Useful links are found within each of the following sections:
Case Study 1: Property division on relationship breakdown
Case Study 2: Recognition of relationship; property division on relationship breakdown
Case Study 3: Parenting orders sought by non-biological mother
Case Study 4: Biological mother's partner wants to go on parenting after mother's death
Case Study 5: Biological parents (gay and lesbian) share parenting with their partners and significant others
Case Study 6: Domestic partners and next of kin: dealing with illness and hospitals
Case Study 7: Providing for both a domestic partner and family responsibilities in a Will.
Case Study1: Property division on relationship breakdown
Michael and Ben (not their real names) have been living together in a relationship for 7 years. They live in country Victoria on a 40-acre rural property that was bought in Michael's name and paid for using Michael's savings 5 years ago.
Together they built a house on the property. They both contributed financially to building the house and improving the property. Ben designed the gardens. Together they established a horse agistment business on the property. The relationship has now ended and Michael has asked Ben to leave the property. Ben wants to take legal action to obtain a financial settlement that reflects his work and contribution to the property during their relationship.
What are Ben's legal options?
What are Michael's?
Commentary:
Ben has an equitable interest in Michael's property by virtue of the common law, as well as Part IX of the Property Law Act 1958 (Vic). The Statute Law Amendment (Relationships) Act 2001 provides that Ben and Michael will now be defined as 'domestic partners' under section 275 of the Property Law Act. Michael might try to argue that Ben is not his 'domestic partner' at all (i.e. deny that they lived on a 'genuine domestic basis') and that they were merely business partners in the horse agistment business. The purpose of this argument would be to defeat Ben's ability to claim under the Property Law Act.
Ben's legal options are twofold:
1. Property Law Act
He can apply to either the County Court or Supreme Court, depending on the value of the land, for an order for adjustment of property interests under section 285 of the Property Law Act. The court would have to take into account both his financial and non-financial contributions to the acquisition, conservation and improvement of the property under section 285(1). The fact that the property was put into Michael's name originally is irrelevant to the determination by the court.
The court would take into account the length of the relationship, Ben's financial contribution to the property, the fact that he designed the gardens (this is a non-financial contribution under section 285 (1)) and the details of their horse agistment business.
Michael's counter-arguments here would be that Ben's financial and/or non-financial contributions to the property were minimal and thus shouldn't be taken into account in any re-adjustment of property interests, considering the Ben had been living 'rent-free' in his (Michael's) premises for seven years.
2. Common law
Ben can also claim in either the County Court or Supreme Court under common law. He has various legal options open to him:
Implied contract - Ben could argue that the purchase of the house and the establishment of the horse agistment business were both part of an implied business contract between him and Michael and thus the breach of the contract now enables a property adjustment to take place. Michael could argue that any implied terms of the contract are too vague to be enforceable and/or that there was no intention by the parties to enter into a contractual relationship - i.e. that this was a personal, not business relationship.
Resulting trust - If Ben put money into the purchase of the property, then he may try to argue that a 'purchase money resulting trust' has arisen. This argument is only available to Ben if he directly put in financial contribution to the property at the time of purchase. If he did, there will be a presumption in his favour that the percentage of his contribution at the time of purchase will be owed to him by Michael.
Common intention constructive trust - If Ben didn't put in a financial contribution at the time of purchase, he might argue that there is a 'common intention constructive trust'. Ben would have to show that the work they both put into the premises showed an implied common intention to own the house together. Ben would need to prove three elements:
- that there was either an express or implied intention that Ben and Michael would own the property together,
- that Ben has acted to his detriment by staying in the property (Michael would probably argue that it was very beneficial for Ben to have moved in with him), and
- that it would be unconscionable for Michael to retain the entire benefit of the property.
Constructive trust based on unconscionable retention of benefit - Finally, if Ben is unable to succeed in the above arguments, he could argue this type of trust. He would have to show:
- that there was a joint relationship,
- that there was a failure of the relationship, and
- that it would be unconscionable for Michael to retain the entire benefit of the property.
This type of trust doesn't require any proof of common intention and thus may be easier to argue.
Whether Ben takes proceedings under the Property Law Act or under common law, he should lodge a caveat over the real estate immediately in order to protect his interest in it.
