtroom or other place where the court or the Judge is sitting; or

 (b) if the court or the Judge allows another person who is present at the place where the remote person is located to administer the oath or affirmation—by that other person.

102K  Expenses

 (1) The court or a Judge may make such orders as the court or the Judge thinks just for the payment of expenses, including the court’s expenses, incurred in connection with:

 (a) the giving of testimony by video link, audio link or other appropriate means in accordance with this Division; or

 (b) the appearance of a person by video link, audio link or other appropriate means in accordance with this Division; or

 (c) the making of submissions by video link, audio link or other appropriate means in accordance with this Division.

 (2) Subsection (1) has effect subject to the regulations.

102L  New Zealand proceedings

  This Division does not affect the operation of the TransTasman Proceedings Act 2010.

Division 3Crossexamination of parties where allegations of family violence

102NA  Mandatory protections for parties in certain cases

 (1) If, in proceedings under this Act:

 (a) a party (the examining party) intends to crossexamine another party (the witness party); and

 (b) there is an allegation of family violence between the examining party and the witness party; and

 (c) any of the following are satisfied:

 (i) either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;

 (ii) a family violence order (other than an interim order) applies to both parties;

 (iii) an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;

 (iv) the court makes an order that the requirements of subsection (2) are to apply to the crossexamination;

then the requirements of subsection (2) apply to the crossexamination.

 (2) Both of the following requirements apply to the crossexamination:

 (a) the examining party must not crossexamine the witness party personally;

 (b) the crossexamination must be conducted by a legal practitioner acting on behalf of the examining party.

Note 1: This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.

Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).

Note 3: To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.

 (3) The court may make an order under subparagraph (1)(c)(iv):

 (a) on its own initiative; or

 (b) on the application of:

 (i) the witness party; or

 (ii) the examining party; or

 (iii) if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.

102NB  Courtordered protections in other cases

  If, in proceedings under this Act:

 (a) a party (the examining party) intends to crossexamine another party (the witness party) personally; and

 (b) there is an allegation of family violence between the examining party and the witness party; and

 (c) section 102NA does not apply to prevent the examining party crossexamining the witness party personally;

then the court must ensure that during the crossexamination there are appropriate protections for the party who is the alleged victim of the family violence.

Note 1: For example, the court may consider it appropriate to give a direction under subsection 102C(1) that the crossexamination be conducted by video link or audio link.

Note 2: This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).

102NC  Review of this Division

  The Minister must cause a review of the operation of this Division to be commenced as soon as possible after:

 (a) the second anniversary of the commencement of this section; or

 (b) if, before the second anniversary, the regulations prescribe a day that is after the second anniversary—that day.

Part XIASuppression and nonpublication orders

Division 1Preliminary

102P  Definitions

  In this Part:

information includes any document.

news publisher means a person engaged in the business of publishing news or a public or community broadcasting service engaged in the publishing of news through a public news medium.

nonpublication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).

party to proceedings includes the complainant or victim (or alleged victim) in criminal proceedings and any person named in evidence given in proceedings and, in relation to proceedings that have concluded, means a person who was a party to the proceedings before the proceedings concluded.

publish means disseminate or provide access to the public or a section of the public by any means, including by:

 (a) publication in a book, newspaper, magazine or other written publication; or

 (b) broadcast by radio or television; or

 (c) public exhibition; or

 (d) broadcast or publication by means of the internet.

suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).

102PA  Powers of a court not affected

  This Part does not limit or otherwise affect any powers that a court has apart from this Part to regulate its proceedings or to deal with a contempt of the court.

102PB  Other laws not affected

  This Part does not limit or otherwise affect the operation of a provision made by or under any Act (other than this Act) that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.

102PC  Relationship with section 121

  This Part and section 121 do not limit each other.

Division 2Suppression and nonpublication orders

102PD  Safeguarding public interest in open justice

  In deciding whether to make a suppression order or nonpublication order, the court concerned must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

102PE  Power to make orders

 (1) A court exercising jurisdiction in proceedings under this Act may, by making a suppression order or nonpublication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

 (a) information tending to reveal the identity of or otherwise concerning any party to or witness in the proceedings or any person who is related to or otherwise associated with any party to or witness in the proceedings; or

 (b) information that relates to the proceedings and is:

 (i) information that comprises evidence or information about evidence; or

 (ii) information obtained by the process of discovery; or

 (iii) information produced under a subpoena; or

 (iv) information lodged with or filed in the court.

