The Family Court and Federal Circuit Court can deal with the bankruptcy of a party to a marriage or de facto relationship involved in certain family law proceedings. The impact on parties is complex and legal advice should be obtained as the facts of each case are different.

What is the definition of bankruptcy?

The definition of Bankruptcy under Section 5 of the Bankruptcy Act 1966  is defined as:

a person:

  1. against whose estate a sequestration order has been made, or
  2. who has become a bankrupt because of a debtor’s petition.

When can the Family Court and Federal Circuit Court deal with bankruptcy?

The Family Court and Federal Circuit Court have jurisdiction in any matter connected with, or arising out of, the bankruptcy of a party to a marriage or de facto relationship in proceedings for:

For frequently asked questions about the bankruptcy jurisdiction in family law cases, see the Family Law and bankruptcy fact sheet.

For frequently asked questions about the bankruptcy jurisdiction in family law cases, see the Family Law and bankruptcy fact sheet.

Bankruptcy forms

There are nine bankruptcy forms that can be filed. Each one is described below.

  1. Bankruptcy Application

Used by an applicant seeking final orders in a bankruptcy case e.g. an application:

  • for issue of a a warrant for arrest of a bankrupt or a debtor
  • against the estimate by the trustee of a debt or liability
  • for annulment of a bankruptcy
  • objecting to the appointment of a person as trustee
  • for acceptance of a trustee's resignation
  • for release of a trustee, or
  • an appeal from a decision of a taxing officer.
  1. Bankruptcy – Application in a Case

Used to make an application where a case has already been started e.g. an application for injunction:

  • for procedural orders
  • for leave to be heard
  • seeking to discharge a summons, or
  • when final relief has already been granted (the case has been finalised).
  1. Bankruptcy - notice of appearance 

Used by a person who wishes to:

  • be heard (appear) in the proceedings
  • oppose the orders sought, or
  • take part in an examination.
  1. Notice stating grounds of opposition to an application or application in a case 

  • Used to respond to a Bankruptcy - application or Bankruptcy - application in a case.
  1. Summons for examination 

An order of the Court directed to a relevant or examinable person, to attend the Court at a specified time, to:

  • be examined under oath
  • give evidence concerning the affairs of the bankrupt or debtor spouse, and
  • bring with them and produce at Court any documents listed in a schedule attached to the summons.
  1. Application for summons to examine relevant person or examinable person for examination  

A creditor or trustee of the bankrupt or debtor party can request the Court to issue a summons to a relevant or examinable person for examination under oath concerning the affairs of a bankrupt or debtor party. This application may be heard in chambers or in the absence of the parties.

  1. Notice to creditors of annulment application 

Used by the applicant for annulment of a bankruptcy to give notice of application to creditors.

  1. Bankruptcy- arrest warrant

Used for the arrest of a bankrupt, where the bankrupt: has without good cause, neglected or failed to comply with:

  • an order of the Court, and/or
  • an obligation under the Bankruptcy Act

and has:

  • concealed property, and/or
  • without permission of the trustee, removed property.
  1. Bankruptcy - apprehension warrant

The Court can direct named persons to apprehend a person who:

  • fails to comply with a summons to appear before the Court for examination, and/or
  • fails to appear and report from day to day as required by the Court.

That person may be held in jail until he or she appears before the Court.