Case Study 2: Recognition of relationship; property division on relationship breakdown
Andrew and Paul form a relationship. Andrew owns a house and Paul rents an apartment. After 3 months they decide to live together and Paul moves in with Andrew. They live together as a couple for the next 18 months during which time Paul shares all household expenses and contributes a weekly rent set at half the mortgage repayments. They discuss putting the property into joint names.
Paul is offered a highly lucrative 12-month employment contract interstate and relocates, returning home once a month for a 4-day weekend. He continues to contribute to mortgage repayments. Andrew also travels interstate to stay with Paul from time to time.
After 6 months Paul finds out that Andrew began another relationship 3 months after he took the job interstate. They agree to separate. Andrew believes they are quits but Paul believes he is entitled to a share in the property.
What are Andrew's rights?
What are Paul's rights?
What action can they each take?
Commentary:
Paul could argue that he has an equitable interest in Andrew's property by virtue of the common law, as well as Part IX of the Property Law Act 1958 (Vic). The Statute Law Amendment (Relationships) Act 2001 provides that Andrew and Paul will now be defined as 'domestic partners' under section 275 of the Property Law Act.
However, section 281(1) of the Act requires that the parties must have lived together for at least two years. Andrew could argue that Paul moving interstate after 18 months would deny Paul's access to the Property Law Act as the two-year requirement is not satisfied. Paul could attempt to argue that, despite the fact that he moved interstate, the relationship still continued.
Section 275 (2) of the Property Law Act provides various factors to be taken into account in order to define a 'domestic relationship'. Andrew could argue that these factors are missing, particularly after the 18 months he would admit they were together. Specifically he could point to:
section 275 (1) (b) - 'the nature and extent of common residence'
Andrew could argue that Paul's move interstate militates against this factor. Paul's counter-argument would be that his return home every month and Andrew staying with him interstate showed that they were still attempting to maintain a common residence.
section 275 (1) (d) - 'the degree of financial dependence or interdependence'
Paul could argue that the fact he continued to contribute to the mortgage repayments showed a continuation of a financially dependent relationship.
section 275(1) (f) - 'the degree of mutual commitment to a shared life'
Andrew could argue that the fact that he commenced another relationship meant that there was no such mutual commitment once Paul went interstate.
Paul could also attempt an argument under section 281 (2)(b) of the Act. This section provides that if the court isn't satisfied that the relationship lasted for two years, Paul could still have standing under the Act if he can show that he has made substantial contribution to the conservation and improvement of Andrew's property and that for the court to refuse to make an order would result in a serious injustice to him. Andrew's counter-argument may be that Paul's contributions were nothing more than sharing household expenses and that his contribution to the mortgage repayments was merely a weekly rental and did not amount to anything substantial at all.
If Paul is successful in convincing either the County or Supreme Court (depending on the value of the land) of any of the above arguments, then he could apply for an order for adjustment of property interests under section 285 of the Property Law Act. The court would take into account the length of the relationship and Paul's financial contribution to the property. Andrew's counter-arguments here would be that Paul's financial contributions to the property were non-existent and thus shouldn't be taken into account in any re-adjustment of property interests, considering that payments were considered by Andrew to be by way of a rental agreement.
Paul could also claim in either the County Court or Supreme Court under common law. He has various legal options open to him:
Common intention constructive trust - Paul would have to show that the money they both put into the premises showed an implied common intention to own the house together. Paul would need to prove three elements:
that there was either an express or implied intention that Paul and Andrew would own the property together (The fact that they discussed putting the property into joint names would certainly assist him in this argument),
that Paul has acted to his detriment by staying in the property (Andrew would probably argue that it was very beneficial for Paul to have moved in with him, as it provided him with a house at below-than commercial rental) and
that it would be unconscionable for Andrew to retain the entire benefit of the property.
Constructive trust based on unconscionable retention of benefit - If Paul is unable to succeed in the above arguments, he could argue there was this type of trust. He would have to show:
that there was a joint relationship,
that there was a failure of the relationship, and
that it would be unconscionable for Andrew to retain the entire benefit of the property.
This type of trust doesn't require any proof of common intention and thus may be easier to argue. However, Paul may have difficulties proving unconscionability, given the fact that this was a short relationship and his contributions to the asset were, in any assessment of the facts, fairly minor.
Whether Paul takes proceedings under the Property Law Act or under common law, he should lodge a caveat over the real estate immediately in order to protect his interest in it.
