Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I speak in support of the government's legislation, the Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012. Most people do not get charged with criminal offences, they do not end up in traffic accidents and they do not have accidents at work but, sadly, about one in three marriages end in separation and about one in two second marriages end in separation. The statistics in relation to de facto relationships or common-law relationships are even worse. So people are subject to the family law when they separate from marital relationships or de facto relationships and, if they have children, what we used to call custody and now call residence and what we used to call access and now call contact become enlivened. Then there are issues of child support, property settlement and the like.

When areas of family law are considered for reform it is always done by Labor governments. It took a Labor government, the Whitlam Labor government in the 1970s, to institute the Family Law Act. It came in after the Matrimonial Causes Act 1959, which had a whole host of areas which justified divorce, including separation. There were private eyes snooping on people. There were drunkenness, adultery and a whole host of different grounds for divorce. The Family Law Act introduced one ground for divorce. It was irretrievable breakdown of marriage evidenced by people living separately and apart for a duration of 12 months and there being no reasonable likelihood of cohabitation resuming. That was the definition at law for the basis of a divorce. It was a step forward in the right direction. It narrowly got through this place when it was brought forward in the mid-seventies.

We made changes—and I say this in consequence of the criticism that has been made of us by the previous speaker. It was the Hawke and Keating governments in the 1980s that extended the situation and got around the problem of section 51 of the Constitution, which specifies only the Commonwealth having the power to deal with marriage, matrimonial causes and divorce. The Keating and Hawke governments got around this problem, extending the jurisdiction of the Family Law Act to include not just children of marital relationships but exnuptial children, as they used to be called, and the states sensibly referred these issues to the federal government. Regrettably, the previous speaker's home state of Western Australia has always been out on a limb in the area of family law. I do not quite understand, having done cases in WA in my legal practice, why it was out of the mainstream.

But reform of this area was always done by Labor governments. Sadly—and I have spoken on this many times in my previous life as a lawyer—the coalition government, in its obsession with listening to some of the men's rights groups, took a really difficult and wrong approach with respect to family law in part VII of the Family Law Act and put in place as a parenting law a whole host of difficult and bureaucratic mechanisms which parties had to go through, and it became more difficult. There were some aspects of that legislation which were good—the emphasis on children knowing both parents, children having the right to be cared for by both parents and both parents being integral to the care, welfare and development of their children. I acknowledge all that.

But it has always been Labor governments which have driven the reform agenda in this area. This Labor government has put forward a number of changes which I think are relevant. One of them relates to this bill. The first change we have made is in the area of making definitions of domestic violence and abuse more contemporary. The Family Law Act's definition of assault and violence was pretty much limited to physical or sexual assault, or to the threat of physical or sexual assault. People's understanding of what abuse and violence is has moved beyond that. So we have contemporised the definitions in the act to include familial isolation, financial intimidation and a whole host of other things. That is one area of reform.

The other major area of reform is the one which relates to this legislation. It is bringing de facto property settlements out of the state jurisdiction into the federal jurisdiction. In Queensland we used to have to rely on the Property Law Act for de facto relationship property settlements and we had to take such matters to the Supreme Court. This was far more costly and it was far less likely that people would get justice. But the biggest and most vexed question in all of this—and this is why we pursued this reform—was that a person's contribution as a homemaker and parent was not provided for in the Property Law Act in Queensland. We have brought this issue under the jurisdiction of the Family Law Act by amending part VIII. This means that the Federal Magistrates Court and the Family Court can now deal with this area. We did this to make sure that people, regardless of their circumstances and regardless of the nature of their relationship—heterosexual, gay or lesbian—can have their cases heard in the one jurisdiction under the one law. It does not matter whether they live in the Torres Strait or Tasmania, Palm Beach or Perth—the law is effectively the same. The dingo fences are gone. That is what we did.

Regrettably, there is a problem with respect to the proclamation. The problem is found in section 40 of the Family Law Act. Subsection (2) says:

The Governor-General may, by Proclamation, fix a date as the date on and after which the jurisdiction of the Family Court under this Act—

and thereby the Federal Magistrates Court—

may be exercised in respect of all proceedings, or a class of proceedings, in such States and Territories as are specified in the Proclamation.

The problem is the absence of a proclamation. That is the problem. So we are fixing up this problem. It is regrettable that people have had uncertainty in relation to this, but this bill provides certainty about the status of orders made by federal magistrates or Family Court judges with respect to de facto property and spousal maintenance matters and about orders made by the Family Court on appeal from Western Australian family law magistrates. It corrects oversights. We accept that there were oversights and that these need to be corrected. Between 2006—and I note that we were not actually in power in 2006—and 2009, proclamations were not made to bring changes to the Family Law Act into effect. The previous speaker's criticisms of us for the problems from 2006 are a bit rich, given that the Howard coalition government were in power at that time. There were mistakes made on the watch of both sides of politics.

The bill will create new rights and liabilities to make sure individuals are in the same position they would have been if a proclamation fixing a date on or after which jurisdiction could be exercised by the court had been made at the time jurisdiction was originally conferred. It will preserve the rights of the parties to appeal the affected orders or to have their rights and liabilities under the affected orders varied, revoked, set aside, revived or suspended. It does not create statutory rights and liabilities in relation to those orders which have been declared invalid or which were made without power prior to the commencement of the bill, respecting the outcomes of the appeal processes which had been finalised before the bill commences.

The bill solves the problem of section 40 so that we do not need this type of proclamation in the future. Instead of requiring a proclamation to transfer jurisdiction, the bill permits regulations to be made to restrict the jurisdiction of the court under the act. So this legislation has a number of purposes. It is sad and regrettable that people have been impacted by these problems and by the uncertainty of orders. It happened on the watch of both sides of politics and we are now fixing those problems. I commend the legislation to the House.

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