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Tuesday, 14 October 2008
Page: 39

Senator BRANDIS (4:20 PM) —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 genesis of the bill, the conception of the idea that the Family Court should have jurisdiction over de facto couples as well as married couples, relates to the time of the previous government, although the bill has been expanded in important ways by the new government. The bill has the opposition’s support in principle.

The bill relies on referrals of power by most of the states, currently with the exception of Western Australia and South Australia, to the Commonwealth 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 the legislation therefore is 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 of Australia and the Federal Magistrates Court exercising jurisdiction under the Family Law Act. These are serious issues for de facto couples, and legislation to address them has, as I have said, the support of the opposition.

As I indicated earlier, the genesis of this legislation lay in the opposition’s days in government during the attorney-generalship of Mr Ruddock. Funds were allocated by the previous government in the 2007-08 budget for one additional Family Court judge and four additional federal magistrates in anticipation of this measure.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 is the subject of a report by the Senate Standing Committee on Legal and Constitutional Affairs. While a number of amendments are recommended in that report, I can foreshadow that the opposition will be seeking to make two amendments to it. I will return to that.

The amendments confer jurisdiction on federal family courts in relation to de facto financial causes by the insertion of proposed 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 the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis. That test will apply equally to same-sex and opposite-sex couples. The coalition agrees in principle with that approach.

For the purpose of orders relating to maintenance, alteration of property interests or declarations 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, which has in its contributions to this debate always emphasised the unique status of marriage in Australian society, believes that it is appropriate to structure the legislation by creating a distinction between marriages and de facto relationships which, although in the consequences of the breakdown of either of them may result in similar circumstances being treated in a similar manner, nevertheless recognises that there is a pre-eminence among relationships accorded to marriage in our society.

The coalition recognises that people enter into de facto relationships for a range of reasons. Often they do so as the next stage from commencing a sexual relationship. Sometimes 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 those people 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 properly related consequences and are in terms of both the characteristics of the relationship and the parties’ expectations of it very distant from marriage.

On 17 September a series of amendments was circulated by the government. These amendments arise from the report of the Senate Standing Committee on Legal and Constitutional Affairs in its inquiry into this bill. The opposition supports all but one of the government’s amendments, which we regard as being an appropriate adjustment of the legislation to reflect the evidence that was given before the Senate committee and which are essentially uncontroversial. But let me deal with one important matter, and that is the proposed amendment to section 60(H)(1) of the Family Law Act. Section 60(H)(1) of the Family Law Act deals with children which are born as a result of artificial conception procedures. Arising from the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, the government proposes to amend section 60(H)(1) so as to contemplate a child born to a woman in a same-sex relationship as a result of an artificial conception procedure.

The approach of the government has been to homogenise those sorts of relationships with married relationships and to treat them identically. In both cases the non-biological partner is described as the other intended parent. Consistent with the principle that partners to same-sex relationships ought to be treated equivalently to partners to de facto heterosexual relationships and the further principle that children born into such relationships ought not be discriminated against, the opposition will in the committee stage be offering its own amendment to section 60(H)(1), which preserves the separate categories of marital relationships and de facto relationships, preserving the important distinction about which I have spoken. Beyond the proposed amendment to section 60(H)(1), the opposition will be supporting the government’s amendments.

There is one other matter with which the opposition has a concern with this bill, and it arises from the proposed subsection 4AA(5), which is item 21 of the bill. That proposed subsection stipulates that a de facto relationship may exist notwithstanding that a partner to it may be married to someone else or in another de facto relationship. This adds nothing to what is already understood by the law but it has, by the manner of its statutory expression, raised community concerns that it endorses or tolerates a form of polygamy. The provision can be deleted without affecting the operation or policy of the legislation and therefore I foreshadow that the opposition will also be moving an amendment in that regard in relation to schedule 1, item 21.

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 orientation, 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 opposition in relation to the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) bill. 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. Accepting that people live in a permanent domestic relationship with a same-sex or opposite-sex partner does not and should not be allowed to devalue the traditional unique status of marriage. Subject to that very important observation, and subject to the amendments which I have foreshadowed, the opposition supports the bill.