Bills Digest No. 52, 2004–05
Bankruptcy and
Family Law Legislation Amendment Bill
2004
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Bankruptcy and
Family Law Legislation Amendment Bill
2004
Date
Introduced: 17
November 2004
House: Senate
Portfolio: Attorney-General
Commencement:
The formal provisions
commence on Royal Assent; Schedule 1 commences on proclamation
or six months after Royal Assent (whichever occurs first); Schedule
2 commences on Royal Assent; and Schedules 3 and 4 commence 28
days after Royal Assent.
The Bill amends the Family
Law Act 1975 ( the Family Law Act ) and the Bankruptcy Act
1966 ( the Bankruptcy Act ) to give effect to key
recommendations contained in the Joint Taskforce Report on the Use
of Bankruptcy and Family Law Schemes to Avoid Payment of Tax
(2002).(1)
Particularly, Schedule 1 to the Bill amends the
Bankruptcy Act and the Family Law Act in relation to the
interaction of family law and bankruptcy law. Among other things,
Schedule 2 to the Bill amends the Bankruptcy Act
to create a supervised account regime. Schedule 3
to the Bill amends the definition of maintenance agreement in the
Bankruptcy Act, and Schedule 4 amends section 40
of the Bankruptcy Act to provide that a person commits an act of
bankruptcy if he or she becomes insolvent (that is, having
insufficient assets to meet debts and liabilities) as a result of
one or more transfers of property pursuant to a financial agreement
made under the Family Law Act.
The Joint Taskforce comprised officers from the Attorney-General
s Department, Australian Taxation Office, Insolvency and Trustee
Service Australia, and Treasury. It examined the use of bankruptcy
and family law schemes to avoid payment of tax. Particularly, it
was concerned about high-income, fee-for-service, professionals,
such as barristers. As noted in the Executive Summary to the
Taskforce s report:
A small but significant number of high-income tax debtors,
typically high earning fee-for-service professionals, use
bankruptcy to avoid paying the tax that they owe according to the
law. These debtors have the ability to pay their debts, but instead
fund a lifestyle made possible only through the non payment of tax
and the build up of assets in the names of related parties.
Typically the ATO is the sole or most significant creditor and the
dividend distributed to creditors by the trustee in bankruptcy
amounts to only a few cents in the dollar. The inequity of this
device is compounded as some offending debtors divert income and
assets to other parties in a manner designed to thwart the capacity
of the trustee in bankruptcy to realise their value for the benefit
of the ATO or other creditors.(2)
The Bill reflects several recommendations made by the Joint
Taskforce as follows:
|
Bill
|
Joint Taskforce
recommendation
|
Summary of
recommendation
|
|
Schedule 2
|
Recommendation 4
|
That a different and more rigorous [income]
contribution collection regime be developed to supplement the
existing scheme. Particularly:
the whole of the debtor s income must be deposited into a bank
account
the debtor must not be paid cash in hand or, except with the
trustee s written permission, by fringe or other benefits
the trustee could permit the bankrupt to draw on the account to an
agreed sum per week/ fortnight/ month but the trustee would have no
obligation to put the bankrupt s preference for a particular
standard of living ahead of the interests of creditors, and
if the
debtor did not comply with the regime, he or she could be found
guilty of a criminal offence and sentenced to imprisonment.
|
|
Schedule 3
|
Recommendation 5
|
That the definition of maintenance agreement in
subsection 5(1) of the Bankruptcy Act be narrowed to exclude
financial agreements entered into under Part VIIIA of the Family
Law Act.
|
|
Schedule 4
|
Recommendation 9
|
That the Bankruptcy Act be amended to insert a new
act of bankruptcy to apply where a person is rendered insolvent as
a result of assets being transferred pursuant to a financial
agreement under Part VIIIA of the Family Law Act. The act of
bankruptcy would be deemed to occur on the date of the transfer of
property pursuant to the agreement that made the person
insolvent.
