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

The PRA should be reviewed within five years of amendment to ascertain whether it is achieving its objectives.

The Property (Relationships) Act 1984 should be renamed the Relationships Act 1984.

An education strategy should be implemented to raise awareness of rights and obligations under the PRA among those directly affected by it.

The definition of “de facto relationship” in s 4(1) of the PRA should be amended to dispense with any suggestion that the parties to the relationship must cohabit.

Section 4(2)(i) of the PRA should be amended to require the Court to consider, where relevant, possible reasons for parties not holding themselves out publicly as a couple, arising from the social context in which their relationship existed.

If a system of registration of domestic relationships is implemented (see Recommendation 15), the PRA should be amended to provide that proof of registration of a de facto relationship is proof of the relationship.

The following statutes should be amended to include a party to a de facto relationship within the meaning of the PRA, or a de facto relationship within the meaning of the PRA, in their definitions:

Consistent PRA-referenced definitions of de facto partner, spouse and de facto relationship should be used in all relevant New South Wales legislation.

“De facto partner” should be defined as “the other party to a de facto relationship within the meaning of the PRA”.

“Spouse” should be defined as “(a) a husband or wife, or (b) the other party to a de facto relationship within the meaning of the PRA”.

“De facto relationship” should be defined as “a de facto relationship within the meaning of the PRA”.

Existing legislation that deviates from this terminology, either in relation to the definition or to the term itself, should be amended to ensure consistency.

Where legislation uses the term de facto partner, spouse or de facto relationship without defining that term, the legislation should be amended to include the definition set out above.

The definition of “close personal relationship” in s 5(1)(b) of the PRA should be amended to dispense with any suggestion that the two parties to the relationship must cohabit.

The PRA should be amended to provide that, for the purpose of s 5(2)(a), a fee does not include a carer’s pension or allowance under the Social Security Act 1991 (Cth) made to a party to a close personal relationship in respect of care provided by that party to the other party in the relationship.

The PRA should be amended to provide that, in determining whether two persons are in a close personal relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

If a system of registration is implemented (see Recommendation 15), the PRA should be amended to provide that proof of the registration of a close personal relationship is proof of the relationship.

De facto relationships and close personal relationships should continue to be regulated by the same piece of legislation.

The current presumptive approach in the PRA should be supplemented with an optional system of registration. This registration system should be integrated into the PRA, with a new Part being enacted to address registration and consequential amendments being made to other provisions.

New South Wales should seek the support of the Commonwealth for federal legislation that recognises that de facto relationships registered under State law will qualify as de facto relationships for the purposes of federal legislation.

Section 5(3)(d) of the PRA should be amended to define “a child of the parties to a domestic relationship” as including a child for whose day-to-day care and long-term welfare both parties exercise responsibility.

The Status of Children Act 1996 (NSW) s 14(1) and (6) should be reworded in gender neutral terms so as to extend the presumption of parentage to parties to a de facto relationship, as defined in the PRA s 4.

The amendments effected by Recommendation 18 should apply retrospectively, but should not affect the vesting in possession or in interest of any property that happened before the commencement of the amendments.

The law relating to sperm donation, including the legal status of known sperm donors, should be reviewed.

The Adoption Act 2000 (NSW) s 30 should be amended so that the same sex partner of a child’s legal parent is eligible to adopt the child in the capacity of step-parent.

The Adoption Act 2000 (NSW) should be amended to provide that a co-mother is eligible to adopt her child immediately following the birth of the child. The relevant provision should contain a presumption in favour of adoption.

New South Wales should request the Commonwealth to amend FLA s 60H in gender neutral terms so that an automatic child support duty is imposed on co-mothers.

Section 17(1) of the PRA should be amended to provide that, except as provided by subsection (2), a court shall not make an order under Part 3 unless it is satisfied that the parties to the application have been in a domestic relationship for a period of not less than 2 years.

PRA s 17 should not apply to domestic relationships that have been registered in accordance with the system proposed in Recommendation 15.

PRA s 20 should be amended to authorise the court in its discretion to make an adjustment order that seems to it just and equitable, having regard to the circumstances listed in Family Law Act 1975 (Cth) s 79(4), and including those matters listed in the Family Law Act s 75(2).

In reproducing in the PRA the matters listed in the Family Law Act s 75(2), matters related to vested bankrupted property, as articulated in s 75(2)(n)(ii), should not be reproduced in the PRA.

In reproducing in the PRA those matters set out in the Family Law Act s 79(4) and s 75(2), the expressions “child of the marriage” and “children of the marriage” should be redefined as child or children of the relationship, in accordance with Recommendation 17.

In reproducing Family Law Act s 79(4) in the PRA, s 79(4)(f) should be redrafted to refer to an order under the PRA affecting a party to the relationship, or to an order affecting a child of the relationship made under Commonwealth or State law.

