I. INTRODUCTION
In this Outline we list the recommendations made in the Report. The more significant recommendations are printed in bold type. In some cases the words used in the Outline are different from those used either in the text of the Report or in the draft legislation appended to the Report. Where this happens, the Outline must yield to the Report and to the draft legislation.
The Outline gives cross-references to the appropriate paragraphs of the Report and to the draft legislation. The principal Bill is the De Facto Relationships Bill 1983, to which we refer as “Bill”. The cross-reference in Recommendation 1, for example, is to paragraph 10.17 and to the Bill, cl.8. This draws attention to paragraph 10.17 of the Report and to clause 8 of the De Facto Relationships Bill, 1983. Where the cross-reference is to a cognate Bill (that is, one of the related Bills) a full reference is given.
In this Outline the recommendations are not listed in the same order as the recommendations made in the Report. We note at the out set that when we speak of a “de facto relationship” we mean the relationship between a man and woman “living together as husband and wife on a bona fide domestic basis, although not married to each other” (paragraph 17.19; Bill cl.5). Our recommendations do not, however, extend to de facto relationships which cease before the commencement of any legislation based on the Report (paragraph 9.18: Bill, cl.6).
II. PROPERTY DISPUTES
Much of the Report and many of the provisions of the Bill are concerned with disputes over property or maintenance, or both Recommendations 1-7 refer only to property disputes, 8-17 only to maintenance disputes, but 18-26 refer to disputes of both kinds.
A. Declaration of Interests in Property
Recommendation 1:
In proceedings between de facto partners with respect to existing title or rights in respect of property, the court should be expressly empowered to declare the title or rights, if any, that a partner has in that property.
(Paragraph 10.17: Bill cl.8).
B. Contributions
Recommendation 2:
The law relating to property disputes between de facto partners should be changed to allow courts to take into account contributions made by either partner to the acquisition, conservation or improvement of property and to the welfare of the other partner or the family generally. In more precise terms, the contributions to which we refer are the following:
- the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of their property or the property of either of them, or to their financial resources or the financial resources of either of them; and
- the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and any one or more of the following:
(Paragraphs 7.44 and 7.45; Bill cl.20(1))
C. Proceedings for Adjustment of Property
1. The General Principle
Recommendation 3:
Subject to Recommendations 18-21 inclusive, de facto partners should be eligible to apply to a court for orders for the adjustment of their property or the property of either of them, and, on such applications, the court should be empowered to make such orders as to it seems just and equitable having regard to the contributions specified in Recommendation 2. The court should not, before making any such order, be required to make a declaration of the kind referred to in Recommendation 1.
(Paragraphs 7.58, 10.19-, Bill cl.14, 20)
2. Adjournment of Applications
Recommendation 4:
In addition to its ordinary powers of adjournment the court should, in proceedings between de facto partners for the adjustment of property, have a power of adjournment first, where there is a likelihood of a significant change in the financial circumstances of the partners or either of them (for example, by one of them receiving substantial superannuation benefits) and, by granting the adjournment, the court is more likely to be able to do justice between the partners; and, secondly, where proceedings in relation to the property of one of the partners or either of them are commenced in the Family Court of Australia.
(Paragraphs 10.13, 10.14, 9.36; Bill cl.21, 22)
3. Deferment of Orders
Recommendation 5:
Where an order for the adjustment of property has been made against one de facto partner and that partner is soon likely to become entitled to property which may be applied in satisfaction of the order, the court should be able to defer the operation of the order until that event happens.
(Paragraph 10.16: Bill cl.23)
4. Effect on Application of Death of Parties
Recommendation 6:
Where, before an application for the adjustment of property is determined either party to the application dies, the application should be capable of being continued by or against the estate of the deceased party.
(paragraphs 10.33 and 10.34; Bill cl.24)
5. Effect on Potential Applications of Death of Potential Parties
Recommendation 7:
Where a potential applicant for an order for the adjustment of property, or a potential respondent to any such application dies before an application is made, the potential applicant should be left to his or her rights, if any, under the Family Provision Act, 1982, and the estate of the potential respondent should cease to be at risk of any such application.
