Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

by leave—I move amendments (1) to (6), (8) to (11), (18) to (33), (39), (47) to (52) and (54) on sheet ZA242 revised:

(1)    Clause 2, page 2 (table item 2), omit the table item, substitute:

(2)   Clause 2, page 2 (after table item 6), insert:

(3)    Schedule 1, item 4, page 5 (line 25), before “the property”, insert “the distribution of”.

(4)    Schedule 1, item 4, page 5 (line 27), before “the vested”, insert “the distribution of”.

(5)    Schedule 1, item 18, page 9 (line 6), omit “or de facto relationship”, substitute “, de facto relationship or former de facto relationship”.

(6)    Schedule 1, item 45, page 20 (lines 28 and 29), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement (that is binding on the person)”.

(8)    Schedule 1, item 50, page 23 (after line 31), at the end of the definition of de facto financial provisions in subsection 90RC(1), add:

           ; (d)    subsection 114(2A).

(9)    Schedule 1, item 50, page 24 (line 21), after “State”, insert “or Territory”.

(10)  Schedule 1, item 50, page 24 (line 27), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties”.

(11)  Schedule 1, item 50, page 27 (line 18), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties to the agreement”.

(18)  Schedule 1, item 50, page 45 (lines 14 and 15), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement (that is binding on the person)”.

(19)  Schedule 1, item 50, page 45 (line 23), omit “binding financial agreement”, substitute “financial agreement (that is binding on the person)”.

(20)  Schedule 1, item 50, page 57 (lines 26 and 27), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(21)  Schedule 1, item 50, page 58 (line 21), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(22)  Schedule 1, item 50, page 59 (line 12), before “de facto relationship”, insert “former”.

(23)  Schedule 1, item 50, page 59 (line 15), before “de facto relationship”, insert “former”.

(24)  Schedule 1, item 50, page 59 (line 16), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(25)  Schedule 1, item 50, page 59 (line 20), before “de facto relationship”, insert “former”.

(26)  Schedule 1, item 50, page 59 (line 27), before “de facto relationship”, insert “former”.

(27)  Schedule 1, item 50, page 60 (lines 19 and 20), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(28)  Schedule 1, item 50, page 61 (line 4), omit “Note”, substitute “Note 1”.

(29)  Schedule 1, item 50, page 61 (after line 6), at the end of subsection 90UE(1), add:

Note 2:     Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 deems certain agreements, made under a law of a State that is or becomes a participating jurisdiction, or made under a law of a Territory, to be Part VIIIAB financial agreements.

(30)  Schedule 1, item 50, page 61 (line 31), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties to the agreement”.

(31)  Schedule 1, item 50, page 62 (lines 28 to 30), omit “(or last signed by a spouse party to the agreement, if both spouse parties to the agreement have signed)”.

(32)  Schedule 1, item 50, page 63 (line 3), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on the parties to the agreement”.

(33)  Schedule 1, Part 1, page 80 (after line 9), at the end of the Part, add:

84A After subsection 114(2)

Insert:

     (2A)    In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:

             (a)    make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and

             (b)    if it makes an order or grants an injunction under paragraph (a)—make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:

                   (i)    that residence; or

                  (ii)    a specified area in which that residence is situated; and

             (c)    make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them.

Sections 90SB and 90SK apply in relation to an order or injunction under this subsection in a corresponding way to the way in which those sections apply in relation to an order under section 90SM.

Note 1:     This subsection does not apply to proceedings referred to in paragraph (g) of the definition of de facto financial cause that relate to proceedings referred to in paragraph (e) or (f) of that definition.

Note 2:     The same requirements in sections 90SB (length of relationship etc.) and 90SK (geographical requirements) for section 90SM orders must be satisfied for orders and injunctions under this subsection.

(39)  Schedule 1, item 89, page 85 (line 4), after “VIIIB”, insert “, and subsection 114(2A),”.

(47)  Schedule 1, item 91, page 86 (lines 38 and 39), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(48)  Schedule 1, item 92, page 88 (lines 15 and 16), omit “binding Part VIIIAB financial agreement”, substitute “Part VIIIAB financial agreement that is binding on them”.

(49)  Schedule 3, item 16, page 101 (lines 24 to 26), omit “(or last signed by a spouse party to the agreement, if both spouse parties to the agreement have signed)”.

(50)  Schedule 3, item 17, page 102 (line 3), omit “binding financial agreement”, substitute “financial agreement that is binding on the parties to the agreement”.

(51)  Schedule 3, item 17, page 102 (line 6), omit “binding financial agreement”, substitute “financial agreement that is binding on the parties to the agreement”.

(52)  Schedule 3, item 30, page 104 (line 6), omit “binding financial agreement”, substitute “financial agreement that is binding on the parties to the agreement”.

(54)  Schedule 4, page 109 (before line 5), before item 1, insert:

1A Paragraph 60I(5)(a)

Omit “the date fixed by Proclamation for the purposes of this paragraph”, substitute “1 July 2008”.

Note:                  The heading to subsection 60I(5) is altered by omitting “first proclaimed date” and substituting “30 June 2008”.

1B Subsection 60I(6)

Omit “the date fixed by Proclamation for the purposes of this subsection”, substitute “1 July 2008”.

Note:                  The heading to subsection 60I(6) is altered by omitting “second proclaimed date” and substituting “1 July 2008”.

These amendments are largely technical and relate primarily to drafting issues, many of which were raised by the family law section of the Law Council of Australia. I thank the family law section for their input. As I said earlier in my remarks, the government appreciates the work done by both the Standing Committee on Legal and Constitutional Affairs and the family law section of the Law Council. During my time in opposition and in government I have noted that the family law section has provided high-quality assistance to government.

Government amendments (1) and (2) provide for the commencement of the definition of ‘de facto relationship’, which recognises children of same-sex relationships, on the day the bill receives royal assent. The definition of ‘de facto relationship’ and the amendments made under new section 3A will also apply to a number of other acts, many of which are also being amended by the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. Commencement on royal assent will ensure that the amendments made to those other acts, once the two same-sex bills have passed and commenced, will have effective operation from the commencement.

Government amendments (3) to (6), (10), (11), (18) to (27), (30) to (32) and (47) to (52) address various drafting issues raised by the family law section of the Law Council of Australia to: (a) ensure consistency with the definitions for ‘de facto’, ‘financial cause’ and ‘financial matters’; (b) ensure consistency between provisions applying after a de facto relationship ends and the provisions applying after a marriage has ended in divorce; (c) replace the term ‘binding financial agreement’ with the phrase ‘financial agreement that is binding on the parties to the agreement’ or a similar phrase; and, finally, ensure that, where both parties have signed a separation declaration, the declaration’s time is measured from the time it is first signed by one of the parties.

Government amendments (8), (9), (29), (33), (39) and (54) also address various technical issues. It is always difficult to say this, but they were inadvertently overlooked during drafting. These amendments are largely technical, as I said, and are explained in more detail in the revised supplementary explanatory memorandum we have provided.

I commend the amendments to the chamber.