Thursday, 28 August 2008
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008
Debate resumed from 25 June, on motion by Mr McClelland:
That this bill be now read a second time.
I am pleased to have the opportunity to comment on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This is an important bill. It raises some very important issues about the nature of relationships and families in our community, what happens when they go wrong and our obligations to ensure that those who are vulnerable and dependent in these relationships—that is, children—are protected.
The minister’s second reading speech implies that this bill is predominantly about inequities faced by same-sex couples. I believe something fundamentally more significant is at stake in this bill. It is about recognising and providing a mechanism to deal with the responsibilities of being in a relationship, whatever form that relationship may take. While I appreciate and respect the fact that not all Australians choose to establish relationships in the way I believe is the most ideal way to pursue a committed relationship, which is marriage—a loving marriage relationship is the most secure environment in which to raise a child, and such unions should be forever reserved for opposite-sex relationships; I also believe that every child has the natural and fundamental right to a mother and a father and that our laws should protect this right above any other claims—I also appreciate and respect that Australians will choose to establish relationships in other ways.
There are many different types and forms of relationships in families and we need to ensure that those who live in these relationships—especially children, who are most vulnerable in these relationships—are protected. We must also recognise that all citizens have rights in relation to property that arise from these relationships. Sadly, these rights often only become tested and threatened when these relationships fail. Such rights should be unaffected by distinctions in the nature of these relationships—whether de facto or marriage, same sex or opposite sex. Such distinctions should not compromise anyone’s property rights.
Unlike another bill that recently came before this House, this bill does not seek to lump together for definitional purposes all relationships under one banner. This bill, in definitional terms, preserves the distinction and primacy of marriage in our national laws—and may that be the case for all bills that come before this place. I hope that the approach now being considered in this bill applies to the same-sex relationships bill that is now before the Senate. I also note that action on these issues did not commence with the initiation of this bill. These issues that until now have been the province of the states have been on the table since 1976. It was not until 2002, under the Howard government, that agreement was reached between the states to refer powers to the Commonwealth on these issues. We now have the bill before us, which takes the next step, following enabling legislation in Queensland, Victoria, New South Wales and Tasmania, with the western states still to come on board.
In discussing the bill further, we should note what this bill does not do. The bill does not create for the first time the right for the Family Court to deal with family matters in relation to de facto relationships. This coverage has existed for some time. This bill also does not provide recognition of property rights for same-sex couples in Australia before the courts. I understand that this coverage has also existed in the state courts for a number of years. This bill enables the Family Court to deal with both family and property rights issues, relating to a relationship breakdown, at the same time.
The great leap forward in this bill is not really for same-sex couples. The great leap is to enable the Family Court to better provide for the care of children who are part of a family where the parents are in a de facto relationship and that relationship has failed. As a consequence of this bill, the economic means available to both partners can be put on the table and assessed to see how best they can provide support for the children who are affected. So we have this opportunity now, when matters to do with a relationship breakdown—such as custody of children—are being addressed by the Family Court, to go further and allow the court to deal concurrently with working out how these children are going to be provided for in the future. This is, I think, the true great merit of the intent of this bill. More significantly, in the case of New South Wales and Victoria, it will provide the added benefit of allowing the court to consider future needs—which currently is not possible in the state courts in both of these jurisdictions—as well as past contributions on which the current decisions have been based, to ensure primary caregivers have the resources they need to support the child on a long-term basis.
It is a very sad thing—and, Mr Deputy Speaker, I am sure you and others in this House would agree—that far too many of the issues that come through our offices, as members of this House, are to do with the tragedy of failed relationships. We see it in child support issues. We see it in those who have chosen to walk away from their responsibilities and who have left the primary caregiver in an invidious position. I feel for the primary caregiver in that situation. It is largely women who are in that situation. I have sat with them and listened to their stories and their frustrations. What always touches me is that, despite their own stress and their own sense of loss of both a relationship they once valued and the quality of life they used to enjoy within that relationship, where their heart burns is for the situation their children are now in and the situation their children could have been in had that relationship been able to be sustained and had the person who left that relationship lived up to their responsibilities in providing care.
Now we have a situation, under this bill, where these matters can be addressed concurrently. It will be children who will be the winners, regardless of the relationship they happen to find themselves in. It is not the children who decide to live in a de facto relationship. It is not the children who decide to live in a marriage relationship. It is not the children who decide whether that relationship is working or not working. One of the saddest things you hear from children who have grown up in families that have broken down is that they sometimes feel a horrible sense of guilt or blame themselves. There can never be any guilt or blame placed on a child in those relationships. Relationships are the responsibility of those who are in them, not the children. So I think that the opportunity we have here to ensure that they are protected is a very worthy one. We should do all we can to provide whatever protections we can in this place to preserve the standard of living of these children.
Recent statistics released by the Australian Institute of Family Studies show that people living in cohabiting relationships accounted for 15 per cent of all people living with a partner in 2006. So 15 per cent of all the relationships that are out there are now cohabiting relationships. That is compared to 10 per cent only 10 years earlier. Other studies by the institute also highlight the increased risk to children of relationship breakdown in families where there is a de facto relationship. A recent report showed that between 1975 and 1995—these are the most recent statistics available—on average more than a third, 34 per cent, of people cohabitating separated within five years of commencing. The comparable figure for marriage relationships over the same period is less than eight per cent. That is less than eight per cent compared to 34 per cent. These figures, I think, highlight the fact that cohabiting relationships, clearly, on the numbers, have a greater propensity to break down in the early years. Again, this bill, which provides a mechanism to enable both property and family law issues to be dealt with concurrently in those situations, is urgently needed on the basis of those figures alone.
Of greater concern is the rate of increase of breakdowns for each of these forms of relationship—both marriage and de facto. The rate of breakdown in cohabitation relationships increased from 30.9 per cent between 1975 and 1979 to 38.2 per cent between 1990 and 1994. For marriage it rose from 6.9 per cent to 8.8 per cent over the same period. So both rose, but there was about an eight per cent rise in the breakdown rate of cohabitation relationships in the first five years. These figures highlight starkly the increased fragility of de facto relationships over the marriage alternative. In the same report it is estimated that the number of children born outside marriage increased from around four to six per cent in the early 1960s to one-third in 2006. So one-third of children born today are growing up in relationships based on a de facto arrangement. We therefore have an increasing number of children who are living in families in this type of relationship and, as I have said, whose interests must be protected.
Further to this a survey found that, while it is best to retain the active involvement of both parents in the lives of children post separation, half of separated mothers and fathers indicated their relationships with the child’s other parent was friendly or cooperative—so the other half clearly did not. In a separate report, conducted for the Department of Families, Housing, Community Services and Indigenous Affairs, Parenting and families in Australia, it was found that lone parents were significantly more likely to report a higher number of stressful life events than partners who were in an intact relationship—married or de facto.
The children in these relationships will already face significant emotional and family challenges when these relationships break down, and it is therefore totally appropriate that we take steps as proposed in this bill to provide protection through the concurrent consideration of family and property law issues, and that at the very least we do all we can to ensure that children are at least provided for as a first priority.
This issue, essentially about providing protection at the bottom of the cliff—this is a bottom-of-the-cliff measure in relation to families—is a timely reminder of the urgent need to ensure that we do whatever we can in this place to avoid the situation occurring in the first instance. I am sure all of us would agree, in whatever form we wish to, that family is the bedrock of our community. The Governor-General, soon to depart the post, made this point the other night in the Great Hall. Family is the bedrock of our community. As families fail, whatever form they may take, our society also fails. Every year families come under greater pressure. A key policy focus of every government must be to keep relationships and, in particular, family relationships together.
In research conducted for the report I referred to earlier, half of parents with children under the age of 18 recently surveyed by the Australian Institute of Family Studies believe that is hard for couples to maintain a good relationship in today’s society. The Parenting and families in Australia study shines a light on some of the issues we need to face. The report also looked at the prevalence of life stress events amongst particular groups of people and families and the health of their relationships. The events included financial crisis, uncertainty in relation to employment, problems with police or court appearances, and issues with drugs and alcohol in the home. The report noted that parents who were unemployed were far more likely to report stresses than parents working full time, part time or those classified as not in the labour force. Keeping people in jobs and putting people in jobs is critical to keeping families together.
In this place yesterday the Deputy Leader of the Opposition repeatedly sought an indication from the government about how many job losses were forecast for the next 12 months. We already know from the budget papers that the forecast is for 134,000 job losses in this current financial year. I think we need to stop and reflect on the human toll of those job losses on potentially 134,000 families and on how many others there will be.
Those who work in overseas aid, particularly in the area of microfinance, will tell you that the best thing you can give to anyone in a poor family in a developing country is a job. Once they have a job and the ability to support themselves, they have the ability to support their family and eventually, with enough of them, they have the ability to support their community. While this is so true for working in overseas aid, it is just as true here in our own country. Jobs provide stability for families. They provide a sense of assurance for families. They provide an ability to plan for the future with confidence. There can be no greater thing we can do for families than to ensure the health and strength of this economy and to ensure that unemployment is low and that job growth is high. It is absolutely disturbing for families in this country that there are at least 134,000 forecast job losses—and that is one budget forecast that is dead on track. So keeping people in jobs and putting people in jobs is critical to keeping families together.
The study also finds strong linkages between the prevalence of these life stress events that I referred to earlier and psychological distress, with greater concentration amongst those with socioeconomic disadvantage as well as those with inadequate support structures—and I highlight this—to share the burdens of raising a family, either through extended family, within the relationships or otherwise throughout the community. Other issues included support in terms of access to information, to counselling and to opportunities to learn how to be better parents. Of greatest significance was the impact of all of these issues on the quality of parenting and how, in turn, a lack of such quality impacts negatively on the development of the child. All of these issues are significant—the ability to keep relationships together and, particularly, the responsibility of those in relationships to be good parents. I am sure we would all like to believe that all parents would like to be good parents, but not all of us are faced with the same challenges that others are in trying to be good parents. I think we should be mindful of that as we consider all sorts of measures.
