Report 113 (2006) - Relationships
TABLE OF CONTENTS
Updates and background for this project (Digest) Terms of reference
Participants
List of Recommendations
1. INTRODUCTION
TERMS OF REFERENCE
BACKGROUND TO THE PROPERTY (RELATIONSHIPS) ACT 1984
Report 36
Implementation of Report 36: De Facto Relationships Act 1984
Property (Relationships) Legislation Amendment Act 1999 (NSW)
Report of the Social Issues Committee
Miscellaneous Acts Amendment (Relationships) Act 2002 (NSW)
REFERENCE OF POWERS TO THE COMMONWEALTH
Background to the reference of powers
Benefits of the reference of powers
Limitations of the reference of powers
When will the Commonwealth legislate for de facto couples?
Impact of reference of powers on this review
OVERVIEW OF THE COMMISSION’S APPROACH TO REFORM OF THE PRA
The social and demographic context
Objects and principles of reform
Including an objects clause in the PRA
Further review of the PRA
TERMINOLOGY
The name of the PRA
De facto relationship or civil union
THE CONDUCT OF THIS REVIEW TO DATE
DP 44
Submissions
Questionnaire and focus groups
RAISING PUBLIC AWARENESS
STRUCTURE OF THIS REPORT
2. DEFINING A DE FACTO RELATIONSHIP
INTRODUCTION
THRESHOLD CRITERIA OF A DE FACTO RELATIONSHIP
Cohabitation
Age requirement
Family relationship requirement
INDICIA OF A DE FACTO RELATIONSHIP
The effect of a registration system
CONSISTENT LEGAL DEFINITIONS OF A DE FACTO RELATIONSHIP
Statutes that exclude same sex de facto partners or relationships
Inconsistent terminology
3. DEFINING A CLOSE PERSONAL RELATIONSHIP
INTRODUCTION
CURRENT DEFINITION
CALLS FOR A BROADER DEFINITION
Should people in close personal relationships be required to cohabit?
Approach in other jurisdictions
The Commission’s view
SHOULD DE FACTO AND CLOSE PERSONAL RELATIONSHIPS BE REGULATED BY THE SAME LEGISLATION?
Approach in other jurisdictions
Submissions
The Commission’s view
4. LEGAL RECOGNITION OF DOMESTIC RELATIONSHIPS
INTRODUCTION
CURRENT PRESUMPTIVE APPROACH
ALTERNATIVE APPROACHES
The approach in other jurisdictions
Submissions
Focus groups and questionnaire
THE COMMISSION’S VIEW
Recommended amendments to the PRA
5. RECOGNITION OF FUNCTIONAL PARENT/CHILD RELATIONSHIPS
TERMINOLOGY
INTRODUCTION
Calls for greater recognition of functional parent/child relationships
Recognising functional parent/child relationships in same sex families
The legal practicalities of raising a “functional child” in a same sex family
Considerations of this Chapter
THE EXTENT OF RECOGNITION UNDER THE PRA
Property adjustment
Maintenance
Shortening time limits for financial adjustment
Other areas
“Child of the parties” defined
A need for greater recognition?
WAYS OF ACQUIRING LEGAL RECOGNITION AS PARENTS
Parenting orders under the FLA
Presumptive recognition of lesbian co-mothers?
Step-parent adoption
Co-mother adoption
Multi-parent adoption
RECOGNITION FOR CHILD SUPPORT
Commonwealth child support legislation
Maintenance provisions under the PRA
Equitable estoppel
Should a discretionary child maintenance duty be imposed on unmarried step-parents?
Should an automatic duty to support a child be imposed upon co-mothers?
6. THRESHOLD REQUIREMENTS OF FINANCIAL ADJUSTMENT PROCEEDINGS
INTRODUCTION
DEFINITION AND DURATION OF DOMESTIC RELATIONSHIPS
Cohabitation requirement
Exceptions to the two-year duration period
RESIDENCE
The legislative requirements
Forum shopping
The Commission’s view
LIMITATION PERIOD
How it has been interpreted
Is hardship sufficient?
Submissions
The Commission’s view
7. JUST AND EQUITABLE FINANCIAL ADJUSTMENT
INTRODUCTION
OVERVIEW OF SECTION 20
Background: Why s 20 was introduced
Current law: What s 20 provides
How s 20 has been interpreted
OTHER WAYS OF DIVIDING UP PROPERTY: THE FLA MODEL
The FLA model
The FLA model applied in other jurisdictions
New Zealand
DEFINING “JUST AND EQUITABLE”
Defining “just and equitable” in terms of past contributions: the PRA model
Criticisms of the PRA’s approach
OPTIONS FOR REFORM
Adopting the FLA model
Devising a different model
What submissions said
Questionnaire and focus groups
THE COMMISSION’S VIEW
8. THE SCOPE OF THE ADJUSTMENT POWER
INTRODUCTION
THE MEANING OF PROPERTY
FINANCIAL RESOURCES DEFINED
SUPERANNUATION
The practical importance of superannuation
Current treatment of superannuation under the PRA
The FLA approach
Constitutional constraints on reform of the PRA
Submissions
The Commission’s view
CONTRIBUTIONS MADE BEFORE OR AFTER THE RELATIONSHIP
When does a de facto relationship end?
