Family Matters No. 93 - December 2013

Family law update

Sharnee Moore and Rachel Carson

When does a de facto relationship exist?

Determining whether two people have lived together in a de facto relationship … is not always straight forward.

This was the observation made by O'Sullivan FM (now O'Sullivan J) in the decision of Gissing and Sheffield [2012] FMCAfam 1111 [para. 2]. As of 1 March 2009, de facto property/financial matters arising in most Australian states can be dealt with by the Family Court of Australia or Federal Circuit Court of Australia, pursuant to the Family Law Act 1975 (Cth) (FLA).1 Since this time, there has been a developing body of case law applying the definition of a de facto relationship. The decision in Gissing and Sheffield, together with the decision of the Full Court of the Family Court of Australia in Jonah and White [2012] FamCAFC 200, provide recent examples of situations where courts have considered whether a de facto relationship had been established on the facts. The questions of whether a de facto relationship exists or when a de facto relationship commenced, are issues that may emerge as being pivotal in de facto relationship cases. This is because parties may seek to argue that there was no de facto relationship or that the de facto relationship was for a period of less than two years and that in either of such circumstances, there is no basis for property adjustment or maintenance orders pursuant to Part VIIIAB of the Family Law Act 1975 (Cth).2

In Gissing and Sheffield the applicant alleged that he was in a de facto relationship with the respondent, whereas the respondent maintained that "the parties were in a business relationship which ended badly" [para. 3]. In Jonah and White the applicant was appealing from the decision of Murphy J in Jonah and White [2011] FamCA 221 not to declare de facto relationship, in circumstances where the respondent asserted that his relationship with the applicant "was nothing more than 'an affair'" [para. 15]. The preliminary issue for the courts in each of these cases was to determine the nature of the relationship between the parties.

Section 4AA of the FLA defines a de facto relationship as arising where two people "have a relationship as a couple living together on a genuine domestic basis" but are not legally married to each other and are not related to each other by family. The question of whether a de facto relationship has been established is to be considered "having regard to all the circumstances of their relationship". FLA s 4AA(1)(c)) and s 4AA(2) provides that these circumstances may include any or all of the following circumstances:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children;
  9. the reputation and public aspects of their relationship.

No specific findings are required in relation to the above circumstances when determining whether a de facto relationship exists and s 4AA(5) clearly states that a de facto relationship can exist between two persons of the same sex or two persons of different sexes and that a de facto relationship can exist even if one person in the relationship is married to or in a de facto relationship with another person. The onus of proving the existence of a de facto relationship on the balance of probabilities lies with the person making the application for property adjustment or maintenance orders pursuant to Part VIIIAB of the FLA.

The discussion in Gissing and Sheffield (which refers to earlier FCoA and FCC decisions) makes it clear that the court must determine the question of whether there exists a de facto relationship, by reference to the FLA definition set out above rather than by reference to other definitions, to "external society views of what constitutes a de facto relationship … or by what the parties themselves thought their relationship to be".3 O'Sullivan J's consideration of the meaning of "living together" when determining whether a de facto relationship exists, referenced the notion of "coupledom", which was identified in the earlier trial decision of Murphy J in Jonah and White [2011] FamCA 221 as "the core of a de facto relationship", and which involves the "merger of two lives" [para. 60].

The parties in Gissing and Sheffield had been in a relationship for 17 years, and in reaching the finding that this relationship was indeed a de facto relationship for the purposes of the FLA, O'Sullivan pointed to the following features:

  • That although "both parties lived in several properties during this period together and separately" [para. 147], the parties shared common residences for "significant periods of time" [para. 197] and the evidence "bear(s) out the manifestations of 'coupledom'" [para. 155].4
  • That there was an ongoing financial relationship between the parties until 2010 [para. 167], "a very high degree of financial dependence by the respondent on the applicant and more importantly interdependence between the parties" [para. 163]. The parties also conducted joint bank accounts and intermingled their finances [para. 197]. O'Sullivan J held that "the parties business continued throughout the period of the relationship" and that "despite changes during that time to living arrangements the evidence revealed the parties' financial dependence and interdependence was largely unaffected" [para. 168], and noted that the respondent was almost completely reliant on the applicant for financial and other advice [para. 197].
  • That throughout the relationship the parties purchased and sold a number of properties together and although on each occasion the title was in the respondent's name, "joint funds were applied by the parties to expand their property interests" in relation to many of these purchases [para. 151], with the applicant organising many of these transactions [para. 173].
  • That the evidence indicated a degree of commitment to a mutual shared life, with the parties "carrying on a mutual enterprise of sharing income … and shared payment of expenses for their mutual support and in relation to their homes" [para. 197]. O'Sullivan J noted the "wealth of evidence that the parties acted and were treated by others as owing [sic] property together and carrying out work or renovations on those assets together" [para. 179].
  • That the relationship was not clandestine in nature [para. 188].
  • That "the parties had so merged their lives that they were for all practical purposes living together as a couple on a genuine domestic basis" [para. 197].

Evidence of inconsistent representations of the nature of the relationship to bodies such as Centrelink were also not considered to be fatal to arguments in favour of the existence of a de facto relationship. In this case of Gissing and Sheffield it was alleged that the applicant had represented to Centrelink that he was not in a de facto relationship and, as such, he should not be permitted to claim that he was in such a relationship in the context of family law proceedings. In response, the applicant argued that his representation to Centrelink was done with the respondent's knowledge and that she benefited from this representation. In considering this aspect of the case, O'Sullivan J referred to authorities, including Elias v Elias (1977) FLC 90-267 and Christofis and Zorbas [2011] FMCAfam 571,5 that identify that it is "a logical and understandable consideration for a court in evaluating evidence" (rather than a mandatory principle of estoppel) that a party "may not rely on a representation at a point in time for their own benefit and then later deny the substance of that representation so as to achieve an alternative benefit" [Christofis and Zorbas [2011] FMCAfam 571 [106]. When applying this "Elias principle" in the context of all of the evidence (including evidence of the respondent's inclusion of assets owned by the applicant on an application that she had made to a financial institution for finance), O'Sullivan J held the "Centrelink issue" was not fatal to the applicant's case and the existence of the de facto relationship was established pursuant to s 4AA in this case.

The opposite outcome arose in Jonah and White [2011] FamCA 221, a case where the concept of "coupledom" was identified as a necessary keystone for a finding in favour of the existence of a de facto relationship. In this case, the parties had also been in a relationship for 17 years and their relationship had begun shortly after the applicant had commenced employment in a business conducted by the respondent. The respondent had supported the applicant financially by way of a $24,000 payment to assist her with the purchase of a property, and from 1999 until early 2010, the respondent paid her a monthly financial sum. The parties saw each other for around two or so days every second or third week and they travelled overseas together on one occasion for approximately two and a half weeks, although on other occasions where the parties spent similar time periods together, the respondent returned to his marital home to attend to his children's weekend commitments. The appellant regarded her relationship with the respondent as exclusive and the respondent conceded that the relationship was "exclusive (save for 'a few one night stands') and his relationship with his wife" [para. 28].

While acknowledging these features of the relationship between the parties, Murphy J pointed to a number of factors that supported his finding at trial that it was not a de facto relationship, including that the parties lived separately, maintaining distinct households, that they did not own any joint property or pool resources, that the relationship between the parties was clandestine, that there was no evidence of any relationship or intended relationship between the applicant and the respondent's children, who were young when the relationship commenced, and that the parties rarely mixed with each other's friends [para. 69]. His Honour also accepted the respondent's evidence that "he continued to emphasise the limits of the relationship with the applicant and, in particular … his evidence to the effect that, he told the applicant that, if circumstances ever required him to 'make a choice' he would choose his wife and family over the applicant" [para. 69]. Murphy J also found that the parties did not have a "'reputation' as a couple; indeed, there [were] … very few public aspects to their relationship" [para. 69]. While the maintenance of separate residences was identified as not "necessarily inconsistent with parties having a de facto relationship" [para. 65], underpinning Murphy J's decision was the concept of "coupledom" noted above, whereby "it is the nature of the union - the merger of two individual lives into life as a couple - that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, [underpins] a finding that there is a 'de facto relationship'" [para. 66].