|
(Other recommendations made by the Joint Taskforce are already
enshrined in legislation or were the subject of Bills which lapsed
when the 40th Parliament was prorogued. See for example,
the Family Law Amendment Bill 2004, which was introduced in the
House of Representatives on 1 April 2004 but lapsed when Parliament
was prorogued in August 2004.(3))
The measures contained in the Bill initially appeared as part of
the exposure draft of the Bankruptcy Legislation Amendment
(Anti-Avoidance and Other Measures) Bill 2004. The exposure draft
was released by the Attorney-General on 14 May 2004, together with
an explanatory memorandum. The exposure draft was referred to the
House of Representatives Standing Committee on Legal and
Constitutional Affairs for consideration as to whether the
provisions of the Bill adequately address the problems identified
in the Taskforce report .(4) In part, the reference gave
effect to the Joint Taskforce s recommendation (Recommendation 11)
that a committee:
consider amendment of the Family Law Act and the
Bankruptcy Act to provide that:
-
where the marriage has broken down, all bankruptcy matters which
involve the family law claim of a non-bankrupt spouse be
transferred to a court exercising jurisdiction under the Family Law
Act; and
-
the trustee in bankruptcy will be made a party to the family law
property proceedings, and be given the opportunity to make
submissions to the Court on behalf of the creditors.
The exposure draft contained five schedules. Essentially,
Schedules 2 to 5 dealt with family law and, as mentioned earlier,
now appear in largely unamended form as Schedules 1 to
4 of the current Bill.
Schedule 1 of the exposure draft was of general application
(that is, it was not restricted to family law matters) and drew
much public criticism.(5) It was designed to address the
issue of high income earning professionals who use bankruptcy as a
means of avoiding their liabilities while continuing to enjoy and
use assets held in the name of a related third party (including
spouses and service companies). However, the exposure draft did not
refer specifically to such persons consequently the provisions
might have applied to other persons who legitimately structured
their affairs to protect family assets (for example, by setting up
a family trust) or those persons who legitimately transferred
property to third parties at less than market value at any time
within 10 years of their bankruptcy (for example, farmers who
transferred all or part of their farms to family members instead of
paying wages).
Essentially, Schedule 1 of the exposure draft sought to amend
Division 4A of Part VI of the Bankruptcy Act, which deals with
court orders in relation to property (assets) owned by an entity
controlled by a bankrupt. It sought to permit trustees in
bankruptcy to recover property acquired by third parties using
funds or property provided by the bankrupt where the bankrupt has
used or derived a benefit from those assets .(6) It
relied heavily on the new concepts of tainted purpose , tainted
property and tainted money , and also reversed the onus of proof by
requiring the party that received the property to prove that the
transfer was not made to defeat the interests of creditors.
The Committee recommended that the amendments contained in
Schedule 1 of the exposure draft be abandoned, and that Insolvency
and Trustee Service Australia and the Attorney-General s Department
undertake fresh consultation with the Bankruptcy Reform
Consultative Forum with a view to strengthening the current
clawback provisions in the Act (sections 120 and 121 in particular)
.(7)
However, the Committee also recommended that the amendments
contained in Schedules 2 5 of the exposure draft be
implemented. It did not recommend any changes to those
Schedules.
It should be noted in passing that the Committee comprised
members of parliament from both the Liberal Party and the
Australian Labor Party.
It is probably unnecessary to discuss the individual provisions
of the four schedules to the current Bill in great detail. This is
because, apart from a few, insignificant details, the Bill is in
exactly the same terms as the exposure draft.(8) While
some of the provisions of the four schedules were the subject of
criticism by various individuals and organisations in submissions
made to the Committee, the Committee did not recommend that the
proposed amendments be amended to take account of those criticisms.
It should therefore suffice to explain the contents and effects of
the four schedules in general terms, except where further
explanation of particular provisions is warranted.