 (2) The court may make such orders as it thinks appropriate to give effect to an order under subsection (1).

102PF  Grounds for making an order

 (1) The court may make a suppression order or nonpublication order on one or more of the following grounds:

 (a) the order is necessary to prevent prejudice to the proper administration of justice;

 (b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

 (c) the order is necessary to protect the safety of any person;

 (d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).

 (2) A suppression order or nonpublication order must specify the ground or grounds on which the order is made.

102PG  Procedure for making an order

 (1) The court may make a suppression order or nonpublication order on its own initiative or on the application of:

 (a) a party to the proceedings concerned; or

 (b) any other person considered by the court to have a sufficient interest in the making of the order.

 (2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or nonpublication order:

 (a) the applicant for the order;

 (b) a party to the proceedings concerned;

 (c) the Government (or an agency of the Government) of the Commonwealth or a State or Territory;

 (d) a news publisher;

 (e) any other person who, in the court’s opinion, has a sufficient interest in the question of whether a suppression order or nonpublication order should be made.

 (3) A suppression order or nonpublication order may be made at any time during proceedings or after proceedings have concluded.

 (4) A suppression order or nonpublication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.

 (5) A suppression order or nonpublication order must specify the information to which the order applies with sufficient particularity to ensure that the court order is limited to achieving the purpose for which the order is made.

102PH  Interim orders

 (1) If an application is made to the court for a suppression order or nonpublication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined.

 (2) If an order is made as an interim order, the court must determine the application as a matter of urgency.

102PI  Duration of orders

 (1) A suppression order or nonpublication order operates for the period decided by the court and specified in the order.

 (2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made.

 (3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event.

102PJ  Exception for court officials

  A suppression order does not prevent a person from disclosing information if the disclosure is not by publication and is in the course of performing functions or duties or exercising powers in a public official capacity:

 (a) in connection with the conduct of proceedings or the recovery or enforcement of any penalty imposed in proceedings; or

 (b) in compliance with any procedure adopted by the court for informing a news publisher of the existence and content of a suppression order or nonpublication order made by the court.

102PK  Contravention of order

 (1) A person commits an offence if:

 (a) the person does an act or omits to do an act; and

 (b) the act or omission contravenes an order made by a court under section 102PE.

Penalty: Imprisonment for 12 months, 60 penalty units or both.

 (2) An act or omission that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

 (3) An act or omission that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

 (4) If an act or omission constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.

 (5) Part XIIIA does not apply in relation to a contravention of an order made by a court under section 102PE.

Part XIBVexatious proceedings

Division 1Preliminary

102Q  Definitions

 (1) In this Part:

appropriate court official means:

 (a) in relation to the Federal Circuit and Family Court of Australia—the Chief Executive Officer; and

 (c) in relation to the Family Court of Western Australia—the Principal Registrar of the Court; and

 (d) in relation to any other court—the chief executive officer or principal registrar (however described) of the court.

Australian court or tribunal means a court or tribunal of the Commonwealth, a State or a Territory.

institute, in relation to proceedings, includes:

 (a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; and

 (b) for proceedings before a tribunal—the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal; and

 (c) for criminal proceedings—the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender; and

 (d) for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

proceedings:

 (a) in relation to a court—has the meaning given by subsection 4(1); and

 (b) in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.

proceedings of a particular type includes:

 (a) proceedings in relation to a particular matter; and

 (b) proceedings against a particular person.

vexatious proceedings includes:

 (a) proceedings that are an abuse of the process of a court or tribunal; and

 (b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

 (c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and

 (d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

vexatious proceedings order means an order made under subsection 102QB(2).

 (2) A reference in this Part to a person acting in concert with another person in instituting or conducting proceedings does not include a reference to a person who is so acting as a lawyer or representative of the other person.

