Recommendation 6–1 State and territory tribunals should have jurisdiction to resolve family disputes involving residential property under an ‘assets for care’ arrangement.
6.48 Tribunals should be given jurisdiction over disputes with respect to residential property that is, or has been, the principal place of residence of one or more of the parties to the assets for care arrangement. Access to a tribunal offers a low cost and less formal forum for dispute resolution, in addition to the existing avenues of seeking legal and equitable remedies through the courts. Tribunals are able to resolve disputes in a non-legalistic fashion without regard to formal pleadings and affidavits. This recommendation seeks to provide an alternative avenue for dispute resolution and would otherwise not disturb existing legal and equitable doctrines.
6.49 The tribunal, consistent with the approach in Victoria (see below), would consider the general law of property, but would have a broader jurisdiction to award compensation having regard to contributions of both parties made under the assets for care arrangement. In particular, the tribunal would consider the care and support provided by all parties under an assets for care arrangement as well as the financial contribution to the property.
6.50 Where the tribunal is satisfied that a party has suffered loss as a consequence of a breakdown of a family agreement, the tribunal should award the appropriate remedy that is just and fair having regard to the financial and non-financial contributions of the parties.
6.51 Consistent with the tribunal’s role to provide a quick, simple and informal forum for dispute resolution, the recommendation is limited to disputes over residential property. Recommendation 6–1 excludes disputes involving family businesses and farms, and focuses on domestic disputes involving residential property under assets for care arrangements. More commercial arrangements are better suited to formal adjudication through the courts.
6.52 Often a failed family agreement may involve an older person, their child and their child’s partner. Where the child and their partner are separated and seeking to resolve a property dispute under the Family Law Act 1975 (Cth), the older person may seek to protect their interest in the property by joining proceedings under the Family Law Act 1975 (Cth). This recommendation does not seek to interfere with this jurisdiction.
The role of tribunals in dispute resolution
6.53 Victoria was the first state to establish a combined civil and administrative tribunal—the Victorian Civil and Administrative Tribunal (VCAT). Following the establishment of VCAT in 1998, there is now a civil and administrative tribunal in each state and territory, except Tasmania. By volume of cases, VCAT is the largest tribunal in Australia and has a broader jurisdiction with respect to property matters and civil claims than any other tribunal.
6.54 These civil and administrative tribunals are often referred to as ‘super tribunals’—a single tribunal with broad jurisdiction for administrative review and to resolve civil and commercial disputes replacing dozens of smaller tribunals, boards and panels that had discrete, specialist and narrow remits. The development of these super tribunals has been described as ‘one of the most successful examples of creativity in the area of dispensing of justice that states have embarked upon’.
6.55 Key defining features of these tribunals are that they are able to operate flexibly and with a greater degree of informality than a court. The enabling statutes for the tribunals specifically require them to conduct proceedings with as little formality and technicality and as much speed as the circumstances of the case permit. The tribunals are expressly not bound by the rules of evidence, and have a broad power to inform themselves as they think fit. Nevertheless, the tribunals are bound by the rules of procedural fairness (previously ‘natural justice’) and must act fairly. This flexibility and informality can greatly assist an unrepresented litigant run their legal action when compared to navigating formal court processes.
6.56 Byrne J noted that the enabling statute for VCAT requires the tribunal to act differently from the courts:
This necessarily involves the Tribunal taking a more active role and identifying the real issues between the parties and directing them as to the evidence which legally and logically bears on the issues. It may be, too, that in a given case the Tribunal will itself interrogate witnesses in a manner and to an extent which would not be expected in a court.
6.57 Notwithstanding this, ‘in matters that are complex, or where expert evidence is heard, or where parties are legally represented, the proceedings [in the tribunal] are less informal and often resemble a hearing in a court’. Typically, appeals from the tribunal to the courts are only possible on questions of law. The state and territory tribunals differ in the extent to which there is an internal review or appeals process within the tribunal on matters of fact.