Schedule 1 clarifies the relationship between
family law and bankruptcy law in order to reduce hardship and
uncertainty where family law proceedings and bankruptcy proceedings
may be running concurrently but in different courts, particularly
where those courts are exercising jurisdiction under different Acts
that may give different emphasis to particular facts and may give
different priority to the rights of certain persons. For example, a
non-bankrupt spouse might have made contributions to property that
are not reflected in the formal ownership of that property, and
which, under the current law, may mean that in some situations, the
bankrupt spouse s creditors are given preference over the
non-bankrupt spouse (and the parties children) in the division of
the bankrupt s property, particularly where the contributions made
by the non-bankrupt spouse are not readily quantifiable. The Bill
recognises the competing claims of non-bankrupt spouses and
bankruptcy trustees by expanding or restricting or clarifying the
operation of various provisions of the Bankruptcy Act and the
Family Law Act. Particularly, the Bill provides bankruptcy trustees
with greater standing (or rights to appear and participate) in
family law proceedings than is currently the case.
Items 1 and 2 amend the Bankruptcy Act to
provide the Family Court of Australia with jurisdiction in
bankruptcy where there are family law and bankruptcy proceedings
running at the same time and involving the same parties.
Particularly, the Family Court will have jurisdiction in bankruptcy
where a party to the marriage is a bankrupt and the trustee of the
bankrupt s estate is a party to property settlement or spousal
maintenance proceedings or is an applicant under section 79A of the
Family Law Act to set aside property settlement orders made under
section 79 of the Family Law Act.
Item 3 inserts proposed section
59A into the Bankruptcy Act to provide that the general
rule (as set out in section 58 of the Bankruptcy Act) that the
property of a bankrupt vests in (or passes to) the Official Trustee
is subject to any order made under Part VIII of the Family Law Act,
which deals with property settlement and spousal maintenance.
Items 4 6 amend section 116 of the Bankruptcy
Act to provide that property that a trustee is required to transfer
to the bankrupt s spouse under an order made under Part VIII of the
Family Law Act is not property that is available for division among
the bankrupt s creditors.
Item 7 amends section 140 of the Bankruptcy Act
to provide that the trustee s powers to declare and distribute
dividends among the creditors who have proved their debts are
subject to any injunction made under section 114 of the Family Law
Act.
Item 8 amends section 161 of the Bankruptcy Act
to provide that the trustee may act in his or her prescribed
official name (being The Trustee of the Property of (name of
bankrupt), a Bankrupt ) in proceedings under the Family Law
Act. If a person ceases to be the trustee of the bankrupt s estate
while proceedings are pending, and another trustee is appointed,
the second trustee can be substituted for the first trustee as a
party to the proceedings.
Items 9 and 10 amend subsection 4(1) of the
Family Law Act to insert definitions of the terms bankruptcy
trustee and debtor subject to a personal insolvency agreement .
Item 11 amends the definition of matrimonial
cause in subsection 4(1) of the Act to provide that proceedings
between a party to a marriage and the bankruptcy trustee of a
bankrupt party to the marriage constitutes a matrimonial cause .
The amendment clarifies the jurisdiction of the Family Court
(particularly in light of the amendments to the Bankruptcy Act
contained in items 1 and 2 of Schedule 1) and the
standing of the bankruptcy trustee. It also makes it clear that a
matrimonial cause is not confined to proceedings between parties to
a marriage.
Item 12 also amends the definition of
matrimonial cause to include proceedings between a party to the
marriage and the bankruptcy trustee of a bankrupt party to the
marriage where the proceedings relate to any vested bankruptcy
property in relation to the bankrupt party and the proceedings
arise out of the marital relationship or relate to divorce or
nullity proceedings (whether concurrent, pending or completed).
While the Explanatory Memorandum for the Bill suggests that the
effect of this amendment is that a court will be able to determine
proceedings between a party to the marriage and the bankruptcy
trustee in relation to spousal maintenance, it should be noted that
the amendment does not refer specifically to spousal
maintenance.
Item 13 inserts the term personal insolvency
agreement and defines it by cross-reference to the definition of
that term in the Bankruptcy Act. Likewise, item 16
inserts the term trustee and defines it by cross-reference to the
Bankruptcy Act.
Item 14 inserts the term property settlement
proceedings and defines it to include both proceedings with respect
to the property of the parties to a marriage or either of them, and
proceedings with respect to the vested bankruptcy property in
relation to a bankrupt party to a marriage. Similarly, item
15 amends the definition of property settlement or spousal
maintenance proceedings to include reference to vested bankruptcy
property.
