Carol Brown (Tasmania, Australian Labor Party) Share this | Hansard source

I rise to contribute to the debate on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. The primary measures contained in this bill are long overdue and as such have been largely welcomed by groups such as the Law Council of Australia and Women’s Legal Services Australia. Indeed, when giving evidence during the recently completed inquiry into the bill by the Senate Standing Committee on Legal and Constitutional Affairs, the Law Council of Australia were strongly supportive of the bill, which they described as a ‘much-needed, socially advantageous’ piece of legislation.

The bill amends the Family Law Act 1975 and introduces significant reforms to allow opposite-sex as well as same-sex de facto couples access to the federal Family Law Courts on property and spouse maintenance matters. The positives of the bill are many, as it seems to provide greater simplicity and surety for same-sex and opposite-sex de facto couples in resolving what can often be sensitive post-relationship issues. It also seeks to provide children who have de facto parents with a similar level of protection to those with married parents. Finally, in extending the same rights to same-sex couples, the bill implements one of the important recommendations of the Human Rights and Equal Opportunity Commission’s 2007 Same sex: same entitlements report and is consistent with current government policy of nondiscrimination on the basis of sexuality.

For each of these reasons the bill should be applauded. The bill gives effect to an agreement between the Commonwealth and the states and territories back in 2002 and as such is most welcome and long overdue. The bill follows the enactment of legislation by the majority of states, including my home state of Tasmania, referring necessary powers to the Commonwealth. As the Attorney-General, Mr McClelland, highlighted in his second reading contribution:

The reforms will provide greater protection for separating de facto couples and simplify the laws governing them. The reforms will also bring all family law issues faced by families on relationship breakdown within the federal family law regime.

This is significant because at present same-sex and opposite-sex de facto couples can access the federal courts to resolve child related matters; however, the financial and property arrangements between separated and de facto couples are subject to state and territory law, which varies between jurisdiction. As pointed out by Mr McClelland, this can currently result in the situation where a separating de facto couple with children can potentially find themselves in the Federal Court dealing with children’s issues and in the state courts dealing with property related matters. Obviously, such a situation is far from ideal, as I am sure that all of those who preside in this place can appreciate. It creates unnecessary additional inconvenience and stress in what can often be a very emotive and difficult time—not to mention the fact that, when dealing with the issues involved in separation, financial, property and custodial issues more often than not overlap.

The reforms contained in this bill attempt to address these issues by enabling the federal family courts to deal with both financial and child related matters for separating de facto couples in one hearing. This will mean that the bill will offer de facto couples access to the family law system for the determination of financial matters arising from separation. This is a step in the right direction, as the family law courts have extensive experience in relationship matters and, as such, have procedures and dispute resolution mechanisms at hand that are more suited to resolving issues arising from family litigation. By effectively extending the jurisdiction of the Family Court to include property and maintenance matters, this bill will streamline the formal processes associated with settling the issues arising out of separation for de facto couples. In doing so, it is likely to grant such couples access to, arguably, a better equipped medium of dispute resolution and to, hopefully, reduce some of the inevitable anguish that arises as a result of separation.

This is a significant and necessary improvement of the current situation for de facto couples, particularly when considered in light of the evidence provided by the Australian Institute of Family Studies as part of the Legal and Constitutional Affairs Committee’s recent inquiry into the bill. In supporting the bill, the institute highlighted some of the research it had undertaken, which showed that cohabiting, or de facto, relationships have become an increasingly common family form, with the 2006 census data showing that 15 per cent of all persons living with a partner were ‘cohabitating’. Consequently, the number of children being born into cohabiting relationships is also increasing.

By granting de facto couples access to the family law courts on property and maintenance matters, this bill promises to give the increasing number of same-sex or opposite-sex couples in Australia electing to live in such relationships the same protections in separation as married couples. This is significant in terms of ensuring that both the rights of Australians who choose to live in de facto relationships and, importantly, the rights of children of de facto parents are better protected. This is not only fair but is also the responsible thing to do.

As I mentioned earlier, the reforms to the Family Law Act contained in this bill also represent a positive step forward from a children’s rights perspective. Women’s Legal Services Australia, who also tendered evidence during the inquiry, were strongly supportive of the bill for this reason. Women’s Legal Services Australia argued that the measures contained in the bill would ensure that children with de facto parents were better protected. Women’s Legal Services argued that, under the current arrangements, the limited coverage and inconsistent features of state and territory schemes meant that children of de facto couples in many cases received less protection in comparison to children of married couples. The measures contained in this bill address this issue to some extent and, by streamlining the process for separating de facto parents, ensure that the rights of children of these relationships are better protected.