6.58 While the civil and administrative tribunals have broadly similar processes and procedures, their jurisdiction does differ across states and territories. The civil dispute resolution jurisdiction of these tribunals has even been described as resembling ‘a smorgasbord of jurisdictions with little intra-state consistency’.
6.59 Recommendation 6–1 builds on VCAT’s jurisdiction to resolve disputes between co-owners of land and goods. This jurisdiction is unique to Victoria and was established by amendments to the Property Law Act 1958 (Vic) (PLA) in 2006. VCAT may make any order it thinks fit to ensure that a just and fair sale or division of land or goods occurs. The tribunal’s jurisdiction over property disputes between co-owners has an uncapped monetary value.
6.60 Notwithstanding the flexibility to make any order that the tribunal considers ‘just and fair,’ VCAT does not ignore the general law of property. As Senior Member Riegler explained:
Although the Act does not expressly state that the Tribunal’s discretion is to be applied in accordance with the general law, I am of the opinion that to simply determine the issues based on what the Tribunal may, from time to time, consider to be just and fair without having regard to the general law is not an outcome that I consider to be just and fair. The public expect decisions of the Tribunal to be consistent, in terms of applying the law to the facts as found. To disregard the general law may lead to inconsistency in the decisions of the Tribunal which may be difficult to justify on any legal basis.
6.61 VCAT has confirmed that the PLA gives it jurisdiction to make orders with respect to equitable, as well as legal, co-owners. The broad statutory mandate gives VCAT considerable flexibility to arrive at a just and fair sale of the land and a division of the proceeds and/or division of land. Justice Connect observed that
VCAT can order compensation, reimbursement or adjustments to interests between the co-owners reflecting each co-owner’s individual contribution to the property. Contributions may be made through improvements to the property and payment of maintenance costs, rates and mortgage repayments. Conversely, interests may be adjusted to take into account damage caused to the property and the benefit that one co-owner may have had of exclusive possession.
6.62 One of the particular advantages of VCAT having this jurisdiction is that it gives the parties access to alternative dispute resolution (ADR) without going through a number of pre-trial steps, which may be required in the Supreme Courts. VCAT may seek to resolve disputes through mediation or compulsory conferences. Compulsory conferences are similar to mediation in that they are pre-trial, confidential, and ‘without prejudice’ facilitated discussions, designed to assist the parties to resolve their dispute. Unlike mediation, compulsory conferences are only conducted by tribunal members and the role of the tribunal member is to actively assist the parties to reach settlement. As set out in a VCAT Practice Note:
at a compulsory conference the Tribunal Member may express an opinion on the parties’ prospects in the case, or on the relative strengths and weaknesses of a party’s case. The Member will exercise this power if the Member considers it to be of assistance in promoting settlement.
6.63 This more interventionist approach may be better suited to disputes regarding family agreements, where there is often a significant power imbalance between the parties. Seniors Rights Victoria stressed the value of the tribunal’s ADR processes in providing a forum in which family members are required to sit down and resolve disputes. Seniors Rights Victoria highlighted the extent to which these disputes may be resolved through ADR, without needing to be adjudicated by the tribunal.
Support for dispute resolution by a tribunal
6.64 Community Legal Centres and elder abuse advice services, including those with experience of the Victorian approach, supported tribunals having jurisdiction over disputes following the breakdown of family agreements. ARNLA, for example, noted that a ‘tribunal may be a preferable forum to hear and determine disputes about family agreements as tribunals are considered to be less expensive, more expedient, and less formal than courts’.
6.65 Similarly, Seniors Rights Service suggested that
[i]t would be beneficial to have a forum other than the Supreme Court, such as the NSW Civil and Administrative Tribunal, for property orders to be made in relation to family agreements to reduce time, cost, and stress for older people in bringing proceedings against family members.