The decision of Murphy J at trial was upheld on appeal in Jonah and White [2012] FamCAFC 200 per May, Strickland and Ainslie-Wallace JJ, stating that "the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a "couple living together on a genuine domestic basis" [para. 32]. The applicant argued that Murphy J had not properly appreciated that the extent to which the parties could live together was curtailed by the respondent's maintenance of his marriage or that the parties had an "emotional communion which occurred not only in each other's physical presence, but by telephone and otherwise" [para. 41]. The Full Court did not accept that the notion of "emotional communion" fell within the definition of "living together on a genuine domestic basis", and held that Murphy J was alive to the variety of circumstances (including the short time periods of that nature involved in this case, and the coexistence of more than one relationship) that could be encompassed in this concept of living together. The Full Court held that Murphy J was correct in concluding that "the proper focus … was the nature and quality of the asserted relationship rather than a quantification of time spent together" [para. 44], and more broadly that His Honour was entitled to make the findings of fact based on the evidence before him [para. 61].

The cases discussed above provide recent examples of situations where courts have considered the definition of a de facto relationship with differing outcomes. The significant point arising from these cases is that demonstrating the existence of the concept of coupledom is fundamental to a finding that a de facto relationship exists for the purposes of s 4AA of the FLA. While the establishment of a specific constellation of circumstances identified in s 4AA(2) is not mandatory for a finding that a de facto relationship exists, financial dependence/interdependence and the intermingling or pooling of finances and whether the parties have a reputation as a couple or maintain a clandestine relationship, emerged as pivotal considerations when assessing the degree of commitment to a mutual shared life in these cases.

Substitute decision-makers in family law matters: McKenzie & McKenzie, Price & Underwood and Stanford & Stanford

The provisions of the Family Law Act 1975 are often framed in terms of the parties to a marriage (or de facto relationship), and the right to make or contest an application arises from that status. However, there are a number of decisions illustrating that courts with family law jurisdiction will allow substitute decision-makers to agitate a variety of family law matters on behalf of the person they represent. Substitute decision-makers may be appointed by a court to represent the interests of another person (who is often a family member) in a legal matter because that person is not legally competent (because of their age, illness or other disability). The representative is known as a case guardian or litigation guardian. Often, but not always, the person appointed as a case guardian is someone who is already a substitute decision-maker in relation to other aspects of the person's affairs; for example, because they hold a power-of-attorney or have been assigned as an administrator or guardian for that person.6 Three such decisions are summarised in the next sections.

In August 2013, in McKenzie & McKenzie [2013] FCCA 1013, the Federal Circuit Court in Brisbane considered an application for divorce initiated by the wife's mother, acting as case guardian. Although there are other examples of a case guardian participating in divorce or property settlement proceedings on behalf the person whose interests they represent,7 the circumstances of McKenzie were unique in that neither party to the marriage was directly involved in the proceedings.

The parties had married in 2003 and separated in 2011, when the husband vacated the matrimonial home and had been unable to be located since. The court accepted evidence that at the time of separation the wife, who suffered a mild disability, had sought her mother's assistance to prepare an application for divorce and had expressed an intention to obtain a divorce at the earliest opportunity. Shortly thereafter, the wife suffered a significant brain injury and her brother and sister were appointed as joint guardians and administrators. The wife's mother successfully applied to be appointed as her case guardian and filed an application for divorce from the husband. The husband's whereabouts were unknown and substituted service was ultimately made on his mother. The husband did not respond to the application.

Cassidy J determined that the mother had satisfied the criteria for divorce - namely that the parties had been separated for 12 months and the wife had earlier expressed an intention to be divorced - and granted the divorce.

Some of the circumstances in McKenzie were similar to the 2009 matter, Price & Underwood (Divorce Appeal) [2009] FamCAFC 127. In that case the Full Court of the Family Court considered an appeal in relation to an application for divorce initiated by the husband's daughter from his first marriage, acting as case guardian. The family situation was somewhat complex, there were significant assets involved and the decision to grant the divorce or not had implications for the beneficiaries of the husband's estate.