102QA  Powers of a court not affected

  This Part does not limit or otherwise affect any powers that a court has apart from this Part to deal with vexatious proceedings.

Note: For example, subsection 45A(4) allows a court to dismiss proceedings if it is satisfied that they are vexatious.

Division 2Vexatious proceedings orders

102QB  Making vexatious proceedings orders

 (1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:

 (a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

 (b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

 (2) The court may make any or all of the following orders:

 (a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

 (b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

 (c) any other order the court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.

 (3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

 (a) the AttorneyGeneral of the Commonwealth or of a State or Territory;

 (b) the appropriate court official;

 (c) a person against whom another person has instituted or conducted vexatious proceedings;

 (d) a person who has a sufficient interest in the matter.

 (4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

 (5) An order made under paragraph (2)(a) or (b) is a final order.

 (6) For the purposes of subsection (1), the court may have regard to:

 (a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

 (b) orders made by any Australian court or tribunal; and

 (c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

102QC  Notification of vexatious proceedings orders

 (1) A person may request the appropriate court official of a court for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order made by the court.

 (2) If a person makes a request under subsection (1) and the person named in the request is or has been the subject of a vexatious proceedings order made by the court, the appropriate court official must issue to the person making the request a certificate:

 (a) specifying the date of the order; and

 (b) specifying any other information prescribed by the applicable Rules of Court.

 (3) This section is subject to any law of the Commonwealth, or order of the court, restricting the publication or disclosure of the name of a party to proceedings in the court.

Note: Section 155 of the Evidence Act 1995 deals with adducing evidence of Commonwealth records.

Division 3Particular consequences of vexatious proceedings orders

102QD  Proceedings in contravention of vexatious proceedings order

 (1) If a person is subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act:

 (a) the person must not institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG; and

 (b) another person must not, acting in concert with the person, institute proceedings, or proceedings of that type, in the court without the leave of the court under section 102QG.

 (2) If proceedings are instituted in contravention of subsection (1), the proceedings are stayed.

 (3) Without limiting subsection (2), the court may make:

 (a) an order declaring proceedings are proceedings to which subsection (2) applies; and

 (b) any other order in relation to the stayed proceedings it considers appropriate, including an order for costs.

 (4) The court may make an order under subsection (3) on its own initiative or on the application of any of the following:

 (a) the AttorneyGeneral of the Commonwealth or of a State or Territory;

 (b) the appropriate court official;

 (c) a person against whom another person has instituted or conducted vexatious proceedings;

 (d) a person who has a sufficient interest in the matter.

102QE  Application for leave to institute proceedings

 (1) This section applies to a person (the applicant) who is:

 (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

 (b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

 (2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.

 (3) The applicant must file an affidavit with the application that:

 (a) lists all the occasions on which the applicant has applied for leave under this section; and

 (b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

 (c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

 (4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

102QF  Dismissing application for leave

 (1) The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).

 (2) The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.

 (3) The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).

 (4) The court may make an order under this section in Chambers.

102QG  Granting application for leave

 (1) Before the court makes an order granting an application under section 102QE for leave to institute proceedings, it must:

 (a) order that the applicant serve:

 (i) the person against whom the applicant proposes to institute the proceedings; and

 (ii) any other person specified in the order;

  with a copy of the application and affidavit and a notice that the person is entitled to be heard on the application; and

 (b) give the applicant and each person described in subparagraph (a)(i) or (ii), on appearance, an opportunity to be heard at the hearing of the application.

 (2) At the hearing of the application, the court may receive as evidence any record of evidence given, or affidavit filed, in any proceedings in any Australian court or tribunal in which the applicant is, or at any time was, involved either as a party or as a person acting in concert with a party.

 (3) The court may make an order granting the application. The order may be made subject to the conditions the court considers appropriate.

 (4) The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.

Part XIIRecognition of decrees

 

103  Decrees under this Act

  A decree under this Act has effect throughout Australia and the external Territories.

