actions between the marital and parenting systems, as mother–father relationships likely influence and are influ- enced by parent–child relationships ( Cox. (ii)any child, aged less than 18 years, of the first person; and . Neither the same- sex relationship itself, nor the parental status of the non-biological member of. One such approach is that of interdependence, where the parent is Interdependence models that relationships exist for mutual benefit and.
When the tax treatment of the contributions and earnings in the superannuation fund is taken into account, the exemption for a superannuation death benefit paid to a dependant means that the superannuation savings and earnings have been taxed at an overall rate of 15 per cent. In contrast, where a death benefit is not paid to a dependant as defined, the element over and above any undeducted contributions to the fund by the deceased will be taxed at 15 per cent to the recipient.
Lump sum payments from a superannuation fund directly to a dependant are the most common type of death benefit ETP. The exemption can also apply to lump sum payments from the employer of the deceased, paid to the LPR and passed on to a dependant;  from an Approved Deposit Fund;  on death of the holder of certain annuities;  and payments in respect of small superannuation accounts or superannuation guarantee shortfall payments.
Each element of the definitions will be considered in turn, incorporating the difficulties faced by a member of a same-sex relationship, and children of such a relationship, in qualifying as a dependant. This legislation does not affect the extended meaning of de facto spouse and there is no judicial authority concerning the potential application of the extended definition of de facto spouse to a member of a same-sex couple.
Allan and Joe are long-term domestic partners who live together. They each have superannuation and independent sources of income and have made wills that specify the other as LPR and have nominated each other as preferred beneficiary with their superannuation funds. The death benefit paid to Amanda will be exempt from tax in her hands. However, under the ITAA definition set out aboveto qualify for income tax exemption, the child must be under the age of 18 at the time of death.
For a child of an opposite-sex couple, whether de jure or de facto, this situation is likely to be resolved as a result of presumptions as to parenting. Neither the same-sex relationship itself, nor the parental status of the non-biological member of the couple, is recognised at federal law.
Helen and Jane are co-mothers of Anna. Anna is the biological child of Helen, conceived by anonymous donor insemination. Helen and Jane live together as a couple and both contribute to the parenting, financial support and care of Anna. Jane dies when Anna is aged 3.
In many cases, Anna is likely to qualify as a financial dependant of Jane, or as being in an interdependency relationship with her, and so may still be eligible to receive a death benefit this is discussed below.
However, the lack of status accorded to children of same-sex couples is nonetheless clearly discriminatory, a situation that is clearly not in the best interests of those children. I return to this issue in Part 5. This definition has potential to be quite broad. However, it is the financial element of the definition that has been adopted in the superannuation regime.
Nonetheless it appears that trustees take a fairly broad approach to determining financial dependence. Given the fiscal nature of the legislation with which we are concerned, it is appropriate to consider the issue of financial dependence as the primary issue, although emotional and physical dependence can be relevant.
An adult daughter who gave up work to care for her terminally ill parent and who received financial support only from the parent until their death was found to be a dependant. A few decisions of the SCT consider death benefits for same-sex partners.
However, if there were other dependants, it seems likely that the death benefit would be divided between Allan and the other dependants.
Developing Interdependence in Children
That is, a same-sex partner is unlikely to be accorded equal status to a de jure or de facto opposite-sex spouse, who frequently will receive the entire death benefit. However, this decision does not provide assistance regarding the more common situation of partial financial dependence or financial sharing. What of the child of a same-sex couple? However, it should be possible to establish that an individual is a financial dependant of a deceased non-biological parent, particularly where the individual is under the age of 18 at the date of death.
There do not appear to be any reported decisions that discuss this situation.Good and Bad Childhoods
While this may seem straightforward, it is likely to require that the trustee of the superannuation fund recognise that Helen and Jane are co-parents of Anna and thus, indirectly, requires recognition of their relationship. It has been suggested that superannuation trustees have refused or failed to either investigate or acknowledge the claim to dependency of a child of a same-sex couple in this situation.
Clearly, financial dependence was required by that statute. Although this provision makes no reference to finances, the most relevant form of dependence in the situation of separated spouses is financial; the breakdown of the spousal relationship illustrates that other forms of dependence are irrelevant or have only minor significance.