In Price & Underwood, the parties had married in 1986 and had two children. Each had been married previously and the husband also had two children from his previous marriage. The husband applied for a divorce in December 2007, citing a separation date in October 2005, which was initially granted by the Federal Magistrate's Court (now Federal Circuit Court) on 9 April 2008. The wife appealed to the Full Court against the divorce, asserting that the date of separation was 3 April 2007, and on 15 April 2008 the divorce order was set aside. On 16 April 2008, the husband's daughter from his first marriage, acting as the husband's case guardian, filed a new application for divorce. At that stage, the husband was unconscious in hospital and medical advice was provided to the effect that he was likely to be deceased within three days. The daughter sought an urgent hearing and, if the application was successful, an abridged time to give effect to the divorce so that her father could die without a spouse.

The trial judge determined that the daughter, as case guardian, could bring an application for divorce on behalf of her father, and accepted evidence that he had clearly expressed a desire for a divorce prior to losing capacity. In granting the divorce, the trial judge noted the exceptional circumstances of the case and abridged the usual month-long period for it to take effect; instead making it effective from that day. This was significant because the husband died the following day.

The appeal considered by the Full Court of the Family Court was brought by the wife on a number of grounds and was concerned with staying the orders of the trial judge. Notably, the grounds included that there was no authority for a case guardian to initiate an application for divorce. The Full Court dismissed the wife's appeal entirely, concluding that "no authority was provided for the proposition that a case guardian may not bring an application for divorce … there is no reason why the role of the case guardian should be so limited" [para. 96]. However, the court noted that "such an application would be nugatory unless the case guardian can satisfy the Court that the marriage has irretrievably broken down and by demonstrating that the applicant … had the requisite intention to bring the marriage to an end" [para. 145]. The Full Court was satisfied that the case guardian led sufficient evidence to meet these pre-requisites.

The decision in this case had significant implications because it meant the husband died without a spouse; this is important in respect of the law concerning wills and estates, which privilege the position of "spouse" in determining the distribution of an estate. In effect, the decision operated to minimise the wife's claim to a share of the husband's assets.

The third decision, Stanford v Stanford [2012] HCA 52, is significant for a number of reasons that have been the subject of extensive online commentary from a variety of sources. But the decision is also an example of a case guardian agitating for a family law outcome that effectively operates as a proxy for estate planning. In Stanford, the High Court allowed an appeal against two decisions of the Full Court of the Family Court concerning the settlement of property between a husband and wife. In the decision, the High Court held that more than mere physical separation is needed for a family law property settlement to be "just and equitable". Following that reasoning, the High Court declined to separate the assets of an elderly married couple solely because they were involuntarily separated when the wife was forced by ill health to move into a nursing home. One of the effects of that property settlement would have been to defeat the legal wills made by the husband and the wife concerning the intended distribution of their respective estates.

The parties married in 1971; it was the second marriage for both, and each had children from their previous marriages. The parties lived in a home owned by the husband that was transferred to him following the end of his first marriage. Each had a will; the husband's left the house to his children, subject to a life tenancy in the wife's favour, and the wife left her estate to her children.

In 2008, the wife suffered a stroke that caused her to live in residential care. The husband remained living in the parties' home. While in care, the wife developed dementia and was moved to a higher care facility. The husband continued to provide for his wife's care and placed approximately $40,000 into a bank account to pay for her medical needs or requirements.

In 2009, the wife's daughter, acting as case guardian, applied to the Family Court of Western Australia seeking orders that the matrimonial home, valued at approximately $1,300,000, be sold and the proceeds distributed equally between the parties, along with the husband's superannuation and the parties' joint savings. The magistrate hearing the matter at first instance made orders that the wife receive $612,931, or 42.5% of the asset pool.