While providing protection in this bill for when it all goes wrong, let us redouble our efforts in this place to help couples and families make it all go right, as far as families and relationships are concerned. One of the virtues of this bill is that it will make people, I believe, enter into a relationship, particularly a de facto relationship, more cognisant of the responsibilities to each other in forming such a relationship. One of the great virtues of marriage is that it requires a real and public commitment. I believe such commitment is essential to providing the stable environment that every child needs and deserves. For those who choose not to form a marriage relationship, I believe these measures will actually raise the bar. This can only serve to give these relationships a better chance and, in the event that they involve children, protect these children from having to go through the pain of family breakdown.
Relationships involving living together should not be a casual consideration. The only issue I raise in relation to this bill is the potential for the consequence—I would hope unintended—where a person is at the same time in both a marriage and what could be deemed a de facto relationship by the courts under this measure. This ‘Brothers and Sisters scenario’—for those of you who watch Channel 7—could in fact enable what is basically a polygamous relationship and a recognition of a series of polygamous relationships to exist. I know this is something my colleagues will touch on. I understand the Senate report on this matter today has highlighted some changes, and I must say I am not sure those changes go far enough.
In this case, I would like to be assured by the Attorney-General that the married partner could not in any way have their primary claim over property rights diminished by the presence of any other relationship, de facto or otherwise. We cannot endorse a situation of infidelity in polygamous relationships which results in the diminishing of rights of people in the primary marriage relationship. That is a fairly fundamental principle that I would hope this House and the Senate would support. I do not believe that this is the intent of this bill; I believe it is an unintended consequence of this bill and I think it urgently requires some clarification. I would also wish to be assured that the bill would in no way provide any precedent in relation to adoption rights through any form of tacit recognition of parenting rights for people with no biological relationship to a child in a same-sex relationship. A child, as I said, has the fundamental right to a mother and a father, and this right must always come first before all others. There is also the question of interdependent relationships, which I understand cannot be dealt with in the context of this bill or family law; nevertheless, it raises issues about how their property rights are impacted when longstanding interdependent relationships are terminated.
The bill provides a positive step forward and is a reminder of the need to ensure that we do what we can to avoid the mess that this bill is designed only to clean up. The health of our relationships is a barometer for the health of our society. We must value them, protect them and esteem them, so as not to enter into them lightly. And when we do enter into them, we must live up to our commitments and strive to create a greater environment for each other and especially for the children that become part of that relationship. This is easier said than done for all of us. It often feels like an unattainable goal; I am sure we would all agree. For all of our faults as human beings, probably the hardest to overcome is selfishness. It is often selfishness that gets in the way of all of our relationships.
As we consider this bill, I urgently ask the government to consider the matter I have raised in relation to the potential for this bill to give rise to polygamous relationships, and I ask them to address their attention to that and provide an absolute guarantee before the bill leaves this House. But I also commend the opportunity to move forward to protect children in relationships, however they may be formed.
I am pleased to speak in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I have argued, advocated and agitated for this amendment for many years. I became an articled law clerk in 1983 and commenced a practice in the jurisdiction of family law on that occasion. In 1996 I became an accredited family law specialist and acted for some of the most prominent citizens in the state of Queensland. Those opposite would be surprised to know that I have acted for more conservative politicians and their partners than for Labor politicians and their partners.
This particular reform is part of the great history of family law reform initiated by the Australian Labor Party, and I want to pay a tribute to a former Attorney-General and High Court justice, Lionel Murphy, for the groundbreaking legislation of the Family Law Act in the mid-1970s. Certainly in my experience as a family lawyer and in my observation in society as a husband and as a parent, I have seen great demographic changes in the concept of family and the meaning of family relationships in the last three decades. It is interesting to note that, according to the Australian Institute of Family Studies, the proportion of families of a couple with children has decreased from 48.4 per cent in 1976 to 37 per cent in 2006, and there has been an increase in couple only families from 28 per cent in 1976 to 37.2 per cent in 2006. One-parent families with dependent children have increased from 6.5 per cent in 1976 to 10.7 per cent in 2006. According to the Australian Bureau of Statistics, it is a fact that, of the 114,222 registered marriages in 2006, 76.1 per cent of the couples lived together in de facto relationships for the period prior to marriage—that is an increase from 64.7 per cent in 1997. We have seen many changes in family law, and it has been said on occasions that we should celebrate those years in which there have been no changes to family law. Certainly, we as politicians deal with family law issues, in terms of child support and other matters, almost daily.
The Attorney-General made a very interesting speech to the Family Law Practitioners Association of Queensland on the Gold Coast on 15 August 2008 when he set out that the Rudd Labor government was committed to family law and the family law system. He talked about the ideal of settling family law disputes outside the courts wherever possible and looking at effective ways to get entrenched cases out of the court system. The Rudd Labor government is committed to $1.7 billion worth of taxpayers’ money being spent on the family law system over the next three years, including a family relationship centre arrangement and also legal, community and other services. Why is this such a groundbreaking change? Married couples have had the opportunity to bring proceedings for spousal maintenance under section 72 and section 74 and have had the benefit of the factors under section 75(2) of the Family Law Act for many years. They have also had the right to bring applications for property settlement under section 79(1) and look at the factors set out in section 79(4) of the Family Law Act. These proceedings are matrimonial causes within the definition of section 4(1) of the Family Law Act. Further, married couples have had the ability to enter binding financial relationships under part VIIIA to oust the jurisdiction of the court and to make their own arrangements in terms of property and spousal maintenance.
Since December 2002 under part VIIIB of the Family Law Act, those couples who have been married can split their superannuation interests by binding financial agreements or by court order, and trustees of superannuation policies can be bound by those arrangements provided procedural notice is given. These rights have not been consistently experienced by those Australians living in de facto relationships, whether of a heterosexual or homosexual nature. Why? Really it is a constitutional problem because our founding fathers, in their wisdom, did not provide the Commonwealth the necessary jurisdiction.
About two decades ago the states referred power to the Commonwealth—Queensland in 1990; New South Wales, Victoria, South Australia and Tasmania in 1987—so that ex-nuptial children could be dealt with under a uniform national approach concerning parenting orders. In the absence of Commonwealth jurisdictions concerning property and spousal maintenance between de facto couples, the states have had to take up the slack. New South Wales in 1984, Victoria in 1987, Northern Territory in 1991, Australian Capital Territory in 1994, South Australia in 1996, Tasmania and Queensland both in 1999 and Western Australia in 2002 have all introduced statutes which cover property alteration arrangements and other financial matters concerning couples of a de facto relationship of a heterosexual nature.
De facto same-sex relationship legislation has already been introduced in the states and territories—in the ACT in 1994, in New South Wales in 1999, in Queensland in 1999, in Victoria in 2001, in Western Australia in 2002, in Tasmania in 2004 and in the Northern Territory in 2004—so why are we dealing with this amendment now? Because for many years, despite the agreement of the then Commonwealth Attorney-General, the Hon. Daryl Williams QC, when he announced on 8 November 2002 that all of the states and territories had agreed with the Commonwealth to refer the powers to the Commonwealth, nothing was done. The reality is that the Howard government squibbed this issue because there was an insistence that the Commonwealth should only legislate in relation to heterosexual relationships. There was a discriminatory approach when it came to those couples in same-sex relationships. This bill, despite the member for Cook’s fudging the issue, actually deals with de facto relationships of same-sex couples. I refer the member for Cook to proposed section 4AA with the definition of de facto relationships, particularly (5), which says:
- a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex…
So it is interesting that, despite what the member for Cook was saying, this groundbreaking legislation deals with both heterosexual and same-sex relationships. It is a shame and a disgrace that the Howard government failed to act upon this for so many years.
The primary aim of this bill is to extend to de facto couples the same rights to property settlement and spousal maintenance as married couples. Excuse me for being a parochial Queenslander, but I am aware of part 19 of the Queensland Property Law Act because it is the law with which I am most familiar. Under part 19 of the Property Law Act there is no right to bring proceedings for maintenance between de facto couples, whether of a same-sex nature or a heterosexual nature. There is no right to split superannuation as part of a property settlement. While there are factors that we would look at, such as sections 291 through to 309, which mimic 79(4) and 75(2) of the Family Law Act, there is no history of jurisprudence and no familiarity with the nuances of property settlement and spousal maintenance litigation. It has been my experience that judges do not pay sufficient attention to the importance of contribution to the welfare of family, particularly by women with children in their capacities as homemakers and parents in the state system in Queensland. Since cases like Norbis in 1986 and Mallet earlier on, the High Court of Australia and the full court of the Family Court have paid due diligence and respect to the contribution of women, particularly their contribution as homemaker and parent. Their contributions are no less important than the contributions made by the breadwinner in the family. I am pleased to see the Family Court has adopted an approach that looks at this and, in recent decisions, has rejected the concept of special contribution in that dreadful decision of Ferraro some years ago.