104  Overseas decrees

 (1) In this section:

applicant, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means:

 (a) the party at whose instance the divorce, annulment or legal separation was effected; or

 (b) where the divorce, annulment or legal separation was effected at the instance of both the parties—each of the parties.

marriage includes a purported marriage that is void.

relevant date, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means the date of the institution of the proceedings that resulted in the divorce, annulment or legal separation.

respondent, in relation to a divorce or the annulment of a marriage or the legal separation of the parties to a marriage, means a party to the marriage, not being a party at whose instance the divorce, annulment or legal separation was effected.

 (2) For the purposes of this section, a person who is a national of a country of which an overseas jurisdiction forms part shall be deemed to be a national of that overseas jurisdiction.

 (3) A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction shall be recognised as valid in Australia where:

 (a) the respondent was ordinarily resident in the overseas jurisdiction at the relevant date;

 (b) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was ordinarily resident in the overseas jurisdiction at the relevant date and either:

 (i) the ordinary residence of the applicant or of that applicant, as the case may be, had continued for not less than 1 year immediately before the relevant date; or

 (ii) the last place of cohabitation of the parties to the marriage was in that jurisdiction;

 (c) the applicant or the respondent or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was domiciled in the overseas jurisdiction at the relevant date;

 (d) the respondent was a national of the overseas jurisdiction at the relevant date;

 (e) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of the overseas jurisdiction at the relevant date and either:

 (i) the applicant or that applicant, as the case may be, was ordinarily resident in that jurisdiction at that date; or

 (ii) the applicant or that applicant, as the case may be, had been ordinarily resident in that jurisdiction for a continuous period of 1 year falling, at least in part, within the period of 2 years immediately before the relevant date; or

 (f) the applicant or, in a case referred to in paragraph (b) of the definition of applicant in subsection (1), one of the applicants, was a national of, and present in, the overseas jurisdiction at the relevant date and the last place of cohabitation of the parties to the marriage was an overseas jurisdiction the law of which, at the relevant date, did not provide for divorce, the annulment of marriage or the legal separation of the parties to a marriage, as the case may be.

 (4) A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall not be recognised as valid by virtue of subsection (3) where:

 (a) under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice; or

 (b) recognition would manifestly be contrary to public policy.

 (5) Any divorce or any annulment of a marriage, or any legal separation of the parties to a marriage, that would be recognised as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognised as valid in Australia, and the operation of this subsection shall not be limited by any implication from those provisions.

 (6) Notwithstanding anything contained in this section, the annulment in accordance with the law of an overseas jurisdiction of a marriage solemnized under Part V of the Marriage Act 1961, being an annulment on the ground only of noncompliance with the formalities prescribed by the law of the jurisdiction in which the marriage was solemnized, shall not be recognised as valid in Australia.

 (7) For the purposes of this section, a court in Australia, in considering the validity of a divorce or an annulment of a marriage, or a legal separation of the parties to a marriage, effected under a law of an overseas jurisdiction:

 (a) where the respondent appeared in the proceedings for the divorce, annulment or separation:

 (i) is bound by the findings of fact on the basis of which a court of the overseas jurisdiction assumed jurisdiction to grant the divorce, annulment or separation; and

 (ii) may treat as proved any other facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction; or

 (b) where the respondent did not appear in the proceedings for the divorce, annulment or separation—may treat as proved any facts found by a court of the overseas jurisdiction or otherwise established for the purposes of the law of the overseas jurisdiction.

 (8) For the purposes of the preceding provisions of this section but without limiting the operation of those provisions, a divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, shall be deemed to have been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which, at the relevant date, it would have been recognised as valid by the law of the firstmentioned overseas jurisdiction.

 (9) Where a divorce or the annulment of a marriage is to be recognised as valid in accordance with this section, the capacity of a party to that marriage to remarry in accordance with the law of Australia is not affected by the fact that the validity of the divorce or annulment is not recognised under the law of some other jurisdiction.

 (10) The preceding provisions of this section apply in relation to divorces, annulments and legal separations effected whether by decree, legislation or otherwise, whether before or after the commencement of this Act, and, for the purposes of this section, any decree, legislation or other process by which it is established that a purported marriage was or is to become void shall be deemed to be an annulment of the marriage.