Case Study 3: Parenting orders sought by non-biological mother
Two women, Anna and Barbara, have a relationship and live together. Barbara has a child, Caitlin, conceived by artificial insemination using sperm from an anonymous donor, so the father is unknown. After they have been together for 6 years, they decide that Anna should have, and be recognised as having, the same parenting rights and responsibilities as Barbara.
What are the individual legal positions of Anna and Barbara?
What action can they take to recognise Anna's parenting role?
Commentary:
Barbara is the only person recognised by the law as a parent of Caitlin, with parental rights and responsibilities. Anna has no recognition under family law as a parent. The donor has no recognition as a parent.
Anna could apply to the Family Court to be accorded parental rights and responsibilities in relation to Caitlin. This is commonly known as a 'parenting order'.
This would involve an application for the following court orders concerning the care of Caitlin:
A residence order to say that Caitlin will live with Anna (as well as Barbara)
A specific issues order to say that Anna will have the day-to-day care and long-term care of Caitlin (together with Barbara)
With her application Anna would to need lodge an affidavit setting out the history of the relationship and her care for Caitlin, and the reasons why the order should be granted.
Barbara would be the 'respondent' who responds formally to this application. Because Barbara wants Anna to be recognised as her co-parent, she would also lodge an affidavit with the court in which she consents to Anna's application and sets out the reasons why she agrees with Anna. She would also confirm that the child's father's identity is unknown and provide any available supporting evidence of this (e.g. from a clinic).
Anna would also lodge affidavits from friends, staff from the child's school and other community members attesting to their relationship and to the fact that Anna acts as a parent to the child.
It would help Anna if she and Barbara had set out their intentions for her parental rights and responsibilities at the time of Caitlin's birth (and even before), perhaps in a parenting agreement which could be attached to Anna's affidavit. Such agreements are not legally binding but they can help clarify the couple's intentions and can be evidence of these before the court.
It is possible to go through this process without legal assistance, but it can be difficult and Anna and Barbara may want to seek help from a solicitor in drafting and filing the affidavits and applications. However, as very few lesbian couples have sought orders like this, readers should be aware that most solicitors do not know the best way to proceed.
(The Family Court website at http://www.familycourt.gov.au could be a useful place to start as it offers a detailed 'Step by Step Guide to Proceedings in the Family Court' plus downloadable kits for certain types of application. It also explains in simple langauge many of the concepts and terms used in family law ( e.g. what is a 'parenting order') and the rules and policies that currently apply.)
The application would be considered by the Registrar of the Family Court, and may then go before a Judge, who may agree to make the orders requested by Anna. Barbara and Anna may be required to attend counselling and the counsellor may wish to speak to Caitlin. It is important to understand that the Family Court has a duty to make its decisions based on what will be in the best interests of the child, given the particular facts of the case.
It is likely that the orders would be granted in this case. The following factors are in Anna's favour: the father is unknown and there is no challenge to the application; the mother supports the application; there is positive evidence in Anna's favour, in particular that she has lived with and had day-to-day care of Caitlin for her whole life; and there is no evidence that it would be contrary to the child's best interests. But there is no guarantee that she will succeed. The court might decide instead that it is in the child's best interests to maintain the status quo and the judge could refuse the application and make no orders.
Note that, even though she is not recognised as a parent by the law, it is possible that Anna could be required by a court to contribute financial support to Caitlin if she and Barbara were to split up. This might happen if Anna had agreed to and supported Barbara in having Caitlin.
For a further discussion of the role of parenting orders, see also Case Study 5.
Note that Family Court practice in this area is evolving. Non-biological parents who wish to apply for parenting orders should check with the main Family Court Registry in their State as to the best way to proceed.
Case Study 4: Biological mother's partner wants to go on parenting after mother's death
Two women (Chris and Dee) have been living together for 6 years. Chris has three children, aged 9, 11 and 14 from a previous marriage to Tony. The children live with Chris and Dee during the week and with Tony on weekends. (Tony lives quite close by, has remarried and has two other children, aged 2 and 5.) The parenting arrangement between Chris and Tony is one they agreed on together and then had registered as consent orders in the Family Court after they separated. The arrangement was made before Chris' relationship with Dee began and Dee is not mentioned in the consent orders. Dee has a close and loving relationship with Chris' children, particularly the youngest, and Tony is accepting of Chris and Dee's relationship.
Chris is diagnosed with a terminal illness, and expects to die within 6 months. She and Dee agree that they would like to ensure that Dee continues to play a significant role in the children's lives after Chris dies. They are discussing with Tony the possibility of the children continuing to live with Dee part of the time.
