Report 113 (2006) - Relationships - Law Reform Commission : Lawlink NSW

3.1 The De Facto Relationships Act 1984 (NSW) was enacted to provide a just and equitable means of dealing with the breakdown of opposite sex unmarried relationships. In 1999, at the same time as the Act was renamed the Property (Relationships) Act 1984 (“the PRA”), the scope of the legislation was extended beyond opposite sex unmarried relationships to include same sex de facto relationships and the new category of “close personal relationships”. The concept of a “domestic relationship” was introduced as a means of including couple and non-couple relationships in a single category.¹

3.2 The notion of a close personal relationship encompasses carer relationships, where one person provides another person with care and assistance in his or her daily life, without receiving payment. The PRA provides a framework for dealing with some of the consequences of a breakdown in such a relationship, in particular, the division of property between the two parties to the relationship. This Chapter examines the way in which the PRA currently defines a “close personal relationship”, and discusses proposals to broaden that definition. It also considers whether or not it is appropriate for a single piece of legislation to make provisions for the financial consequences flowing on from the breakdown of both de facto and close personal relationships.

3.3 Section 5(1)(b) of the PRA defines a close personal relationship as one (not being a marriage or a de facto relationship) between two adults, whether or not related by family, who live together in circumstances where one or each of the parties provides the other with domestic support and personal care. Section 5(2) provides that:

3.5 The PRA provides little guidance as to whom it means to include in the definition of close personal relationship. What guidance the legislation offers is expressed in the negative: a close personal relationship does not exist where one person provides personal care and domestic support to the other for payment, or who does so on behalf of another person or institution. Nor, as the Attorney General made clear in his Second Reading speech in relation to the 1999 amending legislation, is there any “... intention to create rights and obligations between persons who are merely sharing accommodation as a matter of convenience, in the way flatmates might”.²

3.8 The first reported decision of the Supreme Court that considered the definition of close personal relationship was the decision of Master Macready in Dridi v Fillmore. The Master took a narrow view, holding that a close personal relationship exists only when two adults live together in the same house (although not necessarily as a couple given that the two may be related by family) and one or each of whom provides the other with both domestic support and personal care.⁵ These were held to be cumulative, that is, both domestic support and personal care must be provided. One of them alone would not be sufficient.

3.9 Domestic support includes such things as doing the shopping for the parties, cooking, washing and providing accommodation, etc. Personal care, on the other hand, implies care of a more private nature such as assistance with bodily functions and personal hygiene: for example, dressing and undressing, bathing, food preparation and eating, taking medication etc.⁶ In Devonshire v Hyde, Master Macready said one might expect this kind of care from an employed nurse or carer, or a mother for her sick child or a daughter for her elderly incapacitated mother. While the paid nurse or carer would be excluded by the terms of the Act, the mother or daughter in the last two examples would be included.

3.10 The “personal care” element is not easy to satisfy. In a recent case, it was held that taking the deceased to doctor’s appointments and keeping him company was not sufficient. The plaintiff did not provide any evidence that she provided assistance by way of feeding, clothing or showering, or administering medication to the deceased, therefore no close personal relationship was found to exist.⁷ By contrast, in Jurd v Public Trustee, apart from cooking, cleaning and keeping the property tidy for the deceased, the plaintiff claimed also to have bathed the deceased’s feet, brushed his hair and cajoled him into bathing etc. The deceased was very obese and suffered from diabetes and emphysema. The Supreme Court found that the elements of a close personal relationship had been met, although the relationship was one of short duration.⁸

3.11 There has been some criticism that the PRA defines a close personal relationship too narrowly, excluding relationships where two people are financially interdependent but who do not live together, or provide the level of domestic support and care that appears to be required.⁹

3.12 In its submission, the Gay and Lesbian Rights Lobby argued that the current interpretation of close personal relationships as only including those of physical incapacity and care¹⁰ is too narrow and defeats the primary purpose of the 1999 amendments, which was to recognise and protect close non-sexual relationships of interdependence.¹¹

3.13 In its report, the Standing Committee on Social Issues (“the Social Issues Committee”) had recommended that the “close personal relationship” definition be broadened to encompass a wider range of interdependent personal relationships.¹² It also recommended that the s 4(2) indicators of a de facto relationship¹³ be available to the Court when determining whether a close personal relationship exists.¹⁴ This would involve looking at common indicators of interdependence and reliance such as the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties’ commitment to each other.