6.66 Seniors Rights Victoria highlighted the value of a tribunal process in assisting older people to resolve failed family agreements:
This jurisdictional change [in Victoria] has provided ‘co-owners’ with a much greater ability to institute proceedings to resolve disputes though less expensive and onerous processes than previously existed for Supreme Court matters. This has also provided a significant benefit to older people where Assets for Care situations have failed, and they seek to recover their financial contribution to the purchase of a property in conjunction with other family members.
6.67 Justice Connect also noted that tribunal processes offer a number of benefits, including that ‘the ability to decide equitable interests in property accommodates the informal nature of family arrangements that can give rise to these disputes and recognises the dynamics of elder abuse’.
Defining the tribunal’s jurisdiction
6.68 One of the key limitations of the Victorian model is that it is restricted to co-owners of land in law and equity. However, it may well be that, in a majority of family agreement disputes, the older person has no property interest as co-owner unless established through, for example, equitable estoppel. If they do have an interest in property, that interest may be a life interest, an equitable lien or licence to reside in the property. The ALRC recommends that the tribunal’s jurisdiction encompass any type of legal or equitable interest an older person may have in their current or former principal place of residence. The tribunal’s jurisdiction should allow the tribunal to consider the respective contributions, financial and non-financial, under the family agreement. This approach is consistent with the recommendation from the Seniors Legal and Support Service Hervey Bay, that
[t]here be established an easily accessible Tribunal which has the power to deal with all issues arising from the breakdown of family agreements, not just the issues relating to any real property in which the older person has an interest.
6.69 By focusing on contributions, the tribunal would be able to fully consider the care and support provided by the parties to each other. This addresses a principal criticism that the law of equity in relation to family agreements only considers the asset side of ‘assets for care’, and not the care side. That is, the law of equity as applied to family agreements is focused on financial contributions towards the purchase of property or renovations to property and not the non-financial contribution of care and support provided.
6.70 The Law Council of Australia supported a tribunal jurisdiction to resolve disputes involving assets for care arrangements and suggested the jurisdiction should be
defined in a way that ensures parties to assets for care arrangements have a forum to resolve their dispute and that there are appropriate remedies available, including, non-monetary, monetary and real property. Further, the Law Council supports the proposition that general principles of property law should apply in all cases. Where a former property or principal place of residence of the older person in an assets for care arrangement has been disposed of to a third party bona fide purchaser for value without notice, property law principles will ensure an innocent third party purchaser is not unfairly disadvantaged where assets for care arrangements fail. Nonetheless, the victim should still be able to claim compensation from the perpetrator.
6.71 The ALRC agrees that the tribunal should be able to award equitable remedies as suggested by the Law Council of Australia and that their availability and amount be calculated in accordance with equitable principles. The ALRC also agrees that the general laws of property should protect third party purchasers from claims in relation to failed assets for care arrangements.
6.72 Some stakeholders suggested that the presumption of advancement should not apply in the case of older persons and their adult children. Given the breadth of the tribunal’s jurisdiction as proposed, the ALRC considers that this change is not necessary. Moreover, the ALRC is concerned that altering equitable doctrines may have broader ramifications outside the context of elder financial abuse.
6.73 The tribunal’s jurisdiction should be defined by the relationship of the parties, that is, a familial or ‘familial like’ relationship. This would enable a tribunal to easily confirm its jurisdiction by ascertaining the nature of the relationship between the parties to the proceedings.
6.74 Defining the jurisdiction of the tribunal on the basis of family relationship may be considered novel, given that this has previously only been done in relation to married couples and, more recently, de-facto relationships under the Family Law Act 1975 (Cth).
6.75 A key issue explored in the Discussion Paper was how widely ‘family’ should be defined for the purposes of the tribunal’s jurisdiction. The ALRC was concerned to ensure that individuals living in non-traditional families would be included.
6.76 There was significant support for a definition of family that was broad and recognised the diverse range of relationships that may exist in assets for care type arrangements. For example, Disabled People’s Organisations Australia suggested that
[u]nderstandings of ‘family’ must be flexible enough to consider a wide range of non-traditional family and family-type arrangements, including cultural understandings of extended family and kinship arrangements, and how these may differ between various groups and communities.
