George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to 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 genesis of the bill, the conception of the idea that the Family Court should have jurisdiction over de facto couples as well as married couples, relates to the time of the previous government, although the bill has been expanded in important ways by the new government. The bill has the opposition’s support in principle.

The bill relies on referrals of power by most of the states, currently with the exception of Western Australia and South Australia, to the Commonwealth 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 the legislation therefore is to provide for national uniformity for all relationship breakdown matters and to confer jurisdiction on the courts with the best resources for resolving the breakdown of relationships, namely, the Family Court of Australia and the Federal Magistrates Court exercising jurisdiction under the Family Law Act. These are serious issues for de facto couples, and legislation to address them has, as I have said, the support of the opposition.

As I indicated earlier, the genesis of this legislation lay in the opposition’s days in government during the attorney-generalship of Mr Ruddock. Funds were allocated by the previous government in the 2007-08 budget for one additional Family Court judge and four additional federal magistrates in anticipation of this measure.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 is the subject of a report by the Senate Standing Committee on Legal and Constitutional Affairs. While a number of amendments are recommended in that report, I can foreshadow that the opposition will be seeking to make two amendments to it. I will return to that.

The amendments confer jurisdiction on federal family courts in relation to de facto financial causes by the insertion of proposed 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 the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis. That test will apply equally to same-sex and opposite-sex couples. The coalition agrees in principle with that approach.

For the purpose of orders relating to maintenance, alteration of property interests or declarations 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, which has in its contributions to this debate always emphasised the unique status of marriage in Australian society, believes that it is appropriate to structure the legislation by creating a distinction between marriages and de facto relationships which, although in the consequences of the breakdown of either of them may result in similar circumstances being treated in a similar manner, nevertheless recognises that there is a pre-eminence among relationships accorded to marriage in our society.

The coalition recognises that people enter into de facto relationships for a range of reasons. Often they do so as the next stage from commencing a sexual relationship. Sometimes 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 those people 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 properly related consequences and are in terms of both the characteristics of the relationship and the parties’ expectations of it very distant from marriage.

On 17 September a series of amendments was circulated by the government. These amendments arise from the report of the Senate Standing Committee on Legal and Constitutional Affairs in its inquiry into this bill. The opposition supports all but one of the government’s amendments, which we regard as being an appropriate adjustment of the legislation to reflect the evidence that was given before the Senate committee and which are essentially uncontroversial. But let me deal with one important matter, and that is the proposed amendment to section 60(H)(1) of the Family Law Act. Section 60(H)(1) of the Family Law Act deals with children which are born as a result of artificial conception procedures. Arising from the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, the government proposes to amend section 60(H)(1) so as to contemplate a child born to a woman in a same-sex relationship as a result of an artificial conception procedure.

The approach of the government has been to homogenise those sorts of relationships with married relationships and to treat them identically. In both cases the non-biological partner is described as the other intended parent. Consistent with the principle that partners to same-sex relationships ought to be treated equivalently to partners to de facto heterosexual relationships and the further principle that children born into such relationships ought not be discriminated against, the opposition will in the committee stage be offering its own amendment to section 60(H)(1), which preserves the separate categories of marital relationships and de facto relationships, preserving the important distinction about which I have spoken. Beyond the proposed amendment to section 60(H)(1), the opposition will be supporting the government’s amendments.

There is one other matter with which the opposition has a concern with this bill, and it arises from the proposed subsection 4AA(5), which is item 21 of the bill. That proposed subsection stipulates that a de facto relationship may exist notwithstanding that a partner to it may be married to someone else or in another de facto relationship. This adds nothing to what is already understood by the law but it has, by the manner of its statutory expression, raised community concerns that it endorses or tolerates a form of polygamy. The provision can be deleted without affecting the operation or policy of the legislation and therefore I foreshadow that the opposition will also be moving an amendment in that regard in relation to schedule 1, item 21.