104A  Recognition in external Territories

 (1) In this section:

external Territory does not include Norfolk Island.

overseas jurisdiction does not include an external Territory.

 (2) A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an overseas jurisdiction that is recognised as valid in Australia shall be recognised as valid in every external Territory.

 (3) A divorce or the annulment of a marriage, or the legal separation of the parties to a marriage, effected in accordance with the law of an external Territory that is recognised as valid in Australia shall be recognised as valid in every other external Territory.

Part XIIIEnforcement of decrees

 

105  Enforcement generally

 (1) Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.

 (2) Except as prescribed, a court shall not entertain a proceeding under this Act for the enforcement of a decree made by another court unless the decree is registered in the firstmentioned court in accordance with the regulations.

 (2A) Subsection (2) does not prevent a court from making an order under paragraph 90KA(c) or 90UN(c).

 (3) Where a person bound by a decree made under this Act has died, the decree may, by leave of:

 (a) the court by which it was made; or

 (b) any court in which the decree has been registered in accordance with the regulations (whether the decree was registered before or after the death of the person);

and on such terms and conditions as the court considers appropriate, be enforced, in respect of liabilities that arose under the decree before the death of that person, against the estate of that person.

106  Maintenance orders—more than 12 months in arrears

  In determining whether to make an order enforcing a maintenance order, a court must not require that there be special circumstances that justify enforcing the maintenance order merely because the maintenance payable under it is more than 12 months in arrears.

106A  Execution of instruments by order of court

 (1) If:

 (a) an order under this Act has directed a person to execute a deed or instrument; and

 (b) that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.

 (2) If:

 (a) a provision of a maintenance agreement that has been registered under section 86 or approved by a court under section 87 requires a person to execute a deed or instrument; and

 (b) that person has refused or neglected to comply with that provision of the maintenance agreement or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person required by that provision of the maintenance agreement to execute the deed or instrument and to do all acts and things necessary to give validity and operation to the deed or instrument.

 (3) The execution of a deed or instrument by a person appointed under this section to execute that deed or instrument has the same force and validity as if the deed or instrument had been executed by the person directed by an order referred to in paragraph (1)(a), or required by a provision of a maintenance agreement referred to in paragraph (2)(a), to execute it.

 (4) The court may make such order as it considers just as to the payment of the costs and expenses of and incidental to the preparation of the deed or instrument and its execution.

106B  Transactions to defeat claims

 (1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, 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.

 (1A) If:

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

 (b) the bankruptcy 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 interest 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 party to a marriage, or a party to a de facto relationship, 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) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.

 (3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.

 (4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.

 (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 of a 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.

 (4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).

 (5) In this section:

disposition includes:

 (a) a sale or gift; and

 (b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.

interest:

 (a) in a company includes:

 (i) a share in or debenture of the company; and

 (ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and

 (b) in a trust includes:

 (i) a beneficial interest in the trust; and

 (ii) the interest of a settlor in property subject to the trust; and

 (iii) a power of appointment under the trust; and

 (iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and

 (v) an interest that is conditional, contingent or deferred.

107  People not to be imprisoned for failure to comply with certain orders

 (1) A person must not be imprisoned or otherwise placed in custody because of a contravention of an order for the payment of money made in a matrimonial cause or de facto financial cause.

 (2) This section does not affect the operation of:

 (a) Division 13A of Part VII; or

 (b) Part XIIIA; or

 (c) Part XIIIB.

109  InterState enforcement of child bearing expenses order

 (1) This section applies to the following orders made under the law of a State or Territory:

 (a) orders of a kind that may be made under section 67D;

 (b) orders for the payment of an amount in relation to the maintenance of a child.

 (2) The regulations may make provision for and in relation to the enforcement in a State or Territory by a court having jurisdiction under this Act of orders to which this section applies made by a court in another State or Territory.

109A  Rules of Court relating to enforcement

 (1) The power of Judges of the Federal Circuit and Family Court of Australia (Division 1) under section 123 to make Rules of Court extends to making Rules of Court for or in relation to, or for or in relation to anything incidental to, the enforcement by the court of:

 (a) an order under this Act affecting children; or

 (b) an order under this Act (within the meaning of Part XIIIA); or

 (c) the Child Support (Registration and Collection) Act 1988; or

 (d) the Child Support (Assessment) Act 1989;

and, in particular, for or in relation to any of the specific matters mentioned in subsection (2).

 (2) The specific matters are as follows:

 (a) requiring a person to do any one or more of the following:

 (i) to attend before a court or Registrar and answer questions or produce documents;

 (ii) to deliver a document or article to, or to a person specified by, a court or Registrar;

 (iii) to transfer the ownership of specified property to another person;

 (iv) to give another person possession (including exclusive possession) of specified property;

 (v) to deliver a specified chattel to another person;

 (vi) to do, or abstain from doing, any other act;

 (b) prescribing the practice and procedure to be followed for a hearing before a court or Registrar for the purpose of giving effect to a requirement made as mentioned in subparagraph (a)(i);

 (c) taking any one or more of the actions mentioned in subsection (3) in respect of a person who:

 (i) fails to pay the amount of a fine imposed under Division 13A of Part VII or under Part XIIIA; or

 (ii) fails to pay an amount payable under a bond entered into under Division 13A of Part VII or under Part XIIIA; or

 (iii) fails to pay under section 66L an amount of maintenance for a person over the age of 18 years; or

 (iv) fails to pay an amount payable under a registered maintenance liability under the Child Support (Registration and Collection) Act 1988 or the Child Support (Assessment) Act 1989; or

 (v) fails to comply with a requirement made as mentioned in paragraph (a);

 (d) delegating to a Registrar all or any of the powers conferred on a court under Rules of Court made under this section.

 (3) Subject to subsection (4), the actions in respect of a person the taking of which may be provided for by Rules of Court as mentioned in paragraph (2)(c) are as follows:

 (a) the issue of a warrant for the arrest of the person;

 (b) the issue of a warrant of execution against property of the person;

 (c) the making of an order authorising the taking of possession of property of the person;

 (d) the making of an order for the sequestration, and if necessary the sale, of property of the person;

 (e) the making of an order for the attachment, by garnishment or attachment of earnings, of debts owed to the person;

 (f) the appointment of a receiver of property of the person.

 (4) A reference in paragraph (2)(c) to a failure to pay an amount is a reference to any such failure irrespective of the length of the period during which the failure has continued, and includes a reference to a failure to pay part of an amount.

 (5) In this section:

property means real or personal property.

109AA  Rules of Court relating to enforcement—Federal Circuit and Family Court of Australia (Division 1)

 (1) Section 109A applies to the making of Rules of Court under Chapter 3 of the Federal Circuit and Family Court of Australia Act 2021 in a corresponding way to the way in which it applies to the making of Rules of Court under section 123 of this Act.

 (2) For the purposes of the application of section 109A in accordance with subsection (1) of this section:

 (a) the reference in subsection 109A(1) to the court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1); and

 (b) each reference in subsection 109A(2) to a court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 1); and

 (c) each reference in subsection 109A(2) to a Registrar is to be read as a reference to the Chief Executive Officer, or a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia (Division 1).

 (3) Section 109A has no effect in relation to the Federal Circuit and Family Court of Australia (Division 1) except as provided by subsections (1) and (2) of this section.

109B  Rules of Court relating to enforcement—Federal Circuit and Family Court of Australia (Division 2)

 (1) Section 109A applies to the making of Rules of Court under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021 in a corresponding way to the way in which it applies to the making of Rules of Court under section 123 of this Act.

 (2) For the purposes of the application of section 109A in accordance with subsection (1):

 (a) the reference in subsection 109A(1) to the court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 2); and

 (b) each reference in subsection 109A(2) to a court is to be read as a reference to the Federal Circuit and Family Court of Australia (Division 2); and

 (c) each reference in subsection 109A(2) to a Registrar is to be read as a reference to the Chief Executive Officer, or a Registrar of the Federal Circuit and Family Court of Australia (Division 2).

 (3) Section 109A has no effect in relation to the Federal Circuit and Family Court of Australia (Division 2) except as provided by subsections (1) and (2) of this section.

