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Legislative Assembly for the ACT: 2003 Week 3 Hansard (13 March) . . Page.. 1064 ..
MR STANHOPE
(continuing):This proposal would create a significant change to the law as it currently applies to our notion of living together as a couple on a genuine domestic basis-the stock phrase that is utilised in legislation currently in relation to the establishment of whether a de facto relationship exists. All of the legislation that we are dealing with in relation to domestic partnerships or domestic partners goes to that question of whether a heterosexual couple are living together as a couple on a genuine domestic basis and are thereby de factos.
I take the point made by Ms Tucker in relation to the list of indicators that are now a part of the bill, the list of indicators that have just been included as a result of the successful passage of the last amendment. It is fair to say that there is an implication that a couple do not have to be living together at a moment in time in order to satisfy the accepted definition of living together as a couple on a genuine domestic basis. The examples that Ms Tucker uses are, in fact, examples that come before those that decide questions of fact around whether a couple are living on a genuine domestic basis and there are issues around whether a couple separate for the purpose of work commitments.
At 5.00 pm, in accordance with standing order 34, the debate was interrupted. The motion for the adjournment of the Assembly having been put and negatived, the debate was resumed.
MR STANHOPE
: The common examples of those relationships or partnerships where a couple have been determined to be living on a genuine domestic basis and the couple are not living together invariable would go to issues where they are separated as a result of work commitments, perhaps with one person travelling overseas or commuting to work in another city. Other very common examples are where one or other of the partners takes ill and spends extended periods in hospital, where a partner, through a deterioration in health, becomes a permanent resident of a nursing home, and where one or other of the partners suffers a debilitating disease and is institutionalised in the range of institutions or residences that exist. In some of those circumstances, couples are separated at times for decades. Nevertheless, they are recognised as a couple living together on a genuine domestic basis, despite those degrees of separation.I understand, and it is my department's view, that there is not a single recorded instance of a same-sex couple having been able to satisfy through the courts that they are living in a genuine domestic partnership or relationship where they did not live together. To extend that situation through this legislation to include all relationships is, as I say, a very significant extension of the legislation. But Ms Tucker was right: the question of whether a couple live together on a genuine domestic basis is a question of fact. It therefore is determined according to, or by regard having been had, to all the circumstances that the courts have utilised over the years to determine whether such a relationship exists. We have given some indication of the range of circumstances that should now be taken into account in determining whether such a relationship exists.
They are the points I would make. There is scope within this legislation for couples who are not living together for a range of reasons, where their partnership or their capacity to live together has been either breached or terminated by dint of work or for other reasons decisions are made mutually to live apart for a while.
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