Item 18 inserts the term debtor subject to a
personal insolvency agreement and defines it to include a person
who is a debtor who executes a personal insolvency agreement under
Part X of the Bankruptcy Act and the agreement has not ended.
Item 22 amends section 72 of the Family Law Act
(which deals with the right of a spouse to claim spousal
maintenance) to provide that the liability of a bankrupt spouse to
maintain the other spouse may be satisfied in whole or in part by
the transfer of vested bankruptcy property.
Item 23 amends section 74 of the Family Law Act
(which deals with the powers of a court in spousal maintenance
proceedings) to provide that the bankruptcy trustee must be joined
as a party to proceedings if the application for spousal
maintenance was made when the party was a bankrupt (or if the party
became bankrupt after the application was made but before it was
determined) but only if the trustee applies to be joined as a party
and the court is satisfied that the interests of the bankrupt s
creditors may be affected by the making of an order for spousal
maintenance. If the bankruptcy trustee is joined as a party, then
except with the court s leave, the bankrupt spouse cannot make a
submission to the court in relation to any vested bankruptcy
property. Item 23 also makes similar amendments in
relation to a party who is a debtor subject to a personal
insolvency agreement and the trustee of that agreement.
It is not entirely clear from the language used in item
23 whether it applies to situations where the applicant
for spousal maintenance is bankrupt (or insolvent) or where the
respondent to the application is bankrupt, or both. However, the
fact that the trustee is joined as a party and, except in
exceptional circumstances, is permitted to make submissions in
place of the bankrupt spouse (or spouse who is subject to a
personal insolvency agreement) recognises that the bankrupt s
property has vested in the trustee. It may also mean that the court
is in a better position to know exactly what property or income (if
any) is available to satisfy a claim for spousal maintenance,
primarily because such details would have been established as part
of the bankruptcy procedure and because of the trustee s ongoing
role in managing the bankrupt s financial affairs (including
knowledge of creditors and their claims). The trustee may have
access to court documents or spreadsheets prepared as part of the
bankruptcy and these could easily be used as exhibits (or
aides-m moire) in the spousal maintenance proceedings.
There may, however, be particular facts that are peculiarly within
the bankrupt s own knowledge, and in such circumstances, the court
could give leave to the bankrupt spouse to make submissions in
addition to those made by the trustee.
Item 24 amends subsection 75(2) to provide that
in property settlement and spousal maintenance proceedings, the
court must have regard to 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 to the family law proceedings. In
this regard, it should be noted that the phrase so far as that
effect is relevant did not appear in the exposure draft of the
Bill. It seeks to emphasise the fact that not every debt will be
relevant. For example, some debts may be nominal and/or they may
not yet be due and payable, and they would not therefore be
relevant to the proceedings.
Item 27 amends section 79 of the Family Law Act
(which deals with the alteration of property interests) to provide
that the court may make orders altering the interests of the
parties to the marriage in property owned by the parties or one of
them, and that the court may, in proceedings relating to vested
bankruptcy property, alter the interests of the bankruptcy
trustee.
Items 28 36 and 42-46 make consequential
amendments to section 79 to clarify whether the provisions of
section 79 apply to the parties to the marriage or to parties
generally (including the bankruptcy trustee). For example, in
assessing contributions to the welfare of the family, the court is
only interested in contributions made by the parties to the
marriage and not contributions made by the trustee. Likewise, they
insert reference to vested bankruptcy property where general
references to property of the parties to the marriage already
occur.
Item 37 is perhaps an unnecessary amendment. It
seeks to add the word and at the end of paragraphs 79(4)(a) (e),
but as a matter of drafting practice and statutory interpretation,
the addition is not required.
Items 39 41 amend subsection 79(5) (which deals
with the adjournment of property settlement proceedings) to include
reference to vested bankruptcy property and the role/rights of the
bankruptcy trustee.