New South Wales should pass legislation to mirror the FLA Part 8B (if constitutional difficulties can be resolved).

PRA s 27(1)(a) should be amended to provide an age limit of 18 years for all children. PRA s 30 (1) should be amended consequentially.

PRA s 27(1)(b) should be amended to empower a court to award maintenance where it is satisfied that the applicant is unable to support himself or herself adequately by reason of age or physical or mental incapacity for appropriate gainful employment.

PRA s 27 (1) should be amended by inserting a new sub-paragraph (c) that empowers a court to award maintenance where it is satisfied that the applicant is unable to support himself or herself adequately for any other adequate reason. Consequentially:

PRA s 27(2) should be repealed and, with appropriate alteration of detail, the “s 75(2) factors” under the FLA should apply to the determination of maintenance orders under the PRA.

PRA s 32(1)(c) should be amended to provide that a maintenance order in favour of a party to a de facto relationship shall cease to have effect when that party enters into a marriage or remarriage or registered relationship with another person unless in special circumstances a court orders otherwise.

FLA s 75(2)(m) should be translated into the PRA as follows: “If either party has entered into a de facto relationship with another person – the financial circumstances relating to that relationship”.

The PRA should be amended to provide that a party to proceedings under Part 3 must make full and frank disclosure of all information relevant to the case in a manner prescribed by the Regulations.

The Property (Relationships) Regulation 2005 (NSW) should be amended to provide a non-exhaustive list of what a party to proceedings under Part 3 of the PRA must disclose about his or her financial circumstances. The list should reflect the Family Law Rules 2004 (Cth) Rule 13.04 with the qualification that “child” must include both legal and functional children. The Regulations should also provide a form of Financial Statement that the parties must file in support of such proceedings (including applications for consent orders). The Financial Statement should reflect that in Form 13 of the Family Law Rules 2004 (Cth).

PRA s 41(1)(a) should be amended to make it clear that the suppression of evidence includes a failure to disclose relevant information as a ground for setting aside or varying an order under Part 3.

PRA s 24 should be amended to provide that an action under s 20 abates where both of the parties die before the proceedings are determined.

PRA s 25 should be amended to provide expressly that, where one of the parties dies after an order under s 20 is made, the order may be enforced by or against, as the case may require, the estate of the deceased party.

PRA s 47 should be amended to provide that solicitors should have a duty to draw the attention of the parties to the desirability of seeking financial advice.

The PRA should be amended to provide that where proceedings are brought under the CRA to vary or set aside the terms of a domestic relationship agreement or a termination agreement, the proceedings must be brought within two years of the date of separation of the parties to a domestic relationship or termination agreement.

PRA s 49 should be amended to cover termination agreements as well as domestic relationship agreements.

Domestic violence should be included as a specific factor for varying or setting aside an agreement.

The PRA should be amended to allow the court to set aside or vary a domestic relationship or termination agreement where it is satisfied that the agreement was obtained by fraud or non-disclosure of a material matter.

The PRA should allow the court to set aside or vary a domestic relationship or a termination agreement where it is satisfied that circumstances have arisen since the time when the agreement was made making it impracticable for its provisions, or any of them, to be carried out. A note in the legislation should give examples of the sort of impracticability that is envisaged.

The PRA should be amended to provide that a court may make an order to set aside or vary a domestic relationship or financial agreement where either party entered the agreement for the purpose of, or for purposes that included the purpose of, defeating third party creditors, or made the agreement with reckless disregard for the interests of third party creditors. ‘Creditor’ should be defined to include a person whom a party to the agreement could reasonably have foreseen as being reasonably likely to become his or her creditor.

PRA s 9 should be amended to confer jurisdiction on the District Court in PRA matters, in addition to the Supreme Court and the Local Court.

The District Court Act 1973 (NSW) should be amended to increase the jurisdictional limit for PRA matters in the District Court to $750,000 and, consequentially, to repeal s 134(3).

The Judicial Commission of New South Wales should provide regular training and development sessions to court staff dealing with relationships matters, with specific emphasis on issues that affect couples in gay and lesbian relationships and close personal relationships.

Courts should keep detailed statistics of the categories of PRA applications, that is the numbers of opposite sex, same sex, and close personal relationships applications.

The PRA should be amended to mirror FLA cost rules to provide for the parties generally to pay their own costs, subject to exceptions, as set out in FLA s 117 and 118.

The PRA should provide that, before referring a matter under the PRA to mediation, a judicial officer must be satisfied that the mediation provider will undertake an initial assessment of the suitability of the matter for mediation.

The PRA should provide that the following factors must be taken into account in considering the suitability of any dispute under the Act for mediation:

(d) the occurrence of violence and/or the risk of future violence between the parties or between one of the parties and a third party (including children of the relationship);

(g) whether one of the parties may be using the mediation tactically to delay or gain some other improper advantage;

(h) the extent to which the issues in dispute are related to any violence between the parties;

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