(Paragraph 10.31 and 10.34, Law Reform (Miscellaneous Provisions) De Facto Relationships (Amendment) Bill, 1983, Schedule 1, clause 1)
III. MAINTENANCE
A. The General Principle
Recommendation 8:
Subject to Recommendation 9, a de facto partner should not be liable to maintain the other partner, and a de facto partner should not be entitled to claim maintenance from the other partner.
(Paragraph 8.27; Bill cl.26)
B. Exceptions to the General Principle
Recommendation 9:
A court should be empowered to make an order for maintenance if, and only if, it is satisfied as to either or both of the following:
- the applicant is unable to support himself or herself adequately by reason of having the care and control of a child of both partners or of the other partner;
- the applicant is unable to support himself or herself adequately because the applicant's earning capacity has been adversely affected by the circumstances of the relationship and, in the opinion of the court, first, an order for maintenance would increase the applicant's earning capacity by enabling him or her to undertake a course or program of training or education and, secondly, having regard to all the circumstances of the case, it is reasonable to make the order.
For the purposes of this Recommendation, a child is a person under the age of 12 years, or a physically or mentally handicapped person under the age of 16 years. We refer to a maintenance order made on the first ground as “child-care maintenance”, and to an order made on the second ground as “rehabilitative maintenance”.
(Paragraphs 8.27 and 8.28; Bill cl.27(2))
C. Maintenance Proceedings
1. Matters to be Taken into Account
Recommendation 10:
In determining whether to make in order for maintenance, and in fixing any amount to be paid under an order, the court shall have regard to
- the income, property and financial resources of each de facto partner (including the rate of any pension, allowance or benefit paid to either partner or the eligibility of either partner for a pension, allowance or benefit) and the physical and mental capacity of each partner for appropriate gainful employment;
- the financial needs and obligations of each de facto partner;
- the responsibilities of either de facto partner to support any other person;
- the terms of any order made or proposed to be made with respect to the property of the de facto partners; and
- any payments made, pursuant to an order of a Court or otherwise, in respect of the maintenance of a child or children in the care and control of the applicant.
(paragraphs 8.35 and 8.39; Bill cl.27(2))
2. Pensions, Allowances and Benefits
Recommendation 11:
The majority of the Division recommend that in proceedings for maintenance, the Court should ensure that the terms of any order, so far as is practicable, will preserve any entitlement of the applicant to a pension allowance or benefit. Mr Justice Nygh dissents from this recommendation.
(Paragraphs 8.39 and 8.40; Bill cl.27(3))
3. Duration of Periodic Maintenance Orders
Child-Care Maintenance
Recommendation 12:
The majority of the Division recommend that there should be no maximum duration imposed on a child-care maintenance order by statute, other than the attainment by the child of the maximum age specified in Recommendation 9. Mr Gressier dissents from this recommendation.
(Paragraphs 8.30-8.32; Bill cl.30(1))
Rehabilitative Maintenance
Recommendation 13:
The duration of a periodic rehabilitative maintenance order should not exceed three years from the date on which the order is made, or four years after the de facto relationship has ended, whichever is the shorter.
(Paragraph 8.33; Bill cl.30(2))
4. Death
Recommendation 14:
Where either party to an application for maintenance dies, the application should abate (terminate) and thereupon the applicant should be left to his or her rights, if any, under the Family Provision Act 1982.
(Paragraphs 10.35-36; Bill cl.31)
Recommendation 15:
Where a potential respondent to an application for maintenance dies before the survivor has made an application the survivor should also be left to his or her rights, if any, under the Family Provision Act 1982.
(Paragraph 10.15)
5. Cessation of Orders
Recommendation 16:
An order for maintenance should cease to have effect
- on the death of the person for whose benefit the order was made;
- on the death of the person against whom the order was made;
- on the marriage or remarriage of the person for whose benefit the order was made; or
- in the view of two members of the Division but not in the view of the other two members, on the entry into a de facto relationship with another person by the person for whose benefit the order was made.
An order for periodic child-care maintenance should cease to have effect when the person for whose benefit the order was made ceases to have the care and control of the child in question.
