Ms Julie Bishop (Curtin, Liberal Party, Deputy Leader of the Opposition) Share this | Hansard source

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 bill relies on referrals of power by most of the states to the Commonwealth, currently with the exception of Western Australia and South Australia, 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 this legislation, therefore, is to provide for national uniformity for all relationship breakdown matters and confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships, namely the Family Court and Federal Magistrates Court. These are serious issues for de facto couples, and legislation to address them has the support of the coalition. Funds were allocated by the Howard government in the 2007-08 budget for one additional Family Court judge and four additional federal magistrates in anticipation of this measure. This bill is still being considered by the Senate Standing Committee on Legal and Constitutional Affairs, which I understand is due to report shortly. It is my understanding that the committee will be recommending amendments to the bill.

Turning to the detail, the amendments confer jurisdiction on federal family courts in relation to de facto financial causes by the insertion of a new 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 of the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis. This applies equally to same-sex and opposite-sex couples. The coalition agrees in principle with that intention.

For the purposes of orders relating to maintenance, alteration of property interests or declaration 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 believes this is an appropriate way to structure the legislation.

The coalition recognises that people enter de facto relationships for a range of reasons. Often they do so as the next stage from commencing a sexual relationship, when it no longer makes sense to pay two lots of rent. Sometimes, too, 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 them 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 property related consequences. This is an aspect of the legislation that the coalition believes may require clarification and possible amendment. We believe it will be appropriate to await the Senate committee report before proposing any amendments in this place.

The bill seeks to confer additional jurisdiction on federal courts. Unlike marriage, the existence, commencement and duration of de facto relationships are matters of evidence and can be highly contentious. Additional resources were allocated to the Family Court and Federal Magistrates Court in the last coalition budget, and we will monitor closely the adequacy of those resources.

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 composition, 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 Leader of the Opposition in this place in relation to the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008. 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. Acceptance that people who live in a permanent domestic relationship, whether same sex or opposite sex, must not be allowed under any circumstances to devalue the traditional status of marriage. The opposition does not accept that there is either a legal or a moral equivalency between such relationships and that of marriage.

On behalf of the opposition, therefore, I move:

That all words after “That” be omitted with a view to substituting the following words: “whilst not declining to give the bill a second reading, the House:

(1)

affirms its commitment to the central importance of the institution of marriage in Australian society;

(2)

recognises that partners to permanent domestic relationships other than marriage (including, but not limited to, same sex relationships) ought not to be discriminated against in relation to their financial and property affairs; and

(3)

notes that the Opposition has referred the bill to the Senate Legal and Constitutional Affairs Committee with a view to ensuring that, in relation to this bill:

(a)

the centrality of marriage is not devalued, whether by the use of inappropriate statutory language or otherwise; and

(b)

the rights and status of children are properly protected”.

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