The cost of running parallel cases—one in the family law courts system, either in the Family Court or the Federal Magistrates Court, and another in the state courts—with the additional costs of pleadings and formal court proceedings is prohibitive for many people. It is difficult for litigants in person, it is difficult for women with children, it is difficult for those with few financial resources. The failure of the previous Howard government in relation to this matter has meant there have been obstacles to justice in this area for Australian families, particularly those living in de facto relationships. It is unfair, and we have had messy jurisdictional problems. For example, in New South Wales, under the Property (Relationships) Act, there is no reference to what we—that is, family lawyers—call the section 75(2) factors. There is no emphasis on other needs and resources based factors. That equivalent is so important to do justice to people, particularly those on low incomes, those with the primary responsibility for the care of the children and those without adequate child support and access to superannuation. In Victoria there is no right to spousal maintenance under the Property Law Act. In Queensland it is the same, but the poor Victorians have an even direr situation because there is no right to take into consideration in Victoria the 75(2) factors. So a Victorian who is living in a de facto relationship has no right to have the court regard the age or health or care of children in the future as factors in property adjustment in the Victorian system.
As I said, the concept of ‘de facto relationship’ is important because there is some definition as to what it might mean. Unlike the member for Cook, I do not lack faith in the judiciary to interpret adequately the meaning of this term because there is guidance provided in the bill on that. In fact, it imitates the relevant provisions in Queensland under the Property Law Act and section 32DA of the Queensland Acts Interpretation Act.
There is a limitation period provided in the amending bill. Except with leave of the court, a party to a de facto relationship can apply for an order under section 90SE for maintenance and section 90SM for property settlement but only if it is made within two years of the end of the de facto relationship. This is similar to the Property Law Act of Queensland and certainly to the Family Law Act. For a person to make an application for maintenance or property settlement, they must have been in a relationship for a period of two years of cohabitation. There is an exception if there is a child of the relationship or if the applicant has made a substantial contribution of the kind set out in section 90SM. That is similar to the Family Law Act in section 79(4). So I am very confident that this will be interpreted liberally and broadly in the circumstances. I think there will be some emphasis on whether there has actually been a de facto relationship. I am pleased that there is an amendment in the bill which talks about the concept of the court having the power to make a declaration under section 90RD about the duration of the de facto relationship.
There are some problems, however, that I can foresee in this particular bill. For example, for those couples who are not blessed with being able to come within the meaning of the amendments—for example, if they have not got a child of the relationship, they have not lived together for two years or there is no substantial contribution—those particular litigants have to resort to the old concepts of constructive or resulting trusts. They have been interpreted in a very narrow way by the High Court in cases like Baumgartner and Muschinski v Dodds. Concepts like that really fail to take into consideration contributions as homemaker and parent, so I have some concerns.
If it becomes necessary to define a de facto financial relationship, reference will have to be made to whether that person continues to remain within a state or territory. This could have some problems in terms of establishing a geographical connection. For some inexplicable reason, the South Australian government has not referred the power, so there could be some jurisdictional difficulties or if someone lived in South Australia for a while and then lived in Queensland for another period of time. It was interesting to hear this particular concept being discussed recently at a family law conference on the Gold Coast, where very prominent Sydney counsel Neil Jackson recently explained this particular predicament. I think that there needs to be better regard to this geographical connection issue in the future. I understand that there is a constitutional issue involved, but I would urge the Attorney-General to have a good look at this.
There is another problem that I foresee here in that only those couples who separate after this legislation is promulgated will have the power to bring proceedings under this legislation. That means those people who are living in de facto relationships and who separate before its promulgation will not have access to the same kind of justice and will have to resort to the state and territory courts. I have already outlined some of the problems, particularly in the bigger states of Australia. There is also no amendment to section 90K of the Family Law Act, which sets out the grounds to set aside financial agreements. Parties can enter binding financial agreements to oust the jurisdiction of the court. Unfortunately, recently the full court of the Family Court, in a case called Black and Black, held that there needs to be strict compliance with the statutory requirements to oust the jurisdiction of the court. I had hoped that the Attorney-General would use this opportunity to ensure a more liberal approach was formulated by statute and I would urge him to look again at section 90K and the new section 90UM in relation to this problem.
A final difficulty that I foresee in this particular legislation is the problem caused by the majority decision in the full court of the Family Court case called Coghlan and Coghlan in 2005. I had hoped that that particular decision would be overturned by this bill, but unfortunately it will not be. The new section 90MA will provide an extension for those couples in de facto relationships to have the same rights to bring applications for property settlement and super splitting arrangements as married couples. But there is a problem. The Coghlan case was a 3-2 decision and unfortunately what it said was that everything turned on the word ‘also’ in section 90MS. What that meant was this: unfortunately, superannuation is treated as another species of asset, different from property as defined in section 4(1) of the act. I would urge the Attorney-General to have a look at this particular decision and uphold the minority views of justices Warnick and O’Ryan, who were correct in my view. There has been a lot of confusion and uncertainty caused by the decision in Coghlan and it should be done away with.
I would urge the Attorney-General to have a look at the case of Hickey, a 2003 decision of the full court of the Family Court, made up by a differently constituted bench. Superannuation should be considered to be property for the purpose of property adjustment orders. It should be treated as property and it should be property. There should be some certainty in this particular area, and I would urge the Attorney-General to make the changes.
But on balance this is a great reformist bill. It empowers those people who have lived for a long time without access to spousal maintenance, without the right to split their superannuation and to have the right to have their real future needs taken into consideration in property settlement. This is a great Labor amendment. This is groundbreaking stuff for the people of Australia. It means that people are treated equally no matter what their domestic arrangements, and that is how it should be. It is a shame that we have waited so long in this country to bring forward legislation like this, which will make a difference to the lives of tens of thousands of Australians in the next few years and hundreds of thousands in the years to come who will go through the family law system that we have in Australia today. I commend the bill to the House. (Time expired)
In addressing the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 this morning, I want to make the opening remark that I am very concerned when we see legislation of this nature. I know the bill has had a Senate inquiry and that the report was tabled this morning. The same day that that committee report is tabled, this bill is brought on unannounced in this chamber. The lack of opportunity to discuss important issues like this usually results in unintended consequences being left in the bill and a mess being left of the lives of the individuals that it affects. I really do object to the way in which a bill such as this is not allowed to lie on the table for a sufficient period of time for us to look at what those unintended consequences may well be.
This morning I want to deal with a few scenarios which the second reading speech simply does not envisage. The second reading speech just talks about de facto relationships as if they exist in isolation. It does not talk about the complexity of relationships or, indeed, the situation that could arise and may well arise and indeed will arise where we are actually sanctioning polygamy. There is already a debate in the community involving certain people who have a particular religious belief and who believe that polygamy should be introduced into this country. An interpretation of this act and the way it is coming in has not been addressed in depth. It has been touched upon in the Senate inquiry and, as I said, the report was tabled this morning. I do not have a bound copy of it, only a loose-leaf copy, and it is just not good enough to leave these questions out there.
Let me give you a few scenarios. In this country we say that marriage is the preferred way in which families should be formed. I thought there was bipartisan support for that principle, that we prefer marriage over other relationships that are established. My colleague the member for Cook outlined statistics in his speech which showed that in the stability of marriage relationships the benefits for children are better. The likelihood of breakdown is less than it is in a de facto relationship. He highlighted the figures that I think I first published in a report that I did into balancing work and family that show about a third of all children are born into de facto relationships and the consequences that flow from that. Some of those will be de facto relationships which are stable and some of them will be, to put it colloquially, encounters that occur from which no relationship is established but from which a child is born.
So we are looking at questions which are important in the welfare of children. In this country we do not have a public policy which is in the interests of children. We mouth it off. We say it in the area of family law, we say it in the area of adoption, we say it in the area of fostering and we say it in the area of drug abuse that we are making decisions in the interests of children. We never are. I have seen official reports that say: ‘If we give this child to this parent, it might be good for the parent.’ So, when we start to look at the issues that are involved, let us look at the cases of individuals who matter. Supposing, for instance, we have a legitimate marriage of good standing, let us say, of 15 years in Sydney: husband, wife, two children, a job, a house—all the things that make it a recognised and stable marriage. Down in Adelaide, we have not a marriage but a de facto relationship: house, support, children—the whole box and dice. Under this legislation, the de facto spouse of the second family will have the same standing and rights as the wife of the first family when it comes before the Family Court. That is polygamy. Indeed, if a proceeding was to begin where the spouse in the de facto relationship takes an action then the spouse of the original marriage can be joined and you can have it all dealt with as a single lot. There is nothing in this act to prevent the court treating the two spouses as the same before the law. There is no protection or no higher recognition under these amendments given to a marriage. I think it is important to say what we define in this legislation as being a de facto relationship. It says in new section 4AA:
Meaning of de facto relationship
- A person is in a de facto relationship with another person if:
- the persons are not legally married to each other; and
- the persons are not related by family ... and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Whatever that may mean. It then goes on to say:
Working out if persons have a relationship as a couple
- Those circumstances may include any or all of the following ...
So the court may consider these things:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship ...
That means that in some states, where there is a same-sex couple relationship, they may register it. That can be considered. It goes on:
- the care and support of children;
- the reputation and public aspects of the relationship.
It then says:
- No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
So there is uncertainty.
- A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In other words, until such time as we have case law and matters considered, we will not know what the definition of a de facto relationship is likely to be. Once we have some case law, we will have some precedent, and it will be followed. The next part of the legislation which we are asked to enact says:
- For the purposes of this Act—
the bill is the Family Law Amendment (De Facto Financial Matters And Other Measures) Bill 2008, amending the Family Law Act—
- a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
- a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
So you can have a married couple where one of the partners sets up a de facto relationship with a person of the opposite sex and then sets up a further de facto relationship with a same-sex partner, and they can go on forming relationships if they wish. There is no limit to the number you can have; there is no definition that says when enough is enough. We have total uncertainty under this law, because it is simply not being considered.
