Tuesday, 20 March 2012
Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012; Second Reading
The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 has been necessitated by the failure of the government to provide for the proclamation of the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, which was passed with coalition support and relied on referrals of power by the states to the Commonwealth, with the exception of my home state of Western Australia, agreed through the Standing Committee of Attorneys-General in 2002. The intention of the legislation was to provide for national uniformity for all relationship breakdown matters and to confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships, namely the Family Court and the Federal Magistrates Court. Section 40(2) of the Family Law Act 1975 provides that any addition to the jurisdiction of the federal Family Court is not conferred until there is a proclamation by the Governor-General to that effect under section 40. No such proclamation was made following the passage of the 2008 act and this omission was not detected, as the coalition understands, until it was picked up by a sharp-eyed judge in December last year.
Even so, relevant proclamations were not made until 9 February this year fixing 11 February as the date on and after which the jurisdiction of the Family Court and the Federal Magistrates Court could be exercised in de facto financial matters. The failure to proclaim the relevant amendments had the result that property and maintenance orders by the federal Family Courts in de facto matters from 1 March 2009 to 10 February 2012 were made without jurisdiction and are invalid. Orders of the Family Court in appeals from the Family Court of Western Australia which do not require the vesting of jurisdiction are similarly affected.
This legislation is therefore required to validate those orders retrospectively and the coalition, as my colleague the shadow Attorney-General Senator Brandis foreshadowed in February when this problem first came to our attention, will certainly be happy to cooperate in ensuring that certainty can be returned to the jurisdiction.
What is difficult to understand, however, is how slack and uncomprehending the Gillard government has been in dealing with this matter. Literally thousands of orders are in doubt, affecting thousands of Australian families. In the Australian of 29 January, we read of a Melbourne mother of five who faced losing her home because her former partner had stopped paying the mortgage, as the Federal Magistrates Court had ordered him to do last August. The mother, we are told, would have spent at least another $6,000 on legal fees because her original court orders were invalid. Many Australian families whose principal source of income is from property and maintenance orders have been left in limbo dependent on the good faith of their former partners and without recourse to enforcing it, as so often happens in family law matters, as former partners seek to skip out on their obligations. This therefore is a matter of great urgency, but you would not know it from the actions of the Labor government. The problem, which was an inexplicable bureaucratic oversight, was detected last December. While courts typically go into recess over December and January, the family law jurisdiction is different. Those familiar with the family law jurisdiction will know that it can be a time of immense stress about finances in relationships, and any family lawyer would be able to tell you that they have a busy time over the summer period.
Yet when did the government act? In December, when they were first alerted to this problem? In January, when an urgent proclamation could have been made to ensure that prospective orders would be valid and the opposition could have been requested to cooperate with this being made the first item of business for the resumption of parliament? No, I am afraid to say that the proclamation was quietly made on 9 February, at the end of the first sitting week. Still the government said nothing when the professions, the media and the opposition heard about it on 21 February and started clamouring for a response. Indeed, the government continued to say nothing for another week, until the following sitting week drew to a close, when the Attorney-General finally announced that the government would introduce remedial legislation.
One must ask, therefore, where the government's priorities lie. There are still thousands of families whose financial affairs and whose power to do anything about it remain in limbo whilst this government fusses about to ensure that its prosperity-sapping deals with the Greens continue to keep it in power.
The coalition take this matter very seriously, so seriously that we publicly indicated to the government almost four weeks ago, without being prompted by the government, that we would support legislation to fix this problem—and that, as I said, we would support legislation to fix it as a matter of urgency. It is not a difficult piece of legislation to fix but it does fix an enormous problem. We understand why this is a priority, but it is very difficult to understand through the government's actions why they did not seem to think it was. I therefore move:
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House notes and condemns the incompetence of the Government in:
(1) failing for almost three years to proclaim the relevant provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008;
(2) thereby needlessly permitting invalid orders to be made by the federal family Courts and throwing the financial affairs of thousands of Australians into confusion;
(3) failing to act promptly to correct the problem after it was first brought to its attention; and
(4) failing to immediately bring remedial legislation before this Parliament."