Page 1804 - Week 06 - Thursday, 19 May 1994
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certain limited categories of people - I think it is parents, children and spouses - to make claims where they have not been adequately provided for in a will. If this legislation ultimately covers deceased estates, assuming that it does not now, then obviously that capacity in the Family Provision Act to make such claims will be greatly expanded, and it would be nice to know what the Government's position is on those sorts of matters.
I raise a couple of other issues. Subclause 23(5) of the Bill was picked up by the Scrutiny of Bills Committee. That committee identified an element of potentially burdensome retrospectivity in that the court may make an order decreasing the amount of a periodic sum payable under an earlier order and this may be expressed to be retrospective to such date as the court thinks fit. That might, of course, have some retrospective and disadvantageous elements. I am advised that subsection 83(6) of the Family Law Act, which of course provides similar relief to married people, is in similar terms. Obviously, although it is possible for a court in those circumstances to make an adverse retrospective order, nonetheless it is a court making such a determination in the circumstances of the case. I am personally satisfied that that is sufficient ground to allow retrospectivity to be potentially available as an element of this legislation.
I also draw members' attention to subclause 12(1) of the Bill, which says:
... a court shall not make an order ... unless it is satisfied that a domestic relationship has existed between the applicant and the respondent for not less than 2 years.
I asked whether that two years needs to be a continuous period of two years, and I am advised that indeed it does need to be a continuous period of two years. Possibly that is harsh for people who have been in relationships for broken periods over a period of time, but possibly it is not. I simply raise the issue and draw it to the Assembly's attention so that we can consider in the future whether that is an appropriate way in which the provision should operate.
Madam Speaker, one final point I make is that this Bill confers an equitable jurisdiction on the Magistrates Court. People who are not lawyers would be intrigued by the difference between common law and equity and would be intrigued to know that until about 100 years ago those two different ways of dealing with people's rights were entirely separate and dealt with by completely different courts. It was only about 100 years ago that those two sets of principles were permitted to be dealt with by the same courts. The Minister says two different things in his presentation speech about the equitable jurisdiction. He says on page 6 of his speech:
The purpose of the Bill is to extend and clarify the application of principles of equitable trusts as they relate to domestic situations.
He also says towards the end of the speech, in talking about those same equitable principles again, that what the Bill does is to firmly establish these principles and specifically apply them to domestic relationships on the general principles of common law and equity. I assume that by this he is saying that we are not essentially changing the
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