Western Australian Current Acts Western Australian Current Acts (1) Where, on
application by a person affected by an order made by a court under
section 205ZG 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 (within the meaning of
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
criminal confiscation order has been made in relation to property of the de
facto partners or either of them,
the court may, in its
discretion, vary the order or set the order aside and, if it considers
appropriate, make another order under section 205ZG in substitution for the
order so set aside.
(2) A court may, on
application by a person affected by an order made by a court under
section 205ZG 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 205ZG in substitution for the order so set aside.
(3) For the purposes
of subsection (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 the child is to live with the person; or
(c) a
parenting order provides that 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
proceedings in 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) Where, before
proceedings under this section in relation to an order made under
section 205ZG are completed, either de facto partner 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 rules 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 205ZG 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 is to have regard to the
interests of, and shall 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 205ZG 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) Subsection (9)
applies if —
(a) an
order is made by a court under section 205ZG in proceedings with respect to
the property of de facto partners or either of them; and
(b)
either of the following subparagraphs apply to a de facto partner —
(i)
when the order was made, the de facto partner was a
bankrupt;
(ii)
after the order was made, the de facto partner became a
bankrupt.
(9) For the purposes
of this section, the bankruptcy trustee is taken to be a person whose
interests are affected by the order.
(10) Subsection (11)
applies if —
(a) a de
facto partner is a bankrupt; and
(b) an
order is made by a court under section 205ZG in proceedings with respect to
the vested bankruptcy property in relation to the bankrupt partner.
(11) For the purposes
of this section, the bankruptcy trustee is taken to be a person whose
interests are affected by the order.
(12) Subsection (13)
applies if —
(a) an
order is made by a court under section 205ZG in proceedings with respect to
the property of de facto partners or either of them; and
(b)
either of the following subparagraphs apply to a de facto partner —
(i)
when the order was made, the de facto partner was a
debtor subject to a personal insolvency agreement;
(ii)
after the order was made, the de facto partner became a
debtor subject to a personal insolvency agreement.
(13) For the purposes
of this section, the trustee of the agreement is taken to be a person whose
interests are affected by the order.
[Section 205ZH inserted: No. 25 of 2002 s. 47;
amended: No. 35 of 2006 s. 43 and 164; No. 28 of 2022 s. 18.]