My colleague the member for Cook said that these are probably unintended consequences, and I can only hope they are, because at the end of the day there has been a commitment in this place from this Prime Minister saying that he indeed gives a special place in our law to marriage and married couples. There have been many attempts to downgrade the definition of marriage to simply being some sort of shared relationship, and that has been resisted. If you read the submissions that were made to that inquiry, you will find that there are very strong groups of people who are totally offended by what are proposed as unintended consequences of this legislation.
I will go to the second reading speech and the minister’s outline of what this bill is meant to do. Nowhere does the second reading speech recognise that there is the possibility of multiple relationships. It is as if they are all stand-alone relationships and they are never going to be anything else. It says:
The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 introduces significant reforms to allow opposite-sex and same-sex de facto couples to access the federal family law courts on property and spouse maintenance matters on relationship breakdown.
It then goes on to say:
The reforms will also bring all family law issues faced by families on relationship breakdown within the federal family law regime.
It will, and they will all be on an equal basis. Because people can apply to be joined as a party to proceedings, you could have a divorce proceeding where a person has a de facto relationship with an opposite-sex partner and one with a same-sex partner, and those partners are joined as actions to that proceeding. There is nothing in this legislation to say that cannot happen and there is nothing in this legislation to prefer the institution of marriage—nothing. It breaks it down to commitment.
The thing that distinguishes marriage is that people make a public commitment. There are witnesses who must be there to see it happen and there is documentation to say it exists. When someone comes to a court and says they are married, there is a piece of paper that is irrefutable evidence of that marriage. In those states where same-sex couples are entitled to register a relationship, they have a piece of paper that says, ‘We have an established relationship.’ When it comes to a de facto relationship, whether it is between same-sex couples or heterosexual couples, it is a matter of subjective interpretation of the items that are set out in the court. So we have competing levels of proof as to what is an established relationship, and yet they are to be treated as equals before the law. This is a major departure from what has been said to be the position of both the government and the opposition in this parliament. It makes a mockery of the statement of the Prime Minister that marriage is sacrosanct and should stand above other relationships, because this legislation does not allow that to happen.
Let us go on with the second reading speech. It goes on to say:
This bill amends the Family Law Act 1975 and related legislation to create a Commonwealth regime for handling the financial matters of de facto couples on the breakdown of their relationship. By providing a consistent and uniform approach for de facto relationships, this bill will alleviate the administrative and financial burden—
that they currently have of being in separate jurisdictions, which made a distinction between a married couple and a de facto couple. That is now being removed. And that can have very positive outcomes for children, if we are serious about really considering children. But there is still a need to recognise in this legislation that marriage is the preferred institution.
In the second reading speech, as I said, no account is ever taken of the fact that you can have relationships which are confused, to put it mildly. You can have a situation where somebody who has been married has their entitlement whittled away because they are to be treated equally with a spouse under a de facto relationship. The second reading speech says that the court:
... will need to be satisfied that the de facto relationship lasted for at least two years, that there is a child of the relationship or that a party to the relationship made a substantial contribution to the relationship ...
That is all it says it has to do, whereas the legislation says far more. Then the second reading speech says:
The bill will allow a court to make orders for the maintenance of one of the parties to the de facto relationship, or an order declaring or altering the interests or rights of a party to a de facto relationship in respect to property.
And that can mean property not just of their relationship but of other relationships into which one of the parties to that relationship has also entered.
My complaint, and the thing that I am concerned about, is that there has not been sufficient time allowed for this bill to be considered and for these issues to be canvassed widely, not just by the people who sent in submissions to the Senate inquiry, not just by the people who have picked it up since the second reading speech—which I think was in June, before we got up—and have managed to read it, but for the general community to be aware of them.
Let me just finish on the question of superannuation, a very vexed question. It was only in 2002, when we were in government, that we finally said that superannuation should be considered marital property for the purposes of property settlements. Then we had moves such that other people who are not married couples also want to have access to superannuation. Suppose that you have a married couple. Suppose they have been married for 20 years. Suppose that one party—let us say the husband in that marriage—has chosen to salary sacrifice part of his wage in order that superannuation can be built up, and the family over those 20 years has therefore had less disposable income during those 20 years because there has been the sacrificing of the salary into the superannuation. Suppose that that husband leaves that relationship and establishes a de facto relationship. Suppose he is in that relationship for 10 years. Suppose he does not salary sacrifice this time; he just goes on paying his superannuation. Suppose that relationship then breaks up and the de facto spouse takes action. You have had a family for 20 years which has gone without disposable income in order to build an asset. You have another family which has not had a forgone disposable income and wants access to that same asset. Where, in all the discussion that we are having here, are those problems addressed? They are not. And that is why I say to the government that the better course of action would be to allow this discussion to take place and to allow proper analysis of the impact of this bill on families in this country and the impact on marriage that it will have.
If I sound passionate, I am, and I am because I so often get the answer, ‘Well, maybe those circumstances won’t affect too many people’—that is, they do not matter. To me, individuals do matter. Each individual who is going to be impacted by this bill has the right to be considered. I know the collective argument of the government will be that this is a better outcome for all and that the individual who will be adversely affected can be sacrificed to the collective decision. That is the big philosophical distinction between us: the difference between individualism and collectivism, where we consider the impact on individuals and you do not; you consider the collective.
I say to you that the speed with which this bill is being introduced is simply unwarranted. It should be permitted to lie on the table. It should be able to be discussed so that we can see the ramifications of its unintended consequences.
I rise to support the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. Before I continue with my speech, I thought I would address some of the information provided, I hope mistakenly, by the member for Mackellar. She took a wrong turn at the start of her speech and did not actually get back to the truth, or the accurate content, until towards the end of her speech. She stated at the start that this bill has been rushed into parliament. My calculation is that it was put on the table on 25 June, which she did accurately state at the end of her speech, which is about 64 days ago. That is a fair bit of time to look at the legislation. That was from someone who was part of a government that I think used to introduce legislation in the morning and then debate it in the afternoon.
More than once. There is a little bit of hypocrisy there in suggesting that 64 days is rushing something. Sixty-four days is obviously enough time to consider the legislation.
One of the other bits of information that I would hate the public to be misled by was the idea that there is no definition of de facto. Any lawyer knows that there is significant case law dealing with definitions of de facto, especially in succession law, where I used to work. There is lots of case law on some of the things that the member for Mackellar put forward. Obviously there is family law. There are lots and lots of cases, precedents, both at the state and federal level, and obviously also even in superannuation law, dealing with some of the examples that the member for Mackellar put forward.
Let us return to the facts and the bill before us. This bill amends the Family Law Act 1975 to allow opposite-sex and same-sex de facto couples to access the federal family law courts on property and spouse maintenance matters. This is hardly an introduction to a piece of legislation that would suggest it is revolutionary, as was put forward by the member for Mackellar. In fact, it sounds dry and almost perhaps a little bit boring. Nevertheless, this bill before the House goes another small way towards restoring fairness to our community—in fact, to all of our community. It is yet another example of practical equality from the Rudd government.
I turn to one of my favourite books, To Kill a Mockingbird, by Harper Lee. That book is largely about suggesting to people that they need to consider what it is like to step into someone else’s shoes to understand what the world is about. That is the major theme, I guess, in the novel To Kill a Mockingbird. There was a similar theme used in Paul Keating’s famous Redfern speech, when he urged us to judge fairness based not on our own experience but through the eyes of others. The fundamental tenet in Keating’s famous speech was that concept: how would I feel if this were done to me? I ask members of the House to imagine that these discriminatory laws applied to them. Keating’s magnificent speech was obviously about another form of discrimination, but the principle still holds true.
If we aspire to true equality in Commonwealth law, then we must amend legislation that discriminates against some sections of our society. The legislation before the House is about bringing fairness into play when we are dealing with separating de facto couples. It is quite simple, despite all the smoke and nonsense from the preceding speaker.
Unfortunately it is often the case that we have to fight for fairness. The struggle to give de facto couples equal property rights has been no different. It was first suggested as far back as 1976 that the powers of property rights of de facto couples should be referred to the Commonwealth. I was in grade 6 in 1976. Mr Deputy Speaker Georganas, you would have been in grade 1, I think! It is a long time ago. The struggle continued until a 2002 meeting of the Standing Committee of Attorneys-General, when the Commonwealth, state and territory governments agreed for the states to refer these powers to the Commonwealth. Remember who was in power in the Commonwealth in 2002. Queensland, New South Wales, Victoria and Tasmania have already put legislation in place to refer these powers to the Commonwealth.
Another five years of typical inaction by the coalition government passed and finally today we are debating legislation that will finally restore fairness for de facto couples. This is especially important now that an increasing percentage of Australians live in marriage-like relationships in preference to formal marriage. I am not sure how this is going to play out for politicians. I send out wedding anniversary cards to people that reach their 50th anniversary and the like. I am not sure if I am able to obtain a de facto 50th anniversary card. I will have to work on that. Love is a complicated enough thing for heterosexuals who enter into a normal marriage. When things go bad, sometimes unfortunately we need the helping hand of the state to try and make it as easy as possible for people to sort out their differences.
Under the current state and territory based laws, de facto couples have different rights in different states when it comes to property settlement and spouse maintenance. With the much more mobile Australian community these days, this creates extra headaches, especially in places like Queensland, where people on the Gold Coast can easily go back and forth over the border. Where de facto couples have children, they might deal with children issues in a federal family law court and then property issues in a state court. Further complications arise where couples own property in different states. This places unnecessary costs and stresses on families already facing the hurt of a relationship breakdown.