Item 48 inserts proposed subsection
79(11) in the same way that item 23
amends section 74 (see above). It clarifies the role of the
bankruptcy trustee (or trustee of a personal insolvency agreement)
and limits the ability of the bankrupt spouse to make submissions
to the court.
Item 51 inserts proposed subsection
79A(5) to make it clear that if a party is a bankrupt at
the time when, or after, a property settlement order is made, then
the bankruptcy trustee (or trustee of a personal insolvency
agreement) is taken to be a person whose interests are affected by
the order. (Section 79A deals with the setting aside of orders
altering property interests.)
Item 52 inserts proposed sections 79G,
79H and 79J into the Family Law Act.
Proposed section 79G permits the Family Law
Rules to provide for a bankrupt spouse (or debtor subject to a
personal insolvency agreement) to notify the bankruptcy (or
insolvency) trustee of a spousal maintenance application (under
section 74), an application for a declaration of interests in
property (section 78), an application for alteration of property
interests (or property settlement) (section 79) or an application
to set aside orders altering property interests (section 79A).
Proposed section 79H permits the Family Law
Rules to provide for a person, who becomes bankrupt (or insolvent)
after filing an application under sections 74, 78, 79 or 79A but
before the application is finally determined, to notify the court
that the person has become bankrupt or has become subject to a
personal insolvency agreement. Similarly, the Rules of Court may
provide for the bankruptcy trustee to notify the court where the
trustee has applied to a court under section 139A of the Bankruptcy
Act for an order under Division 4A of the Bankruptcy Act in
relation to property of an entity controlled by a bankrupt.
Proposed subsections 79H(5) and 79H(6) define
finally determined to mean when the application is withdrawn or
dismissed or when an order or declaration is made as a result of
the application.
Proposed section 79J permits the Rules of Court
to provide for the trustee to notify the non-bankrupt spouse when
the trustee makes an application under section 139A of the
Bankruptcy Act (mentioned above).
Item 53 amends section 80 of the Family Law Act
to include proposed subsections 80(4) (6).
Section 80 sets out the general powers of the court. The amendments
make clear that the court can make an order directed to a
bankruptcy trustee or a trustee of a personal insolvency agreement
under paragraph 80(1)(d) requiring him or her to execute any
necessary deed or instrument, or produce documents of title, or do
anything that is necessary to enable an order to be carried out
effectively, or to provide security for the due performance of an
order. It is not clear why the amendments are limited to the powers
of the court under paragraph 80(1)(d), when other paragraphs of
subsection 80(1) would seem to be equally applicable to trustees.
For example, it is not clear why the court could not make an order
directed to a trustee under paragraph 80(1)(f) requiring him or her
to make a payment direct to a party to the marriage if the trustee
is a party to the proceedings.
Items 54 56 make consequential changes to
section 83, which deals with the modification of a spousal
maintenance order.
Item 57 amends section 106B of the Family Law
Act. That section deals with the court s power to set aside or
restrain transactions designed to defeat claims made under the
Family Law Act. The amendment inserts reference to the bankruptcy
trustee or trustee of a personal insolvency agreement.
Item 59 inserts proposed subsections
114(4) (7). Section 114 deals with injunctions. Proposed
subsection 114(4) makes it clear that if a party to a marriage is a
bankrupt, the court may, on the application of the non-bankrupt
spouse, grant a temporary injunction restraining the bankruptcy
trustee from declaring and distributing dividends among the
bankrupt s creditors. Likewise, proposed subsection
114(6) makes it clear that if a party to a marriage is a
debtor subject to a personal insolvency agreement, and the other
party for the marriage applies for an injunction, the court may
grant an injunction restraining the trustee from disposing of
property subject to the agreement. However, the wording used in the
amendment is somewhat ambiguous and it is not entirely clear if the
injunction operates subject to the agreement, or if the order can
only restrain the trustee from disposing of property that is the
subject of the agreement. Presumably, the latter is the correct
interpretation.