6.77 Such an approach was supported by stakeholders such as FECCA, the Victorian Multicultural Commission and State Trustees (Vic).
6.78 The Law Council of Australia, Eastern Community Legal Centre, and the Office of the Public Advocate (Vic) also suggested the definition of family in the Family Violence Protection Act 2008 (Vic) be adopted when implementing Recommendation 6-1. In that Act, family is defined broadly:
Meaning of family member
(1) For the purposes of this Act, a ‘family member’, in relation to a person (a ‘relevant person’), means—
(a) a person who is, or has been, the relevant person’s spouse or domestic partner; or
(b) a person who has, or has had, an intimate personal relationship with the relevant person; or
(c) a person who is, or has been, a relative of the relevant person; or
(d) a child who normally or regularly resides with the relevant person or has previously resided with the relevant person on a normal or regular basis; or
(e) a child of a person who has, or has had, an intimate personal relationship with the relevant person.
(2) For the purposes of subsections (1)(b) and (1)(e), a relationship may be an intimate personal relationship whether or not it is sexual in nature.
(3) For the purposes of this Act, a ‘family member’ of a person (the ‘relevant person’) also includes any other person whom the relevant person regards or regarded as being like a family member if it is or was reasonable to regard the other person as being like a family member having regard to the circumstances of the relationship, including the following—
(a) the nature of the social and emotional ties between the relevant person and the other person;
(b) whether the relevant person and the other person live together or relate together in a home environment;
(c) the reputation of the relationship as being like family in the relevant person’s and the other person’s community;
(d) the cultural recognition of the relationship as being like family in the relevant person’s or other person’s community;
(e) the duration of the relationship between the relevant person and the other person and the frequency of contact;
(f) any financial dependence or interdependence between the relevant person or other person;
(g) any other form of dependence or interdependence between the relevant person and the other person;
(h) the provision of any responsibility or care, whether paid or unpaid, between the relevant person and the other person;
(i) the provision of sustenance or support between the relevant person and the other person.
A relationship between a person with a disability and the person’s carer may over time have come to approximate the type of relationship that would exist between family members.
(4) For the purposes of subsection (3), in deciding whether a person is a family member of a relevant person the relationship between the persons must be considered in its entirety.
6.79 The ALRC considers that such a definition may be a useful template as it includes both family relationships and ‘family-like’ relationships, including relationships between a carer and care recipient in certain circumstances. It would enable sufficient flexibility to address a range of concerns expressed by stakeholders’ such as:
Not only do we have a limited understanding of caring relationships with our current ageing population, it is also difficult to project what types of relationships may be formed in the future, as the idea of ‘family’ evolves over time. There are many factors that may challenge the traditional role of the adult child caring for their ageing parents, including: pressure on children to remain in the workforce as their parents age; ageing adults who decided not to have children; older people who have become estranged from their ‘family’, for example some members of the LGBTI community, and have ‘family members of choice’.
6.80 Nevertheless, when implementing Recommendations 6–1 some refinement of the definition of family may be required, given the intergenerational nature of elder abuse when compared to family violence. For example the definition of family in the Family Violence Protection Act 2008 (Vic) starts with domestic partners and persons in intimate personal relationships, whereas when defining family for the purposes of Recommendation 6–1 it may be appropriate to start with familial relationships such as the child/parent relationship and relationships between grandparents and grandchildren.
Family Law Act 1975 (Cth) s 79F.
The Victorian Civil and Administrative Tribunal (VCAT) was established by Victorian Civil and Administrative Tribunal Act 1998 (Vic).
