Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I am pleased to speak in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I have argued, advocated and agitated for this amendment for many years. I became an articled law clerk in 1983 and commenced a practice in the jurisdiction of family law on that occasion. In 1996 I became an accredited family law specialist and acted for some of the most prominent citizens in the state of Queensland. Those opposite would be surprised to know that I have acted for more conservative politicians and their partners than for Labor politicians and their partners.

This particular reform is part of the great history of family law reform initiated by the Australian Labor Party, and I want to pay a tribute to a former Attorney-General and High Court justice, Lionel Murphy, for the groundbreaking legislation of the Family Law Act in the mid-1970s. Certainly in my experience as a family lawyer and in my observation in society as a husband and as a parent, I have seen great demographic changes in the concept of family and the meaning of family relationships in the last three decades. It is interesting to note that, according to the Australian Institute of Family Studies, the proportion of families of a couple with children has decreased from 48.4 per cent in 1976 to 37 per cent in 2006, and there has been an increase in couple only families from 28 per cent in 1976 to 37.2 per cent in 2006. One-parent families with dependent children have increased from 6.5 per cent in 1976 to 10.7 per cent in 2006. According to the Australian Bureau of Statistics, it is a fact that, of the 114,222 registered marriages in 2006, 76.1 per cent of the couples lived together in de facto relationships for the period prior to marriage—that is an increase from 64.7 per cent in 1997. We have seen many changes in family law, and it has been said on occasions that we should celebrate those years in which there have been no changes to family law. Certainly, we as politicians deal with family law issues, in terms of child support and other matters, almost daily.

The Attorney-General made a very interesting speech to the Family Law Practitioners Association of Queensland on the Gold Coast on 15 August 2008 when he set out that the Rudd Labor government was committed to family law and the family law system. He talked about the ideal of settling family law disputes outside the courts wherever possible and looking at effective ways to get entrenched cases out of the court system. The Rudd Labor government is committed to $1.7 billion worth of taxpayers’ money being spent on the family law system over the next three years, including a family relationship centre arrangement and also legal, community and other services. Why is this such a groundbreaking change? Married couples have had the opportunity to bring proceedings for spousal maintenance under section 72 and section 74 and have had the benefit of the factors under section 75(2)  of the Family Law Act for many years. They have also had the right to bring applications for property settlement under section 79(1) and look at the factors set out in section 79(4) of the Family Law Act. These proceedings are matrimonial causes within the definition of section 4(1) of the Family Law Act. Further, married couples have had the ability to enter binding financial relationships under part VIIIA to oust the jurisdiction of the court and to make their own arrangements in terms of property and spousal maintenance.

Since December 2002 under part VIIIB of the Family Law Act, those couples who have been married can split their superannuation interests by binding financial agreements or by court order, and trustees of superannuation policies can be bound by those arrangements provided procedural notice is given. These rights have not been consistently experienced by those Australians living in de facto relationships, whether of a heterosexual or homosexual nature. Why? Really it is a constitutional problem because our founding fathers, in their wisdom, did not provide the Commonwealth the necessary jurisdiction.

About two decades ago the states referred power to the Commonwealth—Queensland in 1990; New South Wales, Victoria, South Australia and Tasmania in 1987—so that ex-nuptial children could be dealt with under a uniform national approach concerning parenting orders. In the absence of Commonwealth jurisdictions concerning property and spousal maintenance between de facto couples, the states have had to take up the slack. New South Wales in 1984, Victoria in 1987, Northern Territory in 1991, Australian Capital Territory in 1994, South Australia in 1996, Tasmania and Queensland both in 1999 and Western Australia in 2002 have all introduced statutes which cover property alteration arrangements and other financial matters concerning couples of a de facto relationship of a heterosexual nature.

