Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to this | Hansard source

The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012 has been necessitated by the failure of the government to provide for the proclamation of the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, which was passed with coalition support and relied on referrals of power by the states to the Commonwealth, with the exception of my home state of Western Australia, agreed through the Standing Committee of Attorneys-General in 2002. The intention of the legislation was to provide for national uniformity for all relationship breakdown matters and to confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships, namely the Family Court and the Federal Magistrates Court. Section 40(2) of the Family Law Act 1975 provides that any addition to the jurisdiction of the federal Family Court is not conferred until there is a proclamation by the Governor-General to that effect under section 40. No such proclamation was made following the passage of the 2008 act and this omission was not detected, as the coalition understands, until it was picked up by a sharp-eyed judge in December last year.

Even so, relevant proclamations were not made until 9 February this year fixing 11 February as the date on and after which the jurisdiction of the Family Court and the Federal Magistrates Court could be exercised in de facto financial matters. The failure to proclaim the relevant amendments had the result that property and maintenance orders by the federal Family Courts in de facto matters from 1 March 2009 to 10 February 2012 were made without jurisdiction and are invalid. Orders of the Family Court in appeals from the Family Court of Western Australia which do not require the vesting of jurisdiction are similarly affected.

This legislation is therefore required to validate those orders retrospectively and the coalition, as my colleague the shadow Attorney-General Senator Brandis foreshadowed in February when this problem first came to our attention, will certainly be happy to cooperate in ensuring that certainty can be returned to the jurisdiction.

What is difficult to understand, however, is how slack and uncomprehending the Gillard government has been in dealing with this matter. Literally thousands of orders are in doubt, affecting thousands of Australian families. In the Australian of 29 January, we read of a Melbourne mother of five who faced losing her home because her former partner had stopped paying the mortgage, as the Federal Magistrates Court had ordered him to do last August. The mother, we are told, would have spent at least another $6,000 on legal fees because her original court orders were invalid. Many Australian families whose principal source of income is from property and maintenance orders have been left in limbo dependent on the good faith of their former partners and without recourse to enforcing it, as so often happens in family law matters, as former partners seek to skip out on their obligations. This therefore is a matter of great urgency, but you would not know it from the actions of the Labor government. The problem, which was an inexplicable bureaucratic oversight, was detected last December. While courts typically go into recess over December and January, the family law jurisdiction is different. Those familiar with the family law jurisdiction will know that it can be a time of immense stress about finances in relationships, and any family lawyer would be able to tell you that they have a busy time over the summer period.

Yet when did the government act? In December, when they were first alerted to this problem? In January, when an urgent proclamation could have been made to ensure that prospective orders would be valid and the opposition could have been requested to cooperate with this being made the first item of business for the resumption of parliament? No, I am afraid to say that the proclamation was quietly made on 9 February, at the end of the first sitting week. Still the government said nothing when the professions, the media and the opposition heard about it on 21 February and started clamouring for a response. Indeed, the government continued to say nothing for another week, until the following sitting week drew to a close, when the Attorney-General finally announced that the government would introduce remedial legislation.

One must ask, therefore, where the government's priorities lie. There are still thousands of families whose financial affairs and whose power to do anything about it remain in limbo whilst this government fusses about to ensure that its prosperity-sapping deals with the Greens continue to keep it in power.

The coalition take this matter very seriously, so seriously that we publicly indicated to the government almost four weeks ago, without being prompted by the government, that we would support legislation to fix this problem—and that, as I said, we would support legislation to fix it as a matter of urgency. It is not a difficult piece of legislation to fix but it does fix an enormous problem. We understand why this is a priority, but it is very difficult to understand through the government's actions why they did not seem to think it was. I therefore move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House notes and condemns the incompetence of the Government in:

(1) failing for almost three years to proclaim the relevant provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008;

(2) thereby needlessly permitting invalid orders to be made by the federal family Courts and throwing the financial affairs of thousands of Australians into confusion;

(3) failing to act promptly to correct the problem after it was first brought to its attention; and

(4) failing to immediately bring remedial legislation before this Parliament."

