Bankruptcy - Application

Section 35 of the Bankruptcy Act 1966 gives the Federal Circuit and Family Court of Australia (Division 1) jurisdiction in bankruptcy over matters connected with a party's bankruptcy where the trustee is a party to property settlement or maintenance proceedings, or applies to vary property orders or set aside a financial agreement; proceedings can also be transferred to it under s 35A. In those cases Division 1.2.5 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 applies parts of the Division 2 Bankruptcy Rules, with modifications (rr 1.21 to 1.23), and the court approves its own forms (r 1.24). The court's Practice Direction - Bankruptcy Act proceedings says final orders are sought with this form. It is not for ordinary bankruptcy cases in Division 2.

When you need it

• You are a party, or the trustee, in family law property or maintenance proceedings where a party is bankrupt, and you want final orders under the Bankruptcy Act.
• The proceeding has been transferred to Division 1 under s 35A of the Bankruptcy Act.
• Not for interlocutory orders: use Bankruptcy - Application in a Proceeding.
• Not for creditor's petitions or other bankruptcy cases in Division 2, which use the Division 2 Bankruptcy Rules forms.

1. 1

   Filing details and legal basis

   Tick the court division, give the name of the bankrupt estate, and list the sections of the Bankruptcy Act or regulations the application is brought under. The practice direction requires both the provisions and the relief to be stated.

2. 2

   Part A - the parties

   Names of applicants and respondents and an address for service and email for each.

3. 3

   Part B - final orders sought

   State precisely, in numbered paragraphs, the final orders sought. Do not include interlocutory orders.

4. 4

   Part C - service

   Tick that it is not intended to serve anyone, or list the full name of each person to be served.

5. 5

   Part D - signature

   Sign and date, and show whether you or a lawyer signed and prepared it.

• An affidavit is not required with this application (practice direction para 2.11).
• Pay the filing fee unless an exemption applies (para 2.10) - check the court's family law fees page.
• Serve the application on all other parties under Part 2.6 or 2.7 of the Family Law Rules (para 2.16). The Registry Manager then fixes a procedural hearing.
• A respondent who opposes it must, at least 3 days before the hearing, file a Bankruptcy - Notice of Appearance, a notice of grounds of opposition and an affidavit, and serve them (para 3.2).
• Parties are exempt from the pre-action procedures but should take genuine steps to resolve the dispute first (para 1.5).

• Include all necessary parties in the application (Part 3.1 of the Family Law Rules, practice direction para 2.4).
• The form refers to the Bankruptcy Regulations 1996. Those regulations have been repealed; the court's practice direction refers to the Bankruptcy Regulations 2021, so cite current provisions.
• An application is not dismissed only because it was made in the wrong form (r 1.24(3)), but using the right form avoids delay.