(Paragraphs 10.25-10.27; Bill cl.32, 33)
6. Variation, etc., of Orders for Maintenance
Recommendation 17:
The court should have power to vary, discharge, suspend or revive an order for periodic maintenance if, since the order was made, the circumstances have so changed that there is justification for so doing. Subject to Recommendation 25, the court should not have this power in relation to any other order for maintenance.
(Paragraphs 10.22, 10.23-, Bill cl.35, 36)
IV. PROPERTY AND MAINTENANCE PROCEEDINGS
A. Prerequisites for the Making of Orders
1. Length of Relationship
Recommendation 18:
In proceedings between de facto partners, the court should make an order for the adjustment of property or for maintenance only where the parties have lived together in a de facto relationship for not less than a specified period, unless the court is satisfied that, even though they have not lived together for that period:
- they have had a child (whether as a result of sexual relations, artificial insemination or adoption); or
- the applicant has made substantial contributions of the kind mentioned in Recommendation 2 for which he or she would not be adequately compensated if an order were not made, or has the care and control of a child of the respondent, and the failure to make an order would result in serious injustice to the applicant.
Two members of the Division consider that the specified period should be two years and two members consider that it should be three years.
(Paragraphs 9.7, 9.10; Bill cl.17)
2. Connection with New South Wales
Recommendation 19:
In proceedings between de facto partners, the court should make an order for the adjustment of property or for maintenance only where it is satisfied that at least one of the partners was resident in New South Wales when the proceedings were commenced, and that either both partners were resident here for a substantial proportion of their de facto relationship or that the applicant made substantial contributions of the kind mentioned in Recommendation 2 in New South Wales.
(Paragraph 9.16; Bill cl.15)
3. Time Limit
Recommendation 20:
Subject to Recommendation 21, in proceedings between former de facto partners, the court should make an order for the adjustment of property or for maintenance only where the application for the order was made before the expiration of two years after the date on which the partners ceased, or last ceased, to be de facto partners.
(Paragraph 9.23; Bill cl.18(1))
Recommendation 21:
Where the court is satisfied that greater hardship would be caused to an applicant if leave to commerce proceedings out of time were not granted than would be caused to the respondent if leave were granted, the court should be empowered to grant leave. This power should not, however, extend to an application for an order for rehabilitative maintenance.
(Paragraph 9.233; Bill cl.18(2))
B. Duty to Terminate Financial Relationship
Recommendation 22:
In proceedings between de facto partners for the adjustment of property or for maintenance, the court should, so far as practicable, make such orders as will finally determine the financial relationship between the parties and avoid further proceedings between them.
(Paragraph 9.21; Bill cl.19)
C. Orders that may be Made
1. General Orders
Recommendation 23:
In proceedings between de facto partners for the adjustment of property or for maintenance, the court should have power to do all or any of the following:
- order the transfer of property;
- order the sale of property and the distribution of the proceeds of sale in such proportion as the court thinks fit;
- order that any necessary deed or instrument be executed (if appropriate, by an officer of the court or by some other person appointed by the court) and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
- order payment of a lump sum, whether in one amount or by instalments;
- order payment of a weekly, monthly, yearly or other periodic sum;
- order payment of interim maintenance;
- order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
- appoint or remove trustees;
- make an order or grant an injunction either unconditionally or upon such terms and conditions as it thinks fit;
- for the protection of or otherwise relating to the property or financial resources of the partners or either of them; or
- to aid enforcement of any other order made in the proceedings, or both;
- impose terms and conditions;
- make an order by consent;
- make any other order or grant any other injunction (whether or not of the same nature as those mentioned in the preceding paragraphs) which it thinks it is necessary to make to do justice.
(Paragraphs 9.26, 9.29; Bill cl.38, 39)
2. Ex Parte Orders
Recommendation 24:
In cases of urgency, the court should have power to make an ex parte order for interim maintenance or by way of injunction.
