22CDe facto relationships

#### 22C De facto relationships (1) For the purposes of paragraph 22A(b), a person is in a de facto relationship with another person if the persons: (a) are not legally married to each other; and (b) are not related by family (see subsection (6)); and (c) have a relationship as a couple living together on a genuine domestic basis. (2) In determining for the purposes of paragraph (1)(c) whether 2 persons have a relationship as a couple, all the circumstances of their relationship are to be taken into account, including any or all of the following circumstances: (a) the duration of the relationship; (b) the nature and extent of their common residence; (c) whether a sexual relationship exists; (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (e) the ownership, use and acquisition of their property; (f) the degree of mutual commitment to a shared life; (g) the care and support of children; (h) the reputation and public aspects of the relationship. (3) No particular finding in relation to any circumstance mentioned in subsection (2) is necessary in determining whether 2 persons have a relationship as a couple for the purposes of paragraph (1)(c). (4) For the purposes of paragraph (1)(c), the persons are taken to be living together on a genuine domestic basis if the persons are not living together on a genuine domestic basis only because of: (a) a temporary absence from each other; or (b) illness or infirmity of either or both of them. (5) For the purposes of subsection (1), a de facto relationship can exist even if one of the persons is legally married to someone else or is in a registered relationship (within the meaning of section 22B) with someone else or is in another de facto relationship. (6) For the purposes of paragraph (1)(b), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect. (7) For the purposes of subsection (6), adopted means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children. Part 2—Amendment of other Acts Federal Magistrates Act 1999 2 Section 5 Insert: > marital or couple relationship has the meaning given by subclause 9E(5) of Schedule 1. 3 Section 5 (definition of marital relationship) Repeal the definition. 4 Section 5 Insert: > partner: a person is the partner of another person if the 2 persons have a relationship as a couple (whether the persons are the same sex or different sexes). 5 Subclauses 9E(2), (3) and (4) of Schedule 1 After “marital” (wherever occurring), insert “or couple”. 6 Subclause 9E(5) of Schedule 1 After “marital”, insert “or couple”. Note: The heading to subclause 9E(5) of Schedule 1 is replaced by the heading “Meaning of marital or couple relationship”. 7 Subclause 9E(5) of Schedule 1 After “husband or wife” (wherever occurring), insert “or partner”. 8 Subclause 9E(6) of Schedule 1 After “marital”, insert “or couple”. 9 After paragraph 9E(7)(b) of Schedule 1 Insert: (ba) the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; 10 At the end of paragraph 9E(7)(c) of Schedule 1 Add: or (iii) a child of both of the persons within the meaning of the Family Law Act 1975; 11 After subparagraph 9F(1)(b)(i) of Schedule 1 Insert: (ia) the person is a child of the Magistrate within the meaning of the Family Law Act 1975; 12 Application of amendments of the Federal Magistrates Act 1999 The amendments of the Federal Magistrates Act 1999 made by this Schedule apply in relation to any payment payable under clause 9D of Schedule 1 to that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person: (a) held office as a Federal Magistrate; or (b) was a retired disabled Federal Magistrate. Judges’ Pensions Act 1968 13 Subsection 4(1) Insert: > child of a marital or couple relationship, in relation to a marital or couple relationship, means: (a) a child born of the marital or couple relationship; or (b) a child adopted by the people in the marital or couple relationship during the period of the relationship; or (c) someone who is, within the meaning of the Family Law Act 1975, a child of both of the people in the marital or couple relationship. 14 Subsection 4(1) (definition of child of a marital relationship) Repeal the definition. 15 Subsection 4(1) Insert: > marital or couple relationship has the meaning given by section 4AB. 16 Subsection 4(1) Insert: > partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes). 17 Subsection 4(1) Insert: > spouse has a meaning affected by section 4AC. 18 After paragraph 4AA(a) Insert: (aa) the child is a child of the deceased Judge within the meaning of the Family Law Act 1975; or 19 Subsection 4AB(1) After “marital”, insert “or couple”. Note: The heading to section 4AB is replaced by the heading “Marital or couple relationship”. 20 Subsections 4AB(1) and (2) After “husband or wife” (wherever occurring), insert “or partner”. 21 Subsection 4AB(3) After “marital”, insert “or couple”. 22 After paragraph 4AB(4)(b) Insert: (ba) the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section; 23 At the end of paragraph 4AB(4)(c) Add: or (iii) a child of both of the persons within the meaning of the Family Law Act 1975; 24 Subsections 4AC(2) and (3) After “marital” (wherever occurring), insert “or couple”. 