Legal Project Management Plan & Checklist
Purpose of this Guide: Use this fork when one of the de facto partners is bankrupt (or becomes bankrupt during proceedings) and the bankruptcy trustee must be joined as a party to the property settlement proceedings. The Family Court of Western Australia holds concurrent federal bankruptcy jurisdiction under s 36 of the Family Court Act 1997 (WA) and the Bankruptcy Act 1966 (Cth), permitting the simultaneous determination of bankruptcy and property adjustment matters in a single court. This eliminates the need for separate proceedings in the .
Jurisdiction: Family Court of Western Australia exercising both state family law jurisdiction under the Family Court Act 1997 (WA) and federal bankruptcy jurisdiction under the Bankruptcy Act 1966 (Cth). This concurrent jurisdiction is unique to WA. The bankruptcy trustee is a necessary party and must be joined to the property proceedings.
The Process at a Glance: Identify whether a de facto partner is bankrupt or facing imminent bankruptcy proceedings. Confirm the Family Court's concurrent jurisdiction under s 36 of the Family Court Act 1997 (WA) and obtain the bankruptcy trustee's contact details from the Australian Financial Security Authority (AFSA). Join the bankruptcy trustee as a respondent. Identify the vested property rights of the trustee under the Bankruptcy Act 1966 (Cth) - all divisible property of the bankrupt de facto partner vests in the trustee upon sequestration. Navigate the intersection of Part 5A property adjustment orders and the trustee's property rights. Attend concurrent hearings and pursue a negotiated outcome with both the non-bankrupt partner and the trustee.
Key Legislation and Case Law: Section 36 of the Family Court Act 1997 (WA) - vests bankruptcy jurisdiction in the Family Court of WA for concurrent determination; Bankruptcy Act 1966 (Cth) - s 58 (property vests in trustee on sequestration), s 116 (divisible property), s 120 (undervalue transactions - 5-year clawback for related parties), s 121 (transfers to defeat creditors), s 122 (preferences - 6-month clawback for unrelated parties, 2 years for related parties); Family Court Act 1997 (WA) - s 205ZG (property alteration orders); Re Foots; Jones v Pilcher [2007] QCA 288 - property settlement orders cannot be used to strip assets from creditors. Bankruptcy is a pre-action exemption under Rule 22(2) of the Family Court Rules 2021 (WA).
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Family Law: De Facto Property Settlement (Applicant) - Western Australia - Bankruptcy Joinder Track - Concurrent Bankruptcy and Property Settlement matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for Family Law cases, outlining the standard Litigation process. Utilize these tracking templates to manage your legal cases efficiently.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
Under s 120 of the Bankruptcy Act 1966 (Cth), transactions at undervalue are voidable if made within 5 years before the date of bankruptcy for related parties (including de facto partners). Under s 121, transfers made with intent to defeat creditors are voidable regardless of timing. Under s 122, preferential transfers within 6 months (2 years for related parties) of bankruptcy may be void against the trustee.
Re Foots; Jones v Pilcher [2007] QCA 288 confirmed that court orders in family law proceedings cannot be used as a device to strip assets from creditors - the trustee's s 58 vesting rights take priority over subsequent family law orders unless the order was made before the sequestration.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.