3.14 Section 5(1)(b) of the PRA requires that people “live together” in order to be eligible for consideration as parties to a close personal relationship. As with de facto relationships,¹⁵ there is a further limitation for those people wishing to make use of the financial adjustment scheme under Part 3 of the PRA: parties to a close personal relationship cannot make a claim under Part 3 unless they have been living together for at least two years.¹⁶

3.15 As the Commission discussed in Chapter 2, in the context of the definition of a de facto relationship, the term “living together” is arguably ambiguous, but appears to require some form of cohabitation.¹⁷ A requirement of cohabitation excludes from recognition under the PRA those people who provide domestic support and personal care on a daily basis but do not reside with the person for whom they provide care.

3.16 The Equity Division of the Supreme Court submits that any modification to the existing definition of close personal relationship, to include, for example siblings who are joint owners of property but live separately, should only occur if the Law Reform Commission is able to identify and is satisfied that there is a class of people suffering an injustice which is currently not being remedied.¹⁸ New South Wales Young Lawyers do not support removing the requirement for cohabitation for people in close personal relationships, although they do support removing it for people in de facto relationships. Their justification for the distinction is that close personal relationships are less easy to define. They argued that fixing a definite connection in these types of relationship is beneficial to the Court in terms of identifying close personal relationships.¹⁹

3.17 As with de facto relationships,²⁰ several submissions expressed the view that requiring a minimum period of cohabitation in order to be eligible to bring an application for financial adjustment under Part 3 of the PRA sifts out trivial claims.²¹ It was submitted that if the cohabitation requirement were removed for certain domestic relationships, an alternative threshold would need to take its place and keep out claims where substantial injustice is unlikely to have occurred.²²

3.18 The recently enacted Tasmanian legislation adopts the same definition of close personal relationship as applies under the PRA with one notable exception: it does not require persons in a “caring relationship” to live together.²³ It does, however, contain the same elements of domestic support and personal care as in the PRA. To date, there have been no judicial pronouncements on the provisions.

3.19 Significantly, the Tasmanian legislation also provides that the receipt of a carers’ pension or allowance under federal social security legislation does not disqualify a person from being in a caring relationship.²⁴

3.20 Also, it allows people in a caring relationship to register their relationship under Part 2 of the Act. If they do so, proof of registration is proof of the existence of the relationship. If the relationship is not registered, however, the Act provides that, when determining whether a caring relationship exists, the Court must take into account all the circumstances of the relationship including a list of inclusive factors similar to those it considers when determining the existence of a de facto relationship.²⁵

3.21 Parliament clearly intended to confine close personal relationships to those relationships where one or both of the parties provides care to the other. There was no intention to cover non-couple interdependent relationships in the broader sense as contemplated by the De Facto Relationships Amendment Bill 1998 which was espoused by the Gay and Lesbian Rights Lobby and supported by the Social Issues Committee. The intention, made clear in the Second Reading speeches, was to provide an avenue for redress for people who suffer some detriment (and are not compensated for it) because of the care and support they provide to another, be it an elderly or ailing parent or friend or neighbour, for no fee or reward.