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 orientation, 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 opposition in relation to the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) bill. 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. Accepting that people live in a permanent domestic relationship with a same-sex or opposite-sex partner does not and should not be allowed to devalue the traditional unique status of marriage. Subject to that very important observation, and subject to the amendments which I have foreshadowed, the opposition supports the bill.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. As the first stage of the Rudd government’s election promise to remove discrimination against same-sex couples in more than 100 pieces of legislation, the de facto financial bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs, along with the Same-Sex Relationship (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Evidence Amendment Bill 2008.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 amends the Family Law Act 1975 to provide for opposite-sex and same-sex de facto couples to access the federal family law courts on property and maintenance matters. The main benefit of the legal changes essentially allows de facto couples to access the Family Court rather than the more expensive and time-consuming state supreme courts. The bill also amends financial agreements between married couples and superannuation splitting, as well as providing for certificates in relation to family dispute resolution. This legislation requires states to refer their powers to the Commonwealth for the purpose of accessing the Family Law Court. While the majority of states have passed legislation referring their powers, we note that the federal Attorney-General is still in discussion with his counterparts in South Australia, Queensland, and Victoria, where these are yet to occur.

During the course of the inquiry, a number of individuals and organisations expressed concern over the definition of a ‘parent’, in particular section 9ORB(3) of the de facto bill and its relationship to section 60H(1) of the Family Law Act. Section 60H provides for the presumption of parentage where a child is born through assisted reproductive technology. Only the male partner of the birth mother is considered a parent under this section. The provision—60H—hinges off who the partner of the birth mother is. The key issue is that the de facto partner of the birth mother needs to be gender neutral, not that the birth mother needs to be gender neutral. Essentially, the concern with this section is that you would need to make section 60H`gender neutral in order to appropriately cover the children of lesbian couples. Yet, while the use of gender neutral language is needed in order to capture all parents, we would need to see a complete overhaul of the current surrogacy legislation to ensure uniform surrogacy laws across the board.

The Attorney General’s department, in response to questioning from the committee during the Canberra hearing, stated:

… the Commonwealth’s position is that it is currently considering a request by state and territory ministers to consider amending subsection 60H of the Family Law Act to allow children of same-sex relationships to be recognised as a child of the relationship for the purpose of the section.

The Greens fully support the five recommendations proposed by the committee to strengthen this bill. In particular, we strongly support recommendation 1, which seeks to change the definition of a ‘child of a de facto relationship’ in proposed section 90RB of the bill and the parenting presumptions in section 60H of the Family Law Act 1975 to be amended to allow children of same-sex relationships to be recognised as the child of the relationship for the purposes of the entire Family Law Act 1975. We are pleased to see the government amendments circulated last week reflect the concerns raised throughout this inquiry.

As I mentioned earlier, while we would need to see national uniform surrogacy laws implemented to ensure that all same-sex partners are recognised equally, we are particularly pleased with the addition of 60HB, which deals with children born under the current state surrogacy arrangements. We heard numerous stories throughout the inquiry which outlined concerns with children born under surrogacy arrangements and how they would be protected under this piece of legislation. In particular, HREOC outlined within their submission their concern that while:

... the new section 9ORB or an amended section 60H will include all children born to lesbian couples … it will not include children born to gay couples through surrogacy arrangements.

I acknowledge that surrogacy arrangements are extremely rare in Australia as all states other than NSW and the ACT either prohibit surrogacy arrangements or limit access to Assisted Reproductive Technology that is necessary to fulfil a surrogacy arrangement, but it is an important step towards a recognition of surrogacy in federal law—a debate I hope to see on this government’s radar sooner, rather than later.

The Greens were pleased to see recommendation 4 of the chair’s report incorporated into the government’s amendments, which:

… recommends that the transitional provisions in the Bill be amended to enable de facto couples to 'opt in' to the new regime by mutual agreement, subject to appropriate safeguards, where their relationship breaks down before commencement and their property or maintenance matters have not been finalised before commencement.

It is pleasing to see this ‘opt-in’ clause inserted into this legislation to alleviate any problems that may have arisen with the original drafting of this legislation.

I was also concerned about claims, made throughout the inquiry, that this bill would both undermine and devalue the institution of marriage by extending similar rights to heterosexual and same-sex de facto couples. This claim was refuted by many witnesses—in particular, Reverend Elenie Poulos, from the Uniting Church of Australia, who clearly stated that she did not believe the inclusion of same-sex couples in the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill would undermine marriage in any way.

Mr Graeme Innes, AM, the Human Rights Commissioner, from HREOC, also rejected the dialogue that suggested this legislation undermines or threatens the institution of marriage. During evidence provided to the committee in Melbourne, Mr Innes stated:

The level of keenness and desperation that I heard from a range of the same-sex couples who wish to become married and join that institution would suggest that in fact it is supported by those views rather than undermined by them.

