Date: Tue, 15 Nov 1994 11:24:48 +0900 From: h.mckellar@student.anu.edu.au (Hamish McKellar) 1994 AUSTRALIAN CAPITAL TERRITORY LEGISLATIVE ASSEMBLY DOMESTIC RELATIONSHIPS BILL1994 PRESENTATION SPEECH Circulated by authority of Terry Connolly MLA Attorney General Madam Speaker, this legislation applies to those who have provided personal or financial commitment and support of a domestic nature to the material benefit of another person over a period of two years, allowing them to seek adjustment of the ownership of property which is held by the other person to reflect the value of their contribution. Members have had the opportunity to read the exposure draft of the Bill in the discussion paper, and the discussion paper has already been debated in principle in this place. As I will explain the Bill is not much different from that exposure draft. however I will briefly outline the Bill to refresh the members' recollection of what it does. The Bill provides that where a person has lived in a domestic relationship for two years, that person may apply to the Magistrates or Supreme Court for adjustment of property rights in relation to property which is in the possession of the other person on the basis of the applicant's contribution to that property. A domestic relationship includes not only those who live in a traditional de facto relationship, but relationships where one party at least provides a personal or financial commitment and support of a domestic nature for the material benefit of the other. Whether there is or has been a sexual relationship between the parties is thus an irrelevant consideration. The common factor for applicants will be their contribution to financial resources of another, and that alone, a person who fulfils the stipulated requirements is eligible to apply for a remedy. As Mr Humphries pointed out in the debate on the discussion paper in this assembly on 12th October last year - "It is one thing to be judgemental about some of the relationships and the lifestyles we are talking about here. It is quite another to say that people who adopt those lifestyles deserve no protection from the law." He went on to say that although he believed that not all relationships should generate the same rights, we should give such people certainty, and again I quote: "We should be able to find a medium which gives people in those particular relationships, some chance of knowing where they stand under the law of this Territory and that is a very important goal." On this point we are in full agreement with the view from the other side, and I am glad to see that those entering the debate both here and in the community have so far recognised that we are talking about a particular need based on equity, one which may be common to those who live in different sorts of domestic relationships. If we don't provide a remedy to all who are faced with the same need we are denying a group of people access to that remedy on irrelevant considerations. The contribution may be direct or indirect, financial or non-financial, and the Bill specifically includes consideration of contributions which have conserved or improved property or financial resources, as well as through home-making and care of either the other person or the care of a child of the relationship. The law would require the applicant to demonstrate a real personal commitment of a domestic nature to the welfare of the other person. Orders under this legislation would only be made by a court where the relationship has existed for at least two years unless special circumstances exist. The two-year threshold can be disregarded where there is a child of the relationship. It can also be disregarded where the court considers that there would be serious injustice either because the applicant has not been adequately compensated for his or her contributions, or because he or she has the care and control of the other person's child. The legislation would place a time limit on the making of an application for orders under this legislation, requiring application to the court within two years of the relationship ending. However the court would retain a discretion to hear matters outside this two0year period if the hardship suffered by the applicant if it refused an extension would be greater than the hardship suffered by the respondent if it granted one. The Bill also provides for a claim for what commentators have called "Child care-related maintenance" and " Rehabilitation-based maintenance" is not an appropriate one. It implies that the person receiving the maintenance is somehow deficient or disabled. "Compensation" is a more appropriate description of the basis of this form of maintenance than "rehabilitation", because the maintenance is in fact compensation for the applicant's contributions to the relationship, and so we will use that term. "Child care based maintenance" can be claimed where the person has care and control of a child of the parties or a child of the other party and because of this is unable to support himself or herself. "Compensation-based maintenance" can be claimed where the applicant's earning capacity has been adversely affected by the circumstances if the relationship and the applicant is therefore unable to support himself or herself adequately. The court must be satisfied that a compensation-based-maintenance order would enable the applicant to undertake a program of education or training and that it is a reasonable order under the circumstances. Finally, the Bill provides that where an agreement has been drawn up either at the beginning, during or on the termination of a domestic relationship, and the court is convinced that the parties have been properly