3.22 In most cases, such relationships are likely to end with the death of the person being cared for, in which case the person who has taken care of the other may have recourse against the estate if they feel they were not adequately provided for. The statutory provisions for property adjustment are useful for those in close personal relationships in situations where the relationship breaks down during the life of the parties. For example, an elderly mother living in the home of a daughter who has taken care of her for many years, may, after a falling out, move out with another son or daughter. More often than not, these private care arrangements will not be documented in any kind of written agreement. Without the PRA, the jilted daughter would only have recourse to equitable remedies under general law.

3.23 The Commission acknowledges that there may be carers who do not reside with the person to whom they provide domestic support and personal care on a day-to-day basis. Removing any requirement for cohabitation would bring these non-resident carers within the scope of the PRA, and for this reason we consider that the definition of a close personal relationship should dispense with any requirement that the parties to the relationship cohabit. Instead, the PRA should include a list of indicia, very similar to those already included in relation to de facto relationships, under s 4(2), as a safeguard against trivial claims being brought. The list of indicia should be modified, as in s 5(5) of the Tasmanian Relationships Act 2003, to exclude references to a sexual relationship, and to give explicit recognition to the level of domestic support and personal care.

3.24 While the Commission does not consider that the definition of a close personal relationship should include any requirement of cohabitation, we nevertheless take the view that such relationships must be shown to have existed for no less than two years in order to bring a claim for financial adjustment under Part 3 of the PRA. As with de facto relationships,²⁶ some form of objective indicator is necessary to ensure that the relationship in question was sufficiently long-lasting and committed to justify the disturbance of private property rights. We address this in Chapter 6.

3.25 The Commission also recommends that the PRA be amended to make it clear, as in the Tasmanian legislation, that a carers’ pension or allowance under social security legislation does not disqualify a person under s 5(2).

3.26 While the scope of the PRA changed significantly in 1999, the substantive provisions remained largely the same and simply became applicable to the new category of “domestic relationship”. Such an approach arguably disregards the differences between de facto relationships and other close personal relationships and inappropriately places non-couple relationships in a regime designed to address the particular consequences of the breakdown of de facto relationships. In recognition of these concerns, DP 44 raised the issue of whether or not the provisions in the PRA concerning de facto relationships are appropriate for recognising and regulating close personal relationships.

3.27 The move towards a broad category of “domestic relationship” in New South Wales was part of a wider trend in relationship recognition. In Australia, non-couple relationships were first recognised in the Australian Capital Territory. The Domestic Relationships Act 1994 (ACT) moved beyond the concept of a couple-based relationship to use a “domestic relationship” as its central concept. A “domestic relationship” is defined in the ACT legislation as a personal relationship between two adults, in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other. Under the Domestic Relationships Act, the same substantive property adjustment and maintenance provisions apply to all domestic relationships, whether the individuals involved are in a couple or a non-couple relationship.

3.28 A similar approach has been taken in the Tasmanian Relationships Act 2003, which uses the central concept of a “personal relationship”. Included within the definition of “personal relationship” are relationships between two adults, in which one or each of them provides the other with domestic support and personal care.²⁷ As with the Australian Capital Territory and New South Wales legislation, the same substantive property adjustment and maintenance provisions apply to all “personal relationships”, without distinctions being drawn in relation to couple and non-couple relationships.

3.29 Both the Anti-Discrimination Board and the Gay and Lesbian Rights Lobby supported continued legislative recognition of close personal relationships. However, the Lobby submitted that the current interpretation of close personal relationships (as only including those of physical incapacity and care)²⁸ is too narrow and defeats the primary purpose of the 1999 amendments, which was to recognise and protect close non-sexual relationships of interdependence.²⁹

3.30 The Women’s Legal Resources Centre considered that close personal relationships should not be recognised or regulated under the PRA. While the Centre acknowledged that there might well be a need to regulate the division of property in close personal relationships, it submitted that this should be addressed separately from de facto relationships.³⁰ The Centre was concerned that bringing close personal relationships within the PRA detracted from the main purpose of the legislation, which was to deal with the breakdown of de facto relationships.