(Bill cl.40)
3. Variation and Setting Aside of Orders
Recommendation 25:
Subject to Recommendation 17, a court should be empowered to vary or set aside orders for the adjustment of property or for maintenance only where it is satisfied that
- there has been a miscarriage of justice by reason of fraud, duress, the suppression of evidence, the giving of false evidence, or any other circumstances;
- it is impracticable to carry out the order, or
- there has been default in carrying out an obligation imposed by the order.
(Paragraph 10.24; Bill cl.41)
4. Transactions to Defeat Claims
Recommendation 26:
The court should be empowered to set aside any disposition (including any sale or gift) designed to defeat an existing or contemplated order for the adjustment of property or for maintenance or which, irrespective of intention is likely to defeat any such order.
(Paragraph 10.37; Bill cl.42)
D. Stamp Duty
Recommendation 27:
Consideration should be given to granting exemptions from stamp duty on documents executed for the purposes of, or in accordance with, an order of a court made in proceedings for the adjustment of property.
(Paragraph 10.38)
V. COHABITATION AND SEPARATION AGREEMENTS
X. Definitions
Recommendation 28:
For the purposes of the De Facto Relationships Bill 1983:
- a “cohabitation agreement” should mean an agreement made between a man and a woman either in contemplation of their entering into a de facto relationship or during the existence of their de facto relationship, and which makes provision with respect to their maintenance or property;
- a “separation agreement” should mean an agreement made between a man and a woman either in contemplation of the termination of their de facto relationship or after the termination of that de facto relationship, and which also makes provision with respect to their maintenance or property.
(Paragraphs 11.1 and 11.53; Bill cl.44(1))
Recommendation 29:
Where a separation agreement is made in contemplation of the termination of a de facto relationship and the relationship is not terminated within three months thereafter, the separation agreement should be deemed to be a cohabitation agreement.
(Paragraph 11.53; Bill cl.44(2))
B. Public Policy
Recommendation 30:
Notwithstanding any rule of public policy to the contrary, a man and a woman who are not married to each other should be able to enter into a cohabitation or separation agreement. These agreements should be subject to and enforceable in accordance with the ordinary law of contract, including the Contracts Review Act, 1980.
(Paragraphs 11.26, 11.29; Bill cl.45, 46)
C. Effect of Cohabitation and Separation Agreements
Recommendation 31:
Subject to Recommendations 34 and 35, in proceedings between de facto partners for the adjustment of property or for maintenance, the court must give effect to the terms of a cohabitation or separation agreement made between the partners if,
- the agreement is in writing and signed by the partner against whom it is to be enforced; and
- each of the partners received separate and independent legal advice before entering into the agreement.
Consequently the general principle is that the courts powers to adjust property or award maintenance should not be exercised so as to vary or override the terms of a separation or cohabitation agreement which complies with these conditions.
(Paragraph 11.37; Bill cl.47(1))
Recommendation 32:
Proof that each of the partners received separate and independent legal advice before entering into the agreement should be provided by certificates in a prescribed form furnished by the solicitors for each of the partners. The prescribed form should specifically state that the solicitor gave advice to the partner concerned in relation to the following four matters:
- the effect of the agreement on the rights of either partner to seek an adjustment of property or to claim maintenance;
- whether or not at the time the agreement was made, it was to the advantage, financially or otherwise, of that partner to enter into that agreement;
- whether or not it was, at that time, prudent for that partner to make the agreement; and
- whether or not, at that time, and in the light of such circumstances as were, at that time, reasonably foreseeable, the provisions of the agreement were fair and reasonable.
(Paragraph 11.38; Bill cl.47(1)(d))
Recommendation 33:
If a cohabitation or separation agreement does not satisfy the conditions specified in Recommendations 31 and 32, the agreement may still be effective as a contract and its provisions may still be enforceable between the partners. However, in proceedings between the partners for the adjustment of property or for maintenance the court may exercise its powers to vary or override the terms of the agreement.
(Paragraphs 11.43, 11.44; Bill cl.48, 49(2))
D. Effect of Changed Circumstances
Recommendation 34:
The court should have power in proceedings between de facto partners for the adjustment of property or for maintenance to vary or override the terms of a cohabitation agreement, even though it complies with the conditions specified in Recommendations 31 and 32, if the circumstances of the parties have so changed since the agreement was entered into that it would lead to serious injustice to enforce the agreement. However, there should be no power to vary or override the terms of a separation agreement on this ground.
