FAMILY LAW AMENDMENT (DE FACTO FINANCIAL MATTERS AND OTHER MEASURES) BILL 2008

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.

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:

(a)   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;

(b)   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.

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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 Law Council of Australia has indicated that its preferred approach is to have all States and Territories refer power in relation to de facto relationship property matters to the Commonwealth.

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:

(1)   For the purposes of this Part, any of the following is a child of a de facto relationship:

(a)   a child of whom each of the parties to the de facto relationship are the parents;

(b)   a child adopted by the parties to the de facto relationship or by either of them with the consent of the other;

(c)   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.