Effect of periods of separation
Post separation contributions
9. DOMESTIC VIOLENCE AND PROPERTY ADJUSTMENT
INTRODUCTION
EXPERIENCES OF DOMESTIC VIOLENCE
THE FAMILY COURT’S APPROACH TO DOMESTIC VIOLENCE
THE APPROACH IN NEW SOUTH WALES
RECOGNISING VIOLENCE AS RELEVANT TO PROPERTY PROCEEDINGS
Arguments against recognising domestic violence
Arguments in favour of recognising domestic violence
Submissions
The Commission’s view
WAYS OF TAKING ACCOUNT OF DOMESTIC VIOLENCE IN PROPERTY PROCEEDINGS
Criticisms of the current approach
Proposals to reform the current approach
Responses to DP 44
The Commission’s view
10. PARTNER MAINTENANCE
INTRODUCTION
THE RELATIONSHIP BETWEEN MAINTENANCE AND PROPERTY ADJUSTMENT
Is maintenance necessary?
Empirical information
The Commission’s view
CIRCUMSTANCES IN WHICH MAINTENANCE SHOULD BE AVAILABLE
Custodial maintenance
Rehabilitative maintenance
A catch-all provision?
FACTORS RELEVANT TO THE COURT’S DETERMINATION OF MAINTENANCE
MAINTENANCE AND SOCIAL SECURITY
11. ASPECTS OF FINANCIAL ADJUSTMENT PROCEEDINGS AND ORDERS
DISCLOSURE
The obligation to disclose
Effect of non-disclosure
Disclosure rules in other jurisdictions
Failure to disclose and varying or setting aside the order
Submissions
The Commission’s view
VARIATION OF ORDERS AND THIRD PARTIES
Submissions
The Commission’s view
DEATH OF A PARTY
Where both parties die during proceedings
Enforcement of orders by or against the estate
12. FINANCIAL AGREEMENTS
BACKGROUND
Report 36
Property Relationships Act 1984 (NSW)
Family Law Act 1975 (Cth)
The reference of power
The use of financial agreements
MAKING AGREEMENTS UNDER THE ACT
Definition
When will an agreement be binding?
Effect of a binding agreement
CURRENT POWERS TO VARY OR SET ASIDE AGREEMENTS
Contracts Review Act 1980
Common law grounds to set aside or vary a contract
Serious injustice under section 49
ISSUES RAISED IN DP 44
SHOULD SOLICITORS BE REQUIRED TO PROVIDE FINANCIAL ADVICE?
SHOULD FINANCIAL ADVICE BE REQUIRED UNDER THE PRA?
Submissions
The Commission’s view
ON WHAT GROUNDS SHOULD AGREEMENTS BE VARIED OR SET ASIDE?
The application of the Contracts Review Act
Serious injustice under section 49 of the PRA
Is domestic violence adequately covered by the PRA?
Non-disclosure of assets
Impracticability
Rights of third parties
REVOCATION
13. LITIGATION UNDER THE PRA
LEGISLATIVE ISSUES
Conferring jurisdiction on the District Court
Jurisdictional limit
PRACTICE ISSUES
Supreme Court
District Court
Local Courts
EVALUATION OF CURRENT PRACTICE
The need for training and development
Coherence in outcomes through reporting
Need for statistics and education campaign
COST RULES
Costs rules in the Family Court
The appropriateness of the cost rules applicable to PRA matters
The amount ordered
The Commission’s view
14. MEDIATION
WHAT IS MEDIATION?
WHY MEDIATION?
INCIDENCE OF COURT ANNEXED MEDIATION
The Supreme Court
The District Court
Local Courts
Mediation in the Family Court
Recent changes to dispute resolution in the Family Court
ISSUES FOR CONSIDERATION
MANDATORY MEDIATION
SPECIALIST MEDIATORS
The profile of mediators
The Commission’s views
SUITABILITY FOR MEDIATION
The decision to mediate
Matters to be considered when determining suitability for mediation
The Commission’s views
APPENDICES
Appendix A: Submissions received
Appendix B: Focus groups
Appendix C Part A
Appendix C Part B
TABLES
Table of cases
Table of legislation
BIBLIOGRAPHY
INDEX
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