De facto same-sex relationship legislation has already been introduced in the states and territories—in the ACT in 1994, in New South Wales in 1999, in Queensland in 1999, in Victoria in 2001, in Western Australia in 2002, in Tasmania in 2004 and in the Northern Territory in 2004—so why are we dealing with this amendment now? Because for many years, despite the agreement of the then Commonwealth Attorney-General, the Hon. Daryl Williams QC, when he announced on 8 November 2002 that all of the states and territories had agreed with the Commonwealth to refer the powers to the Commonwealth, nothing was done. The reality is that the Howard government squibbed this issue because there was an insistence that the Commonwealth should only legislate in relation to heterosexual relationships. There was a discriminatory approach when it came to those couples in same-sex relationships. This bill, despite the member for Cook’s fudging the issue, actually deals with de facto relationships of same-sex couples. I refer the member for Cook to proposed section 4AA with the definition of de facto relationships, particularly (5), which says:

(a)

a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex…

So it is interesting that, despite what the member for Cook was saying, this groundbreaking legislation deals with both heterosexual and same-sex relationships. It is a shame and a disgrace that the Howard government failed to act upon this for so many years.

The primary aim of this bill is to extend to de facto couples the same rights to property settlement and spousal maintenance as married couples. Excuse me for being a parochial Queenslander, but I am aware of part 19 of the Queensland Property Law Act because it is the law with which I am most familiar. Under part 19 of the Property Law Act there is no right to bring proceedings for maintenance between de facto couples, whether of a same-sex nature or a heterosexual nature. There is no right to split superannuation as part of a property settlement. While there are factors that we would look at, such as sections 291 through to 309, which mimic 79(4) and 75(2) of the Family Law Act, there is no history of jurisprudence and no familiarity with the nuances of property settlement and spousal maintenance litigation. It has been my experience that judges do not pay sufficient attention to the importance of contribution to the welfare of family, particularly by women with children in their capacities as homemakers and parents in the state system in Queensland. Since cases like Norbis in 1986 and Mallet earlier on, the High Court of Australia and the full court of the Family Court have paid due diligence and respect to the contribution of women, particularly their contribution as homemaker and parent. Their contributions are no less important than the contributions made by the breadwinner in the family. I am pleased to see the Family Court has adopted an approach that looks at this and, in recent decisions, has rejected the concept of special contribution in that dreadful decision of Ferraro some years ago.

The cost of running parallel cases—one in the family law courts system, either in the Family Court or the Federal Magistrates Court, and another in the state courts—with the additional costs of pleadings and formal court proceedings is prohibitive for many people. It is difficult for litigants in person, it is difficult for women with children, it is difficult for those with few financial resources. The failure of the previous Howard government in relation to this matter has meant there have been obstacles to justice in this area for Australian families, particularly those living in de facto relationships. It is unfair, and we have had messy jurisdictional problems. For example, in New South Wales, under the Property (Relationships) Act, there is no reference to what we—that is, family lawyers—call the section 75(2) factors. There is no emphasis on other needs and resources based factors. That equivalent is so important to do justice to people, particularly those on low incomes, those with the primary responsibility for the care of the children and those without adequate child support and access to superannuation. In Victoria there is no right to spousal maintenance under the Property Law Act. In Queensland it is the same, but the poor Victorians have an even direr situation because there is no right to take into consideration in Victoria the 75(2) factors. So a Victorian who is living in a de facto relationship has no right to have the court regard the age or health or care of children in the future as factors in property adjustment in the Victorian system.

As I said, the concept of ‘de facto relationship’ is important because there is some definition as to what it might mean. Unlike the member for Cook, I do not lack faith in the judiciary to interpret adequately the meaning of this term because there is guidance provided in the bill on that. In fact, it imitates the relevant provisions in Queensland under the Property Law Act and section 32DA of the Queensland Acts Interpretation Act.

There is a limitation period provided in the amending bill. Except with leave of the court, a party to a de facto relationship can apply for an order under section 90SE for maintenance and section 90SM for property settlement but only if it is made within two years of the end of the de facto relationship. This is similar to the Property Law Act of Queensland and certainly to the Family Law Act. For a person to make an application for maintenance or property settlement, they must have been in a relationship for a period of two years of cohabitation. There is an exception if there is a child of the relationship or if the applicant has made a substantial contribution of the kind set out in section 90SM. That is similar to the Family Law Act in section 79(4). So I am very confident that this will be interpreted liberally and broadly in the circumstances. I think there will be some emphasis on whether there has actually been a de facto relationship. I am pleased that there is an amendment in the bill which talks about the concept of the court having the power to make a declaration under section 90RD about the duration of the de facto relationship.

