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Tuesday, 14 October 2008
Page: 57


Senator BOYCE (6:25 PM) —I also would like to speak on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I am very pleased to be able to support the purpose of this bill. However, like some of my colleagues who have spoken earlier tonight, I do have some concerns about not only the quantity of amendments that we have coming from the government for this legislation but also the processes that were used for presenting these amendments in the time frame that they were presented.

I was speaking to a group of young people at the weekend who were talking a little bit about this legislation, and their view of it was that it was rather dry and boring. I am very glad that that was their view of this legislation. It is, on the face of it, a very dry piece of legislation whose time has more than come. The legislation however does bring into effect some very substantial, far-reaching and, as I have said, somewhat overdue reform in the way we go about managing disputes for couples, be they same-sex or heterosexual couples, especially when their relationships break down.

The bill’s explanatory memorandum notes that the aim of the bill is to amend ‘the Family Law Act 1975 to provide for opposite-sex and same-sex de facto couples to access the federal family law courts on property and maintenance matters’. Additionally, the bill also amends the act to provide for amendments relating to financial agreements between married couples and superannuation splitting, and for an amendment to the act for certificates in relation to family dispute resolution.

For its constitutional validity, this bill relies upon the Commonwealth Constitution’s reference power in accordance with section 51(xxxvii) of the Constitution. It is interesting, I think, to look at this use of the reference power in the Constitution as an excellent example of how the Commonwealth and the various states can work together to achieve seamless machinery in governance and maintain a flexible and efficient working relationship between these two level of government in our Federation. I think this use here of the reference power is another example that our constitutional arrangements can function as a living tree and that they are able to grow and develop according to contemporary needs.

The government has made it very clear that the primary policy objective of the bill is to extend the financial settlement regime under the Family Law Act to de facto relationships of all types. This is very much supported by the coalition. The bill sets out to achieve this by conferring jurisdiction on certain courts in ‘de facto financial causes’ involving parties to de facto relationships and providing a new part in and amending existing parts of the Family Law Act to allow the court to make orders in those proceedings covered by the definition of ‘de facto financial cause’. This passing over from the respective state jurisdictions to the Commonwealth jurisdiction expands the role—

Sitting suspended from 6.30 pm to 7.00 pm


Senator BOYCE —As I was saying before the dinner break, the passing from the respective state jurisdictions to the Commonwealth jurisdiction of laws regarding property, dispute resolution matters and in particular child matters expands the role of the federal Family Court and the Federal Magistrates Court to bring in all matters relating to de facto relationships. As a member of the committee of management of a community organisation some years ago, I know that we were faced with the issue of defining what a family was for the purposes of membership of that organisation. We came to the conclusion that a family was any group of people who said they were and behaved as though they were a family. Unfortunately, we cannot adopt such a general, forgiving and broad definition of a family for legal purposes, so I think it is timely that in this legislation we have recognition of the changing nature of family relationships. It is recognition that Australian families are no longer seen as only those involving a traditional heterosexual marriage relationship of mum, dad and 2.2 kids. It is no longer acceptable in modern society to deny de facto couples and their families the rights and entitlements, such as those to do with property settlements and orders, that de jure couples have received since the abolition of the old matrimonial causes by the Family Law Act when it introduced no-fault divorce in 1975.

This bill provides that two people in a de facto relationship, if they are not married or not related to each other by family, have a relationship as a couple living together on a genuine domestic basis. As the explanatory memorandum states, under current statutory arrangements the financial arrangements between separated de facto couples are subject to state and territory law, and of course these laws vary from jurisdiction to jurisdiction. The bill offers de facto couples a nationally consistent financial settlement regime that would minimise the jurisdictional disputes and uncertainties that certainly impede settlement of matters under state and territory law. It also offers de facto couples access to the family law system for determination of their financial matters arising from a relationship breakdown. The family law courts have a long history of experience in relationship matters. They have procedures and dispute resolution mechanisms that are very suited to dealing with family litigation. We would have one court exercising jurisdiction under the bill dealing with the one proceeding for both financial and perhaps, even more importantly, child related matters arising when de facto couples separate.

I note that the government have said that they will be moving a number of amendments—in fact, numerous groups of amendments—to this bill to incorporate not only some recommendations that have been made by the opposition but also recommendations that have been made by the government and other groups. In particular, we have a number of technical amendments. We also have the government’s amendment proposing that the definition of a ‘child of a de facto relationship’ be amended to recognise the ‘child of a relationship’ for the purposes of the Family Law Act. If this amendment were to go through—and I must admit to having some confusion about which level of amendments we are up to at the moment; it is a shame that these were not provided in a more timely way by the government—it would bring into line contemporary expectations about what the definition of a ‘child of a relationship’ is, irrespective of whether the couple in the family of that child are opposite sex, same sex, married or not married. It would mean that the children of de facto relationships would be considered to be equal in the eyes of the law in matters before the courts. The government amendments would also allow for transitional arrangements to enable de facto couples to opt in to the new regime by mutual agreement. This is welcome, and both of these amendments have the potential to improve this bill considerably.