Bruce Scott (Maranoa, National Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Ewen Jones (Herbert, Liberal Party) Share this | Link to this | Hansard source

I second the amendment, Mr Deputy Speaker, and I reserve my right to speak.

The DEPUTY SPEAKER: The original question was that this bill be now read a second time. To this the honourable member for Stirling has moved as an amendment that all words after 'that' be omitted with a view to substituting other words. If it suits the House, I will state the question in the form that the amendment be agreed to. The question now is that the amendment be agreed to.

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

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

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

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

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

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

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

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

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

and thereby the Federal Magistrates Court—

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

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

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

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

Ewen Jones (Herbert, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Family Law Amendment (Validation of Certain Orders and Other Measures) Bill 2012. In doing so, I would just like to pick up on a point made by the member for Blair. There was one bill which was not proclaimed by the Howard government in 2006, but nothing turned on it. It did not matter; it did not affect anyone. The difference between that bill and this bill is that the lives, futures and status of orders for thousands and thousands of people are determined by this bill.

This bill provides statutory rights to anyone covered by two proclamations, related to de facto financial causes, that have not been made under section 40(2) of the Family Law Act 1975. This bill has been necessitated by the failure of the government to provide for the proclamation of the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. This bill seeks to provide those affected by the failure to make these proclamations with certainty in their situation and to make sure that they are not disadvantaged as a result of these proclamations not being made at the intended time.

The Family Law Amendment (De Facto Financial Matters and Other Measures Act) 2008, which passed with coalition support, relied on referrals of power by the states, with the exception of Western Australia, to the Commonwealth as agreed through the Standing Committee of Attorneys-General in 2002. I do agree with the member for Blair—I do not understand what the Western Australians do. In the words of Nino Culotta, 'They're a weird mob.' The intention of the legislation was to (1) provide for national uniformity for all relationship breakdown matters and (2) confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships—that is, the Family Court and the Federal Magistrates Court.

The failure to proclaim the relevant amendments resulted in property and maintenance orders made by federal family courts in de facto matters after 1 March 2009 being, in fact, invalid. So the whole reason for this legislation is to cover up this government's poor management and to validate those orders retrospectively. How this happened, no-one knows or is willing to admit. Maybe we could pass it on to Fair Work Australia and they could take four years to find out.

The Family Law Act states that the Federal Magistrates Court of Australia cannot exercise jurisdiction until the Family Court of Australia is able to do so. Consequently, this bill provides a similar coverage of decisions relating to de facto financial causes for the Federal Magistrates Court. This bill will apply to court orders made between 1 July 2010 and 10 February 2012 in South Australia and to court orders made between 1 March 2009 and 10 February 2012 in all other states. By creating statutory rights and liabilities identical to those intended under the original proclamations, this bill gives the clarity and verification needed for the court orders given during this time. We have moved a second reading amendment on this bill but will support its passage, as we have previously done.

In discussing this bill and the impact that it has on the Family Court of Australia, I would also like to raise an issue of significance for the legal community in Townsville and the families in North Queensland that require their services. Since 1983 Townsville, as the member for Blair indicated, has had its own locally based Family Court judge. For close to 30 years the judge in that position has served the needs of not just the Townsville community but the whole of North Queensland. Until November, that position was filled by the Hon. Justice Robert Monteith. Since his retirement, however, Townsville has had to go without, with the position still remaining vacant.

Just last month in a Senate estimates hearing Senator Ludwig announced that expressions of interest in the position would be sought. He suggested that the government would want to keep the position based in Townsville after all. But another month has gone by and, with no action being taken, the legal community in Townsville is still wondering whether this government will do the right thing and appoint a locally based Family Court judge. Townsville is experiencing rapid levels of population growth at the moment. The government recognised that there was a need for a Family Court judge to be based in Townsville in 1983, when the twin cities of Townsville and Thuringowa had a population approaching 75,000. With the region's growth the demand for these services has only increased and there should be no doubt that we still need a Family Court judge today, with the population of the twin cities approaching 200,000.

The government's position on this matter has been anything but firm. When I first raised it with the then Attorney-General, Robert McClelland, he said no decision on the replacement for Justice Monteith had been made. We subsequently heard rumours that the government was content to circuit a Family Court judge from Tasmania. The coalition's shadow Attorney-General, Senator George Brandis, came to Townsville for Justice Monteith's farewell sitting—a feat not matched by any member of the government—and he spoke with local practitioners in family law who expressed real concern about the way this court was being treated by the government. At estimates, the Attorney-General's representative in the Senate, Senator Ludwig, told Senator Brandis that the need for a Townsville based Family Court judge had been heard and that that was now their preferred option. In interviews and in statements North Queensland based Senator Ian Macdonald and I both cautioned the people of North Queensland that this was not a delivery of the service but merely an acknowledgment of the need.

North Queensland lawyers were recently told that the position of a Townsville based, or preferably Townsville based, Family Court judge would be advertised at the end of February or in the first week of March. To date, no such advertisement has appeared. In the Senate last week, answering a question from Senator Macdonald, Senator Ludwig refused to give any commitment on the issue of a Townsville based Family Court judge. This is simply treating the people of North Queensland with utter contempt. There is enough work for a Family Court judge in North Queensland, based in Townsville and circuiting to Mackay, Cairns, Mt Isa and even to Darwin now that Air North have commenced direct flights between Townsville and Darwin.

The Family Court does the toughest of cases. It does the difficult custody matters. It deals with complex matters. Townsville needs to be home to a Family Court judge and this government needs to come clean with its plans. All of us in this House spend a lot of time dealing with family law matters. It has been the toughest part of my job so far as the member for Herbert—dealing with people who are going through the pain of family law and divorce and separation. There are property matters and custody matters and support matters. To have these problems exacerbated by government incompetence is just wrong at every level.

At its core, this bill is about allowing the Federal Magistrates Court of Australia and the Family Court of Australia to do their job and to not disadvantage the people they are there to help. That is also what we are asking for in Townsville. We have had a locally based Family Court judge for close to 30 years in recognition of the region's need for family law services and the need for these services to be provided by someone who understands local nuances. Senator Brandis has promised the North Queensland legal fraternity that, should this government remain inactive, once we are in power after the next election we will appoint a Townsville based Family Court judge.

I support this bill for its intent to provide clarity and fairness through the justice system, even if it would not have been necessary had the government just done the right thing four years ago. All I want for the north of Queensland is fairness of representation. I ask the government to take the same view and finally take action to support the Family Court in Townsville.

Peter Garrett (Kingsford Smith, Australian Labor Party, Minister for School Education, Early Childhood and Youth) Share this | Link to this | Hansard source

The opposition's second reading amendment is yet another example of the negativity that has become a consistent pattern in this parliament. The Family Law Amendment (Validation of Certain Orders and Other Measures) Bill provides for Family Court orders in regard to matters following two proclamations in the Family Law Act that were not made in 2006 and 2009. In both instances this was a departmental oversight, given that these are very rarely required proclamations under the act. Yes, it is the case that, in 2009, it happened under the Labor government and it is the case that, in 2006, it happened under the Liberal-National government. So while the opposition are trying to turn this into another pointscoring exercise, a political exercise, it is worth while for the House to bear in mind that one of the issues this bill corrects happened under the watch of the Howard government in 2006. It is important in this House that we focus on developing policies, not on trying to score political points, which is what this amendment appears to be doing.

The SPEAKER: The question is that the words proposed to be omitted—that is, Mr Keenan's amendment—stand part of the question.

In division—

Peter Slipper (Speaker) Share this | Link to this | Hansard source

While we are waiting for the count to be concluded, I think that honourable members would be pleased to know that my attendant Lupco Jonceski is celebrating his birthday today. On behalf of all honourable members, we extend to him many happy returns.

Honourable Members:

Honourable members interjecting—

Peter Slipper (Speaker) Share this | Link to this | Hansard source

I will not notice that clapping is disorderly. Also, I have been advised by the parliamentary secretary that the honourable member for Lingiari is apparently celebrating a similarly significant event.

The question now is that this bill be read a second time.

Question agreed to.

Bill read a second time.