advised the court must not make an order that is inconsistent with that agreement, unless serious injustice would result. The value of a domestic relationship agreement is that it is a form of certification that the domestic relationship exists. In itself it is a reminder to those involved that they have a responsibility to account for the property or financial resources they amass with the assistance of the other party. A termination agreement is, likewise, a recognition that the relationship does not exist and thus a reminder that each is no longer obliged to be responsible to the other for such property or financial resources. The court would also have a residual discretion to set aside an agreement or where it is satisfied that serious injustice will result from enforcing its terms. It should be noted that nothing in an agreement will affect the power of a court to make an order with respect to the right for custody of, maintenance o, or access to, the children of the partners to the agreement. Madam Speaker, the purpose of the Bill is to extend and clarify the application of principles of equitable trusts as they relate to domestic situations. The law would apply to de facto relationships, as well as, say, the break-up of family relationships such as would exist between an adult son or daughter who has given up a career to provide domestic care for a parent in need. The Bill grants to the Magistrates Court jurisdiction to deal with applications, which is an expansion of its jurisdiction. The Magistrates Court cannot presently deal with claims based on equitable trust principles, but we are now giving it that jurisdiction. This means that the law will be more accessible and less expensive to those with smaller property claims, or those with larger claims who nevertheless agree to accept a Magistrates Court decision. However the legislation also requires the court and each legal practitioner representing a party to both allow and encourage the parties to settle matters by alternative means such as mediation and arbitration. This, plus associated requirements to provide information on mediation, and the government's support of mediation services in the A.C.T., will further make the task for those who seek fair and equitable property adjustment less expensive and onerous. The response from the community to the discussion paper and draft legislation has been overwhelmingly supportive, and specific comments have been taken into account. We have removed the definition of de facto relationships which was in the exposure draft of the Bill, as this was considered an unnecessary distinction on the basis of gender. The definition, in referring to a relationship between a man and a woman seems to unnecessarily put the issue of sex back into the Bill. Instead of the Bill being debated on issues of equity and convenience, the definition redirects attention on the contentious and divisive issues of heterosexual and homosexual relationships. The only other significant change we have made is to clause 38 of the Bill. We have altered that clause to make it quite clear that not only can a court make a declaration that a domestic relationship does or did exist at a particular time or during a particular period, but it can also specifically declare that a relationship does or did not exist at a particular time or during a particular period. This is to provide parties with a clear court declaration that a relationship is over. We have done this in consideration of the fact that it is often important for those who have been involved in a personal relationship with another to have some material indication that the relationship no longer exists. This may be particularly useful to those who have been living in a potentially violent relationship, and I would point out that a study of domestic violence in the A.C.T. which the law reform committee released last year indicates a significantly higher rate of violence reported in de facto relationships than in marital relationship. Madam Speaker, this Bill addresses the fact that those who live in domestic relationships are subject to laws which are for the most part based on the traditional laws of property, which do not take account of matters such as unpaid labour in the home, and have not evolved to do so. The Commonwealth Family Law Act takes account of these matters when dealing with property claims between spouses, however it can only deal with legally married couples. There is no similar legislation for those living in domestic relationships in the A.C.T. By limiting special consideration of indirect and non-financial contributions to property to those who are legally married, the law does not adequately recognise that families may take other forms than the traditional nuclear family of a married couple and their children. This is a relevant consideration for this Assembly in the Year of the Family. This Bill is based on the current principles of equitable trusts in relation to domestic situations. Equitable trusts were established by judges at common law as a means of providing a remedy in situations where one person has provided another with a material advantage to their own detriment. What the Bill does is firmly establish these principles, and specifically apply them to domestic relationships on the general principle of common law and equity. The doctrine of equitable trusts already applies to most of the cases we have in mind, but not all of them. We are properly criticised for forcing applicants to have recourse to the antiquated and costly process involved in those situations which are covered. This proposal is simply a means for those who have in theory a means of legal resolution.