3.31 New South Wales Young Lawyers submitted that close personal relationships should not be regulated in the same way as de facto relationships because they have very different characteristics.³¹ Likewise, the Victorian Bar Association observed that close personal relationships present with diverse characteristics and merit diverse legal responses. Accordingly, it is inappropriate to assume that one size fits all in the regulation of these relationships.³²

3.32 The Judges of the Equity Division of the Supreme Court also noted that there are significant differences within the class of close personal relationships, but commented that similar differences exist within the class of de facto relationships.³³ Such differences can be accommodated by the Court making orders by reference to the circumstances of each individual case or by the parties entering into a contract, which they can adjust to their own individual circumstances. The PRA merely uses the concept of a domestic relationship as a means of conferring jurisdiction on the Court or of empowering the parties. In the view of the Judges of the Equity Division, in these circumstances, it is appropriate for one piece of legislation to govern both types of relationships.

3.33 In modern legislation, there is a tendency for legal rights and obligations to attach to relationships based on whether or not recognition of a particular relationship accords with the policy objectives of the legislation. Rather than focusing on formal categories of relationship, it is the substance of the relationship that is important. The PRA enables this type of approach to be taken to relationship recognition by defining three categories of relationship, namely de facto relationships, close personal relationships and the composite category of domestic relationship. This tripartite categorisation acknowledges that for certain legal purposes it is appropriate to distinguish between couple and non-couple relationships, while for other legal purposes it is appropriate to recognise both types of relationships.

3.34 Having regard to the nature of the relationships that are recognised, and to the consequences of such recognition, it is appropriate for de facto relationships and close personal relationships to continue to be regulated by the same piece of legislation. Both types of relationships involve the intermingling of the parties’ lives and a likelihood of financial interdependence. Against this background it is appropriate that the Courts have the ability to consider whether any form of property adjustment or financial maintenance is appropriate should the relationship end. While close personal relationships and de facto relationships may have very different characteristics, the Commission shares the view of the Judges of the Equity Division of the Supreme Court that the differences can be accommodated by the orders made by the Courts. The existence of the differences does not affect the shared characteristics, which bring both types of relationship within the policy objectives of the PRA.

3.35 The merging of de facto relationships and close personal relationships for the purposes of the PRA has not precluded other areas of the law from acknowledging the fundamental differences between these relationships. For example, a substantial number of statutes confer rights and/or obligations on de facto partners but not on the broader category of domestic partner. One such statute is the Human Tissue Act 1983 (NSW), under which a de facto partner, but not a domestic partner, has the ability to authorise the removal of an organ from their deceased partner.³⁴ This reflects the mutual emotional intimacy that characterises a couple relationship, but may often be absent in a non-couple relationship. By contrast, only a limited number of statutes attach legal consequences to domestic relationships. Other than the PRA, the Family Provision Act 1982 (NSW),³⁵ Duties Act 1997 (NSW),³⁶ Powers of Attorney Act 2003 (NSW),³⁷ Bail Act 1978 (NSW)³⁸ and District Court Rules 1973 (NSW)³⁹ are the only legislative instruments that confer rights or obligations on domestic partners or otherwise recognise domestic relationships.⁴⁰

Table of contents

1. For a comprehensive overview of the history of this legislation, see J Millbank, “The Property (Relationships) Legislation Amendment Act 1999 (NSW)” (1999) 13 Australian Journal of Family Law 93. See also Lesbian and Gay Legal Rights Service, The Bride Wore Pink: Legal Recognition of Our Relationships (2nd ed, Sydney, 1994).

2. NSW, Parliamentary Debates (Hansard) Legislative Council, 13 May 1999 at 229.

3. NSW, Parliamentary Debates (Hansard) Legislative Assembly, 25 May 1999 at 296.

4. For example, Dridi v Fillmore [2001] NSWSC 319; Devonshire v Hyde [2002] NSWSC 30; Woodland v Rodriguez [2004] NSWSC 1167; Nedljkovic v Orozovic [2005] NSWSC 755; Gollege v Donnachie [2005] NSWSC.

7. Bogan v Macorig [2004] NSWSC 993. In Dridi v Fillmore, Devonshire v Hyde and Woodland v Rodriguez, the “personal care” requirement was also not satisfied and the claims failed.

8. [2001] NSWSC 632. A close personal relationship was also proved in Przewoznik v Scott [2005] NSWSC 74.

9. J Millbank and K Sant, “ A bride in her every-day clothes; same sex relationship recognition in NSW” (2002) 22 Sydney Law Review 181 at 207-208.

11. Gay and Lesbian Rights Lobby Inc, Final submission at 5. By contrast, the De Facto Relationships Amendment Bill 1998 had envisaged a wider application to cover non-cohabiting non-sexually intimate relationships where there was emotional or financial interdependence: see Sch 1[4].

12. NSW, Legislative Council, Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Inquiry into De Facto Relationships Legislation) (Report 20, Parliamentary Paper No. 127, December 1999) at 50-55.

14. NSW, Legislative Council, Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Inquiry into De Facto Relationships Legislation) (Report 20, Parliamentary Paper No. 127, December 1999) Recommendation 8 at 55.

17. In one recent case, the Court held that a close personal relationship did not exist because the parties did not live together, impliedly meaning that they did not cohabit: see Kolar v Dernovsek [2005] NSWSC 838.

19. NSW Young Lawyers, Submission at 2. See also Anglican Diocese of Sydney, Submission at 3; Anti-Discrimination Board of NSW, Submission at 8. But contrast this with the opposing views of Lesbian and Gay Solidarity, Submission at 2; Gay and Lesbian Rights Lobby Inc, Final submission at 5-6.

21. Equity Division of the Supreme Court of NSW, Submission at para 49; NSW Young Lawyers, Submission at 6-7; Victorian Bar, Submission at para 12, 51; Law Society of NSW, Submission at 6-7. But see Gay and Lesbian Solidarity, Submission at 3; Gay and Lesbian Rights Lobby Inc, Final submission at 5-6. The Gay and Lesbian Rights Lobby submitted that if there were concerns to exclude unmeritorious claims for financial adjustment, with respect to both de facto and close personal relationships, then these concerns could be met by means other than a blanket prohibition.

23. Relationships Act 2003 (Tas) s 5(1). Note that parties in a close personal relationship must live together for two years before they can make a claim for financial adjustment under the Act: see s 37(1) (subject to exceptions in s 37(2)-(3)).

27. Such relationships are called “caring relationships”, while the Tasmanian equivalent of “de facto relationship” is a “significant relationship”: Relationships Act 2003 (Tas) s 4.

35. A party to a domestic relationship and child who is a child of the parties to a domestic relationship, by virtue of s 5 of the PRA, are defined as an “eligible person” for the purposes of provision orders: Family Provision Act 1982 (NSW) s 6.

36. Domestic relationships are recognised for the purposes of various exemption provisions: Duties Act 1997 (NSW) s 68, 119 and 267.

37. In Schedule 3, which deals with the prescribed expression that authorises an attorney to give a gift, relatives of either party to a domestic relationship are recognised as a “relative” of the person giving the power of attorney.

38. Section 4 includes a party to a domestic relationship within the meaning of “close relative”. It also defines close relatives of one party to a domestic relationship as being close relatives of the other party.

39. Rule 2, Part 31A provides that a person with whom a judgment debtor is in a domestic relationship can make certain applications of behalf of the judgment debtor.

40. The Coroners Act 1980 (NSW) and Trustee Act 1925 (NSW) recognise children who are regarded as a child of the parties to a domestic relationship, by virtue of s 5 of the PRA: Coroners Act 1980 (NSW) s 4 and Trustee Act 1925 (NSW) s 45.