The Australian Greens believe that freedom of sexual orientation and gender identity are fundamental human rights. The acceptance and celebration of diversity, including sexual orientation and gender diversity, is essential for genuine social justice and equality. We support the legalisation of marriage and de facto relationships between two people, irrespective of their sex and gender identity and whether or not they cohabit. We are talking about an issue of human rights and social justice, and the Greens have always been at the forefront of calls for greater equality for all couples, regardless of their sexuality or gender.

Changes in federal legislation to reflect the political will of society are long overdue. The Australian Greens will be supporting the removal of discrimination in all areas of federal law. We do not want to see this legislation—or the forthcoming Evidence Amendment Bill 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008delayed any further. The time for action has come. I understand the coalition have indicated their support for the intent of this bill, and I would encourage the coalition senators on my right to cooperate in the speedy passage of this important piece of legislation. The public have expressed their desire to have same-sex discrimination removed from law, and we need to see this discrimination removed as quickly as possible. I commend the bill to the Senate.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 is an important step towards a family law system that treats all couples and their children equally, regardless of whether they are married or unmarried, gay or straight, or a partner of someone whose gender identity is not recognised. Its primary purpose is to establish a family law system in which all separating couples are treated equally under Commonwealth law in relation to the division of their property and other financial matters. The Commonwealth’s power to offer couples equal treatment is constrained by the Constitution and, in particular, by the extent to which the states have referred to the Commonwealth their powers over de facto financial matters. But, to the extent that the Commonwealth has the power to offer equal treatment, this bill, I am pleased to say, provides for it.

What this means in practice is that, when people break up and seek advice as to their financial rights and responsibilities, the answer will not depend on whether they are married or whether they are gay or straight. Instead, it will depend upon matters such as their age; the state of their health; their income, property and financial resources; whether they have children; and who is caring for those children. It will depend on the contributions they have made to building up the income and earnings capacity of their partner and to the property and financial resources of the couple. It will also depend on the contributions they have made to the welfare of the couple as a family, including contributions as a homemaker or parent, and any other facts or circumstances that the Family Court believes should be taken into account in order to see justice done.

These are the considerations that should matter when it comes to settling financial matters between separating couples, not whether the couples are gay or straight, or married or unmarried. When it comes to settling these matters fairly, the financial contributions made by the parties should matter, and so should their other contributions to their family’s wellbeing. Their current financial circumstances should matter, as should the length of their relationship. And whether the couple has children should certainly matter, as should the arrangements for the care and support of those children.

We should not be reliant on a whole series of different state laws, which are often inequitable, to determine how the children’s interests are taken into account when it comes to these issues. The children of married couples have the protection of the Commonwealth Family Law Act in relation to this matter. The act works to ensure that children’s interests are taken into account when separating married couples settle their financial affairs. When de facto couples separate, the children deserve the same protection, whatever their parents’ sexuality. This bill will ensure that like cases are treated alike. In doing so, it will give all those going through the difficult process of separation greater certainty about their rights and responsibilities. The more certainty, transparency and consistency there is in relation to these matters, the less likely it is that there will be conflict over them. That has to be a good thing for the couples involved and, most especially, for their children.

During the recent Senate Standing Committee on Legal and Constitutional Affairs inquiry into this bill, Heidi Yates, of Women’s Legal Services of Australia, said:

… the Family Court, as a specialist court, with particular ability to look at the future needs of the primary caregiver and their ability to care for the children, provides the most just and equitable outcome and therefore it would be most appropriate if both de facto and married couples could use that federal system. It also promotes consistency, simplicity of advice and I think amongst the community members a more consistent understanding of what their rights and obligations are.

Expert witnesses to the committee also testified to the fact that property and maintenance proceedings relating to the separation of de facto couples in state courts were generally more costly and protracted than similar proceedings under the Family Law Act.

As a Western Australian senator, I can vouch for the fact that this proposed scheme will work, because it is already working in Western Australia. We are not entering uncharted waters here. Western Australia has the only state family court established under the Commonwealth Family Law Act. This unique position has enabled the Western Australian Family Court to exercise both state and federal jurisdiction in relation to the settlement of most financial matters between separating couples. I am proud to say that the Western Australian parliament has taken full advantage of this situation in order to ensure that de facto couples, gay and straight, are treated in the same manner as married couples in relation to these matters. For many years now, under the Western Australian Family Court Act 1997, separating de facto couples in Western Australia have been able to go to the Family Court of Western Australia to obtain orders to relation to the settlement of their financial matters. This act replicates most of the provisions in relation to financial matters found in the Commonwealth Family Law Act, and so, by applying the same provisions to married and de facto couples, the court is able to provide equal treatment to the couples concerned and to their children.

