Mrs Bronwyn Bishop (Mackellar, Liberal Party, Shadow Minister for Veterans' Affairs) Share this | Hansard source

In addressing the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 this morning, I want to make the opening remark that I am very concerned when we see legislation of this nature. I know the bill has had a Senate inquiry and that the report was tabled this morning. The same day that that committee report is tabled, this bill is brought on unannounced in this chamber. The lack of opportunity to discuss important issues like this usually results in unintended consequences being left in the bill and a mess being left of the lives of the individuals that it affects. I really do object to the way in which a bill such as this is not allowed to lie on the table for a sufficient period of time for us to look at what those unintended consequences may well be.

This morning I want to deal with a few scenarios which the second reading speech simply does not envisage. The second reading speech just talks about de facto relationships as if they exist in isolation. It does not talk about the complexity of relationships or, indeed, the situation that could arise and may well arise and indeed will arise where we are actually sanctioning polygamy. There is already a debate in the community involving certain people who have a particular religious belief and who believe that polygamy should be introduced into this country. An interpretation of this act and the way it is coming in has not been addressed in depth. It has been touched upon in the Senate inquiry and, as I said, the report was tabled this morning. I do not have a bound copy of it, only a loose-leaf copy, and it is just not good enough to leave these questions out there.

Let me give you a few scenarios. In this country we say that marriage is the preferred way in which families should be formed. I thought there was bipartisan support for that principle, that we prefer marriage over other relationships that are established. My colleague the member for Cook outlined statistics in his speech which showed that in the stability of marriage relationships the benefits for children are better. The likelihood of breakdown is less than it is in a de facto relationship. He highlighted the figures that I think I first published in a report that I did into balancing work and family that show about a third of all children are born into de facto relationships and the consequences that flow from that. Some of those will be de facto relationships which are stable and some of them will be, to put it colloquially, encounters that occur from which no relationship is established but from which a child is born.

So we are looking at questions which are important in the welfare of children. In this country we do not have a public policy which is in the interests of children. We mouth it off. We say it in the area of family law, we say it in the area of adoption, we say it in the area of fostering and we say it in the area of drug abuse that we are making decisions in the interests of children. We never are. I have seen official reports that say: ‘If we give this child to this parent, it might be good for the parent.’ So, when we start to look at the issues that are involved, let us look at the cases of individuals who matter. Supposing, for instance, we have a legitimate marriage of good standing, let us say, of 15 years in Sydney: husband, wife, two children, a job, a house—all the things that make it a recognised and stable marriage. Down in Adelaide, we have not a marriage but a de facto relationship: house, support, children—the whole box and dice. Under this legislation, the de facto spouse of the second family will have the same standing and rights as the wife of the first family when it comes before the Family Court. That is polygamy. Indeed, if a proceeding was to begin where the spouse in the de facto relationship takes an action then the spouse of the original marriage can be joined and you can have it all dealt with as a single lot. There is nothing in this act to prevent the court treating the two spouses as the same before the law. There is no protection or no higher recognition under these amendments given to a marriage. I think it is important to say what we define in this legislation as being a de facto relationship. It says in new section 4AA:

Meaning of de facto relationship

(1)

A person is in a de facto relationship with another person if:

(a)

the persons are not legally married to each other; and

(b)

the persons are not related by family ... and

(c)

having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Whatever that may mean. It then goes on to say:

Working out if persons have a relationship as a couple

(2)

Those circumstances may include any or all of the following ...

So the court may consider these things:

(a)

the duration of the relationship;

(b)

the nature and extent of their common residence;

(c)

whether a sexual relationship exists;

(d)

the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)

the ownership, use and acquisition of their property;

(f)

the degree of mutual commitment to a shared life;

(g)

whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship ...

That means that in some states, where there is a same-sex couple relationship, they may register it. That can be considered. It goes on:

(h)

the care and support of children;

(i)

the reputation and public aspects of the relationship.

It then says:

(3)

No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

So there is uncertainty.

(4)

A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

In other words, until such time as we have case law and matters considered, we will not know what the definition of a de facto relationship is likely to be. Once we have some case law, we will have some precedent, and it will be followed. The next part of the legislation which we are asked to enact says:

(5)

For the purposes of this Act—

the bill is the Family Law Amendment (De Facto Financial Matters And Other Measures) Bill 2008, amending the Family Law Act—

(a)

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

(b)

a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

So you can have a married couple where one of the partners sets up a de facto relationship with a person of the opposite sex and then sets up a further de facto relationship with a same-sex partner, and they can go on forming relationships if they wish. There is no limit to the number you can have; there is no definition that says when enough is enough. We have total uncertainty under this law, because it is simply not being considered.

My colleague the member for Cook said that these are probably unintended consequences, and I can only hope they are, because at the end of the day there has been a commitment in this place from this Prime Minister saying that he indeed gives a special place in our law to marriage and married couples. There have been many attempts to downgrade the definition of marriage to simply being some sort of shared relationship, and that has been resisted. If you read the submissions that were made to that inquiry, you will find that there are very strong groups of people who are totally offended by what are proposed as unintended consequences of this legislation.