What options does Chris have to give legal effect to her wishes?
What is Dee's parenting status and what are her 'rights', if any?
What are the children's rights and what say can they have?
Commentary:
As the biological mother and father, only Chris and Tony are recognised by law as having parental rights and responsibilities. Dee has no parenting status under family law.
The only way to ensure that Dee's parental rights and responsibilities are recognised is for Dee to apply for a parenting order as 'a person concerned with the care, welfare and development of the child'. This is best done with the consent of both Chris and Tony, who would be the formal respondents to the application. The same application process as in Case Study 3 would be followed. Again, the Family Court will make its decision based on what will be in the best interests of the children, given the facts of this case.
Dee could be granted a residence order or a specific issues order, or both. (See Case Study 3. See also the Family Court website at http://www.familycourt.gov.au for information about parenting orders and Family Court application processes. Parenting orders are also discussed in Case Study 5.)
If Chris dies before Dee is able to obtain a parenting order, Dee can still go ahead and seek one. If Tony consents, this will be done by the same process as outlined in Case Study 3. If Tony changes his mind and opposes the order, or if Tony and Dee cannot agree on how much parental responsibility Dee should have, the court could still make an order in Dee's favour. However, the process would become adversarial, which would make it much more difficult, time-consuming and expensive.
If Dee obtains a parenting order but at some later stage after Chris' death Tony changes his mind, he could apply to have Dee's order revoked or changed. This would not be automatically granted-the court would take into account the changed circumstances following the death of Chris and look at the best interests of the children. Dee could still be given a residence or specific issues order, or a contact order (where the children see Dee regularly but do not live with her).
Chris can also appoint Dee a testamentary guardian of her children in her Will. While this would make her wishes clear, it would not be sufficient on its own to give Dee parenting or guardianship rights because Tony, the father of the children, is still alive and able to care for them.
As stated above, all parenting order decisions must be made by the Family Court in the best interests of the children. As the children are aged 9, 11 and 14, they are old enough to express their wishes and this will be taken into account by the court although it does not determine the outcome. The children have a right to separate representation in the court if necessary.
Note that Family Court practice in this area is evolving. Non-biological parents who wish to apply for parenting orders should check with the main Family Court Registry in their State as to the best way to proceed.
Case Study 5: Biological parents (gay and lesbian) share parenting with their partners and/or significant others
Joanne decides to have a child with the assistance of a gay male friend. Her partner, Susie, does not object but does not wish to share in parenting of the child. Joanne and Susie do not live together. The man, Bill, on the other hand, wants to be involved in bringing up the child, as does his live-in partner, Steve. Joanne is quite happy about this. The pregnancy goes smoothly and Joanne has a son, Zac.
Commentary:
As there are so many people involved, we would strongly advise all parties to participate in a parenting agreement. This is not legally binding but helps people clarify their intentions with respect to Zac and is evidence later of what everyone agreed. Preparing a parenting agreement involves sitting down and communicating hopes, plans and desires for the immediate and long-term future of Zac and the entire family.
The law recognises Joanne as a parent because she is the biological mother of Zac. If Zac is conceived by artificial insemination (informally or through a clinic) with Bill as the donor rather than through sex between Joanne and Bill, then Bill will not be recognised as a parent at law, even though he is 'biologically' the father of Zac.
An issue that must be addressed is whether Bill is to be named on Zac's birth certificate. There are pros and cons for this. The issues and legal consequences are discussed in the main text of Over the Rainbow. From Bill's point of view being named on the birth certificate may give him a certain public recognition as Zac's father and he may wish to make this a condition of participating in conception or entering into a parenting agreement. Naming Bill as the father does have social security implications for Joanne. Ultimately the decision is a personal one and may depend on how much involvement, financial or otherwise, Bill and Joanne are happy for Bill to have in Zac's life.
Neither Susie nor Steve are recognised by the law as having any parental rights or responsibilities with respect to Zac. However, to make it clear that Susie has no financial responsibility (in case she and Joanne should split up), her intention not to be a parent should be set out in the parenting agreement.
After the baby is born...
During Zac's first months Steve and Bill visit regularly and take the baby out. Once Zac is weaned, Joanne and Bill agree that Zac can go on overnight and weekend visits to Steve and Bill's house. This evolves into an informal arrangement whereby Zac lives at Joanne's during the week and at Bill and Steve's on most weekends.