In 2001 and 2002, the Gallop Labor government in WA took the courageous decision to implement wide-ranging reforms aimed at ensuring equal treatment for gay and lesbian people and for same-sex couples and their children. These reforms ensured that the regime in relation to the settlement of financial matters, which already applied to separating married couples in Western Australia, was extended to separating de facto couples, whether straight or gay.

Senators may be reassured to learn that, despite these innovations in Western Australia, the institution of marriage is alive and well in my home state. And why wouldn’t it be? These reforms did not change one iota the rights or responsibilities of married couples. Marriage is not so fragile that it will collapse simply because rights and responsibilities of separating de facto couples are improved and the children of de facto couples are afforded greater protection. Furthermore, there was no avalanche of complaints from de facto couples, either gay or straight, in relation to the impact of these law reforms in Western Australia.

In contrast, I know that gay and lesbian people in Western Australia are grateful they can live life secure in the knowledge that the state’s laws support the equality of their relationships. As someone personally affected by the previous inequities in the law, I know what it means to people to go from being excluded to being able to access and take for granted the sense of security that other couples take from the legal recognition of their rights and responsibilities in everyday things like family law, property, health insurance and superannuation.

The reforms in WA, which are similar to those before us in the Senate today, have been overwhelmingly received as positive. The legislative scheme before us should be seen in a similar light. It gives courts the guidance and the discretion to make orders that do justice to couples and their children in a very wide range of circumstances—a range wide enough to encompass the situations of almost all couples, gay and straight, married and unmarried.

The Senate Standing Committee on Legal and Constitutional Affairs recently published the report of its inquiry into this bill. In my view, the committee’s report gives a very fair summary of the evidence presented to the committee and the issues raised by the inquiry. On this basis, and on the basis that the committee’s findings accord closely with my own experience of implementing successful gay and lesbian law reforms in WA, I would urge senators to give consideration to these recommendations. In particular, I would urge that consideration be given to the committee’s first recommendation. It must be implemented. The committee recommends that:

… the definition of ‘child of a de facto relationship’ in proposed section 90RB of the Bill and the parenting presumptions in section 60H of the Family Law Act 1975 be amended to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act 1975. In making this recommendation, the committee recognises that the interests of the child must be of paramount consideration.

To explain, section 90RB of the bill provides that, for the purposes of settling financial disputes between separating couples, a ‘child of a de facto relationship’ includes a child under subsection 60H(1) of the Family Law Act and that, for the purposes of the bill, subsection 60H(1) applies to same-sex couples as it applies to opposite-sex couples.

Section 60H, as it currently stands, ensures that, when a child is born to a woman as a result of an artificial conception procedure and she had a male partner at the time of the procedure, that man is the child’s father under the Family Law Act, provided he consented to the procedure. Applying this section to same-sex couples means that, when a child is born to a woman as a result of an artificial conception procedure and she had a female partner, that partner will be recognised as the child’s parent, provided she consented to the procedure. However, currently the section is applied to lesbian couples in this way only for the purposes of settling financial disputes between separating couples, and not for any other purposes under the Family Law Act. The committee has recommended that the section be applied to lesbian couples for all purposes under the Family Law Act.

This recommendation was based upon evidence received from the Commonwealth Human Rights Commissioner, gay and lesbian organisations, a number of expert legal witnesses and, indeed, many lesbian parents themselves. Professor Jenni Millbank put the case to the inquiry most succinctly when she commented:

It makes no sense to acknowledge the existence of a parent-child relationship for the purpose of property division but not for the purpose of child support or child maintenance, parental responsibility, or for decisions about time with children.

The representative of the Gay and Lesbian Rights Lobby was even more blunt when he pointed out to the committee:

… the mother is a mother for the purposes of who gets the house, who gets the car and the future needs of the children. She is not a mother to her children for the purposes of where the children will live and who the children will spend time with.

My own experience in Western Australia leads me to believe that legal absurdities of this sort can easily be avoided by the consistent use and application of gender neutral language in relation to provisions such as section 60H. Then all couples will be covered in the same way and to the same degree, and their children will be protected in the same way and to the same degree.