The husband appealed the decision to the Full Court of the Family Court of Australia. The Full Court determined that the magistrate had not sufficiently considered the effect of the orders on the husband or the fact that the marriage was still intact. However, before the final orders were made, the wife died and her daughter, acting as case guardian, continued the proceedings.8 Subsequently, the Full Court reconsidered its position and ordered that upon the husband's death, the $612,931 be paid to the wife's legal representative.

The husband applied for, and was granted, special leave to appeal the decision of the Full Court to the High Court. Following a detailed consideration of the operation of section 79 of the Family Law Act 1975 (which concerns the alteration of property interests of parties to a marriage), the High Court found that:

the bare fact of separation, when involuntary, does not show that it is just and equitable to make a property settlement order. It does not permit a court to disregard the rights and interests of the parties in their respective property and to make whatever order may seem to it to be fair and just. [para. 43]

That is, that there was no basis to conclude that it would have been "just and equitable" to make a property settlement order had the wife been alive, particularly because she had never expressed a wish to divide the family property. The decision illustrates that physical separation alone, particularly if it is involuntary, does not give rise to a power to consider a property settlement between parties; something more in the circumstances is needed to enliven the jurisdiction of the court.

Recognising gender for transsexual, transgender and intersex persons

Legal issues concerning the needs of transsexual, transgender and intersex people arise in a number of areas, including in the context of official recognition of gender identity and the legal requirements surrounding decisions to undertake medical treatment that responds to a gender identity that is different to the biological sex a person has been born with. This section examines recent developments in these areas, first by providing a summary of new Federal Government guidelines on how government departments should approach issues involving sexual identity, second through an analysis of a Family Court of Australia appeal decision on the parameters of court power in relation to gender re-assignment surgery, and third through a discussion of a court decision dealing with how gender identity is recognised on birth certificates.

New guidelines for Australian government departments and agencies

New guidelines have been introduced by the Attorney-General to simplify the process for people who wish to establish or change their sex or gender in personal records held by Australian Government departments and agencies.

The Australian Government Sex and Gender Recognition Guidelines (the Guidelines) came into operation on 1 July 2013 and Australian Government departments and agencies are to progressively align their existing processes by 1 July 2016. They support the amendments contained in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which seek to prevent discrimination against intersex, transgender and gender diverse people, and the Australian Government passport policy for applicants who are sex and gender diverse.

The Guidelines provide guidance to staff of Australian Government departments and agencies on the collection, use and alteration of sex and gender information contained within an individual's personal records. The explanatory materials indicate that the Guidelines also aim to improve the consistency of the sex and gender information collected by the Australian Government, which in turn has the effect of strengthening Australia's identity security system by improving the integrity of individual personal records.

The Guidelines define sex and gender by contrasting a person's physical attributes (the chromosomal, gonadal and anatomical characteristics) (sex) with a person's feeling about their personal and social identity, as well as other external markers such as their name, appearance and dress (gender).

The Guidelines acknowledge that a person's sex and their gender may not align; that is, a person may identify with a different gender to their birth sex or may not identify as either male or female. A person who identifies as transsexual or transgender may have the physical characteristics of one sex, but identifies with a different gender. A person who is intersex may have physical characteristics that do not identify them as either male or female. A person who is intersex, may also identify as transsexual or transgender.

The Guidelines specify that the preferred Australian Government approach is to collect and use information about gender, rather than sex. Information about an individual's sex should only be collected where there is a particular need to do so. To that end, the Guidelines specify that where sex and/or gender information is to be collected, individuals should be given the opportunity to nominate M (male), F (female) or X (indeterminate/intersex/unspecified).

Where a person wishes to amend their recorded sex and/or gender, the Guidelines state that departments and agencies must take all reasonable steps, relying on the nominated evidence, to ensure the accuracy of personal records. Individuals are also encouraged to ensure that their personal records reflect their preferred gender.