I will go to the second reading speech and the minister’s outline of what this bill is meant to do. Nowhere does the second reading speech recognise that there is the possibility of multiple relationships. It is as if they are all stand-alone relationships and they are never going to be anything else. It says:

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 introduces significant reforms to allow opposite-sex and same-sex de facto couples to access the federal family law courts on property and spouse maintenance matters on relationship breakdown.

It then goes on to say:

The reforms will also bring all family law issues faced by families on relationship breakdown within the federal family law regime.

It will, and they will all be on an equal basis. Because people can apply to be joined as a party to proceedings, you could have a divorce proceeding where a person has a de facto relationship with an opposite-sex partner and one with a same-sex partner, and those partners are joined as actions to that proceeding. There is nothing in this legislation to say that cannot happen and there is nothing in this legislation to prefer the institution of marriage—nothing. It breaks it down to commitment.

The thing that distinguishes marriage is that people make a public commitment. There are witnesses who must be there to see it happen and there is documentation to say it exists. When someone comes to a court and says they are married, there is a piece of paper that is irrefutable evidence of that marriage. In those states where same-sex couples are entitled to register a relationship, they have a piece of paper that says, ‘We have an established relationship.’ When it comes to a de facto relationship, whether it is between same-sex couples or heterosexual couples, it is a matter of subjective interpretation of the items that are set out in the court. So we have competing levels of proof as to what is an established relationship, and yet they are to be treated as equals before the law. This is a major departure from what has been said to be the position of both the government and the opposition in this parliament. It makes a mockery of the statement of the Prime Minister that marriage is sacrosanct and should stand above other relationships, because this legislation does not allow that to happen.

Let us go on with the second reading speech. It goes on to say:

This bill amends the Family Law Act 1975 and related legislation to create a Commonwealth regime for handling the financial matters of de facto couples on the breakdown of their relationship. By providing a consistent and uniform approach for de facto relationships, this bill will alleviate the administrative and financial burden—

that they currently have of being in separate jurisdictions, which made a distinction between a married couple and a de facto couple. That is now being removed. And that can have very positive outcomes for children, if we are serious about really considering children. But there is still a need to recognise in this legislation that marriage is the preferred institution.

In the second reading speech, as I said, no account is ever taken of the fact that you can have relationships which are confused, to put it mildly. You can have a situation where somebody who has been married has their entitlement whittled away because they are to be treated equally with a spouse under a de facto relationship. The second reading speech says that the court:

... will need to be satisfied that the de facto relationship lasted for at least two years, that there is a child of the relationship or that a party to the relationship made a substantial contribution to the relationship ...

That is all it says it has to do, whereas the legislation says far more. Then the second reading speech says:

The bill will allow a court to make orders for the maintenance of one of the parties to the de facto relationship, or an order declaring or altering the interests or rights of a party to a de facto relationship in respect to property.

And that can mean property not just of their relationship but of other relationships into which one of the parties to that relationship has also entered.

My complaint, and the thing that I am concerned about, is that there has not been sufficient time allowed for this bill to be considered and for these issues to be canvassed widely, not just by the people who sent in submissions to the Senate inquiry, not just by the people who have picked it up since the second reading speech—which I think was in June, before we got up—and have managed to read it, but for the general community to be aware of them.

Let me just finish on the question of superannuation, a very vexed question. It was only in 2002, when we were in government, that we finally said that superannuation should be considered marital property for the purposes of property settlements. Then we had moves such that other people who are not married couples also want to have access to superannuation. Suppose that you have a married couple. Suppose they have been married for 20 years. Suppose that one party—let us say the husband in that marriage—has chosen to salary sacrifice part of his wage in order that superannuation can be built up, and the family over those 20 years has therefore had less disposable income during those 20 years because there has been the sacrificing of the salary into the superannuation. Suppose that that husband leaves that relationship and establishes a de facto relationship. Suppose he is in that relationship for 10 years. Suppose he does not salary sacrifice this time; he just goes on paying his superannuation. Suppose that relationship then breaks up and the de facto spouse takes action. You have had a family for 20 years which has gone without disposable income in order to build an asset. You have another family which has not had a forgone disposable income and wants access to that same asset. Where, in all the discussion that we are having here, are those problems addressed? They are not. And that is why I say to the government that the better course of action would be to allow this discussion to take place and to allow proper analysis of the impact of this bill on families in this country and the impact on marriage that it will have.

If I sound passionate, I am, and I am because I so often get the answer, ‘Well, maybe those circumstances won’t affect too many people’—that is, they do not matter. To me, individuals do matter. Each individual who is going to be impacted by this bill has the right to be considered. I know the collective argument of the government will be that this is a better outcome for all and that the individual who will be adversely affected can be sacrificed to the collective decision. That is the big philosophical distinction between us: the difference between individualism and collectivism, where we consider the impact on individuals and you do not; you consider the collective.

I say to you that the speed with which this bill is being introduced is simply unwarranted. It should be permitted to lie on the table. It should be able to be discussed so that we can see the ramifications of its unintended consequences.

See this speech in context