I am pleased to note that the government has circulated proposed amendments that will address this issue and ensure that children’s interests are protected regardless of the structure of their family. There are a great many children in Australia who are denied but deserve the protection of a proper legal relationship with both their parents. Many children in Australia are currently denied this right—and it is not in the best interests of these children. I therefore urge all senators to support these amendments, which will give effect to the Senate committee’s bipartisan recommendation on this issue. Common sense, expert opinion and the experience of similar reforms in practice in Western Australia all indicate that the impact of this bill will be overwhelmingly beneficial. This reform will have a very real impact on the lives of large numbers of de facto couples, gay and straight, and their children. I commend the bill to the Senate.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I stand today to speak to the bill before the Senate, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, and also as the deputy chairman of the Senate Standing Committee on Legal and Constitution Affairs that inquired into the bill. At first instance I would like to express my thanks to the secretariat for the assistance provided in a short amount of time under considerable pressure to pull this report together. As senators know, the report of the committee was tabled in August—just a couple of months ago—but it is part of a package of four bills that are currently before the parliament that deal with the government’s legislative package which seeks to implement equal treatment of same-sex relationships in Commonwealth law.

Before I specifically address the bill before the Senate, the de facto amendment bill, I want to highlight to the Senate and indeed to others that the government appears to have displayed and demonstrated an extraordinary degree of incompetence and behaviour bordering on recklessness in its handling of these four bills. First of all, the definitions used in these bills of ‘couple relationship’, ‘de facto relationship’, ‘child’ and ‘parent’ vary across the four bills. And there are many instances where they are mutually incompatible and contradictory. Specifically in the four bills, you have three definitions of ‘de facto’ that are different. So here we have a government which, for whatever reason—whether negligence, incompetence or some other reason—has introduced into the parliament four bills with three different definitions of the word ‘de facto’. This was of course highlighted at the various Senate committee inquiry hearings that we had—particularly when we had before us as witnesses the Attorney-General’s Department, but it was certainly highlighted by other witnesses as well. Of course, we hope that these matters will now be addressed. I would also refer to the definition of child as ‘a product of a couple relationship’, which has attracted significant adverse comment from community groups and experts on all sides of the issue.

Just as a reminder, the four bills that I am referring to are the Evidence Amendment Bill 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the bill before us, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. So there are four bills relating to the same objective—to provide equal treatment of same-sex relationships in Commonwealth law—with different definitions which are contradictory. It highlights negligence at best and perhaps recklessness at worst with respect to the behaviour and the administrative arrangements of the government.

While the House of Representatives was debating and ultimately passing without amendment the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008, which included this problematic term, the government circulated in the Senate proposed amendments to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, which used an entirely different approach to the definition of child in Commonwealth law. So we have had the government backing contradictory approaches to the definition of the child-parent relationship simultaneously in two chambers of the Australian parliament.

The government committed to the Senate Standing Committee on Legal and Constitution Affairs, in a public hearing and subsequently as well, that proposed amendments to both the same-sex bills currently before the parliament would be forthcoming and that they would be provided to our committee by 8 October—last Wednesday in fact. Well, of course, we are standing here today and there are still no amendments before the Senate. In fact, they have not been distributed. The committee has not received those amendments. It is an inappropriate administrative arrangement and it is an inappropriate way to deal with legislation. I am specifically referring to the amendments to the two same-sex bills, but of course there is a package of four bills and the de facto bill before us is just one of those four.

I wish the government had got it right in the first place, but of course there is always room for improvement. I hope that the government sees the error of its ways and perhaps acknowledges the concern, dismay and annoyance not only of senators on this side but, I think, across the board and also, in particular, the witnesses, who expressed their concern about the lack of time to prepare adequately to respond to the very lengthy bills, in particular the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008.

Senator George Brandis has outlined the coalition position but, more generally and from a bigger picture point of view, I want to put on the record the coalition’s view as expounded by Dr Brendan Nelson in his speech on the second reading of the Same-Sex Relationships (Equal Treatment In Commonwealth Laws—Superannuation) Bill on 4 June 2008. He said that while supporting the bill in principle:

… the opposition will not support—in fact we will resolutely oppose—any measure which might open the door or otherwise give legitimacy to gay adoption, gay IVF or gay surrogacy.

A coalition amendment to the bill then stated in part:

… that the Opposition will refer the bill to the Senate Legal and Constitutional Affairs Committee with a view to ensuring that, in removing discrimination against people in same-sex relationships:

(a)  the centrality of marriage is not devalued, whether by the use of inappropriate statutory language or otherwise …

That is something that I strongly support, and I thank our former leader Dr Nelson for expressing those views. I want to put on the record my strong support for those sentiments, for those principles, and to highlight that.

