Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

In summing up on behalf of the government, I would like to thank honourable members for their contributions to the debate. I think that, in terms of the essential policy underpinning the legislation, there is broad support, for which I indicate my appreciation. The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 implements the government’s platform commitment to ensure that family law applies in a consistent and uniform way to de facto relationships across Australia. For the first time, de facto couples will be able to access a federal, uniform family law regime. They will be able to deal with their financial matters and children’s matters in the one court and in a single proceeding. They will be able to access specialist family law procedures and dispute resolution mechanisms. In all referring states, they will have their property issues determined against the background of what they have and what they need. In appropriate cases, they will also be able to get spouse maintenance orders. They will be able to split their superannuation interests in the same way that married couples have been able to do since 2002.

The new single regime proposed by the bill addresses unsatisfactory aspects of the current state and territory regimes. De facto couples in different states and territories have different rights and cannot access the specialist family law courts. Where they have children, the bill will also remove the cost and inconvenience of couples running parallel proceedings in two court systems. This will be corrected with the passage of the bill in this parliament. Consistent with the government’s policy, the bill does not involve discrimination between opposite-sex and same-sex de facto couples. I should also note that nothing in the bill alters the marriage laws, which provide that marriage is between a man and a woman.

I would like to thank the Senate Standing Committee on Legal and Constitutional Affairs for its report on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I am particularly pleased that the committee has recommended that, subject to several amendments, the Senate should pass the bill. The government is closely considering the committee’s recommendations for amendments to the bill. They have been suggested in good faith and are, by and large, very constructive. Early parliamentary consideration of the bill is a priority for the current parliamentary sittings because of the fact that, unless we amend these laws, there will be inconvenience caused to many people in the distressing situation where they are attempting to accommodate the best interests of children. De facto couples across the country have for too long had their family law cases decided under different legal regimes and in different courts—with, as I have mentioned, all of the additional costs, inconvenience and anguish that that involves.

I would like to now address several points made during the course of the debate. The first point I want to make, and I referred to it a short time ago, is that nothing in this bill affects, reduces, limits, restricts or otherwise impinges on the institution of marriage. Marriage is defined under Commonwealth legislation as being between a man and a woman. The government is committed to that principle. The opposition is committed to that principle. Hence, the parliament of the Commonwealth of Australia is committed to that principle. This bill respects the fundamental principle, as I have indicated, that marriage is between a man and a woman. There is nothing less than a firm statement of and commitment to that principle by this House. At the same time, this bill will provide equal treatment for same-sex and opposite-sex de facto couples in determining their property disputes. Hope as we may that relationships remain stable, particularly when children are involved, the reality is that, as we are all aware, relationships do break down. It is important to ensure that our legal framework and legal system are able to adjust to and cope with those realities.

Family law has long recognised that men and women can contribute in a number of ways to a relationship, whether it be by acquiring property, raising children or making other important family contributions. This bill, for the first time under federal law, recognises that de facto partners can contribute equally in a number of ways to their de facto relationship. The bill introduces a separate regime for financial disputes between de facto couples on the breakdown of their de facto relationship. Married couples will continue to have their property matters determined under the existing provisions of the Family Law Act. Giving de facto couples access to property settlement and spouse maintenance is not new; each state and territory already has a property settlement regime for de facto couples, broadly based on the approach that is taken for married couples in the Family Law Act. There is inconsistency, however, in the area of spouse maintenance and certainly in the area of the splitting of superannuation entitlements.

During the debate, the members for Mackellar and Cook spoke about the risks of people entering into concurrent relationships. It is very important that I place on the record that the bill does not provide recognition of polygamous relationships. It is unlawful to enter into a polygamous marriage under Australian law and indeed under the laws of the states and territories. Under provisions in the bill it is possible for a de facto relationship to exist when one party is still in a marriage or in a de facto relationship with another person, and that is currently the situation under state and territory law. For instance, this provision would be used most often in situations where a couple has been separated for some time but formal divorce of the original marriage has not been finalised. So only to that extent, in those circumstances, does the legislation apply to concurrent relationships. Any subsequent relationship would have to satisfy the strict threshold test for being considered a de facto relationship, including being of sufficient length, displaying a mutual commitment to a shared life and having a public reputation as a de facto relationship.

The bill gives the court the power to determine, taking into account all circumstances, the fair distribution of the rights of all parties. If the bill does not give the court the power to determine a just and equitable distribution of property between couples in a range of relationships, then grave injustice could potentially be done to the de facto spouse whose claim is not recognised because of the fact that, for instance, the original divorce of their partner has not been concluded.

I note also the comments from the member for Blair about the validity of binding financial agreements. The member for Blair has considerable experience in the area of family law and we will certainly look in detail at his suggestions. I have asked the Family Law Council to undertake a review of the binding financial agreement provisions of the Family Law Act 1975 in light of the case of Black & Black, which was a full court decision of the Family Court of Australia in which an agreement was held to be invalid because it contained a relatively technical error. The government is concerned about the possible consequences of the full Family Court’s decision on the validity of existing binding financial agreements.

In conclusion, the government has taken a landmark step in implementing a consistent and uniform de facto property and spouse maintenance scheme. Obviously, it is a primary responsibility of government to do what it can to preserve, support and sustain relationships, particularly where children are involved, but it is a fact of life that relationships break down. The bill implements an agreement reached at the Standing Committee of Attorneys-General back in 2002. Obviously, my predecessor was responsible for that agreement. De facto couples and their children have had to wait too long, however, for the Commonwealth to act on the basis of that agreement. The Rudd government has moved swiftly to deliver this important reform.

I congratulate the majority of states which have already referred the necessary powers to the Commonwealth. They are the states of New South Wales, Queensland, Victoria and Tasmania. I am continuing to discuss references with South Australia and Western Australia. I note that Western Australia has previously provided a partial reference, limited to the distribution of the superannuation of de facto partners on the breakdown of a relationship. Obviously, the federal government would like the totality of the reference to occur because the current reference would leave spousal maintenance and non-superannuation property issues between de facto partners as a matter of Western Australia state law and the scheme, intent and purpose of the legislation is to draw it together under one federal law.

Obviously, jurisdictional issues will arise. For instance, if the limited reference were to be accepted from Western Australia it would still leave a situation where jurisdictional issues would arise in cross-border cases under the terms of that limited reference. Also, the limited reference would require Western Australia to periodically duplicate Commonwealth amendments to family law. While we would expect that the Western Australian legislature would approach the matter with diligence and good faith, experience suggests that this is a cumbersome mechanism frequently resulting in inconsistencies, at least for a period of time, and certainly not an optimal constitutional arrangement. I am continuing discussions with Western Australia about a full reference of power. I look forward to working with the states and territories so that together we can harmonise and simplify the family law regime for de facto couples across Australia. I commend the bill to the House.

Question put:

That the words proposed to be omitted (Ms Julie Bishop’s amendment) stand part of the question.

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