What is an Interdependency Relationship? Subsection 3 delineates the topics on which regulations may be issued. It appears that regulations made under subsection 3 a may specify matters to be taken into account in finding that the criteria in 1 a to d are satisfied, so as to assist in applying the primary definition or to elucidate that definition.
The Regulations promulgated in November are authorised in part under subsection 3 a and in part under subsection 3 ba matter of some importance in their interpretation. An applicant for an interdependency visa and his or her partner must: Show a mutual commitment to a shared life to the exclusion of all others.
You and your partner must be living together or, if not, any separation must be only temporary. You must also have a genuine and continuing relationship.
The relationship must also have existed for the entire 12 months prior to making the application.
Sydney Law Review
Nonetheless, this author argues that the drafting of the statute and Regulations will lead to continued discriminatory treatment of same-sex couples compared with opposite-sex couples. The Regulations issued in November go some way towards mitigating the strictures of the statutory definition.
Second, the Regulations override the statutory definition in some circumstances, in a manner that will assist same-sex couples to a limited extent. This is likely to provide more flexibility than exists in relation to establishing dependence in the ordinary meaning of the term. Nonetheless, there are some differences between the matters listed in the Regulations and the factors generally used in finding a de facto spouse relationship. While these additional matters may merely add substance to the definition, they may also require a more narrow reading, which could disadvantage same-sex couples.
The long list of relevant matters may in fact be targeted at making it more difficult for non-couple relationships to qualify as interdependent. This appears to be the intention with respect to the relationship between adult children and their parents. It has only minor revenue implications, as most young adults will have accumulated relatively little in the way of superannuation benefits.
Such a declaration may assist trustees with evidentiary requirements, although trustees are still required to investigate all the circumstances of the relationship and apply the matters as relevant.
A registration regime that recognises same-sex and other caring relationships exists in Tasmania. While this makes the point about enforced temporary absence, it would have been helpful to see an example of the somewhat more common situation of one person temporarily absent because of, say, a job transfer to a different city.
If one or both people suffers permanent incapacity and this is a reason for living apart, this will not prevent the existence of an interdependency relationship. There is no evidence in the decision to suggest that the mother was dependent on her son for ongoing or regular financial support, or had no other substantial source of financial support.
Case law in a different context suggests that spouses with usual household sharing arrangements are generally found to provide each other with financial support and maintenance. Consequently, it seems reasonable to argue that, in Example 1 above, Allan and Joe, in a same-sex relationship and sharing household costs and other expenses, have provided each other with financial support.
This is the most problematic criterion for same-sex couples. Personal care services may commonly consist of assistance with mobility, personal hygiene and generally ensuring the physical and emotional comfort of a person.
The Regulations also emphasise that people who share accommodation for convenience e. The expression seems to be directed to a different level of reality such as assistance with mobility, personal hygiene and physical comfort. Such activities obviously however will include an element of emotional support. Master Macready subsequently applied that decision in Devonshire v Hyde,  a case under the Family Maintenance Provision Act NSWin which he again had to decide whether two men had been in a domestic relationship.
He returned to live with his parents in and he continued to live with his parents until his death.
Developing Interdependence in Children
Inthe son was working as pilot and tragically died in a motor vehicle accident. The son also paid various expenses for his parents. The parents provided the son with domestic support in the form of preparing meals, doing laundry, cleaning, and a number of other tasks. In turn the son helped his parents by performing tasks around the house. In relation to personal care, the parents and the son provided each other with love, care, affection and psychological assistance.
In November the Commissioner issued a Notice of Private Ruling to the parents containing a ruling that they were not death benefits dependants. The parents asked the Administrative Appeals Tribunal to review this decision.
Key legislation At the risk of oversimplifying to the point of being slightly misleading, the key legislation includes that: Two persons whether or not related by family have an interdependency relationship under this section if: Accordingly, based on the facts as stated above, there was not enough to establish an interdependency relationship. AAT remitted the matter back to the Commissioner of Taxation to request the parents to make another application for a private ruling, presumably with more facts.