As I noted earlier, the reforms contained in this bill will apply to both same-sex and opposite-sex couples living in de facto relationships. By not discriminating between the two, the bill is completely consistent with the government’s policy of nondiscrimination on the basis of sexuality. In this sense, it is extremely pleasing to be a part of a government that is willing to deliver on and implement some of the key findings of the Human Rights and Equal Opportunity Commission’s 2007 report Same-sex: same entitlements. This significant report found that, under the previous government:

… at least 58 laws relating to the financial and work related entitlements discriminated against same sex couples and their children. These laws breach the international Covenant on Civil and Political Rights. Laws that discriminate against the children of same- sex couples and fail to protect the best interests of the child in the area of financial and work related entitlements also breach the Convention on the Rights of the Child.

In response to this, it also recommended in May 2007, amongst other things, that same-sex and opposite-sex de facto couples should both have access to the federal Family Court for property and child related matters. It is pleasing to be a part of a government that is willing act and deliver on this recommendation. It is important to note that these changes are not intended to in any way take away from the status of marriage; they are simply designed to afford same-sex couples and their children the same legal rights and protections when it comes to financial and work related entitlements.

Those opposite, under the leadership of Dr Nelson, withheld their support for this and other related bills that sought to deliver on the recommendations of the Human Rights and Equal Opportunity Commission’s report. While they have previously provided in principle support for the report, when it actually comes to implementing its findings they have always to date sought to defer or delay. Indeed, in June those opposite refused to support a similar bill, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008, which seeks to eliminate discrimination against same-sex couples and their children in Commonwealth legislation in relation to superannuation entitlements. The bill was subsequently sent to the Legal and Constitutional Affairs Committee for inquiry, which I believe handed down its report today.

The now Leader of the Opposition, in his second reading contribution to that bill, not only provided in principle support, but also suggested that the measures, as they relate to superannuation, should be made effective as of the date of announcement. In light of such comments, I would call on the Leader of the Opposition, Mr Turnbull, and those opposite to support in full all of the measures contained in this and subsequent legislation that seek to deliver on the findings of the Human Rights and Equal Opportunity Commission report. As the new leader, Mr Turnbull should reflect on his party’s previous failure to act in this area and wholeheartedly support the government’s push to implement the findings of the Human Rights and Equal Opportunity Commission.

As I stated earlier, the significant reforms contained in this bill have been largely welcomed. Indeed, the Senate Standing Committee on Legal and Constitutional Affairs report into the bill notes that, in general, many of the submissions and witnesses involved in the inquiry were strongly supportive of the bill and, further, that a key reason for this support was that the primary measures contained in the bill would streamline the processes for both same-sex and opposite-sex de facto couples and allow them access to the specialised forum of the family law court to resolve property and maintenance disputes at the same time as child-related proceedings.

Without quoting the committee’s report in too much depth, many of the witnesses who supported the bill urged the government to proceed with the legislation as a ‘matter of priority.’ The Family Law Section of the Law Council of Australia described itself as a ‘vigorous supporter of the objective that family law should apply in a consistent and uniform manner to married and de facto relationships nationally’. It is important to note that the Law Council, a much respected body in this area, argued that this is a ‘much-needed and socially advantageous legislation’ and that it is ‘long overdue given the high and ever-increasing percentage of Australians who live, regardless of their gender, in marriage like relationships in preference to formal marriage’.

The primary purpose of the bill is to be applauded as it seeks to amend the Family Law Act to ensure that same-sex and opposite-sex de facto couples have access to the federal family law courts on property and maintenance matters—providing for a national and uniform system. This brings to an end the costly and inconvenient system that currently exists whereby separating de facto couples with children can be subject to separate proceedings in the federal family law court and state courts simultaneously. In this way, the bill seeks to provide simplicity and surety for de facto couples in resolving what can often be sensitive post-relationship issues. It also seeks to provide to children with de facto parents a similar level of protection as those with married parents.

Finally, in extending the same rights to same sex-couples, the bill implements, as I have said, certain aspects of the Human Rights and Equal Opportunity Commission’s 2007 Same-sex: same entitlements report. From a personal point of view, as one of the many hundreds of thousands of de facto couples, while I hope to never have to use it, I commend the bill to the chamber and urge those opposite to reconsider their position on such reforms and support this bill as well as any other legislation aimed at implementing the findings of the Human Rights and Equal Opportunity Commission report.