Commentary:
Once a parenting agreement has been drawn up, there may be no need to do anything else, provided the agreement is working to everyone's satisfaction and is reviewed regularly to meet everyone's changing needs. However, if for some reason Bill and Steve wish to formalise the arrangement and have their parenting roles legally recognised, they could apply to the Family Court for a parenting order. They would do this as people 'concerned with the care, welfare and development of the child'.
The advantages for Bill and Steve of obtaining a parenting order include:
- A court order gives them a way of enforcing their rights and responsibilities in the event of a dispute with Joanne. (It is important to remember that having an order won't prevent a dispute arising but it may make it easier to resolve.)
- It gives them documentary evidence of their role in Zac's life should they need to produce it (e.g. at a child care centre or a medical practice)
The disadvantages include:
Seeking court orders, even when everyone involved consents, can be time-consuming and expensive.
If a review of the parenting agreement means it is changed significantly, the orders may need to be changed to reflect this, meaning a return to the Family Court.
The cost of doing this could act as a disincentive to properly reviewing the parenting agreement.
Obtaining a court order may shift everyone's focus to gaining and holding on to 'rights' and away from meeting everyone's needs.
People who are sharing parenting responsibilities and who are not in dispute, or who can find other ways of resolving their disputes, need to weigh up carefully the pros and cons of seeking court orders.
If Bill and Steve do decide to seek parenting orders in the Family Court, they would follow the process described in Case Study 3. Joanne would consent to the application. All three would file affidavits setting out their agreement, the circumstances and why the proposed arrangement is in Zac's best interests. Any other affidavits that Bill, Steve and Joanne can obtain in support of the application should be lodged. It is important to understand that the Family Court has a duty to make its decisions based on what will be in the best interests of the child, given the particular facts of the case.
Three years later...
When Zac is 3, Joanne and Susie move in together. Susie is still not interested in playing an active role as a parent, and as a result they move to a new arrangement with Zac spending one week in every three and every weekend at Bill and Steve's. Once he starts school, Zac also spends his school holidays with Steve, who is a teacher.
Commentary:
It would be a good idea to review the parenting agreement at this point to take account of changed circumstances and the evolving needs of the individuals. If orders are in place, Bill and Steve should apply to the Family Court to have them varied. This type of application may be able to be decided by a Registrar.
One parent wants to end the shared parenting arrangement...
When Zac is 11, Joanne and Susie split up and Joanne decides that she wants to move interstate, taking Zac with her. Her co-parents are unhappy with her decision and object. Zac, who has a particularly close relationship with Steve, his father's partner, announces that he does not wish to go and would prefer to live with Bill and Steve.
Commentary:
Whether Bill and Steve have parenting orders or not, they are entitled to object to Joanne's plan to take Zac interstate.
If Bill and Steve do have parenting orders, then Joanne may need to apply to the Family Court to have the order changed in order to take Zac interstate to live.] Bill and Steve would be asked to respond to her application. Bill and Steve could also lodge an application seeking a change to their own residence/contact order, in order to have Zac live with them full-time. Each party would lodge supporting affidavit evidence.
If Bill and Steve had never had parenting orders, they could still apply to the Family Court at this stage for orders giving them parenting rights and responsibilities in relation to Zac. They would file affidavit evidence attesting to the significant role they had played in Zac's upbringing to this point and to the informal arrangements that have existed over the years. They would argue that it would be in Zac's best interests for this shared parenting to continue and that Joanne should be prevented from taking him interstate to live.
It would be best if Bill, Steve and Joanne could participate in a joint counselling session or mediation to try to come to a new agreement about care for Zac that accommodates all of their wishes and is still in Zac's best interests.
As Zac is now 11, his wishes will be taken into account by the court and should be acknowledged and respected by all his parents in these negotiations. He may be entitled to separate representation during any Family Court processes.
Note that Family Court practice in this area is evolving. Non-biological parents who wish to apply for parenting orders should check with the main Family Court Registry in their State as to the best way to proceed.
Case Study 6: Domestic partners and next of kin: dealing with illness and hospitals
George, 60, has been living with Mike, 45, for the last 10 years. One day George is rushed to hospital after suffering a heart attack at work. His office contacts his eldest daughter Judy, 35, who has been listed on George's personnel file as his next of kin for the last 15 years. She leaves for the hospital at once.