The bill ensures that issues regarding children and property will be dealt with under a single set of consistent laws. I have been a lawyer and lots of my friends are lawyers. I will have to apologise to them for creating less work for them, but obviously it is a good thing when the Commonwealth is able to simplify some of these issues. I believe that, wherever possible, people should work to resolve these matters without courts and lawyers—they make enough money. But my friends who are family lawyers assure me that every now and then people will resort to lawyers at 50 paces. Unfortunately, human nature being what it is, on occasion people insist on using the courts to bludgeon each other, so it will be useful to have some legislation that simplifies some of these issues.
We must ensure that everyone has access to a fair and equitable system. The bill before the House will enable the Commonwealth to set up a system for handling the financial and property matters of de facto couples. The federal family courts will deal in the one proceeding with both financial and child matters for separated de facto couples. It will provide greater protection for separating de facto couples and simplify the laws governing them. That is a good thing.
This bill also introduces equality for de factos with regard to their superannuation. And isn’t the superannuation tale a wonderful Labor tale? Think of the sacrifices that Prime Ministers Hawke and Keating had to make to introduce superannuation to the Australian people. Once upon a time it was only a couple of coalminers, a couple of farmers and a few well-off people that had superannuation, whereas now normal working people—people working in bars and the like—have superannuation assets that they are able to talk about and look at online to see how their retirement plans are progressing. That is a wonderful achievement for the Labor Party and those Labor governments.
The legislation before us allows de facto couples to split their superannuation interests in the event that they separate. I note that this has been available to married couples under the Family Law Act since 2002, but not to de facto couples.
These reforms will apply to de facto relationships that have lasted for two years or more or for a shorter time than that if there is a child from the relationship.
This bill does not discriminate on the basis of sexuality. It redefines ‘de facto relationship’ to apply to both opposite-sex and same-sex de facto couples.
I especially welcome the support for the bill from that esteemed body the Law Council of Australia. Law Council President Ross Ray QC—that is Ross Ray, not Robert Ray; he was a different legal authority enforcing a different set of rules!—said:
Any step towards eliminating discrimination brings us closer to meeting our international human rights obligations, makes us a fairer, more just community and ought to be greeted with strong approval.
That is strong praise indeed from the Law Council of Australia.
That other august body the Human Rights and Equal Opportunity Commission have also given their support to the intent of this bill to remove discrimination against same-sex couples and their children. When HREOC says something, it is a good idea to listen. HREOC is a pretty good weathervane as to where the winds of fairness are blowing. To quote the great poet and songwriter Bob Dylan, from his song Subterranean Homesick Blues:
Keep a clean nose
Watch the plain clothes
You don’t need a weather man
To know which way the wind blows
When HREOC is coming out in support of this legislation, it is a very good thing. I too support this bill, because it is right that separating de facto couples should have the same rights as divorcing couples. I commend the bill to the House.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 seeks to amend the Family Law Act to provide de facto couples, both opposite-sex and same-sex, with access to federal family courts on property and maintenance matters. The bill relies on referrals of power by most of the states to the Commonwealth, currently with the exception of Western Australia and South Australia, agreed through the Standing Committee of Attorneys-General in 2002.
Presently, the financial arrangements between separated de facto couples are subject to state and territory laws, which vary among jurisdictions, while child custody and access is governed by federal courts. Consequently, in many cases separated de facto couples with children may need to institute proceedings in different courts in relation to the various matters in dispute between them. The intention of this legislation, therefore, is to provide for national uniformity for all relationship breakdown matters and confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships, namely the Family Court and Federal Magistrates Court. These are serious issues for de facto couples, and legislation to address them has the support of the coalition. Funds were allocated by the Howard government in the 2007-08 budget for one additional Family Court judge and four additional federal magistrates in anticipation of this measure. This bill is still being considered by the Senate Standing Committee on Legal and Constitutional Affairs, which I understand is due to report shortly. It is my understanding that the committee will be recommending amendments to the bill.
Turning to the detail, the amendments confer jurisdiction on federal family courts in relation to de facto financial causes by the insertion of a new part VIIIAB. It mirrors, but is distinct from, the provisions of the act relating to the property aspects of a marriage breakdown. A person is in a de facto relationship with another person if they are not married or related to each other by family where, having regard to all of the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis. This applies equally to same-sex and opposite-sex couples. The coalition agrees in principle with that intention.
For the purposes of orders relating to maintenance, alteration of property interests or declaration of property interests, a de facto relationship must have been in existence for two years, or a period totalling two years, or have produced a child. The amendments do not apply to de facto relationships that broke down before the commencement of the act; however, financial agreements written in contemplation of a de facto relationship before the commencement of the amendments will be governed by the act.
The definition of ‘spouse party’ in the act is to be amended to include a party to a de facto relationship. However, the act will be arranged into distinct parts so that marriage and de facto relationships are dealt with separately. The coalition believes this is an appropriate way to structure the legislation.
The coalition recognises that people enter de facto relationships for a range of reasons. Often they do so as the next stage from commencing a sexual relationship, when it no longer makes sense to pay two lots of rent. Sometimes, too, they enter into de facto relationships following divorce because they do not want the obligations and incidents of marriage. When there are no children of the relationship, treating them as independent, autonomous adults who can look after themselves and make their own way financially in the world fits with their expectations and intentions, however long the relationship lasts. It is important that legislation recognises the diversity of circumstances that apply to de facto relationships, some of which resemble marriage in all respects other than being formalised and some of which do not contemplate any property related consequences. This is an aspect of the legislation that the coalition believes may require clarification and possible amendment. We believe it will be appropriate to await the Senate committee report before proposing any amendments in this place.
The bill seeks to confer additional jurisdiction on federal courts. Unlike marriage, the existence, commencement and duration of de facto relationships are matters of evidence and can be highly contentious. Additional resources were allocated to the Family Court and Federal Magistrates Court in the last coalition budget, and we will monitor closely the adequacy of those resources.
The coalition supports the principles underlying this bill and believes it is important in terms of both efficiency and justice that de facto couples, of whatever sexual composition, have access to the expertise and experience of the Family Court and the Federal Magistrates Court in relation to all issues arising out of relationship breakdowns. That said, I wish to echo the points made by the Leader of the Opposition in this place in relation to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. In giving our support to this bill, we do not and will not support any change to or devaluation of the traditional status of marriage as the bedrock of our society. Acceptance that people who live in a permanent domestic relationship, whether same sex or opposite sex, must not be allowed under any circumstances to devalue the traditional status of marriage. The opposition does not accept that there is either a legal or a moral equivalency between such relationships and that of marriage.
On behalf of the opposition, therefore, I 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:
- affirms its commitment to the central importance of the institution of marriage in Australian society;
- recognises that partners to permanent domestic relationships other than marriage (including, but not limited to, same sex relationships) ought not to be discriminated against in relation to their financial and property affairs; and
- notes that the Opposition has referred the bill to the Senate Legal and Constitutional Affairs Committee with a view to ensuring that, in relation to this bill:
- the centrality of marriage is not devalued, whether by the use of inappropriate statutory language or otherwise; and
- the rights and status of children are properly protected”.
It gives me a great deal of satisfaction and pleasure to rise to speak in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I do not know what the opposition’s amendments are. They had a long time to bring this kind of legislation into the parliament, having announced—rather hypocritically—that they were in favour of the essence of this idea but doing little about it over the last decade.
The package of bills of which this is a part has been a long time in coming. These bills represent the fulfilment of a promise which Labor first made at the 1998 election—when I was first elected to this place—to remove discrimination against gay men, lesbians and same-sex couples in federal legislation. It is a promise we made to a community which has suffered a historic legacy of discrimination. It is a promise that I, and some other members—notably my friend the Minister for Infrastructure, Transport, Regional Development and Local Government, Mr Albanese—have continued to promote over the past decade. It is a promise that we are, at last, in a position to keep, and I want to express my appreciation to the Attorney-General and the Prime Minister that these bills are being brought on so early in the government’s term in fulfilment of that promise.
This week we were delighted to see a fine young Australian, Matthew Mitcham, win a gold medal in diving in the Beijing Olympics, and I know all members will join with me in congratulating him. But what does it say about us as a country that while we congratulate him we continue to tolerate laws in this country that deny him and his partner—the partner who provided him with so much support—some of the rights that other Australians take for granted? It says we are a country that still has a long way to go before we achieve full equality for all of our citizens. These bills mark another step, an important step, in reaching that goal.
This bill amends the Family Law Act to provide opposite-sex and same-sex de facto couples access to the federal Family Court on property and maintenance matters. The bill also amends the act to provide for amendments relating to financial agreements between married couples and superannuation splitting and to provide for certificates given in relation to family dispute resolution. It is hardly revolutionary stuff, but it has the ability to affect the lives of many people. The bill is part of a larger package of bills, of which the most important is the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. Taken together, these bills go a long way to fulfilling Labor’s promise to end discrimination in Commonwealth law.
These bills will mean a lot to many people in my electorate, including people who I know well and am proud to call my friends. But I point out to all honourable members on both sides that these bills will benefit gay men and lesbians in their electorates, whether they know of their existence or not. The gay and lesbian community may be more visible and vocal in the electorate of Melbourne Ports, but that does not mean that these bills will have no importance in the electorates of Riverina, O’Connor, Maranoa, Casey or Bradfield. They will certainly have importance to people in those places—people whose voices are not often heard in this House.
I am pleased that the opposition have decided to support these bills. I do not know what their amendment is, but I am entitled to point out that the reason we had to wait 10 years to see these bills before this House is that the opposition, when they were in government, preferred to play cheap populist politics with this issue rather than do what they knew was the right thing. We all remember the stunt pulled by the then Howard government in 2004, when they brought in their ‘defence of marriage’ bill in the run-up to that year’s election in the hope of playing wedge politics with the issue of marriage out in the electorate. In other words, they hoped to exploit homophobia to win that election—whatever they may have said in this House or not. I know this is true because a member of my staff heard two Liberal members of this House saying exactly that.