A copy of the Guidelines is available at <www.ag.gov.au/Publications/Pages/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.aspx>

Gender reassignment and family law courts

The decision of the Full Court of the Family Court of Australia in Re Jamie [2013] FamCAFC 110 has had the effect of streamlining the court processes in matters concerning the treatment of childhood gender identity disorder. This decision is also an example of the kind of circumstances that might give rise to the application of the Guidelines discussed in the previous section. In Re Jamie the Full Court of the Family Court of Australia, considered an appeal against the decision of Dessau J giving authorisation for parental consent to the treatment of the child "Jamie" (aged 11) who had been diagnosed with childhood gender identity disorder. The Full Court considered a point of law, namely whether treatment of childhood gender identity disorder is a medical procedure, which requires court authorisation pursuant to the court's welfare jurisdiction under s 67ZC of the Family Law Act 1975 (Cth).

Jamie had been born male but identified very strongly and from a very young age as female. Medical treatment (consisting of the administration of hormones in two stages) was proposed that would enable her to live as a female. Although Dessau J had given authorisation for Jamie's parents to consent to the first stage of hormone treatment, which has the effect of suppressing the onset of male puberty (the effects of which are reversible), her parents were required to make another application when Jamie was older to seek approval for the second stage of treatment (which is the administration of female hormone and has effects that are not reversible, or not reversible without surgery).

Although childhood gender identity disorder is a medically recognised condition with well-recognised treatment strategies, the treatment is usually categorised as a "special medical procedure", which falls beyond the parameters of parental responsibility and requires the authorisation of the court. The appellants in this case, Jamie's parents, first challenged the view that the treatment of childhood identity disorder is a "special medical procedure"; arguing that "where there is unanimous agreement between the relevant people involved with the welfare of the child, including if appropriate, the child" [para. 17] parents should have authority to decide on the appropriate treatment for their child. An alternative argument raised on behalf of Jamie's parents, was that, if childhood gender identity disorder was found to be a "special medical procedure", then authorisation for the two stages of treatment should be considered as one court application.

The appeal had particular importance because of the implications of the decision for a wider range of children than just Jamie. This is because the central issue is whether the treatment of gender identity disorder is a medical procedure for which parental authority is displaced by the authority of the court. A decision in favour of the appellants would mean the elimination of the need to make an application to the court for consent for the procedure.

The Independent Children's Lawyer opposed the appeal and made submissions adopting the decision of Nicholson CJ in Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175. That is:

there are a number of medical procedures that have been held by the court to be procedures that are beyond parental power to authorise and require the approval of the court. The treatment of Gender Identity Disorder … by the administration of hormonal therapies has been held to be such a procedure, the first such case being the decision of Nicholson CJ in Re Alex. A [para. 35]

The Independent Children's Lawyer also cited Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (Marion's Case), arguing that the treatment in question is distinguished from treatment of "bodily malfunction or disease", for which parental authority is clearly established, and is instead a treatment "where an otherwise healthy body's functioning is altered to address a dissonance between a belief as to gender and the actual gender of a person" [para. 36].

A public authority, intervening due to the potential for the decision to affect other children, also opposed the appeal on similar grounds.9

The Australian Human Rights Commission (AHRC) also intervened in support of the first ground of appeal, but submitted that it is open to the court to consider separately whether authorisation is required for each of the two stages and that it may be appropriate for a further application to be made to the court in relation to the stage two treatment. The AHRC suggested that, as stage two treatment normally commences when a child is 16 years of age, the child may be able to make informed mature decisions about their own treatment. As such, the first question before the court would be whether the child is Gillick10 competent.

Following detailed written and oral submissions, the court found that, where there is no dispute between relevant parties about whether treatment should be provided or the form of that treatment, stage one of the treatment for gender identity disorder was not a "special medical procedure" of the kind described in Marion's Case. However, the court found that court authorisation for parental consent was appropriate for stage two of the treatment, unless the child concerned was Gillick competent. If a child is Gillick competent, the child can consent to stage two treatment and no court authorisation is required. However, the question of whether or not a child is Gillick competent is a matter to be determined by the court.

