Monday, 9 November 2020
Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019; Second Reading
Labor will always champion legislation that makes the family law system fairer. The amendments in the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019 will make the system fairer for de facto couples in Western Australia. Currently, unlike in other states and territories, superannuation cannot be split as part of a property settlement between de facto couples in Western Australia. Instead, courts in Western Australia are required to assess other assets that may be split between the parties and make adjustments in favour of the party with less superannuation. The amendments in schedule 1 address this anomaly by ensuring that de facto couples in Western Australia are treated the same as de facto couples in other jurisdictions in relation to superannuation splitting in family law matters.
The amendments in schedule 2 of the bill will address a further anomaly in the family law system, one that causes further unfairness to de facto couples in Western Australia. Where either or both parties to a family law dispute involving a de facto couple are also involved in bankruptcy proceedings, de facto couples in Western Australia are currently forced to resolve those matters through separate proceedings in different courts. Family law proceedings are resolved in the Family Court of Western Australia. Bankruptcy proceedings are resolved in the Federal Court or the Federal Circuit Court of Australia. Schedule 2 would address that inconsistency by extending the federal bankruptcy jurisdiction to the Family Court of Western Australia, so that bankruptcy and family law matters involving de facto couples can be heard concurrently in a single court.
As the Attorney-General is aware, these changes are uncontroversial and long overdue. But, given the Morrison government's record of never delivering on its announcements, I suppose we should be grateful that these reforms are being delivered at all. So I do not propose to dwell on the fact that it has been almost three years since the Attorney-General committed the government to these measures and almost one year since the bill was introduced into the parliament. Perhaps some of my colleagues will have more to say about that.
Instead, I'd like to talk very briefly about the problem of delay in a related context, and that is delay in the context of the family law system as a whole. As I stand here today, it is taking about 1½ years, on average, from the time a family law matter is filed in the Family Court or Federal Circuit Court to the date of a trial commencing. That's the average waiting time. Some families are waiting up to four years. And, of course, that's just to get to trial. Once a trial has concluded, litigants then have to wait many months for the courts to hand down their judgements, and even matters that do not ultimately proceed to trial are taking many, many months to resolve. You do not have to be a family lawyer to work out why. Just last week, we heard that one Federal Circuit Court judge is managing 659 cases at the same time, and that, on average, judges at that court have 337 matters each on their dockets. These extraordinary workloads inevitably result in delays, and those delays harm Australian men, Australian women and Australian children—they harm Australian families.
This problem is not new, but it is a problem that has become considerably worse over time, and that is because the government's response to the problem of delays in the family law system has been to do everything it can to delay taking action. For years, the Liberal government's management of the crisis in the family law system has followed the same pattern. First, in response to political pressure, the government calls a press conference to announce that it will be establishing an inquiry to come up with solutions to fix the family law system. Second, the government says it can't possibly do anything to fix the problems in the family law system while the matter is being inquired into. Third, when the inquiry finally reports, the government ignores the inquiry's recommendations. Then, when faced with renewed political pressure, the government calls another press conference, establishes another inquiry into the family law system—and so it goes on.
This pattern suits the government's political purposes, but it has been devastating for Australian families because, while the government has dithered, the very real problems in the family law system have continued to fester. And, if the Morrison government gets its way, those problems are about to get a whole lot worse very quickly, because, after the coalition has spent the last seven years in government asking family law experts to conduct inquiry after inquiry, the only major reform to the family law system that the coalition has shown any interest in is the Attorney-General's reckless proposal to abolish the Family Court by merging it with the Federal Circuit Court. That proposal is based on—wait for it—a six-week desktop review by two accountants from PwC. That is how seriously the Morrison government takes the job of reforming the family law system. The Morrison government has said: 'Forget about what the experts have told us. None of them has anything to teach us. Let's ask two accountants what they think we should do about the family law system and follow their advice.' The Attorney-General's arrogant proposal to abolish the Family Court as a specialist, standalone Family Court is as irresponsible as it is ill informed, and Labor will oppose it. There's much more that I could say about this bill and about the family law system more generally, but I'm conscious that a number of my colleagues from Western Australia who have long advocated for the reforms in this bill would like to say a few words. 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:
(1) notes that:
(a) Labor has always supported, and will always support, amendments to make the family law system fairer for all Australians;
(b) the effect of the amendments in this bill would be to make the system fairer for de facto couples in Western Australia;
(c) despite the bill having bipartisan support, it has taken almost a year for the Government to bring this bill on for debate; and
(2) is of the view that:
(a) the delay in bringing this bill on for debate is emblematic of the Coalition Government's neglect of the family law system in Australia;
(b) after doing so much to undermine the family law system for seven years, the Government should make fixing the family law system a priority; and
(c) to that end, the Government should not proceed with its reckless proposal to abolish the Family Court of Australia by merging it with the Federal Circuit Court".
We're here today to debate, finally, the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019. What does this bill do? This bill gives effect to a referral of power from Western Australia to the Commonwealth, in respect of superannuation matters in family law proceedings for separating de facto couples in Western Australia. It also extends federal bankruptcy jurisdiction to the Family Court of Western Australia to hear bankruptcy proceedings concurrently with family law proceedings concerning de facto couples. It provides for some transitional arrangements and it makes consequential amendments to 21 other acts.
Why? Because Western Australia is blessed to have a separate Family Court system to the rest of the Commonwealth. I say 'blessed' because, as the shadow Attorney-General alluded to, there have been many reviews of the Family Court and family law system in this country, over many decades. Interestingly, the most substantial recommendation that has been made for reform is not what this government has placed on the table by abolishing a specialist Family Court; the best reform put forward to date has been to remodel the Commonwealth Family Court system on the Western Australian Family Court system.
But to come back to the particulars of this legislation, it has had a long and tortured history to get to the point where we can speak on it today. The Family Law Legislation Amendment (Superannuation) Act 2001 provided for superannuation splitting for married couples, and that applied in Western Australia as well. Then the states referred powers to the Commonwealth for de facto property maintenance and superannuation in family law matters from 2003 onwards. The Family Law Amendment Act 2005 amended the Bankruptcy Act to confer on the Family Court of Western Australia the same jurisdiction in bankruptcy—which related, again, to parties to a marriage—that had been conferred on the Family Court of Australia by the Bankruptcy and Family Law Legislation Amendment Act of that same year.
Then we come to 2006, when the Western Australian parliament referred power to the Commonwealth to allow it to provide for the separation of superannuation in relation to de facto couples—both heterosexual de facto couples and homosexual de facto couples. That was done despite the then government's position that it would not support the use of the power in so far as it concerned homosexual de facto couples. This is a great illustration of how Western Australian family law was ahead of the game of the Commonwealth when it came to supporting homosexual couples who were separating, and it took a long time for the Commonwealth to catch up. Then we had the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. That applied to both heterosexual and homosexual couples, but it didn't pick up the Western Australian provisions and provide that power to Western Australia. So, again, we had Western Australia missing out.
Finally, from 2008 through to this 2019 bill, we have legislation that was foreshadowed by the Commonwealth Attorney-General in March 2018, nearly 13 years after the Western Australian parliament made its referral of power to this parliament. This bill was then introduced on 27 November last year. That's 20 months, or over 1½ years, after the federal Attorney-General foreshadowed the legislation. It was referred to a committee in December of last year. The committee reported in March of this year. That's only a three-month inquiry. The committee kept its work short because it understood the urgency of this work. And now, on 9 November 2020, eight months after that committee reported, a total of 14 years after the original referral of power and 12 years after the Commonwealth dealt with this issue for all other homosexual de facto couples in the country except Western Australia, we finally come to the point where we are debating this legislation in this House.
The explanatory memorandum to this legislation says that the measures in this bill are machinery in nature and will have no more than minor regulatory impacts, that the measures in the bill will address an increasing inequality faced by de facto couples in Western Australia and that the bill promotes human rights. I will just highlight the distinction here between a bill that is said to be machinery in nature and legislation that will deal with an inequity and is about promoting human rights. The core there is that this parliament, until this point, has actively discriminated against homosexual couples in de facto relationships in Western Australia. This is not machinery in nature. This is real-world stuff for real couples who have had to use our family court system, and it is a disgraceful situation. It is so disgraceful that, during my time as a member of the executive of the Law Society of Western Australia, and, then, as President of the Law Society of Western Australia, time and time again I and the society raised this inequity and raised this issue with Commonwealth attorneys-general, both Liberal and Labor, waiting and trying to push for this reform to happen.
So I am now very proud to be able to stand as a member in this place and see this law that will provide equality for Western Australians in accessing the family law system now come through this House. I thank the federal government for their work with the Western Australia government. The new Attorney-General in Western Australia, John Quigley, reagitated this with the current federal Attorney-General—who, I might point out, was also a Western Australian Attorney-General and never pushed this matter then. I thank the government for bringing this forward, but I also ask that they don't let this bill languish in the other place for as long as they have let it languish in this place. It is important that this bill actually gets passed and that it gets passed quickly, because 14 years is way too long and we cannot let this go for any longer. It is imperative not only that this bill is passed but that it is now passed quickly. I commend the bill.
As a Western Australian, I'm very proud to stand here—and particularly to follow my colleague, the member for Burt—and speak on the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019, which will finally bring some form of equality to Western Australian de facto couples.
Most de facto couples in Western Australia wouldn't know that they wouldn't be able to split their superannuation assets as part of the division of family property, as couples around Australia have been able to do since 2001. They probably wouldn't know that until such time as they may have to, sadly, undertake a separation as a de facto couple, look at their assets and go through that process. So I'm really happy to support this bill that will address that anomaly that's been going on for, as the member for Burt said, way too long.
Labor will always support any sensible reform to the Family Law Act that's going to make it easier—as easy as it possibly can be for families going through separation—to go through the family law system and have outcomes that put the interests of the children as the first and priority point of interest and their welfare at the centre of it. As you would know, Deputy Speaker, we currently have a special inquiry—it's yet another special inquiry into family law. I know from being on that inquiry that we have a long history of inquiries into family law and the various issues around family law and the operation of the courts in this place, yet this government has not yet introduced any real reform that would make the experience of going to the Family Court a little bit easier on those families going through it, particularly for the children of those families.
In terms of the draft legislation before us, I note that the Attorney-General introduced this bill into the parliament on 27 November last year. Considering that that's almost a year ago to the day, I imagine there have been several opportunities to bring this bill on for debate. Considering that the Attorney-General is himself a Western Australian, I would have thought that he would have put a little more effort into ensuring that this bill was passed. Sadly, this Attorney-General has proven on several occasions that, despite being a Western Australian, he has abandoned the interests of his state and doesn't really fight for Western Australia much at all. But we're talking here about an Attorney-General who didn't have time to set up a federal integrity commission, either. Despite dozens and dozens of other bills being brought on for debate over the last 12 months, this one has not. This bill is non-controversial and has had support from both sides, but it is an extremely important bill, and extremely important for those people in Western Australia. Imagine how many de facto couples in the last 12 months have had to go through the courts and have had to go through the distribution of their financial assets—couples who could have had this legislation in place 12 months ago if this Attorney-General, a Western Australian, had done his job.
The delay in bringing this bill on is, I have to say, just further evidence of this government's neglect for the entire family law system and of their neglect of the recommendations that have been made, time and time again, by practitioners, by people in the field, by experts and by the numerous inquiries that we've had. While this government sit on their hands and while this Attorney-General sits on his hands in terms of family law, Australian families and especially children continue to suffer. I'm happy to support this bill, but I want on record just how disappointed I am that it's taken this long for this bill to come before the House.
I thank members for their contributions to the debate on this bill. This bill implements a narrow referral of power from the Parliament of Western Australia which will allow separating de facto couples in that state to split superannuation in the same way as de facto unmarried couples elsewhere in Australia. The bill will also allow Western Australian de facto couples to have bankruptcy matters heard concurrently with their family law proceedings, avoiding the need to pursue them as separate proceedings in two different courts. The measures in this bill will end an inequality that has been faced by separating de facto couples in Western Australia for the past 10 years. These important measures will provide greater access to justice for WA de facto couples by providing fairer and faster resolution of their disputes. The bill will mean WA de facto couples will be able to achieve a fair split of their superannuation assets as part of a property settlement and will also save them valuable time and money in resolving bankruptcy and family law disputes together.
The bill establishes a new part of the Family Law Act 1975 dealing solely with superannuation splitting for separating de facto couples in Western Australia. This new part largely replicates the existing superannuation-splitting provisions and definitions that apply to married and de facto couples in other states and territories. The bill will enable a separating de facto couple in Western Australia to make an agreement to split their superannuation or enable a court to make orders splitting the parties' superannuation interests. The bill will also enable separating Western Australian de facto couples to participate in private arbitration of their superannuation proceedings, as their counterparts in other jurisdictions can do.
Consistent with recommendations from the Senate Legal and Constitutional Affairs Committee, the bill will provide that the measures apply to all separating Western Australian de facto couples who have not received final property orders at the time of commencement and who otherwise meet the requirements in the bill. The bill provides that final court orders or agreements made before commencement which are not terminated or set aside will not be affected by the enactment of this bill. This will provide certainty for de facto couples in Western Australia whose property division has also been resolved.
Schedule 2 of the bill will extend federal bankruptcy jurisdiction to the Family Court of Western Australia. This will allow bankruptcy in family law matters of de facto couples to be heard concurrently in a single court. Currently de facto couples in Western Australia need to resolve these matters through separate proceedings in two different courts. The ability to have bankruptcy and family law matters heard together will bring de facto couples in line with married couples in Western Australia and with married and de facto couples in other states and territories.
The measures of this bill provide a vital role in ending disadvantage for Western Australian de facto couples. By enabling these couples to split their superannuation and to commence concurrent family law and bankruptcy matters in the same court, the bill will help Western Australian de facto couples resolve their disputes in a fairer, faster and simpler way. I thank the members for their contributions. I commend the bill to the House.
The original question was that this bill be now read a second time. To this the honourable member for Isaacs has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The immediate question is that the words proposed to be omitted stand part of the question.
Question agreed to.
Original question agreed to.
Bill read a second time.
Message from the Governor-General recommending appropriation announced.