Part 2 of Schedule 1 details the application of
the amendments contained in Schedule 1. Sub-item
60(1) states that, subject to sub-items (2) and
(3), the amendments apply to bankruptcies that occur after
the commencement of item 60 and to personal insolvency agreements
executed before, at or after the commencement of item 60. As
item 60 appears in Schedule 1, it is due to
commence on proclamation or six months after the proposed Act
receives Royal Assent, whichever occurs first. At first blush, it
seems unfair to distinguish between bankruptcies and personal
insolvency agreements, particularly when they are treated in a
similar way elsewhere in the Bill. Also, the distinction may be
unfair depending on the circumstances in which the personal
insolvency agreement was entered into (particularly if it was
entered into before item 60 commences) and the terms of the
agreement. That said, the distinction may be unnecessary, given
that sub-items 60(2) and (3) set out the
provisions that apply to proceedings instituted after the
commencement of item 60 regardless of whether the bankruptcy
occurred before, on or after that date.
Schedule 2 amends the Bankruptcy Act to provide
for a supervised account regime. It is designed to improve the
ability of bankruptcy trustees to collect income contributions from
the bankrupt (in situations where the bankrupt continues to earn
income during the bankruptcy). Such contributions can then be used
to meet creditors claims. However, the amendments do not address
the situation where the bankrupt may receive income in non-monetary
forms or where the bankrupt minimises income (for example, if the
bankrupt is a contractor and instructs an employer to make payments
directly to a sub-contractor).
The supervised account regime is a new concept. Many of the
provisions in Schedule 2 are straightforward but detailed, and it
would not be useful to summarise them. Item 4
inserts proposed subdivision HA, which comprises
proposed sections 139ZIA 139ZIT and sets out the
supervised account regime. The regime is designed to improve the
likelihood that the bankrupt will have sufficient money to pay
contributions to creditors (or instalments of those contributions)
and to ensure that all monetary income received by the bankrupt is
deposited in a single account (called the supervised account ) so
that the trustee can supervise withdrawals from the account.
As noted in the Explanatory Memorandum for the Bill, the purpose
of Schedule 3 (and Schedule 4) is prevent the use of financial
agreements made under family law as a way to avoid payments to
creditors.(9)
Item 1 of Schedule 3 amends the definition of
the term maintenance agreement in subsection 5(1) of the Bankruptcy
Act to refer to maintenance agreements that have been registered
in, or approved by a court (whether made under the Family Law Act
or not) but to exclude a financial agreement (as defined
in the Family Law Act).(10) Currently, the definition in
subsection 5(1) includes such financial agreements.
Item 1 of Schedule 4 amends subsection 40(1) of
the Bankruptcy Act to provide that a person (called the debtor )
commits an act of bankruptcy if the debtor becomes
insolvent as a result of one or more transfers of property under a
financial agreement (within the meaning of the Family Law Act) to
which the debtor is a party.
Item 2 amends subsection 40(7) of the
Bankruptcy Act to define the term transfer of property to include
the payment of money. It also states that a person who does
something that results in another person becoming the owner of
property that did not previously exist is taken to have transferred
the property to the other person . The Explanatory Memorandum does
not provide any further explanation for this provision.
Concluding Comments
The Bill gives effect to several recommendations made by the
Joint Taskforce and is the product of a drawn-out and continuing
evaluation of the inter-relationship between family law and
bankruptcy. However, some issues have not yet been resolved, as
highlighted by the fact that Schedule 1 of the exposure draft of
the Bill does not form part of the current Bill (even though that
schedule was of general application and not confined to family
law), and the fact that the amendments contained in
Schedule 2 do not extend to situations where the
bankrupt receives non-monetary income or minimises his or her
income. Likewise, it is unclear if there is a distinction between
the treatment of bankruptcies and personal insolvency agreements in
family law.
As mentioned above, the Bill was the subject of a significant
number of submissions made to the inquiry by the House of
Representatives Standing Committee on Legal and Constitutional
Affairs. Many of the persons and organisations who made those
submissions have considerable experience in family law and
bankruptcy; their submissions were made in light of practical
experience of the problems and cost of the current system. Even
though some of the provisions in the current Bill were the subject
of criticism or concern, the Committee did not recommend any
alteration in light of the submissions. Those provisions in the
exposure draft that received the most criticism do not form part of
the current Bill. Thus, given its history, the Bill seems to be
generally sound.