Focusing a little bit more closely on the bill before us in the Senate, the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, as was noted in our Senate committee report:

The primary purpose of the Bill is to amend the Family Law Act to provide opposite-sex and same-sex de facto couples access to the federal family law courts in relation to property and maintenance matters.

Currently, same-sex and opposite-sex de facto couples can access the federal Family Court to resolve child-related matters. However, financial and property arrangements between separated de facto couples are subject to state and territory law, which varies between jurisdictions.

The report notes that that was explained by the Attorney-General in his second-reading speech, which I acknowledge and note. So the bill attempts to address those issues by enabling the federal Family Court to deal in the one proceeding with both financial and child related matters arising from separated de facto couples.

I also want to note another point. This is an important point because it relies on the referral of powers from the states. It gives effect to a decision of the Standing Committee of Attorneys-General in November 2002. Since then, for example, New South Wales has enacted the Commonwealth Powers (De Facto Relationships) Act 2003; Victoria, Queensland and Tasmania have legislated in similar terms; and, as has been noted by Senator Pratt and in the Senate report, Western Australia has its own Family Court. So there is that requirement that there be a referral of powers. I have referred to the definition of ‘de facto’. There are three different definitions in these four different bills before the parliament at any one time.

I wanted to highlight the report before the Senate, in particular page 15, where I asked some questions of the Australian Institute of Family Studies. In response the AIFS informed the committee:

The probability of a marriage ending in divorce appears to have been increasing … 33% of all marriages that began in 2000-2002 could be expected to end in divorce, compared with 28% of all marriages that began in 1985-1987. However, the estimated expected duration of marriages that end in divorce has increased … [A]mong men who obtained a divorce from their first marriage, the average expected duration of their marriage increased from 11 years for those who married in 1985-1987 to 14 years for those who married 2000-2002.

Now, we have been feeling a little gloomy and perhaps a little down in the mouth about family matters over the last few years as we have entered the 21st century. Well, there is some good news to report about the duration and the stability of marriage. In contrast, the Institute of Family Studies informed the committee:

… the median duration of a cohabiting relationship for those who separated was around 2 years (excluding first cohabitation following marriage).

The committee also noted:

… data from the Australian Bureau of Statistics also shows that, for those people who got married in 1985–1987 and 2000–2002, the expected average duration of their total married life remained unchanged at around 32 years.

The report notes that some of the conclusions of the AIFS were that:

• ‘cohabiting relationships are far more likely to dissolve than marriages’; and
• ‘regardless of the period in which cohabitation or marriage began, the likelihood of a cohabiting relationship ending in separation within five years was at least three times the likelihood of a marriage ending in divorce within five years …

There are some very important points there. I think it is worth noting and putting on the public record that marriage is an institution worth protecting. Marriage is a unique institution worth supporting. As a government and as a parliament we should do everything in our power to ensure that this wonderful institution is supported, is encouraged, is backed up in every way, shape and form. The bill before the Senate provides an opportunity for us to stand and express our views on the importance of the sanctity and uniqueness of marriage and its vital position in the Australian community today. It provides the umbrella under which children can be nurtured and loved and can grow and prosper—indeed, as a result, families can then prosper and grow and be nurtured and likewise our community. So I wanted to place on the record my strong support for that.

Indeed, those points were made by a number of witnesses to our committee, including Family Voice Australia and the Australian Christian Lobby. I want to particularly thank Professor Patrick Parkinson for his evidence to our committee—it was very extensive, very thoughtful. He did express concerns about the lack of time he had to prepare adequately. He indicated that if he had had more time he could have been more diligent in the preparation of his submission. He is a professor of law at the University of Sydney. I want to put on the record my sincere thanks to the professor for his wonderful work.

In terms of the bill’s consistency with other federal legislation, I have referred to the inappropriate behaviour and administration by the government concerning definitions that differ, particularly with respect to de facto relationships, but I want to now turn to the issue that has been addressed by Senator Brandis and other senators, which relates to the presumption of who are the parents of a child born as a result of assisted reproductive technology. Section 60H of the Family Law Act provides for and makes presumptions about who are the parents in those circumstances. It effectively recognises a birth mother and the male partner of a birth mother as parents. However, a female partner of the birth mother, a lesbian co-mother, and a male partner of the birth father, a gay co-father, are not considered to be parents. I am putting on the record my position on this, which is that I am disappointed. I do not support access to IVF for single women and lesbians. I realise that that occurs in Australia today, but I think the states should have the opportunity to express their views and allow support for funding for IVF services for married couples and de facto couples of the opposite sex.