There are some problems, however, that I can foresee in this particular bill. For example, for those couples who are not blessed with being able to come within the meaning of the amendments—for example, if they have not got a child of the relationship, they have not lived together for two years or there is no substantial contribution—those particular litigants have to resort to the old concepts of constructive or resulting trusts. They have been interpreted in a very narrow way by the High Court in cases like Baumgartner and Muschinski v Dodds. Concepts like that really fail to take into consideration contributions as homemaker and parent, so I have some concerns.

If it becomes necessary to define a de facto financial relationship, reference will have to be made to whether that person continues to remain within a state or territory. This could have some problems in terms of establishing a geographical connection. For some inexplicable reason, the South Australian government has not referred the power, so there could be some jurisdictional difficulties or if someone lived in South Australia for a while and then lived in Queensland for another period of time. It was interesting to hear this particular concept being discussed recently at a family law conference on the Gold Coast, where very prominent Sydney counsel Neil Jackson recently explained this particular predicament. I think that there needs to be better regard to this geographical connection issue in the future. I understand that there is a constitutional issue involved, but I would urge the Attorney-General to have a good look at this.

There is another problem that I foresee here in that only those couples who separate after this legislation is promulgated will have the power to bring proceedings under this legislation. That means those people who are living in de facto relationships and who separate before its promulgation will not have access to the same kind of justice and will have to resort to the state and territory courts. I have already outlined some of the problems, particularly in the bigger states of Australia. There is also no amendment to section 90K of the Family Law Act, which sets out the grounds to set aside financial agreements. Parties can enter binding financial agreements to oust the jurisdiction of the court. Unfortunately, recently the full court of the Family Court, in a case called Black and Black, held that there needs to be strict compliance with the statutory requirements to oust the jurisdiction of the court. I had hoped that the Attorney-General would use this opportunity to ensure a more liberal approach was formulated by statute and I would urge him to look again at section 90K and the new section 90UM in relation to this problem.

A final difficulty that I foresee in this particular legislation is the problem caused by the majority decision in the full court of the Family Court case called Coghlan and Coghlan in 2005. I had hoped that that particular decision would be overturned by this bill, but unfortunately it will not be. The new section 90MA will provide an extension for those couples in de facto relationships to have the same rights to bring applications for property settlement and super splitting arrangements as married couples. But there is a problem. The Coghlan case was a 3-2 decision and unfortunately what it said was that everything turned on the word ‘also’ in section 90MS. What that meant was this: unfortunately, superannuation is treated as another species of asset, different from property as defined in section 4(1) of the act. I would urge the Attorney-General to have a look at this particular decision and uphold the minority views of justices Warnick and O’Ryan, who were correct in my view. There has been a lot of confusion and uncertainty caused by the decision in Coghlan and it should be done away with.

I would urge the Attorney-General to have a look at the case of Hickey, a 2003 decision of the full court of the Family Court, made up by a differently constituted bench. Superannuation should be considered to be property for the purpose of property adjustment orders. It should be treated as property and it should be property. There should be some certainty in this particular area, and I would urge the Attorney-General to make the changes.

But on balance this is a great reformist bill. It empowers those people who have lived for a long time without access to spousal maintenance, without the right to split their superannuation and to have the right to have their real future needs taken into consideration in property settlement. This is a great Labor amendment. This is groundbreaking stuff for the people of Australia. It means that people are treated equally no matter what their domestic arrangements, and that is how it should be. It is a shame that we have waited so long in this country to bring forward legislation like this, which will make a difference to the lives of tens of thousands of Australians in the next few years and hundreds of thousands in the years to come who will go through the family law system that we have in Australia today. I commend the bill to the House. (Time expired)

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