A couple of hours later, Mike calls George at work and is told by one of George's co-workers what has happened. He calls the hospital but they are unable to give him any clear information, as George is still in casualty. He goes straight to the hospital and when he arrives, he finds Judy filling in her father's admission forms. She has listed herself as next of kin and as the person to be contacted in any further emergency. Mike suggests that she change this and put his name down, but she refuses. Judy and Mike have had very little to do with each other and in addition she does not really approve of her father's relationship with Mike. Mike then goes to the admissions counter and explains the situation to the staff. They make a note of his name and contact details, but they are uncertain about the legal position and reluctant to override Judy's instructions as the patient's nearest relative.
Over the next couple of days, as George's condition is assessed and a course of action decided, a number of important decisions need to be made, primarily by George but in consultation with Mike as the person he lives with. Mike finds himself increasingly in conflict with Judy who persists in giving hospital staff a distorted picture of George's living arrangements. In addition, not all hospital staff are equally accepting of Mike's role and this often creates difficulties with visiting hours or being given information over the telephone. Mike is reluctant to make a big issue of this because of the stress any open confrontation may cause George.
In the end George is discharged, but is due to return to hospital in 6 weeks' time for a heart by-pass.
What are Mike's rights as George's domestic partner?
What are Judy's rights as George's nearest relative?
What can George do prior to the next hospital visit to strengthen Mike's position and provide for future contingencies?
Commentary:
Hospital's role and duty of care
The hospital has an important legal responsibility in the form of its duty of care to the patient. Hospital policies concerning visiting hours, and who and how many people can see a patient at the same time, will be shaped by this. So will hospital staff's perceptions about who they need to involve in discussions about the patient's progress.
When there is conflict between individuals close to a patient, it is important to remember that the hospital will not place the rights of those individuals above the patient's welfare and right to an appropriate standard of care. The hospital staff will not (or should not) be interested in arbitrating or taking sides in family disputes or in policing partners' and family members' rights. They will be interested in protecting the patient from any stress associated with such disputes, and in facilitating the patient's wishes.
This means that Mike's position will be made easier if George takes the lead in being open about their relationship with hospital staff and acknowledges him as his live-in partner. This will also make it easier for hospital staff to decide how to deal with all concerned and who to consult and share information with about George's ongoing care and welfare.
Families and partners do not have any formal legal right to be consulted about a patient's treatment unless the patient is incapacitated and a partner or family member is required to give consent to treatment on their behalf.
Need for consent to medical treatment
Once a person is admitted to hospital, the hospital must obtain their consent to any treatment or procedure that is proposed. This is because, except in a life-threatening emergency, a person can only lawfully be given medical treatment if they have given their informed consent. As well as obtaining George's consent to treatment, the hospital will also probably want to establish who can give consent on his behalf if he becomes unable of doing so (if, for example, he loses consciousness or has a stroke).
Rights of domestic partner and next of kin
Section 37 of the Guardianship and Administration Act 1986 (Vic.) gives a list of the people who can consent to medical treatment for a 'disabled person' (a person who is incapable of giving informed consent or is unable to communicate that consent). In this list the person's domestic partner (who does not have to be living with them) has the same status as a spouse and takes precedence over their nearest relative.
This means that if the hospital needs to seek someone else's consent to a proposed treatment for George, they should seek Mike's rather than Judy's consent. If Mike is not available or is unwilling to make a decision, then consent can be sought from Judy or, if she is not available, from the older then the younger of her brothers. However, this would only become necessary if George were unable to make or communicate these decisions for himself. Neither Mike nor Judy have any broader legal right to be consulted about George's treatment.
Establishing and having domestic partner rights upheld
In the extremely unlikely event that the hospital required Mike to prove that he was George's domestic partner (for example, because Judy persisted in misrepresenting the relationship and claiming precedence as his nearest relative), he could provide them with a statutory declaration attesting to his domestic relationship with George.
If the staff in question decided not to accept that and to seek consent from Judy rather than Mike, he may need to make use of the hospitals' internal complaints mechanism, for example, by contacting the Complaint Liaison Officer, or speaking to the Director of Nursing or of Medical Services. Ultimately, he could apply to the Victorian Civil and Administrative Appeals Tribunal for a reversal of the hospital's decision; and he could lodge a complaint of discrimination (on the grounds of marital status in the provision of a health service) with the Equal Opportunity Commission. The time involved in either of these courses of action might limit their immediate usefulness.