In Australia today, couples of the same sex are allowed this service. It is one of the consequences of the government’s position and policy that it is allowed and, as a consequence of that, children are in those situations. We need to act in the best interests of the child. That is why recommendation (1) of the report refers to the merit of amending section 60H. This will ensure that the best interests of the child are protected. At all times—and I want to stress this very strongly—coalition senators have wanted to make it clear, as set out in recommendation (1), that the committee should recognise that the interests of the child must be of paramount consideration. Unfortunately, we did not have enough time to consider in greater detail the appropriate form of the amendment. I am pleased that Senator Brandis has flagged that particular amendment for senators to consider. A government amendment has been circulated, and it will no doubt be considered in committee. There will be important issues that other senators will need to consider about the amendment and the parenting presumptions that will flow from it to people in same-sex relationships, particularly with respect to ART or IVF arrangements.

The second amendment relates to concerns expressed in the report by Liberal senators about the position of multiple relationships and where a de facto relationship can exist. Currently, the bill provides that a de facto relationship can exist even if one of the persons is legally married to someone else or is in another de facto relationship. Some people expressed extreme concern about this. I would like to refer to the Hon. Bronwyn Bishop and others who have expressed publicly their concerns about the condoning of polygamy if this legislation were to go through as is. To avoid those concerns, we propose an amendment, which Senator Brandis has referred to, that would allow the courts to determine whether or not there are multiple relationships involved. That is a matter that they can sort through and resolve themselves. There are also concerns that, if we go down the track proposed by the bill as it currently stands, it will undermine the significance and distinctiveness of marriage, which has consistently been shown to be the most stable and enduring form of heterosexual union.

The proposed amendment to section 60H, which is item 5 of the proposed new schedule 3A of the bill put forward by the government, would effectively give parental status to a lesbian partner of a woman who undergoes an artificial conception procedure—this includes artificial insemination and IVF. Item 7 of the proposed new schedule 3A of the bill, as put forward in the government amendment, would introduce a new section 60HB to the Family Law Act. Under the act, this would give parental status to any person for whom an order has been made under a prescribed surrogacy law of a state or territory. I make the point that there has been no inquiry into surrogacy by a Senate committee and that it would be inappropriate for the Senate to adopt this amendment in the absence of any such inquiry. In fact, the Standing Committee of Attorneys-General is currently considering uniform national laws on surrogacy, but the initial consultation paper for this process has not yet been issued. So I cannot see why we should be going down that track at this stage. It is indeed a concern.

In summary, the bill before us clearly needs to be addressed. Some amendments have already been foreshadowed. I think the government has some lessons to learn about administrative matters. Those points have been well made during the last few minutes, and they have also been made by other senators in this place. I thank the Senate.

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This bill amends the Family Law Act to allow opposite-sex and same-sex de facto couples who live in a bona fide domestic relationship to have access to the federal family law courts on property and maintenance matters.

The bill allows the Family Court to make orders about property related issues brought by people in such relationships. The bill is part of a package of bills, of which the first instalment was the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008. Collectively, these bills are designed to remove significant areas of discrimination against gay men, lesbians and same-sex couples, although they also affect the situation of opposite-sex unmarried couples in some respects.

For the purposes of these bills, a person is said to be in a de facto relationship with another person if they have a relationship as a couple living together on a genuine domestic basis but are not married or related to each other. So it thereby includes same-sex domestic and sexual relationships but does not include situations where, for example, siblings or other relations are living together.

Presently, the resolution of disputes over financial and property matters between de facto couples is subject to state and territory laws and these laws vary from jurisdiction to jurisdiction. This bill will offer couples covered by the bill a nationally consistent financial settlement regime and will also offer them access to the Family Court and its services for determination of their financial matters arising upon relationship breakdown.

The bill allows one court, whether it is the Family Court of Australia or the Federal Magistrates Court, to deal in the one proceeding with both financial and child-related matters arising between separated couples. This will save not only the time of the courts but also couples and individuals money, time and stress involved in potential multiple proceedings in multiple jurisdictions.