Birth certificates and the recognition of sex

In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145, the NSW Court of Appeal recognised that for the purpose of registering a person's sex on their birth certificate, "sex" could have something other than the binary meaning of male or female. The court considered an appeal brought by the appellant, known as Norrie, from the Appeal Panel of the Administrative Decisions Tribunal (the Tribunal). The appeal considered a question of law; that is, whether the Registrar of Births, Deaths and Marriages has the power under the Births, Deaths and Marriages Registration Act 1995 (the Act) to register the a change of sex by a person from the sex recorded on the register to "non-specific" or "non-specified". The core question was whether the construction of the relevant provision within Part 5 of the Act holds the Registrar to registering a change to a person's "sex" from male to female, or from female to male, but not from male or female to a non-specific designation.

In a decision canvassing a range of statutory construction issues and implications, the court ultimately found that the word "sex" in Part 5 of the Act does not hold a binary meaning of male or female; a person is entitled to seek registration of other sexual identifiers. However, although the court found that it was open to the Tribunal to register a person's sex as something other than male or female, it also found that the Tribunal had not made a determination on the factual question of what sexual identifier should be registered in respect of Norrie. As such the court remitted the matter to the Tribunal for determination in accordance with the law.

In remitting the matter to the Tribunal, the court noted that it would be inappropriate for the Registrar to make a decision to register Norrie's sex as "not specified', which implies that the sex of a person is not stated. Instead, the court felt "the question for the Tribunal was whether there is evidence to support an entry on the register of Norrie's sex as 'non-specific'" [para. 203], which implies that a person identifies with being neither male nor female. Furthermore, the court commented that in future matters the Tribunal might be asked to make a determination about the registration of other recognised designations such as "intersex", "androgynous" or "transgender" and decisions on those matters would be made on whatever material is before the Tribunal at that time. At the time of writing, this matter was still awaiting decision by the Tribunal.

Endnotes

1 The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) together with the Family Law Amendment (Validation of Certain Orders and Other Measures ) Act 2012 (Cth) provided for de facto property/financial matters to be to be dealt with pursuant to the Family Law Act 1975 (Cth) from 1 March 2009 for de facto relationships with a geographical connection to New South Wales, Victoria, Queensland, South Australia, Tasmania or the Northern Territory, and from 1 July 2010 for de facto relationships with a geographical connection to South Australia.

2 FLA section 90SB provides that the Family Court of Australia and the Federal Circuit Court of Australia may make orders in relation to property settlement and maintenance where: (a) the de facto relationship has existed for a period of at least two years; or (b) where there is a child of the de facto relationship; or (c) where one party to the de facto relationship has made contributions of a substantial nature (see further s 90SM(4)) and a failure to make the order would result in serious injustice; or (d) the relationship was registered under a prescribed law of a state or territory.

3 Gissing and Sheffield [2012] FMCAfam 1111 [21], quoting Bender FM in Dakin and Sansbury [2010] FMCAfam 628 [13].

4 O'Sullivan J held that even if the respondent's evidence was that the parties had lived together for only a short period of time, such a finding would not necessarily have prevented a finding that there existed a de facto relationship [para. 155].

5 In the context of this discussion, O'Sullivan J also referred to Jordan and Jordan (1997) FLC 92-736, Dandridge and Barron [2012] FMCAfam 141, and H v H [2002] FMCAfam 381.

6 Guardians and administrators are appointed by court order under the relevant guardianship legislation of each state or territory. Guardianship is the appointment of a guardian to make lifestyle decisions for an adult with a decision-making disability and they are unable to make these decisions themselves. Administration is the appointment of an administrator to make financial and legal decisions for an adult with a decision-making disability and they are unable to make these decisions themselves.

7 See for example, Babich & Sokur & Anor [2007] FamCA 236 and In the marriage of D [2001] FMCAfam 46.

8 In accordance with the Family Law Act 1975, if a party to proceedings dies before judgment, the Family Court can still make a property settlement order as it would have when the party was alive and if it was still appropriate to do so despite the party's death.

9 The court suppressed the identity of the public authority.

10 The Gillick test is the test of competence established by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority and Another [1986] 1 AC 112. In delivering the House's leading judgment, Lord Scarman noted "parental right yields to the child's right to make his own decisions when he reaches sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision" [p. 186].