Commonwealth Consolidated Acts

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA ACT 2021 - SECT 126

Meaning of eligible spouse

  (1)   For the purposes of this Chapter, subsections   (2), (3) and (4) set out the 3 circumstances in which a person is an eligible spouse of a Judge, or a retired disabled Judge, who dies.

  (2)   A person is an eligible spouse of a Judge who dies if the person had a marital or couple relationship with the Judge at the time of the death of the Judge.

  (3)   A person is an eligible spouse of a retired disabled Judge who dies if:

  (a)   the person had a marital or couple relationship with the Judge at the time of the Judge's death; and

  (b)   the marital or couple relationship began:

  (i)   before the Judge retired; or

  (ii)   before the Judge attained the age of 60 years.

  (4)   A person is an eligible spouse of a Judge, or a retired disabled Judge, who dies if:

  (a)   the person had previously had a marital or couple relationship with the Judge; and

  (b)   the person did not, at the time of the Judge's death, have a marital or couple relationship with the Judge but was legally married to the Judge; and

  (c)   in the Minister's opinion, the person was wholly or substantially dependent upon the Judge at the time of the Judge's death; and

  (d)   in the case of a marital or couple relationship that began after the Judge retired--the marital or couple relationship began before the Judge attained the age of 60 years.

Note:   For review of decisions under paragraph   (4)(c), see subsection   (9).

Meaning of marital or couple relationship

  (5)   For the purposes of this Chapter, a person had a marital or couple relationship with another person at a particular time if:

  (a)   the person had been living with the other person as the other person's husband, wife, spouse or partner for a continuous period of at least 3 years up to that time; or

  (b)   both:

  (i)   the person had been living with the other person as the other person's husband, wife, spouse or partner for a continuous period of less than 3 years up to that time; and

  (ii)   the Minister, having regard to any relevant evidence, is of the opinion that the person ordinarily lived with the other person as the other person's husband, wife, spouse or partner on a permanent and bona fide domestic basis at that time;

whether or not the person was legally married to the other person.

Note 1:   Subsection   (7) lists some of the evidence relevant to subparagraph   (5)(b)(ii).

Note 2:   For review of decisions under subparagraph   (5)(b)(ii), see subsection   (9).

  (6)   For the purposes of this Chapter, a marital or couple relationship is taken to have begun at the beginning of the continuous period mentioned in paragraph   (5)(a) or subparagraph   (5)(b)(i).

  (7)   For the purpose of subparagraph   (5)(b)(ii), relevant evidence includes, but is not limited to, evidence establishing any of the following:

  (a)   that the person was wholly or substantially dependent on that other person at the time;

  (b)   that the persons were legally married to each other at the time;

  (c)   that the persons' relationship was registered under a law of a State or Territory prescribed for the purposes of section   2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

  (d)   that the persons had a child who was:

  (i)   born of the relationship between the persons; or

  (ii)   adopted by the persons during the period of the relationship; or

  (iii)   a child of both of the persons within the meaning of the Family Law Act 1975 ;

  (e)   that the persons jointly owned a home which was their usual residence.

Meaning of living with a person

  (8)   For the purposes of this Chapter, a person is taken to be living with another person if the Minister is satisfied that the person would have been living with that other person except for a period of:

  (a)   temporary absence; or

  (b)   absence because of special circumstances (for example, absence because of the person's illness or infirmity).

Note:   For review of decisions under subsection   (8), see subsection   (9).

Applications for review

  (9)   Applications may be made to the Administrative Review Tribunal for review of decisions of the Minister under paragraph   (4)(c), subparagraph   (5)(b)(ii) or subsection   (8).