Using Powers of Attorney and other written authorities
If George wants to take control of deciding who can consent to medical treatment on his behalf in future, he can do so by giving someone a written authority. Although Mike already has status as George's domestic partner, the advantage of having a written authority is that the decision-maker has been directly appointed by the patient; there is no need to establish with the hospital the nature of their relationship to the patient or their status in the patient's life.
If George wants Mike to be the person who is empowered in future to make decisions about his medical treatment he could give Mike his Enduring Power of Attorney (Medical Treatment) or appoint Mike as his Enduring Guardian, or both. A person appointed in either of these ways by a patient takes precedence in decision-making over both a partner and a near relative. Both the Enduring Power of Attorney (Medical Treatment) and the Enduring Guardianship would only take effect if George became incapable of making decisions himself. It is also worth Mike giving George his Enduring Power of Attorney (Medical Treatment) for future eventualities.
The Enduring Power of Attorney (Medical Treatment) is limited to decisions concerning medical treatment, and it can include the authority to refuse treatment other than palliative care. The Enduring Guardianship can be limited to decisions concerning medical treatment or it can be much wider and cover a range of lifestyle and welfare issues. It can, for example, give the Enduring Guardian the power to restrict or exclude visitors to the person who is the subject of the guardianship. George and Mike need to consider whether this is a power George might want Mike to be able to exercise at some point in the future. An Enduring Guardian does not have the authority to refuse medical treatment for the person who is the subject of the guardianship.
An Enduring Power of Attorney (Medical Treatment) can be made under s. 5A of the Medical Treatment Act 1988 (Vic.) and should be drawn up as set out in Schedule 2 of that Act. An Enduring Guardian can be appointed under s. 35A of the Guardianship and Administration Act using Form 1 of Schedule 4 of that Act. Each of these documents needs to be drawn up while the person making the appointments is able clearly to understand their meaning and their effect. There is also provision under these Acts to appoint an alternative agent (power of attorney) and an alternative guardian, in case the original appointee becomes unavailable.
Once George is in hosptial, it is not too late, provided he is capable of doing this, for him to make an on-the-spot appointment of Mike in writing 'to make decisions in relation to the proposed treatment'. While this may have less legal weight than an Enduring Power of Attorney (Medical Treatment) or an enduring guardianship, it is still binding on the hospital. A person appointed in this way also takes precedence in decision-making over a partner or a near relative (s.37 Guardianship and Administration Act).
Discrimination
Sometimes partners in a same-sex relationship are discriminated against in hospital because the nature of the relationship is not clear to staff. However, even same-sex couples who are completely open about their relationship may nonetheless encounter discrimination from individual hospital staff. This is something the hospital can be held accountable for, through the process of lodging a complaint with the Equal Opportunity Commission of discrimination (for example, on the grounds of marital status or sexual orientation) in the provision of a health service.
As the recipient of a health service, George can also consider making a complaint to the Health Services Commissioner if he is unhappy abou the way the hospital has dealt with him and his partner.
Case Study 7: Providing for both a domestic partner and family responsibilities in a Will
George, 60, has been living with Mike, 45, for the last 10 years in a house owned by George. George has already had a heart attack and is scheduled for by-pass surgery, but before he can have the operation he suffers a massive heart attack and dies.
George has three children (Judy, 35, Tony, 33 and Brendan, 20) from a previous marriage to Margaret, 54. George and Margaret separated a year after Brendan was born and were divorced three years later. Margaret has since remarried, but George has continued to support Brendan, who is halfway through a medical degree.
George made a new Will four years ago in which he leaves $20,000 to Brendan, $5,000 to each of his four grandchildren and everything else to Mike, including the house in which they live. Under an earlier Will pre-dating his relationship with Mike, the estate was to have been equally divided between his three children.
Judy and Tony wish to contest the Will. Brendan isn't sure what to do, but is worried about his ability to keep studying.
What are Mike's legal entitlements?
What is the basis, if any, for the others to contest the will?
Commentary:
As an adult (18 or over) George had the right to make a Will leaving his property to whoever he chooses. The law will only intervene in certain limited situations. Broadly speaking, the main avenues for a challenge to a Will are:
the Will is invalid because it wasn't executed (i.e. signed) properly in accordance with the Wills Act 1997;
the Will is invalid because the person making the Will did not have the mental capacity to make it at the time;
the Will is invalid because the person making the Will did so under duress. Note that 'duress' means more than just nagging - it must involve a complete overbearing of the person's decision-making capacity;
the Will needs amending because the person making the Will didn't make provision for someone they had a legal obligation to make provision for. This is called a 'testator family maintenance' claim.