As you would have noted from the extra report submitted by the coalition senators to the report of the inquiry by the Legal and Constitutional Affairs Committee into this legislation, we continue to have a number of concerns about the lack of uniformity of definitions that are provided by the government within this suite of legislation and within other legislation relevant to it, such as the Family Law Act. However, this bill is a significant step forward in the management of disputes between de facto couples and it will especially assist in the orderly resolution of disputes regarding their children, not just their property.

Interestingly, this bill has been a very long time in gestation. It began more than six years ago as a Howard government initiative, put forward by the then Commonwealth Attorney-General, the Hon. Daryl Williams QC, at a November 2002 meeting of the Standing Committee of Attorneys-General. Naturally, as it was complex legislation, it relied upon intergovernmental agreement and will continue to. We have seen, from the swag of amendments we have been presented with, that very detailed drafting often takes time to get through for consideration. I am personally disappointed that this legislation has taken so long to come before the Commonwealth parliament for consideration.

As I have said, in speaking to young people earlier in the week there is a view, certainly within the youth of Australia, that the time for this legislation has well and truly arrived, that it is no longer remarkable that people live in relationships other than as a married couple or that people live in same-sex relationships. So, on the face of it, this is an extremely common-sense amendment to make to the machinery of family law dispute management in Australia. However, I think we need to look underneath it and think about some of the other issues that we have yet to grapple with. One issue that is mentioned in the report here is the effect that this legislation could have on some same-sex couples who currently receive Centrelink benefits in that they may be worse off financially under the proposed suite of legislation than they previously were. As this report recommends, we need to develop a lot of educational material and provide a lot of support to assist those people to ensure that they are no more disadvantaged than is absolutely necessary in achieving the results of uniformity that we are now looking for in the treatment of all relationships, especially the treatment of children of those relationships.

Interestingly, evidence given to the inquiry revealed that, according to the 2006 ABS census, 15 per cent of Australians living with a partner live in de facto relationships—that is, one in eight couples are not technically or legally married to each other. However, all these people raise families and have the same dreams and aspirations for their children as everybody else has in the community. If their relationship breaks down then they should be able to access federal courts to have property and child maintenance issues dealt with in the same way that any other couple in a relationship can.

The Australian Institute of Family Studies said that, unfortunately, de facto relationships are three to four times more likely to end in separation than married couples. One wonders whether that may partly be due to the ease with which people slip out of de facto relationships, given that in some jurisdictions there is no financial imperative in place. But I do not think we ever want to go back to a system where people stay together because of the cost of separating. We want people to stay together so that, as healthy individuals, they can provide the sort of unit that produces healthy children.

According to material from the Australian Institute of Family Studies, married couples in fact have a seven to nine per cent chance of separating within five years, whereas de facto couples currently have a 25 to 38 per cent chance of separating. However, there were no statistics for the number of opposite-sex couples in de facto relationships who go on to marry, and I am aware of many. I suspect that many de facto couples in same-sex relationships would also go on to marry if they were legally able to. In some ways, those statistics suggest that traditional marriage might still be the best way to go, but it does not take away from the fact that the most vulnerable people in relationships, irrespective of whether they be in a marriage or in a de facto relationship, deserve to be protected by legislation. It is generally women and definitely children of couples who suffer the most. This legislation will allow women and children who are currently in a cohabiting relationship to have access to the federal courts so that they experience, one hopes, the least amount of financial and legal hardship as possible. Certainly, children should not be financially disadvantaged because their parents are not officially married. I do not think there will be a dispute from anyone in the Senate on that issue.

We need to look at the quality of life that is currently experienced by children who are born into de facto relationships. The Institute of Family Studies noted that the number of children in de facto relationships is naturally increasing as the number of people in de facto relationships increases, but that those children are more likely to be less well off than children of marriages and that their parents are more prone to separation, as I have talked about before. We need to be particularly careful about ensuring that we create the best possible safeguards for children of all relationships and that they have the same access to legal and other services as any other children.

Currently, there are different rules for different states. Parents and children in Queensland, South Australia and Victoria cannot access maintenance from the separated de facto partner. In New South Wales and the ACT, child maintenance for children from de facto relationships stops when the child turns 12. Obviously, that is a great and discriminatory problem that we need to address.

I think we have to accept that the role of this Senate is to reflect our society—not to be too far in front of it and not to be too far behind it—and to understand and accept that family structures certainly have changed and that they encompass a far wider range of structures than some in this place may be personally comfortable with but that it is nevertheless what Australia’s society looks like right now. As society and our communities evolve, so must the legislation that guards them. I am not suggesting that we take away from the traditional at all but we must allow, and enforce, equality for all. This bill sets out some common sense measures for couples who are separating and, more importantly, for their children. I am sure that with goodwill this Senate can, as a unit, produce good results with the proposed amendments to this legislation for the benefit of all Australian children.