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Section 79 Family Law Act 1975 parts 5 - 10

more of the nasty one

            (5)  Without limiting the power of any court to grant an adjournment in proceedings under this Act, where, in property settlement proceedings, 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 marriage 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 marriage or either of them; or


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

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

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


                            (iv)  the vested bankruptcy property in relation to a bankrupt party to the marriage;

the court may, if so requested by either party to the marriage 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 marriage 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)  Where 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 marriage or of either of them; or


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

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

                     (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 shall be taken to limit 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 marriage.

             (8)  Where, before property settlement proceedings are completed, a party to the marriage 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;

                     (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 marriage or either of them; or


                            (iv)  any of the vested bankruptcy property in relation to a bankrupt party to the marriage; and


                     ©  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 Family Court, or a Family Court of a State, shall 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 a Registrar or Deputy Registrar of the Family Court, or a Registrar or Deputy Registrar of the Family Court of that State, as the case may be;

                     (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


                     ©  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:

                     (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)  any other person whose interests would be affected by the making of the order.

        (10A)  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.


Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 

Explaining section 79 FLA 1975 parts 5 - 10

Will post soon.

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas. 
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