How to define family?

Question 8–1              How should ‘family’ be defined for the purposes ‘assets for care’ matters?

8.54       The tribunal’s jurisdiction could be defined by the relationship of the parties, that is, a familial relationship.  This would enable a tribunal to easily confirm its jurisdiction by ascertaining the nature of the relationship between the parties to the proceedings.

8.55       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).

8.56       The approach would exclude from the tribunal’s jurisdiction disputes between friends as well as older persons and their carers. However, as outlined above, few older people are living with non-relatives outside of residential aged care. Older people are ten times more likely to be living with a child or family member than a non-family member.[55] Another reason for defining the tribunal’s jurisdiction in this way is that it is the very nature of familial relationships, which are grounded in trust, that are more likely to produce informal and unwritten arrangements.

8.57       The key issue is then how widely ‘family’ should be defined for the purposes of the tribunal’s jurisdiction. Individuals living in non-traditional families should not be excluded. The ALRC suggests including de-facto relationships as defined in s 4AA of the Family Law Act 1975. This definition includes same sex de-facto relationships. The definition of family should be broad enough to cover situations where one partner in a de-facto relationship passes away and the surviving spouse may wish to enter into a family agreement with their deceased partner’s child or niece/nephew. Similar arrangements may be put in place where one spouse has gone into residential aged care.

8.58       The ALRC welcomes submissions on how broadly ‘family’ should be defined for the purposes of determining the jurisdiction of the tribunals in assets for care arrangements.