Belinda Neal (Robertson, Australian Labor Party) Share this | Hansard source

I rise to speak on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, which is before us. This bill is the natural and logical descendant of the reforms to family law which commenced with the carriage of the Family Law Act in 1975. Prior to this time the legal framework of family law was such that matrimonial disputes were fought out on an adversarial basis whereby each party was required to establish the fault of the other, and the courts’ determination of the placement of fault would have implications in relation to the orders made regarding both children and financial matters. The principles on which the reforms were based were: the simplification of the legal process; the transfer of family matters to a court that had specialist skills in the area; a focus on alternative dispute resolution processes to reduce both the cost and time taken to finalise matters and also to lessen the impact on the husband or wife and any children; and, most importantly, to remove the issue of fault from the matter that was being dealt with and determined by the courts.

This bill has much the same principles underpinning it, with the addition of extending these provisions to same-sex couples on the basis of equity and removing discrimination in relation to these couples. The original act relied on the Commonwealth powers set out within section 51 of the Constitution under subsections xxi, ‘marriage’, and xxii, ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. The reliance on these powers meant that the act could not extend to financial matters between de factos. Prior to 1990 the states referred their powers to the Commonwealth by legislation, even where the parents were not married, in relation to children. From the early nineties some financial matters between de factos were dealt with in the Family Court as incidental to children’s matters initiated there on the basis of cross-vesting principles. This practice was halted by the decision Re Wakim; Ex parte McNally that determined in 1999 that that cross-vesting reliance was unconstitutional.

This constitutional limitation has been resolved to allow this bill to take effect by the referral of these powers from the states of New South Wales, Victoria, Queensland and Tasmania pursuant to subsection xxxvii of section 51 of the Constitution. This is the result of extensive consultation between the states and the Commonwealth on this issue and of a decision made in November 2002 for the Commonwealth to proceed on the matters with the support of the states at a ministerial council. It is a shame that the previous government dragged its feet on implementing this decision, particularly in the light of New South Wales carrying its referral legislation as early as 2003.

For many years it has been a matter of some frustration and a cause of inequity that de facto couples involved in financial disputes have been required to take up their issues in the more complex, generally more expensive and less suitable courts, such as, for example, the Supreme Court of New South Wales, a court that is notoriously expensive to litigate in. There has been even greater frustration by de factos in same-sex couples, who have had no venue in which to resolve issues in relation to children and financial matters after the breakdown of their relationship. The problems and the frustrations caused by the lack of courage of the previous government to deal with this issue are to be remedied by the bill that is here before us today.

The bill has two major parts. Firstly, schedule 1 and schedule 2 amend the Family Law Act and related legislation to allow the family courts to make, in relation to those in de facto relationships, financial orders which include: maintenance; declaration and alteration of property interests; orders and injunctions binding third parties; financial agreements; proceeds of crime and forfeiture of property; and defining which instruments are not liable to duty. Although the bill extends jurisdiction to de facto relationships, it does so in quite particular circumstances, which I will deal with later.

The second major area is set out in schedule 3. It makes changes for married couples by extending matters relating to separation declarations, superannuation splitting and proceedings by third parties in relation to binding financial agreements. This is essentially an extension of the sorts of orders that the Family Court can make in relation to existing married couples. Finally, there is a small section in schedule 4 which makes minor changes in relation to certificates provided to parties who attend family counselling.

The area I would like to focus on in particular is the extension of the jurisdiction of the Family Court on property and financial matters relating to de facto relationships. Prior to this bill the laws that applied to property issues between de facto couples varied from state to state. There were also great differences in how property issues were dealt with for married couples and those in de facto relationships. The situation was just not satisfactory. It wasted the time of the courts and it wasted the time of those families and individuals affected. It really was quite an unreasonable and unsatisfactory situation.

A major injustice under previous legislation relating to de facto relationships was the failure to take into account the future needs of the parties. The New South Wales De Facto Relationships Act only took into account the initial contribution of parties when dividing property. This could create a situation whereby, after a very long relationship, a person who had invested a great deal of their time and effort into the relationship, and possibly the children in the relationship, would receive only a very small part of the property because of their small initial contribution.

Another failing in state legislation was the fact that same-sex couples did not have a regime to deal with property issues at the breakdown of a relationship, other than the general law that relates to any person who is not necessarily in a relationship. There were also great difficulties, in that, despite a range of failed regimes, many de facto couples may have been required, prior to this bill, to have issues between them determined by a number of different courts, including children’s matters in the Family Court and property matters in the Supreme Court.

The main impact of the bill is to create a regime whereby couples in de facto relationships can have property disputes resolved by the Family Court—at the same time, if necessary, as the matters relating to children are being dealt with. Proposed section 4AA defines a de facto relationship as one in which the parties are not married, are not related by family and, having regard to all the circumstances, have a relationship as a couple living together on a genuine domestic basis. For the act to apply there is also a requirement that the relationship has lasted for two years or that there is a child of the relationship or that a party has made a substantial contribution to the relationship and it would cause serious injustice not to grant an order. This provision is at the core of much of the opposition to this bill, particularly from members of the opposition.

The proposition that the granting of a regime to determine property rights between de facto couples will somehow reduce and undermine the value of marriage is something I find puzzling in the extreme. The opposition argues that there is somehow a ‘limited pool of recognition or happiness’ to which married couples should have first right and that somehow the granting of some sort of recognition of the rights of de facto couples undermines marriage. I do not see that as being correct. I have some concern that some people who present themselves as religious, or Christian, seem to follow the same theme.

In my view there is great value in marriage. It does provide stability and happiness to many people. It provides recognition of each party and their responsibility in raising children. But I do not believe that all the benefits contained in marriage mean there is not value in de facto relationships. Though it has been said many times in this chamber, it is important that we recognise not only that 15 per cent of people choose to be in a de facto relationship rather than a marriage but, even more importantly, that 30 per cent of children in Australia come within a de facto relationship.

I think it would be cruel and unreasonable of us as legislators and also as human beings to fail to protect the rights of children through proper separation of financial property and resources by not allowing de facto relationships to have access to a scheme for separation within the Family Court. I believe that bringing this bill is the right thing to do. It is long overdue. It should have been done back in 2003. But it was not done because of the fear and failings of the previous government. I congratulate the Attorney-General, Robert McClelland, for acting so quickly in an area that obviously required action some time ago. He has certainly ensured that it is brought before the House as quickly as possible.

While I am on my feet, I want to mention another matter the Attorney-General has been acting very quickly on, and that is the family relationship centres. Of course, this is all part of a general philosophy being pursued by this government to try and assist families, whether de facto or married, during the period of their breakdown, when they are under stress. This is an extremely high priority.

In pursuit of this policy, this government has opened an additional 24 new family relationship centres as of 1 July this year; by October there will be 65 centres across Australia. I am very lucky that this government has opened a centre at Erina, an area where there is extremely high demand for these sorts of services, as there is all over the Central Coast. It is extremely important that this government assist families, when relationships are breaking down, to resolve in an amicable way problems and disputes about children and property matters and to reduce the level of impact on them. These centres go a long way towards assisting with that. I am very proud to have a centre at Erina and I thank the Attorney-General for coming and opening that centre over the parliamentary break. I commend the bill to the House and I urge the House not to delay by referring it to further committees. This is a bill that is long overdue. The suffering that would be caused by any delay cannot be justified.

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