Let us be clear about this—it has never been Labor policy to change the definition of marriage in the Marriage Act. I have never heard such tortuously hypothetical nonsense from the member for Mackellar, who spoke before. Her points about the definitions of de facto couples were very ably answered by the member for Moreton, who said there is a vast area of case law affecting the definition of de facto couples.
I know many in the gay and lesbian community are unhappy about the fact that the government are not affecting any definition in the Marriage Act, but that has always been our policy position. These bills do not change that. They do not affect the status of marriage and they certainly do not ‘undermine’—as the member for Mackellar was trying to insinuate—the institutions of marriage or family, as some people have alleged. What they do is provide that people living in same-sex relationships and their children will have the same rights in the fields of superannuation and family law, and before the courts, as people who are legally married. As someone who has recently entered the esteemed estate of matrimony, I reject the view that married Australians will somehow be adversely affected by extending equality in these areas to other Australians. Extending rights to others enhances rather than diminishes the rights of all. It was Lenin who said that freedom is so precious that it must be rationed. I would be disappointed to find that members of this House shared that view.
At the time of the ‘defence of marriage’ legislation, the then Attorney-General, the honourable member for Berowra, said that the government would bring in a bill ending discrimination against same-sex couples in superannuation—as if this would somehow compensate the same people the government was insulting with their crude wedge politics. I do not doubt that the honourable member intended to honour that commitment. But he was not able to so do because of opposition by the cabinet, led by the National Party. So it has fallen to Labor, as it has in so many areas of important social reform, to do the right thing—in this case, to do what every member of this House knows should have been done a decade ago. It is with great pleasure that I commend this bill to the House.
I rise today to speak on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. Like my colleague before me, the member for Melbourne Ports, I welcome this legislation, which is indeed long overdue. It gives effect to an agreement between the Commonwealth, states and territories which was actually made in 2002. There are three key points embodied in this bill. Firstly, it will allow de facto couples to access the federal family law courts on property and spouse maintenance matters. Secondly, it will make the laws in this area simpler and more consistent across state boundaries. Thirdly, it is consistent with the government’s policy not to discriminate on the basis of sexuality, as the bill applies to both opposite-sex and same-sex de facto couples. Given the increase in de facto relationships within Australian society—de facto partners now represent 15 per cent of all people living as socially married—it is important that these couples have access to a Commonwealth regime for handling the financial matters associated with any breakdown of their relationships.
This bill amends the Family Law Act 1975 to create a regime for de facto couples similar to that which exists under the act for married couples. I think it is extremely important, in a time when we are seeing more and more different family types, that those who choose to live in de facto relationships have access to the same process as those who live under formal marriages. Of course, ideally we like to see all relationships last and be productive and positive for everyone, whether people are married or whether they are de facto, but the truth is that, for many reasons, many do not survive. There are just over 50,000 divorces granted each year, about 30 per cent more than there were 20 years ago. That is possibly one reason why more people now choose to live in de facto relationships. Other reasons are probably to do with the changing nature of work, financial pressures and the way young people perhaps focus more on the quality of relationships than on the legal status of them. The opportunity for travel, of course, means young people spend more time in different parts of the world. It all means that people are less and less likely to stay in one place for too long.
I note the important part of this legislation that ensures same-sex de facto couples are not discriminated against. As I said earlier, we live in a country where, by and large, people are free to make their living and family arrangements as it suits them, and I strongly say that is how it should be. I note that there is an amendment, which I have only just looked at, from the opposition. The opposition wishes to ensure that the centrality of marriage is not being devalued. I think that is a fairly simplistic approach. I wish relationships were that easy. Having a marriage certificate does not ensure the depth, positiveness and lasting value of a relationship. I find it rather distressing sometimes in this place when political parties politicise something that I think members of parliament would be the least able to comment on—human relationships. Most people would hope to end their life having had a very intimate and rewarding personal relationship. I think we would be the last people to tell them how that should look and what form it should take.
Many years as a school principal gave me the experience of the difference and diversity of caring parent relationships, whether they involve a person not even related to a child, a grandparent or another relative. That complexity is something that should be acknowledged, assisted and supported in our response so that relationships that involve children are always positive. I do find it difficult that the opposition have brought forward an amendment that really does not relate to this bill; that is outside the ambit of the bill. They certainly attempt to divide people. I would say, though, that the Australian public are not divided on their attitudes to relationships and marriage. The majority think they are something that we should stay out of. I stress that I agree with them.
It is very important that we have a regime in place that does not discriminate against people for the relationship that they have chosen to pursue. Our government is committed to policies of nondiscrimination on the basis of sexuality. That is why we have also passed legislation in this place to give partners in same-sex relationships equal treatment in the area of superannuation. Unfortunately, that legislation is currently being held up by opposition senators, who have sent it to a committee for review.
Because these are important first steps in implementing the government’s election commitment to remove discrimination against people in same-sex relationships from a wide range of Commonwealth laws it is appropriate that this legislation be given speedy passage. I would hope that a bipartisan spirit would prevail on this very basic principle of treating all people as equals at law. So I am pleased that this legislation covers both opposite-sex and same-sex de facto couples. I am pleased also that it gives them access to the same regime that currently applies to married couples. Looking a little closer at that regime, we can firstly note that the reforms apply to a de facto relationship that has lasted for two years or to shorter relationships if there is a child of the relationship or if a party to the relationship made a substantial contribution to that relationship and it would cause serious injustice not to grant an order. That definition will apply to de facto relationships, and I think it is a very sensible one.
The bill also extends to couples whose relationship both satisfies the definition of ‘de facto relationship’ in the references of power and is registered under state or territory relationship registration legislation. It is the primary objective of the bill to allow de facto couples to access the federal family law courts on property and spouse maintenance matters. This will give greater protection for separating de facto couples and simplify the laws governing them. This is because we are creating a Commonwealth regime for handling the financial matters of de facto couples on the breakdown of their relationship. The current state and territory de facto property settlement and spouse maintenance laws are far from uniform, giving de facto couples different rights and different procedures depending on which part of Australia they live in. New South Wales, Queensland, Victoria and Tasmania have all referred to the Commonwealth their powers over financial matters arising from the breakdown of de facto relationships, so this new regime will apply in those states as well as in the territories. At this stage, Western Australia and South Australia have not referred their powers, so de facto couples in those states will not be covered by the new laws—but this is still progress.
One important aspect of the law will be changed by this legislation. Currently, separating de facto couples who have children can find themselves with the issues relating to their children in one of the federal family law courts and their property issues being dealt with separately in a state court. As you can imagine, this creates additional stress during what is already a very stressful time for people, so being able to have all these issues of property, maintenance and child support dealt with by one federal court system, particularly one that has such a specialised practice and track record, will help to reduce some of that pressure—and the costs as well.
We also know that the federal family law courts have a great deal of experience in handling relationship matters and have procedures and dispute resolution mechanisms more suited to handling litigation between family members. Having the federal family law courts handle the financial and property matters arising from a relationship breakdown does make sense and, we hope, can provide a more sensitive environment for those matters to be heard in. The government understands that these measures confer additional jurisdiction on federal courts, and additional resources to deal with the increased workload were therefore provided to the courts in the 2007-08 budget. The government will also, in consultation with the courts, monitor the impact of the new jurisdiction created by this bill.
I am pleased we will be doing this as, just last week, I chaired a hearing of the inquiry of the Joint Committee of Public Accounts and Audit into the impact of the efficiency dividend on small government agencies. Among those we heard from last week were the Family Court of Australia and the Federal Magistrates Court. It was interesting to note that one of the issues raised by witnesses last week was their struggle to service the expansion of their roles while meeting the efficiency dividend each year. In cases like this legislation, where the government is clearly asking an agency to take on a new jurisdiction, that fortunately has been recognised and resources have been provided in addition to existing resources.
I also note that the Attorney-General has a review underway into the delivery of family law court services by the federal courts. The Attorney-General has stated that he wants the Family Court and Federal Magistrates Court to be completely externally focused on assisting people to resolve their differences as quickly and cost-effectively as possible. I understand that the review is to be completed shortly and I look forward to the government’s consideration of any changes that should be made to the structure of the federal family courts to better promote access to justice for family law litigants—after all, it is the clients who have the highest need. In family law we are trying to achieve the most effective and efficient way of helping families to resolve some of the most difficult issues they are ever going to face. We want to see every effort and support going into maintaining relationships, and the government is providing various programs in this area.
I would like to make mention of some of those programs that demonstrate the government’s commitment to family support services and which are available in my electorate of Newcastle. In July, the Minister for Families, Housing, Community Services and Indigenous Affairs announced that a mobile playgroup specifically for Indigenous families would be funded and based out of Newcastle. Support for parenting is an important way of strengthening family relationships. The government is committed to supporting the work of the Family Relationship Centre in Newcastle, which helps couples try to resolve disputes before they end up in litigation. In May of this year, we announced a one-off funding boost of over $80,000 to the Hunter Community Legal Centre in Newcastle to assist in its service delivery, which includes assistance to people in the family law area.
We are also trying to support families so that disputes and breakdowns do not occur. We are providing non-legal dispute and relationship services and we are providing services to help those who have got to the point of litigation. We provide this support because we understand that supporting families, particularly when they are going through difficulties, is one of the most important things we can do. One very important issue for users of family law services in the electorate of Newcastle is the need for better facilities for the federal courts in our city. Along with legal practitioners and the fraternity involved, I have been lobbying for and talking about the need for improved facilities for federal courts since long before I became the member for Newcastle. I am pleased to say that we are gradually inching much closer to a better Commonwealth court in Newcastle. Our current facility is inadequate to cater for the growing population which it serves. The population extends from Newcastle and the Hunter to the North Coast and to New England. A strategic review of the current court accommodation in Newcastle, commissioned by the Family Court and Federal Magistrates Court, recommended that a full, separate Commonwealth court facility be established. There was jubilation in the city of Newcastle at this fine recommendation.