Part XIIIAAInternational conventions, international agreements and international enforcement

Division 1International maintenance orders and agreements etc.

110  Overseas enforcement of maintenance orders etc.

 (1) In this section:

jurisdiction with restricted reciprocity means a country, or part of a country, outside Australia declared by the regulations to be a jurisdiction with restricted reciprocity for the purposes of this section.

maintenance order means:

 (a) an order or determination (however described) with respect to the maintenance of a party to a marriage; or

 (b) an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, other than an order or determination of the kind referred to in paragraph (c); or

 (c) an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, if:

 (i) the order or determination is expressed to continue in force until a day that is later than, or for a period that extends beyond, the day on which the child will attain that age; and

 (ii) the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is a child with disability; or

 (d) an order or determination (however described) with respect to the maintenance of a child who has attained the age of 18 years, if:

 (i) the order or determination is expressed to continue in force until a day, or for a period, specified in the order or determination; and

 (ii) the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is a child with disability; or

 (e) to the extent provided by the regulations, an order made under section 67D, or an order or determination (however described) that deals with matters of a kind in relation to which orders may be made under that section.

reciprocating jurisdiction means a country, or part of a country, outside Australia declared by the regulations to be a reciprocating jurisdiction for the purposes of this section.

 (2) The regulations may make provision for and in relation to:

 (a) the registration in, and enforcement by, courts having jurisdiction under this Act of maintenance orders made by courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity;

 (aa) the institution and prosecution, by an officer of a court having jurisdiction under this Act, a prescribed authority of the Commonwealth, of a State or Territory, or of another country or a part of another country, or a person for the time being holding a prescribed office under a law of the Commonwealth, of a State or Territory, or of another country or a part of another country, in his, her or its discretion, of proceedings:

 (i) on behalf of the person entitled to moneys payable under a maintenance order made by a court or authority of a reciprocating jurisdiction or of a jurisdiction with restricted reciprocity, for the enforcement by a court having jurisdiction under this Act of that maintenance order; or

 (ii) for the making of orders for the confirmation of provisional orders made by courts of reciprocating jurisdictions or of jurisdictions with restricted reciprocity, being provisional orders referred to in paragraph (d);

 (ab) the institution and prosecution, by an authority entitled to moneys payable under a maintenance order, in the authority’s discretion, of proceedings for the enforcement of that maintenance order by a court having jurisdiction under this Act;

 (b) the transmission to appropriate courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity of maintenance orders made by courts having jurisdiction under this Act for the purpose of securing the enforcement of those orders in those jurisdictions;

 (ba) the making of provisional maintenance orders, and the transmission of such orders to appropriate courts of reciprocating jurisdictions or jurisdictions with restricted reciprocity, for the purposes of obtaining the confirmation, and securing the enforcement, of those orders in those jurisdictions, and the effect in Australia of those orders;

 (c) the making of orders (including provisional orders) for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section or of maintenance orders or provisional maintenance orders transmitted to other jurisdictions in accordance with regulations under this section, and the effect in Australia of orders under this paragraph;

 (d) the making of orders for the confirmation of provisional orders made by courts in reciprocating jurisdictions or in jurisdictions with restricted reciprocity, being provisional maintenance orders or provisional orders varying, discharging, suspending or reviving maintenance orders, and the effect in Australia of orders under this paragraph; and

 (e) the making of orders for giving effect to process certified or approved by a court in the United States of America, being process relating to the provision of maintenance, and the effect in Australia of orders under this paragraph.

 (3) The regulations may make different provision under this section in relation to reciprocating jurisdictions from the provision made in relation to jurisdictions with restricted reciprocity.

110A  Registration and enforcement in Australia of overseas maintenance agreements etc.

  The regulations may make provision for and in relation to the registration and enforcement in Australia of:

 (a) overseas maintenance agreements; or

 (b) overseas administrative assessments of maintenance liabilities.