(Paragraphs 11.49, 11.51; Bill cl.49)
E. Effect of Revocation or Breach
Recommendation 35:
A court should not be required to give effect to any cohabitation or separation agreement where the agreement has been revoked or has otherwise ceased to have effect.
(Paragraphs 11.54, 11.58; Bill cl.50)
F. Effect of Death
1. Periodic Maintenance
Recommendation 36:
If a cohabitation or separation agreement requires one de facto partner to pay periodic maintenance to the other de facto partner, the agreement should not on the death of the first partner, be enforceable against his or her estate, unless the agreement otherwise provides.
(Paragraph 11.62; Bill cl.51(1))
Recommendation 37:
If a cohabitation or separation agreement requires one de facto partner to pay periodic maintenance to the other de facto partner, the agreement should not, on the death of the second partner, be enforceable by the estate of that partner.
(Paragraph 11.60; Bill cl.51(2))
2. Transfer of Property and Lump Sum Payments
Recommendation 38:
Unless it otherwise provides, a cohabitation or separation agreement which relates to property or lump sum payments should, on the death of one of the partners, be enforceable on behalf of, or against as the case may be, the estate of the deceased partner.
(Paragraphs 11.61, 11.64; Bill cl.52)
VI. SUCCESSION ON DEATH
Recommendation 39:
Where a person dies intestate, and is survived by a spouse and a de facto partner, the de facto partner should be entitled to the spouse's share on the intestacy to the exclusion of the spouse, if, and only if, the de facto partner had lived with the deceased for a period of at least two years prior to his or her death, and the deceased had not lived with his or her spouse during any part of that two year period.
(Paragraph 12.34; Wills, Probate and Administration (De Facto Relationships) Amendment Bill 1983. Schedule 1, clause (4) (b))
Recommendation 40:
Where a person dies intestate and is survived by a de facto partner and also by children of another relationship, but not by a spouse, the de facto partner should be entitled to the share on intestacy to which a spouse of the deceased would have been entitled, if, and only if, the de facto partner had lived with the deceased for a period of at least two years prior to his or her death.
(Paragraph 12.36; Wills, Probate and Administration (De Facto Relationships) Amendment Bill 1983, Schedule 1, clause (4)(b))
Recommendation 41:
Where a person dies intestate and is survived by a de facto partner, but not by a spouse or children of any other relationship, the de facto partner should be entitled to the share on intestacy to which a spouse of the deceased would have been entitled, if, and only if, the de facto partner was living with the deceased at the time of his or her death.
(Paragraph 12.38; Wills, Probate and Administration (De Facto Relationships) Amendment Bill 1983, Schedule 1, clause (4)(b))
Recommendation 42:
Section 61D of the Wills, Probate and Administration Act 1898, should be amended to provide that where a person dies intestate and is survived by a de facto partner who is entitled to succeed on the intestacy under Recommendation 39, 40 or 4 1, and also by issue (such as children or grandchildren), the de facto partner should be entitled to elect to take the interest of the deceased in the “matrimonial” home in substitution for his or her interest on the intestacy.
(Paragraph 12.45: Wills, Probate and Administration (De Facto Relationships) Amendment Bill 1983, Schedule 1, clause (5))
Recommendation 43:
The Wills, Probate and Administration Act 1898, should be amended to enable the court to grant administration of the estate of a deceased person to a person living in a de facto relationship with that person at the time of his or her death.
(Paragraph 12.46; Wills, Probate and Administration (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2))
VII. FATAL ACCIDENTS: THE COMPENSATION TO RELATIVES ACT, 1897, AND THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT, 1944
Recommendation 44:
Section 4 of the Compensation to Relatives Act, 1897, should be amended to allow an action under the Act to be brought on behalf of a de facto partner of a deceased person.
(Paragraph 13.12; Compensation to Relatives (De Facto Relationships) Amendment Bill 1983, Schedule 1, clauses (1) and (2))
Recommendation 45:
The Compensation to Relatives Act 1897, should be amended to provide that where a deceased person is survived by a spouse and a de facto partner, any action under the Act should be brought for the benefit of both. The Act should also provide that the spouse and the de facto partner shall be separate parties to the action.
(Paragraph 13.16; Compensation to Relatives (De Facto Relationships) Amendment Bill 1983, Schedule 1, clause (1))
Recommendation 46:
No minimum period of cohabitation should be prescribed as a prerequisite to the eligibility of a surviving de facto partner to claim under the Compensation to Relatives Act, 1897.
Paragraph 13.19; Compensation to Relatives (De Facto Relationships) Amendment Bill 1983, Schedule 1, clause (2)(b))
Recommendation 47:
The words “husband” and “wife” in section 4 of the Law Reform (Miscellaneous Provisions) Act, 1944, should be defined so as to include the de facto partner of a person “killed, injured or put in peril”, thus enabling a person to recover for injury or mental or nervous shock caused by the death of, or injury to, his or her de facto partner.
(Paragraph 13.28-, Compensation to Relatives (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2))
VIII. DOMESTIC VIOLENCE AND HARASSMENT
A. Powers of the Supreme Court
Recommendation 48:
In proceedings between de facto partners, or on the application of a de facto partner, the court should have express statutory power to make orders:
- for the personal protection of a de facto partner and of a child of the household of the de facto partners against violence, molestation and other forms of harassment; and
- restraining a de facto partner from entering specified places.
(Paragraph 14.34; Bill cl. 53)
Recommendation 49:
A person who has been served with an order of a court of the kind referred to in Recommendation 48, and who knowingly fails to comply with the order should be guilty of an offence.
(Paragraph 14.38; Bill cl.54)
B. Powers of Local Courts
Recommendation 50:
Section 547AA of the Crimes Act, 1900, should be amended to enable an apprehended domestic violence order to be made in cases where a complainant apprehends the commission by his or her partner of conduct consisting of harassment or molestation falling short of actual or threatened violence.
(Paragraph 14.39; Crimes (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2)(a))
Recommendation 51:
Complaints of conduct consisting of harassment or molestation falling short of actual or threatened violence should not render a defendant liable to arrest before the initial hearing.
(Paragraph 14.40; Crimes (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2)(c))
Recommendation 52:
Section 547AA of the Crimes Act, 1900, should be amended for the purpose of extending its application to domestic violence offences committed by a person against his or her former de facto partner.
(Paragraph 14.41; Crimes (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (1))
IX. CHILDREN
A. Custody, Guardianship and Maintenance
We have been directed to take into account the proposed reference by some States to the Commonwealth of powers over the custody, guardianship and maintenance of ex-nuptial children Because of the proposed reference of powers, we make only one recommendation in relation to the custody, guardianship and maintenance of children of de facto relationships.
Recommendation 53
If the proposed reference of powers to the Commonwealth proceeds and if the Commonwealth proposes to legislate pursuant to the reference, the State of New South Wales should request the Commonwealth to confer jurisdiction on the Supreme Court to determine disputes that are subject to the reference of powers. This recommendation is not intended to detract from the primary responsibilityof the Family Court of Australia, following legislation pursuant to the reference of powers, to determine such disputes. Mr Justice Nygh dissents from this recommendation. taking the view that the Supreme Court should not continue to exercise jurisdiction in relation to the custody, guardianship and maintenance of children.
(Paragraph 15.46).
B. Adoption
Recommendation 54:
Section 19 of the Adoption of Children Act, 1965, should be amended to allow an adoption order to be made in favour of de facto partners with respect to a child of either of the partners.
(Paragraph 15.58; Adoption of Children (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2))
Recommendation 55:
De facto partners seeking an adoption order of the kind mentioned in Recommendation 54 should be required to show that at the time of the application for adoption they have been living together in a de facto relationship for at least three years.
(Paragraph 15.58; Adoption of Children (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2))
Recommendation 56:
Subject to Recommendation 55, section 19 of the Adoption of Children Act, 1965, should also be amended to provide that, where there are special circumstances which justify the making of the order, the court may make an order in favour of de facto partners with respect to a child who is a relative of one of the partners and who has been brought up, maintained and educated by the partners as their child.