Many problems with the current accommodation were raised within the review. First, the court building is too small. It only has four courtrooms. With two judges and three federal magistrates based in Newcastle, it certainly does not fit. The Federal Magistrates Court regularly has to use state court facilities for its divorce list. Given the geographical size of the area serviced by Newcastle, there is also latent demand from more Commonwealth matters which cannot list there because of space constraints and the lack of facilities. With the expansion of jurisdiction outlined in the bill before us today, it is therefore even more important that the Newcastle court be given room to grow.
In addition to the size of the building, its layout also compromises its functions, with security being made difficult by the building being spread over many floors. The problem is further exacerbated by the slow and erratic lifts in the building. The configuration of public spaces and waiting areas is not optimal. In fact, it is one of the contributing factors to security risks and to the tensions and frustrations experienced by litigants, who are often forced to wait side by side and with their respective legal teams in very cramped areas. Private meeting areas and briefing rooms are also inadequate to allow all who need to prepare before hearings to do so in a decent space. The general presentation of the court was found to be well below the acceptable standard, given the status and prominence that courts have within our system of government.
All in all, the review found that the Newcastle Commonwealth courts were deficient in size, layout, facilities and presentation—a rather damning summary. It was a review that confirmed what we had been saying for a long time: upgraded facilities for Newcastle are long overdue. I put on the record my appreciation to the Attorney-General for being very accessible to me on this issue. As the shadow Attorney-General, he last visited the courts several years ago. He acknowledges this, and nothing has improved since then. He has certainly been accessible not just to me but to the users of the facility since he took office last year. He met with stakeholders in June when he came to Newcastle. I know that discussions are ongoing and thorough on a proposal for a new dedicated court facility and that all these things will take a certain amount of time and process. I also thank the Family Court and the Federal Magistrates Court for funding, from their own budgets, the scoping studies that are underway right now.
We are considering a $60 million project. When we look at big projects like this, it is imperative that we ensure that the government invests its resources where they are most needed, and where we know from evidence they are demanded and will provide the most benefit to Australian families. We will continue to enjoy putting forward the case for the urgently needed upgrade of facilities in Newcastle. Comparative figures actually show that filings in the Family Court registry and the Federal Magistrates Court in Newcastle are up to 10 times higher than those at other facilities in the country and that the completion of applicants’ matters can take up to 12 months longer due to capacity constraints. The emotional difficulties faced by people before these courts suggest that frustration and aggravation from prolonged delays should be avoided. I think people should be able to have their matters heard in an environment in which they certainly feel safe and secure and so can give their attention to trying to resolve these difficult family law matters. So I look forward to ongoing discussions with the Attorney-General, his staff and officials, the courts, court users and the community of Newcastle on this issue. I am hopeful that we will be able to progress this through future budget processes and give the people of Newcastle and the wider region some comfort that we understand the need for improved facilities in this area.
To conclude by returning to the specifics of the bill, there are three key things that we are trying to do in this legislation and that should certainly be supported by the opposition. We are allowing de facto couples to access federal family law courts on property and spouse maintenance matters; we are making the laws in this area simpler and more consistent across state boundaries; and we are removing discrimination on the basis of sexuality, as the bill applies to both opposite-sex and same-sex de facto couples. I conclude by congratulating the Attorney-General for bringing this legislation forward within our first year of government. I commend it to the House.
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.
I rise to speak in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This bill gives effect to the referral of powers by Queensland, New South Wales, Victoria and Tasmania to the Commonwealth to legislate on de facto relationships. It is also legislation that gives effect to longstanding Labor policy. It is an excellent use of the referral mechanism that is contained in section 51(xxxvii) of the Commonwealth Constitution. In the words of the Victorian referring act, which is the Commonwealth Powers (De Facto Relationships) Act 2004, these referrals give the Commonwealth the power to legislate on:
- financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes;
- financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of the same sex.
The referral from New South Wales, Queensland and Tasmania is expressed in virtually identical terms to the Victoria referral, and the legislation will apply in the territories through section 122 of the Constitution. South Australia and Western Australia have not yet passed full referral legislation, but I would hope that those states will follow the other states so as to provide uniform treatment throughout Australia.
During the late 1980s, all states except Western Australia referred to the Commonwealth powers to legislate over children born outside marriage. This bill will extend to all families in the referring states and in the territories the jurisdiction of the Family Court over financial matters in the event of the breakdown of a relationship. As the Attorney-General said in introducing this legislation, this legislation is long overdue, and I note that very many speakers on our side of the House have expressed the same sentiment. It gives effect to an agreement made between the states and the Commonwealth in 2002 at a meeting of the Standing Committee of Attorneys-General. Even in 2002, the reform that was agreed on was overdue, and it is perhaps worth referring to the history of attempts to legislate in this area, just so that the House can be aware of how long this has taken.
Referral of powers over property rights for de facto couples has been on and off the agenda since not later than 1976, when it was raised during meetings of the Australian Constitutional Convention. There was a similar suggestion made at the Constitutional Convention in 1988—that powers over property rights of de facto couples should be referred to the Commonwealth—and in 1994 the Queensland government announced that it would refer its power to the Commonwealth. The Attorney-General of the day urged other states to follow suit. In 1999, the then Commonwealth Attorney-General, Daryl Williams, indicated that the Commonwealth would agree to a referral of powers, even if only some states wanted to refer their powers. He noted at the time:
One significant gap in the family law system is its coverage of the 10 per cent of couples who choose to live in defacto relationships.
… … …
The issue of the referral to the Commonwealth of State powers concerning de facto relationships has been discussed in the Standing Committee of Attorneys-General (SCAG) since 1992 . . .
The then Attorney-General expressed support for an approach which would have meant that the referral could be acted on even if not all states agreed. That led, in November 2002, to agreement at a meeting of the Standing Committee of Attorneys-General to allow states to refer their powers to the Commonwealth and for the Commonwealth to act even though not all states had done do. Even then—and this is a point that other speakers have noted—the former government was not prepared to legislate in respect of same-sex de facto couples, and the matter has in effect foundered on that refusal. It has needed a change of government for this long-overdue reform to be introduced.
It has been the position that, until now, couples in de facto heterosexual relationships or in same-sex relationships which had broken down have had to use state courts to resolve property issues. In Victoria and New South Wales, only past contributions of the parties and not future needs or financial resources are taken into account when dividing property. Further, in South Australia, Queensland and Victoria, spousal maintenance is not payable to the primary caregiver of a child from the former spouse. In New South Wales and the ACT, spousal maintenance is only payable until the child is 12 years of age. So there is a legal patchwork and the difficulty of having to front up to more than one court, with all of the attendant expense and delay that that necessarily involves. This bill, therefore, represents real change for thousands of Australians and their families. Some 15 per cent of those in social marriages are in de facto relationships according to the Australian Institute of Family Studies. This bill says that the Family Court is available for each one of those families if they need to use it. With these changes, we will accord to all families the respect that is warranted.
The bill has, as has been said by my former colleague at the Law Council of Australia, Mr Ian Kennedy, ‘profound implications for two significant groups in our community and for our society as a whole’. I believe that the implications of the bill are not only profound but also positive. The breakdown of a relationship is rarely easy. It can cause immense pain to all those involved—the partners, the children, the extended families and the friends. A break-up may be painful and difficult but sometimes it is inevitable and sometimes it is even necessary. Whatever the circumstances, governments should never make it harder; governments should not impose burdens that increase the suffering of those who are already struggling through what can be one of the most difficult periods in a person’s life. As a result of this bill, all family law issues in the referring states on the breakdown of a relationship will be dealt with in the one court, which has specialised expertise in the area.
We have established a Family Court in this country as an acknowledgement that personal relationships are very different from commercial relationships. It is an acknowledgement that the break-up of a personal relationship is different from a breakdown in a commercial relationship. It is an acknowledgement that specialised expertise may be necessary and that particular procedures will be more appropriate.
During the inquiry of the Senate Standing Committee on Legal and Constitutional Affairs, Natascha Rohr of the Women’s Legal Services Australia pointed out:
. . . the Family Court has developed into a highly specialised forum to resolve family relationship disputes, and particular procedures including access to conciliation and mediation, and simplified procedures for consent orders, now make it a more appropriate court for de facto disputes than the general estate courts . . .
This bill will reduce the additional legal burden imposed on de facto heterosexual couples and on same-sex couples. The present parties involved in a de facto partnership must deal with issues concerning the custody of children in the Family Court and issues regarding the division of property in the state courts. As Ms Rohr told the Senate inquiry:
The less money that is wasted on concurrent court hearings and more expensive Supreme Court proceedings the better.
These changes will ensure that separating couples will have greater financial resources for the future of their children.
The bill is also crucial in furthering the rights of children, particularly those born to parents in de facto heterosexual relationships or in same-sex relationships. Proposed section 90RB defines the child of a de facto relationship as thus:
- For the purposes of this Part, any of the following is a child of a de facto relationship:
- a child of whom each of the parties to the de facto relationship are the parents;
- a child adopted by the parties to the de facto relationship or by either of them with the consent of the other;
- a child who under subsection 60H(1) is a child of the parties to the de facto relationship.