110B  Transmission of agreements etc. to overseas jurisdictions

  The regulations may make provision for and in relation to the transmission, to appropriate courts or authorities of prescribed overseas jurisdictions, of:

 (a) agreements registered under section 86; or

 (b) agreements approved by courts under section 87; or

 (c) financial agreements made as mentioned in subsection 90B(1) that contain matters referred to in paragraph 90B(2)(b); or

 (d) financial agreements made as mentioned in subsection 90C(1) that contain matters referred to in paragraph 90C(2)(b); or

 (e) financial agreements made as mentioned in subsection 90D(1) that contain matters referred to in paragraph 90D(2)(b); or

 (f) administrative assessments of maintenance liabilities;

for the purpose of securing the enforcement of those agreements or assessments in those jurisdictions.

111  Convention on Recovery Abroad of Maintenance

  The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Recovery Abroad of Maintenance signed at New York on 20 June 1956 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

111A  Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations

  The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at The Hague on 2 October 1973 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

111AA  Maintenance obligations with New Zealand

 (1) This section has effect despite anything in Part VII.

 (2) A court must not determine an application for payment of child or spousal maintenance (whether under this Act or the regulations) if:

 (a) the person seeking payment is habitually resident in New Zealand; and

 (b) determining the application would require the court to make a decision mentioned in Article 1.2 of the AustraliaNew Zealand Agreement.

Note: Article 1.2 of the Agreement is as follows:

 For the purposes of this Agreement a decision shall include:

(a) a child support assessment issued by an administrative authority;

(b) an agreement to make payments for the maintenance of a child or spouse which has been registered with an administrative authority;

(c) an assessment, order or agreement suspending, modifying or revoking a decision of the kind referred to in (a) or (b);

(d) an order for child maintenance made by a judicial authority;

(e) an order for spousal maintenance made by a judicial authority;

(f) an agreement to make payments for the maintenance of a child or spouse which has been registered with a judicial authority;

(g) an order or agreement suspending, modifying or revoking a decision of the kind referred to in (d), (e) or (f);

(h) a liability to pay an amount to an administrative authority for the maintenance of a child or as contribution to the cost of government benefits paid to a payee for the maintenance of a child.

 (3) In this section:

AustraliaNew Zealand Agreement means the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000.

111AB  Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations

  The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Agreement between the Government of the United States of America and the Government of Australia for the enforcement of Maintenance (Support) Obligations, which was concluded and entered into force on 12 December 2002.

Division 2International child abduction

111B  Convention on the Civil Aspects of International Child Abduction

 (1) The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.

 (1A) In relation to proceedings under regulations made for the purposes of subsection (1), the regulations may make provision:

 (a) relating to the onus of establishing that a child should not be returned under the Convention; and

 (b) establishing rebuttable presumptions in favour of returning a child under the Convention; and

 (c) relating to a Central Authority within the meaning of the regulations applying on behalf of another person for a parenting order that deals with the person or persons with whom a child is to spend time or communicate if the outcome of the proceedings is that the child is not to be returned under the Convention.

 (1B) The regulations made for the purposes of this section must not allow an objection by a child to return under the Convention to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

 (1C) A Central Authority within the meaning of the regulations may arrange to place a child, who has been returned to Australia under the Convention, with an appropriate person, institution or other body to secure the child’s welfare until a court exercising jurisdiction under this Act makes an order (including an interim order) for the child’s care, welfare or development.

 (1D) A Central Authority may do so despite any orders made by a court before the child’s return to Australia.

 (1E) Any regulations made for the purposes of this section to give effect to Article 21 (rights of access) of the Convention may have effect regardless of:

 (a) whether an order or determination (however described) has been made under a law in force in another Convention country (within the meaning of the regulations made for the purposes of this section), with respect to rights of access to the child concerned; or

 (b) if the child was removed to Australia—when that happened; or

 (c) whether the child has been wrongfully removed to, or retained in, Australia.

 (2) Because of amendments of this Act made by the Family Law Reform Act 1995:

 (a) a parent or guardian of a child is no longer expressly stated to have custody of the child; and

 (b) a court can no longer make an order under this Act expressed in terms of granting a person custody of, or access to, a child.

 (3) The purpose of subsection (4) is to resolve doubts about the implications of these changes for the Convention. That is the only purpose of the subsection.

 (4) For the purposes of the Convention:

 (a) each of the parents of a child should be regarded as having ri