The Victorian Civil and Administrative Tribunal (VCAT) was established by the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the State Administrative Tribunal (SAT) was established by the State Administrative Tribunal Act 2004 (WA), the ACT Civil and Administrative Tribunal (ACAT) was established by the ACT Civil and Administrative Tribunal Act 2008 (ACT), the Queensland Civil and Administrative Tribunal (QCAT) was established by the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the NSW Civil and Administrative Tribunal (NCAT) was established by the Civil and Administrative Tribunal Act 2013 (NSW), the South Australian Civil and Administrative Tribunal (SACAT) was established by the South Australian Civil and Administrative Tribunal Act 2013 (SA), and the Northern Territory Civil and Administrative Tribunal (NTCAT) was established by the Northern Territory Civil And Administrative Tribunal Act 2014 (NT). Tasmania is considering establishing a super tribunal: Department of Justice (Tas), A single tribunal for Tasmania,Discussion Paper (September 2015).
Victorian Civil and Administrative Tribunal, VCAT Annual Report 2015–16, 3.
Justice Kevin Bell (President, VCAT), ‘The role of VCAT in a changing world: the President’s review of VCAT’, Speech delivered to the Law Institute of Victoria, 4 September 2008.
Bertus De Villiers, ‘Accessibility to the Law—the Contribution of Super-Tribunals to Fairness and Simplicity in the Australian Legal Landscape’ (2015) 39(2) University of Western Australia Law Review 239, 240.
Jason Pizer, ‘The VCAT—Recent Developments of Interest to Administrative Lawyers’  (43) AIAL Forum 40.
Civil and Administrative Tribunal Act 2013 (NSW) s 38(4); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39(1); Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(3)(d).
Civil and Administrative Tribunal Act 2013 (NSW) s 38(3); Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1); South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39(1); State Administrative Tribunal Act 2004 (WA) ss 32(2), (4); Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3).
De Villiers, above n 59, 47.
Winn v Blueprint Instant Printing Pty Ltd  VSC 295 (2 August 2002) .
De Villiers, above n 59, 247.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148; State Administrative Tribunal Act 2004 (WA) s 105.
ACT Civil and Administrative Tribunal Act 2008 s 79(3); Civil and Administrative Tribunal Act 2013 (NSW) s 32; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70.
De Villiers, above n 59, 247.
Property Law Act 1958 (Vic) s 228.
Davies v Johnston (Revised) (Real Property)  VCAT 512 (5 May 2014), .
Garnett v Jessop (Real Property)  VCAT 156 (13 February 2012).
Justice Connect, Submission 182.
Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 83, 88.
Victorian Civil and Administrative Tribunal, Practice Note PNVCAT 4—Alternative Dispute Resolution (2014) 3.
Caxton Legal Centre, Submission 67.
Seniors Rights Victoria, Submission 171.
See, eg, Justice Connect, Submission 182; Caxton Legal Centre, Submission 174; Australian Association of Social Workers, Submission 153; Older Women’s Network NSW, Submission 136; Australian Research Network on Law and Ageing, Submission 102; Hervey Bay Seniors Legal and Support Service, Submission 75; Legal Aid ACT, Submission 58; University of Newcastle Legal Centre, Submission 44.
Australian Research Network on Law and Ageing, Submission 90.
Seniors Rights Service, Submission 169.
Seniors Rights Victoria, Submission 171.
Justice Connect, Submission 182.
Kyle, above n 16, 42.
Hervey Bay Seniors Legal and Support Service, Submission 75.
Webb and Somes, above n 12; Justice Connect, Submission 182.
Law Council of Australia, Submission 351.
See, eg, Justice Connect, Submission 182; Seniors Rights Service, Submission 169; Webb and Somes, above n 12.
Australian Law Reform Commission, Elder Abuse, Discussion Paper No 83 (2016) question 8–1.
Ibid ch 8.
Disabled People’s Organisations Australia, Submission 360.
State Trustees (Vic), Submission 367; Victorian Multicultural Commission, Submission 364; FECCA, Submission 292.
Eastern Community Legal Centre, Submission 357; Law Council of Australia, Submission 351; Office of the Public Advocate (Vic), Submission 246.
Family Violence Protection Act 2008 (Vic) s 8.
Justice Connect Seniors Law, Submission 362.