Because of the current family law arrangements, children born to parents in de facto relationships are not treated equally to children born to married parents. Under the Family Law Act, a party is required to financially maintain their ex-partner if that partner cannot support themselves because they are responsible for caring for their children. This requirement is fundamental to the welfare of children whose parents’ relationship has broken down. This bill, by fully including children from de facto relationships, will ensure that the welfare of these children is protected and enhanced. One witness giving evidence to the Senate inquiry pointed out:
. . . it is in the best interests of the child to have economic and emotional security, which comes with the legal recognition of their parents.
I agree. The legal recognition of these relationships has important consequences that are both symbolic and practical. No child should experience discrimination or disadvantage because of the gender, sexual orientation or legal marital status of their parents. It is fundamentally unfair to penalise children because of the prejudice that emanates from some in the community.
As I mentioned earlier, state courts are unable to make orders dividing the superannuation interests of de facto couples. Superannuation is often the most significant asset held by couples and therefore, on the dissolution of that relationship, it is often the most valuable asset for distribution. The ability of the Family Court to consider the division of superannuation assets after the breakdown of a de facto relationship will be of considerable benefit, particularly to those partners who have taken time out of the workforce to raise children. Those partners have often missed out on accumulating superannuation because they have been primarily responsible for the care of children. The law recognises the need to take into account, for couples that have been married, the fair division of superannuation assets. The reasons for doing so for de facto couples are equally compelling.
This bill is also significant because it acknowledges the equality of gay and lesbian families. It represents a shift away from the intransigence and the demeaning obstruction of the former government in refusing to accord respect or dignity to same-sex relationships and gay and lesbian families. Same-sex relationships have been explicitly recognised by the references from each of the states and by this bill as deserving of equal protection under the family law arrangements in this country. This is as it should be. It beggars belief that any Australian could be so antagonistic to their fellow citizens that they would seek to deliberately and consciously make the experience of a relationship breakdown more difficult than it needs to be. Those who claim to represent Australian families in this place but who then work to exclude certain Australian families from accessing services—in this case, the specialised Family Court system—that other families can access are hypocrites.
Along with many other nations, Australia has taken a historic journey to accord full equality and citizenship to all its citizens—to women, to Indigenous people, to racial and cultural minorities, to gays and lesbians, to people with disabilities and to each and every citizen. The journey is not yet complete, but I hope that in years to come we will be able to look back—as we now do to the years of the White Australia policy—to the years in which there was discrimination against and gays and lesbians, cultural minorities and people with disabilities and say, ‘We have come a long way, and to a better place.’ We must never underestimate the importance of legislative action in this journey. Legislative change helps to bring about administrative action. Legislative change assists social change. The law is a statement of our society’s values—it approves, it disapproves, it sanctions and it prohibits. To my mind, this bill certainly reflects the values of a modern, confident Australia: equality before the law, the protection of children, access to justice, fairness and the inclusion of all Australian citizens. I commend the bill to the House.
In summing up on behalf of the government, I would like to thank honourable members for their contributions to the debate. I think that, in terms of the essential policy underpinning the legislation, there is broad support, for which I indicate my appreciation. The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 implements the government’s platform commitment to ensure that family law applies in a consistent and uniform way to de facto relationships across Australia. For the first time, de facto couples will be able to access a federal, uniform family law regime. They will be able to deal with their financial matters and children’s matters in the one court and in a single proceeding. They will be able to access specialist family law procedures and dispute resolution mechanisms. In all referring states, they will have their property issues determined against the background of what they have and what they need. In appropriate cases, they will also be able to get spouse maintenance orders. They will be able to split their superannuation interests in the same way that married couples have been able to do since 2002.
The new single regime proposed by the bill addresses unsatisfactory aspects of the current state and territory regimes. De facto couples in different states and territories have different rights and cannot access the specialist family law courts. Where they have children, the bill will also remove the cost and inconvenience of couples running parallel proceedings in two court systems. This will be corrected with the passage of the bill in this parliament. Consistent with the government’s policy, the bill does not involve discrimination between opposite-sex and same-sex de facto couples. I should also note that nothing in the bill alters the marriage laws, which provide that marriage is between a man and a woman.
I would like to thank the Senate Standing Committee on Legal and Constitutional Affairs for its report on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I am particularly pleased that the committee has recommended that, subject to several amendments, the Senate should pass the bill. The government is closely considering the committee’s recommendations for amendments to the bill. They have been suggested in good faith and are, by and large, very constructive. Early parliamentary consideration of the bill is a priority for the current parliamentary sittings because of the fact that, unless we amend these laws, there will be inconvenience caused to many people in the distressing situation where they are attempting to accommodate the best interests of children. De facto couples across the country have for too long had their family law cases decided under different legal regimes and in different courts—with, as I have mentioned, all of the additional costs, inconvenience and anguish that that involves.
I would like to now address several points made during the course of the debate. The first point I want to make, and I referred to it a short time ago, is that nothing in this bill affects, reduces, limits, restricts or otherwise impinges on the institution of marriage. Marriage is defined under Commonwealth legislation as being between a man and a woman. The government is committed to that principle. The opposition is committed to that principle. Hence, the parliament of the Commonwealth of Australia is committed to that principle. This bill respects the fundamental principle, as I have indicated, that marriage is between a man and a woman. There is nothing less than a firm statement of and commitment to that principle by this House. At the same time, this bill will provide equal treatment for same-sex and opposite-sex de facto couples in determining their property disputes. Hope as we may that relationships remain stable, particularly when children are involved, the reality is that, as we are all aware, relationships do break down. It is important to ensure that our legal framework and legal system are able to adjust to and cope with those realities.
Family law has long recognised that men and women can contribute in a number of ways to a relationship, whether it be by acquiring property, raising children or making other important family contributions. This bill, for the first time under federal law, recognises that de facto partners can contribute equally in a number of ways to their de facto relationship. The bill introduces a separate regime for financial disputes between de facto couples on the breakdown of their de facto relationship. Married couples will continue to have their property matters determined under the existing provisions of the Family Law Act. Giving de facto couples access to property settlement and spouse maintenance is not new; each state and territory already has a property settlement regime for de facto couples, broadly based on the approach that is taken for married couples in the Family Law Act. There is inconsistency, however, in the area of spouse maintenance and certainly in the area of the splitting of superannuation entitlements.
During the debate, the members for Mackellar and Cook spoke about the risks of people entering into concurrent relationships. It is very important that I place on the record that the bill does not provide recognition of polygamous relationships. It is unlawful to enter into a polygamous marriage under Australian law and indeed under the laws of the states and territories. Under provisions in the bill it is possible for a de facto relationship to exist when one party is still in a marriage or in a de facto relationship with another person, and that is currently the situation under state and territory law. For instance, this provision would be used most often in situations where a couple has been separated for some time but formal divorce of the original marriage has not been finalised. So only to that extent, in those circumstances, does the legislation apply to concurrent relationships. Any subsequent relationship would have to satisfy the strict threshold test for being considered a de facto relationship, including being of sufficient length, displaying a mutual commitment to a shared life and having a public reputation as a de facto relationship.
The bill gives the court the power to determine, taking into account all circumstances, the fair distribution of the rights of all parties. If the bill does not give the court the power to determine a just and equitable distribution of property between couples in a range of relationships, then grave injustice could potentially be done to the de facto spouse whose claim is not recognised because of the fact that, for instance, the original divorce of their partner has not been concluded.
I note also the comments from the member for Blair about the validity of binding financial agreements. The member for Blair has considerable experience in the area of family law and we will certainly look in detail at his suggestions. I have asked the Family Law Council to undertake a review of the binding financial agreement provisions of the Family Law Act 1975 in light of the case of Black & Black, which was a full court decision of the Family Court of Australia in which an agreement was held to be invalid because it contained a relatively technical error. The government is concerned about the possible consequences of the full Family Court’s decision on the validity of existing binding financial agreements.
In conclusion, the government has taken a landmark step in implementing a consistent and uniform de facto property and spouse maintenance scheme. Obviously, it is a primary responsibility of government to do what it can to preserve, support and sustain relationships, particularly where children are involved, but it is a fact of life that relationships break down. The bill implements an agreement reached at the Standing Committee of Attorneys-General back in 2002. Obviously, my predecessor was responsible for that agreement. De facto couples and their children have had to wait too long, however, for the Commonwealth to act on the basis of that agreement. The Rudd government has moved swiftly to deliver this important reform.
I congratulate the majority of states which have already referred the necessary powers to the Commonwealth. They are the states of New South Wales, Queensland, Victoria and Tasmania. I am continuing to discuss references with South Australia and Western Australia. I note that Western Australia has previously provided a partial reference, limited to the distribution of the superannuation of de facto partners on the breakdown of a relationship. Obviously, the federal government would like the totality of the reference to occur because the current reference would leave spousal maintenance and non-superannuation property issues between de facto partners as a matter of Western Australia state law and the scheme, intent and purpose of the legislation is to draw it together under one federal law.
Obviously, jurisdictional issues will arise. For instance, if the limited reference were to be accepted from Western Australia it would still leave a situation where jurisdictional issues would arise in cross-border cases under the terms of that limited reference. Also, the limited reference would require Western Australia to periodically duplicate Commonwealth amendments to family law. While we would expect that the Western Australian legislature would approach the matter with diligence and good faith, experience suggests that this is a cumbersome mechanism frequently resulting in inconsistencies, at least for a period of time, and certainly not an optimal constitutional arrangement. I am continuing discussions with Western Australia about a full reference of power. I look forward to working with the states and territories so that together we can harmonise and simplify the family law regime for de facto couples across Australia. I commend the bill to the House.
That the words proposed to be omitted (Ms Julie Bishop’s amendment) stand part of the question.
Original question agreed to.
Bill read a second time.
Message from the Governor-General recommending appropriation announced.