(Paragraph 15.58; Adoption of Children (De Facto Relationships) Amendment Bill, 1983, Schedule 1, clause (2)
Recommendation 57:
Where the father of an ex-nuptial child has lived with the mother of the child in a de facto relationship in a household of which the child formed part, the consent of the father should be a prerequisite to any order for the adoption of the child.
(Paragraph 15.64)
X. OTHER LEGISLATION
Recommendation 58:
For the purposes of Part IX of the Mental Health Bill, 1983, (which is concerned with the carrying out of certain medical or therapeutic treatments), the term “nearest relative” should include a de facto partner of a patient.
(Paragraph 16.17)
Recommendation 59:
The State of New South Wales should discuss with the Commonwealth the desirability of Commonwealth legislation with respect to life insurance being amended for the purpose of providing protection for a surviving de facto partner of a deceased policy holder.
(Paragraph 16.18)
XI. MISCELLANEOUS
A. The Courts
Recommendation 60:
Where we speak of a “court” or “the courts”, we refer to the Supreme Court or a Local Court, or both. But, in general, a Local Court should not have Jurisdiction in relation to property or maintenance where the value or amount exceeds the amount prescribed, for the time being, in section 12 of the Local Courts (Civil Claims) Act, 1970 (presently $5,000).
(Paragraph 10.41: Bill cl.9, 10)
Recommendation 61:
Where proceedings are instituted in a Local Court with respect to property or maintenance of a value or amount in excess of the prescribed amount. the court should, unless the parties agree to the matter continuing in the Local Court, transfer the proceedings to the Supreme Court.
(Paragraph 10.41; Bill cl.12(1))
Recommendation 62:
A Local Court should have power, of its own motion, to transfer proceedings to the Supreme Court notwithstanding any agreement between the parties.
(Paragraph 10.41; Bill cl.12(2))
Recommendation 63:
The Supreme Court should have power, of its own motion, to transfer proceedings to a Local Court where, in the opinion of the Supreme Court, it is proper to do so and the claim is within the jurisdiction of the Local Court.
(Paragraph 10.41; Bill cl.11(2))
B. Declaration as to the Existence of a De Facto Relationship
Recommendation 64:
The Supreme Court, and only the Supreme Court, should be empowered to make declarations of the kind referred to in Recommendations 65-68 inclusive.
(Paragraph 17.23; Bill cl.56(1))
Recommendation 65:
Where a person alleges that a de facto relationship exists, or has existed, at a specified date, or for a specified period, between that person and another named person, or between two named persons, he or she should be able to apply to the Supreme Court for a declaration that such a relationship exists or did exist.
(Paragraph 17.23; Bill cl.56(1),(2),(3))
Recommendation 66:
While the declaration remains in force, the persons named in the declaration should, for all purposes, be presumed conclusively to have been living in a de facto relationship at the specified date or for the specified period.
(Paragraph 17.23; Bill cl.56(6))
Recommendation 67:
Where a person whose interests would, in the opinion of the court be affected by the making of a declaration is not present or represented at the hearing, and has not had the opportunity to be present or represented the court should be empowered if it thinks that that person ought to be present or represented, to adjourn the hearing in order to enable that person to be given an opportunity to be so present or represented.
(Paragraph 17.24; Bill cl.56(4))
Recommendation 68:
The court should be empowered to make an order annulling a declaration where it appears that new facts or circumstances have arisen that have not previously been disclosed to the court. The annulment should not affect anything done in reliance on the declaration before its annulment.
(Paragraph 17.25; Bill cl.56(7), (8))
C. Enforcement of Orders
Recommendation 69:
In general orders of the courts should be enforced in accordance with existing rules and regulations but special provisions should be made for the enforcement of orders which are not merely orders for the payment of money.
(Paragraph 10.46, Bill cl.58, 59)
D. An Aid to Interpretation
Recommendation 70:
In the interpretation of any Act based on the Bill appended to this Report, it should be permissible to have regard to the Report and to that Bill.
(Bill cl.4)