25 Subsections 10(2), 11(3) and 12(3) After “marital” (wherever occurring), insert “or couple”. 26 Application of amendments of the Judges’ Pensions Act 1968 (1) The amendments of the Judges’ Pensions Act 1968 made by this Schedule apply in relation to any pension payable under that Act in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was a Judge or a retired Judge. (2) The amendments of the Judges’ Pensions Act 1968 made by this Schedule apply in relation to any pension payable under the Building and Construction Industry Improvement Act 2005 in respect of a person who dies on or after the commencement of this Schedule if, at the time of his or her death, the deceased person was or had been the ABC Commissioner. Law Officers Act 1964 27 Subsection 16(1) Omit “other than subsection 6(3) (including the provisions relating to widows and children)”, substitute “other than subsection 4(2) (including the provisions relating to spouses and children)”. 28 Application of amendments of the Law Officers Act 1964 The amendments of the Law Officers Act 1964 made by this Schedule apply in relation to any pension payable under section 16 of that Act because of the application of the Judges’ Pensions Act 1968 in respect of a person who: (a) was appointed as Solicitor‑General before 1 January 1998; and (b) dies on or after the commencement of this Schedule. Part 3—Regulations 29 Regulations may deal with transitional, saving or application matters The Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to amendments and repeals made by this Schedule or any other Schedule to this Act. Schedule 3—Defence amendments Defence Force Retirement and Death Benefits Act 1973 1 Subsection 3(1) (subparagraph (a)(ii) of the definition of child) Omit “and”, substitute “or”. 2 Subsection 3(1) (after subparagraph (a)(ii) of the definition of child) Insert: (iii) was, immediately before the member’s death, someone who would have been the stepchild of the member except that the member was not legally married to a spouse who survives the member; or (iv) is a child of the member within the meaning of the Family Law Act 1975; and 3 Subsection 3(1) (at the end of the definition of child) Add: ; and (c) a person who: (i) is, within the meaning of the Family Law Act 1975, a child of a spouse who survives the member; and (ii) was wholly or substantially dependent upon the member at the time of the member’s death. 4 Subsection 3(1) (definition of eligible orphan) After “pension”, insert “or spouse pension”. 5 Subsection 3(1) Insert: > marital or couple relationship has the meaning given by section 6A. 6 Subsection 3(1) Insert: > partner: a person is the partner of another person if the two persons have a relationship as a couple (whether the persons are the same sex or different sexes). 7 Subsection 3(1) (definition of pension benefit) After “widow’s pension”, insert “, spouse pension”. 8 Subsection 3(1) Insert: > spouse has a meaning affected by section 6B. 9 Subsection 6A(1) Omit “marital relationship”, substitute “marital or couple relationship”. Note: The heading to section 6A is replaced by the heading “Marital or couple relationship”. 10 Subsection 6A(1) After “husband or wife”, insert “or partner”. 11 Subsection 6A(2) After “husband or wife” (wherever occurring), insert “or partner”. 12 Subsection 6A(3) After “marital”, insert “or couple”. 13 After paragraph 6A(4)(b) Insert: (ba) the persons’ relationship was registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901, as a kind of relationship prescribed for the purposes of that section; 14 At the end of paragraph 6A(4)(c) Add: ; or (iii) a child of both of the persons for the purposes of the Family Law Act 1975; 15 Subsections 6B(2) and (3) After “marital” (wherever occurring), insert “or couple”. 16 Paragraph 6BA(1)(b) After “marital”, insert “or couple”. Note: The heading to section 6BA is altered by omitting “marriages” and substituting “marital or couple relationships”. 18 Subsection 49D(1) (note) After “widow’s pension” (wherever occurring), insert “or spouse pension”. 19 Subsection 75(5) Omit “widow’s pension”, substitute “spouse pension”. 20 Paragraphs 98B(4)(ab), (ac) and (c) Omit “widow”, substitute “spouse”. 21 Paragraphs 98D(1)(a), (b) and (c) Omit “widow” (wherever occurring), substitute “spouse”. 22 Paragraphs 98D(2)(a) and (b), (3)(b) and (4)(b) Omit “widow”, substitute “spouse”. 23 Subparagraph 98J(3)(b)(ii) Omit “widow’s pension”, substitute “spouse pension”. 24 Application of amendments of the Defence Force Retirement and Death Benefits Act 1973 The amendments of the Defence Force Retirement and Death Benefits Act 1973 made by this Schedule apply in relation to a benefit payable under that Act in respect of a person who dies on or after the commencement of this Schedule, if, at the time of his or her death, the deceased person was: (a) a contributing member (within the meaning of that Act); or (b) a recipient member (within the meaning of that Act); or (c) a person in respect of whom deferred benefits were applicable under section 78 of that Act. Defence Forces Retirement Benefits Act 1948 25 After section 64 Insert: