Wednesday, 15 October 2008
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008
Debate resumed from 14 October, on motion by Senator Conroy:
That this bill be now read a second time.
I would like to thank honourable senators for their contributions to this debate on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This bill is another example of the Rudd government delivering on its election commitments. The government has long had a platform commitment to ensure that family law is applied in a consistent and uniform way to de facto relationships across Australia. Once this bill is passed there will be, for the first time, a uniform federal system applying to de facto couples when the relationship breaks down. De facto couples will be able to use specialist family law procedures and dispute mechanisms. Property matters will be decided on the basis of what contributions couples have made and, just as importantly, on what their future needs will be. Spouse maintenance orders will be available, where a court determines this to be appropriate, on the same basis as for married couples.
One of the biggest benefits of the new regime will be that de facto couples can split their superannuation interests. This benefit, of course, has been available to married couples since 2002. Under existing state and territory law in this area, there are considerable differences in the rights of de facto couples depending on where they live. By bringing de facto property matters under the Family Law Act, de facto couples will no longer have the added financial burden of having to run matters relating to children federally and matters relating to property through state courts.
One of the very clear differences between this government and the previous one is our commitment to remove discrimination against same-sex couples. The government that most of the opposition were part of failed to act on the references of power from states generally. But, worse than that, they refused to act on the reference of power from states in relation to same-sex couples. This bill in no way diminishes the commitment of this side of politics to the fundamental institution of marriage and its central place in our community.
I should address some remarks in respect of the Senate Standing Committee on Legal and Constitutional Affairs report. On 26 June 2008 the bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs and the committee reported on 28 August 2008. The committee recommended in its report that, subject to several recommendations, the bill be passed. The government thanks the committee for its work on the bill and agrees to the bipartisan recommendations that particular provisions of the bill be amended.
Senators will be aware that, on 18 September 2008, the government circulated proposed amendments to the bill to amend the definition of ‘child of a de facto relationship’ in proposed new section 90RB and the parentage presumption in section 60H of the Family Law Act. I can foreshadow that, in the committee stage of consideration of the bill, the government will move a revised set of amendments to the bill to achieve this purpose. The government will also move amendments to the transitional provisions of the bill to enable de facto couples to opt in to the new Commonwealth regime if their relationship has already broken down. I would particularly like to thank the Women’s Legal Service of Australia for their contribution to the Senate committee inquiry.
In terms of the other recommendations from the committee, the government does note the committee’s view about the definition of de facto relationships. The government takes the view that the definition is different between various pieces of legislation because they deal with quite different areas of the law. The government is aware of the difficulty of the numbering of the various provisions in the Family Law Act 1975. I would, however, point out that the opposition had 11 years to deal with that issue and chose not to do so. Further consideration will be given to the committee’s concern when the Family Law Act is next amended.
I will now turn to specific matters that were raised by individual senators during the second reading debate. Some senators had remarked that, without an amendment to one of the provisions of this bill’s definition of de facto relationship, the bill would endorse de facto polygamy. Quite frankly, that is a ridiculous statement. As the senators opposite would be well aware, the bill does not provide recognition of polygamous relationships. It is unlawful to enter into a polygamous marriage under Australian law and under the laws of the states and territories.
Under provisions in this bill it is possible for a de facto relationship to exist when one party is still in a marriage or a de facto relationship with another person. This is currently the situation under state and territory law. In fact, this bill simply picks up the referrals given by the states and territories in recent years—referrals which, I might add, were pursued and received by the former government, sitting opposite here today. Those referrals by the states and territories over their de facto regimes were explicitly given on the basis that de facto relationships can exist when a person is legally married or in a de facto relationship with someone else. This was a specific provision of the model reference legislation agreed to by the former government at the Standing Committee of Attorneys-General in 2002. So those opposite actually agreed to it when in government. It seems to me to be quite bizarre that they now have difficulty with it in opposition.
There is no endorsement of de facto polygamy but just a recognition that two marriage-like relationships involving the one person might very occasionally arise. There does not appear to be any state or territory de facto property settlement case where a person has been held to have concurrently been in two or more de facto relationships. Cases of this kind are likely to be quite rare. The more usual case would be where a husband and wife have been separated for some time but have not divorced and one of them enters into a de facto relationship. This of course is no recognition of polygamous marriage. Under the Marriage Act 1961, a person who attempts to marry a second time without his or her previous marriage having been dissolved commits the criminal offence of bigamy, which is punishable by a term of imprisonment of five years.
The opposition senators’ remarks in the Senate committee’s report failed to take into account the fact that the bill provides the Family Court, which has vast experience in relationship matters, with the power to make determinations about whether a de facto relationship exists. To be able to make a claim for a property settlement under the regime there must be a de facto relationship. Any extramarital relationship would have to satisfy the strict threshold test for being considered a de facto relationship, including being of a sufficient length, displaying a mutual commitment to a shared life and having a public reputation as a de facto relationship.
The bill is about providing greater protection for separating de facto couples and simplifying the laws that apply. In that vein the bill gives the courts the powers to determine, taking into account all circumstances, the fair distribution of the rights of all parties. If the bill did not give the courts the power to determine just and equitable distribution of property between couples in a range of relationships, then grave injustices could potentially be done to the de facto spouse whose claim is not recognised.
I note the comments from some senators that the definition of ‘de facto relationship’ is different in the de facto bill, the evidence bill and the same-sex bills. The differences in the definition of ‘de facto relationship’ between the bills reflect the differing policy requirements behind each bill. The Evidence Amendment Bill’s definition implements the model uniform evidence bill definition of ‘de facto partner’, which is defined in terms of a person in a de facto relationship. This definition was developed in consultation with the Standing Committee of Attorneys-General working group of state and territory officials, based on recommendations in a report on uniform evidence law by the Australian, New South Wales and Victorian Law Reform Commissions.
There are strong reasons why the Evidence Amendment Bill test should conform to the recommendations of the report on uniform evidence law. However, these considerations do not apply to other Commonwealth laws. The definition in the de facto bill and the same-sex bills will therefore differ from the Evidence Amendment Bill test in a number of respects. The de facto bill’s definition limits the application of the Commonwealth’s new property settlement and spouse maintenance regime to relationships over which New South Wales, Queensland, Victoria and Tasmania have referred powers to the Commonwealth—that is, relationships covered by each relevant state reference act. Each of the four states has referred powers limited to particular matters arising on the breakdown of a marriage-like relationship between two persons.
I note that nothing in the legislation will alter the marriage laws. Marriage is defined under Commonwealth legislation as being between a man and a woman. The government is committed to that principle. At the same time, this bill will provide equal treatment for opposite-sex and same-sex de facto couples in determining their property disputes. The bill honours a commitment in the government’s national platform to ensure that family law applies in a consistent and uniform way to de facto relationships. 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 also contribute in a number of ways to their de facto relationships. The bill introduces a separate scheme 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. We do not support remarks that, far from providing greater rights for de facto couples, we should be discriminating in favour of married couples. It has long been recognised that such discrimination would not be consistent with a fair and egalitarian society.
In conclusion, the government has taken a landmark step in implementing a consistent and uniform de facto property and spouse maintenance scheme. This bill is long overdue and gives effect to an agreement reached by the Standing Committee of Attorneys-General way back in 2002. While those opposite were happy to sit on the references and do nothing for over five years, the government has moved quickly to provide a simpler, less costly and fairer regime for de facto couples across Australia. I commend the bill to the Senate.
Question agreed to.
Bill read a second time.
Ordered that consideration of this bill in Committee of the Whole be made an order of the day for a later hour.