Page 1927 - Week 07 - Wednesday, 16 June 1993
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This paper proposes that the legislation be 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. This beneficial application of the law is intended to cover a wide range of equitable trust situations. One party may be in a position of financial dominance; in others there will be a form of mutual interdependence. In both cases the issue of a sexual relationship between the parties is irrelevant. The common factor for applicants is to be contribution to financial resources of another, and that alone. It is proposed that a person who fulfils the stipulated requirements should be eligible to apply for a remedy, and that a sexual, marriage-like relationship is not necessary.
However, the law as it stands is an inadequate means for resolving property disputes arising from this type of relationship. The process is complex and costly, and yields unpredictable results, due to its reliance on various highly technical legal principles. The problem is that the rules applied are, for the most part, based on the traditional rules of property, which do not take account of matters such as unpaid labour in the home, and have not adequately evolved to do so. Courts are slowly developing the law of trusts to take some account of them, but the process is increasingly recognised as unsuitable and expensive. There is an urgent need for change to provide this very important source of relief for a substantial number of people in the ACT.
Under present law, when partners do go to court they must use the Supreme Court. The legislation proposed in this paper would also allow for some matters - for example, those involving smaller amounts of property or where the parties agree - to be dealt with by the Magistrates Court. Accordingly, the impact on each may be lessened. Also, as the law will make the position of those in domestic relationships clearer and more straightforward, cases should be much less complex than those presently brought before the court. Court-initiated mediation could prove highly cost-effective, and the Government will pursue this as a possible option. However, the parties involved in support relationships would also have the option of bypassing the legislation by creating their own property and financial agreements, thereby decreasing the courts' involvement in disputes.
Draft legislation that gives effect to this approach has now been prepared, and I am pleased to release this discussion paper that includes the draft Bill and a detailed explanation of the scope of the proposed law. This legislation is the result of careful consideration of the laws in other Australian jurisdictions and the particular needs of the ACT community. Because of the wide impact of the Bill, the community's views are important, not only to ensure that the Bill reflects the interests of as many sections of the community as possible but also to ensure wider acceptance of the legislation. The aim is to design legislation that is appropriate and effective for the ACT. I have therefore set aside a period of two months to allow for comment on the Bill and I look forward to receiving submissions from members of the public and comments from members. The Government is interested in comments on the attached draft Bill and any other proposals that members may have about this very important and, we think, pressing change.
Debate (on motion by Mrs Carnell) adjourned.
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