Many of the provisions are non-controversial and do not require
explanation. They have been inserted to clarify existing provisions
and/or to make clear the rights and roles of spouses and
trustees.
However, as noted in the Main Provisions section of this Digest,
some provisions seem to be unnecessary (such as item 37 of
Schedule 1). Also, the language used in some provisions
may be ambiguous and may need some refinement (such as item
23 of Schedule 1), and sometimes the reason for
restricting the operation of certain provisions is unclear (see
items 53 and 59 of Schedule 1).
-
The Joint Taskforce report is available electronically at:
http://www.ag.gov.au/www/rwpattach.nsf/viewasattachmentPersonal/1A2C7BFEEC7AB954CA256D1900822B9D/$file/2FINAL%20REPORT%2002.02%20FOIXXX.pdf
(at 2 November 2004).
-
Joint Taskforce, p. 4.
-
The Family Law Amendment Bill 2004 was referred to the Senate
Legal and Constitutional Legislation Committee on 16 June 2004. The
Committee s report, tabled on 3 August 2004, is available
electronically at:
http://www.aph.gov.au/Senate/committee/legcon_ctte/family_law_04/report/report.pdf.
-
House of Representatives Standing Committee on Legal and
Constitutional Affairs,
Inquiry into the Exposure Draft of the Bankruptcy Legislation
Amendment (Anti-Avoidance and Other Measures) Bill 2004,
Canberra, July 2004, Terms of Reference, p. viii.
-
According to the Committee s report, 98% of the more than 180
submissions to the inquiry opposed the proposed amendments to
[Division 4A of the Bankruptcy] Act . See House of Representatives
Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Exposure Draft of the Bankruptcy Legislation Amendment
(Anti-Avoidance and Other Measures) Bill 2004, Canberra, July
2004, p. 4 (paragraph 1.14).
-
Bankruptcy Legislation Amendment (Anti-Avoidance and Other
Measures) Bill 2004, Exposure Draft, Explanatory Memorandum, p. 1,
paragraph 4.
-
House of Representatives Standing Committee on Legal and
Constitutional Affairs, Inquiry into the Exposure Draft of the
Bankruptcy Legislation Amendment (Anti-Avoidance and Other
Measures) Bill 2004, Canberra, July 2004, Recommendation 2
(paragraph 3.46), pp. 35 36.
-
On 11 August 2004, the Bankruptcy and Family Law Legislation
Amendment Bill 2004 was introduced in the House of Representatives
but lapsed when the 40th Parliament was prorogued. While
there were a few differences between the exposure draft and the
Bill as introduced on 11 August 2004, those differences do not
occur in the version of the Bill introduced in the Senate on 17
November 2004 at the commencement of the 41st
Parliament.
-
Bankruptcy and Family Law Legislation Amendment Bill 2004,
Explanatory Memorandum, p. 3.
-
The term financial agreement is defined in subsection 4(1) of
the Family Law Act as follows:
financial agreement means an agreement
that is a financial agreement under section 90B, 90C or 90D, but
does not include an ante-nuptial or post-nuptial settlement to
which section 85A applies.
Sections 90B, 90C and 90D provide for the making of financial
agreements before, during and after the marriage. The agreement
must be expressed to be made under the particular section. Section
85A provides that the court may make such order as it considers
just and equitable in relation to the whole or part of property
dealt with by ante-nuptial and post-nuptial settlements made in
relation to the marriage. However, the court cannot make an order
under section 85A in relation to matters that are included in a
financial agreement.
Morag Donaldson
29 November 2004
Bills Digest Service
Information and Research Services
This paper has been prepared to support the work of the
Australian Parliament using information available at the time of
production. The views expressed do not reflect an official position
of the Information and Research Service, nor do they constitute
professional legal opinion.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2004
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by members
of the Australian Parliament in the course of their official
duties.
Published by the Parliamentary Library, 2004.
Back to top