In this case, there don't seem to be any grounds for someone to argue that the Will is invalid. There's no suggestion that George was mentally incompetent at the time and no suggestion that he made the Will under duress, rather than of his own free will. However, there may be a family provision claim available.
Mike is in a strong position. He is the main beneficiary under the Will. Once George made this Will, his previous Will was automatically revoked (i.e. cancelled). Mike is entitled to receive the property left to him by George unless someone else successfully challenges the Will. If there is a successful challenge on the ground that the Will is invalid for one of the reasons outlined above, then the whole Will would be overturned and the previous Will would come into operation. This would mean Mike gets nothing, subject to his making his own testator family maintenance claim. However, as already discussed, this challenge is unlikely. If there is a successful family provision claim, Mike is still likely to be entitled to a substantial share of the estate as the main beneficiary.
It is worth remembering that if George had died without a Will, Mike would have been entitled to the whole of George's estate, as he had been living with George as his domestic partner for the past 10 years. A family provision claim could also be made in this situation, but even if it were successful, Mike would still be likely to be entitled to a substantial share of the estate.
George's children could consider a family provision claim. This involves an application to the Supreme Court (or County Court if it is a small estate) under section 91 of the Administration and Probate Act 1958 (Vic). George's ex-wife, Margaret, has no basis for a claim as she and George are divorced.
Under section 91 the court can order that a share of the estate of a deceased person go to someone who the deceased had a responsibility to make provision for. The court has to decide:
whether the deceased had responsibility to make provision for a person,
and, if so,
whether the Will makes adequate provision for the proper maintenance and support of the person,
and, if not,
how much provision should be made.
The factors to be considered by the court in making these decisions are set out in section 91 of the Administration and Probate Act, as follows:
"(e) any family or other relationship between the deceased person and the applicant, including the nature of the relationship and, where relevant, the length of the relationship;
(f) any obligations or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
(g) the size and nature of the estate of the deceased person and any charges or liabilities to which the estate is subject;
(h) the financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
(i) any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
(j) the age of the applicant;
(k) any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
(l) any benefits previously given by the deceased person to any applicant or to any beneficiary;
(m) whether the applicant was being maintained by the deceased person before that person's death either wholly or partly and, where the Court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
(n) the liability of any other person to maintain the applicant;
(o) the character and conduct of the applicant or any other person;
(p) any other matter the Court considers relevant."
As Judy and Tony are adult children who are financially independent, they probably have no basis for contesting the Will by making a family provision claim. Mere kinship is not of itself enough to give rise to a financial entitlement and justify changing the provisions of a valid Will. The fact that there is an earlier Will leaving a third share to each of them is irrelevant - George is entitled to change his mind about who he leaves his property to and therefore change his Will.
Although Brendan is also an adult child, he may have a claim because George has been financially supporting him through university and he is still only halfway through his degree. This is probably enough for the court to consider that George had a responsibility to provide for Brendan in his Will. The court would then have to consider whether $20,000 was adequate provision. They would want to know how much money George had been spending on Brendan, as this is a measure of the extent to which George had assumed financial responsibility for him. Was he simply paying his HECS fees each year? Was he giving him a small allowance to supplement a part-time job? Or was he fully supporting him?
Another crucial factor that the court will take into account is the size of the estate. That is, the court will consider whether the estate can afford to provide more than $20,000 to Brendan. Anything extra Brendan receives will result in a reduction to the other beneficiaries. The court will weigh up the competing needs and financial resources of the grandchildren and Mike, both now and for the foreseeable future. The court will also take into account any responsibility George may have had to provide for them. An estate that consists only of a house, personal effects and $40,000 in the bank is very different from an estate that consists of a house, personal effects and a $1 million share portfolio. Nevertheless, even with a small estate the court may order that extra provision be made for Brendan if they decide that George's responsibility to him outweighs Mike's entitlement as beneficiary and as domestic partner.
If Brendan is planning to make a claim he must do so within 6 months of the grant of probate. If someone does make a family provision claim the associated legal costs may be considerable and will be taken out of the estate.