I have sought to speak on this bill for several reasons. The first is that it is a good example of the determination by the Prime Minister and the government to keep their election commitments. One of the things that all senators need to know about the Prime Minister of this government is that he means what he says and that when he makes a commitment, it is kept. For this government there are no ‘core’ and ‘non-core’ promises.

Labor went to the last three elections with a commitment to end discrimination against gay men, lesbians and same-sex couples. I would like now to acknowledge the persistent efforts of two members in the other place, Anthony Albanese and Michael Danby, whose work when in opposition on behalf of their constituents led to that commitment. I also would like it noted that Senator Sherry, in this place, has also been a consistent advocate of equality in matters pertaining to superannuation.

We adopted our policy in the full knowledge that some of the supporters of those opposite would use it to play cheap wedge politics against us in the broader electorate. I think that is because the other side assumed—perhaps, I dare say, wrongly—that there was a reservoir of intolerance in the community into which they could tap for their own venal political purposes. Despite this and despite any attendant political risks, the Labor Party has adopted a policy to end discrimination because it is, of course, the right thing to do.

The second reason I sought to speak on this bill is that it reflects the values that I spoke about in my first speech to the Senate. One of the founding and most important core values of the Labor Party is its determination to eliminate discrimination wherever it is found, whether it be discrimination based on race, gender, sexuality, religion or belief.

This bill and the package of bills of which it is a part are steps along the road of eliminating discrimination on grounds of gender and sexuality. These bills ensure that both opposite-sex and same-sex couples—in fact, all people who live together in bona fide sexual and domestic relationships—will enjoy the same rights that married couples enjoy in the field of superannuation and in access to the Family Court.

In the light of some of the contributions we have heard from the opposition both here and in the other place, it is important to stress that this bill does not affect the status of marriage. The definition of marriage as enshrined in the Marriage Act has not been altered or changed in any respect by these bills. It has never been Labor policy to change the definition of marriage and that remains the case today.

As a member of the Senate Standing Committee on Legal and Constitutional Affairs, I have had the privilege of attending the hearings on these bills in Sydney, Melbourne and Canberra, and I read many of the submissions made to the committee by various interested parties. While I certainly respect the sincerity of all those who made submissions, I do not accept the views stated by some—and shared, I believe, by many of those opposite—that extending equality of treatment to unmarried opposite-sex and same-sex couples will in some mysterious way undermine the institution of marriage.

The passage of these bills will make no difference at all to the fact that the great majority of Australians will continue to get married nor to this government’s efforts to support married couples and their families though our social and economic policies and programs. It seems utterly perverse to me to argue on the one hand that marriage is the bedrock of our society and on the other hand to argue that marriage is so fragile that it must be protected by denying fairly elementary rights to people who choose for whatever reason to organise their lives and their personal relationships in a different way. However, I certainly do agree that there are many threats to the stability and security of married couples and their families in Australia today. An example of such a threat is the decreased affordability of housing, thanks to 10 increases in interest rates in a row under the Howard government. That trend is now being reversed under the Rudd government. Today we saw the Prime Minister and the Treasurer announce a $10 billion stimulus package, which will include almost $4 billion directed towards low-income families, and a doubling of the first homebuyers grant from $7,000 to $14,000. That is how this government supports families, not by cheap populist stunts, not by demonising minority groups, not by playing to the most difficult or intolerant tendencies in our community but, in fact, by coming up with simple and practical measures that will help Australian families.

Another example is the decreased security of employment thanks to the Howard government’s iniquitous Work Choices laws, which we are also reversing. The Deputy Prime Minister has announced legislation that will restore fairness and balance to Australian workplaces. This is a practical example of helping Australian families.

Another example is the rising costs faced by many families struggling to raise children in the face of rising costs whether they be traditional or non-traditional, same-sex or opposite-sex families. Today the Prime Minister and the Treasurer had good news for these families: as part of the government’s stimulus package, families who are eligible for family tax benefit A will be paid $1,000 for each child, as will those who have dependent children on other benefits such as youth allowance. Almost four million Australian children will now receive this payment.

Another example is the acute shortage of child care in many areas, particularly inner city areas, thanks to a decade of neglect by the Howard government. This issue was also addressed in the Rudd government’s first budget, in which we delivered on our election commitment to provide substantial relief to families struggling with the high costs of child care. The child care tax rebate was boosted from 30 to 50 per cent of out-of-pocket expenses for approved child care costs. This government has also lifted the maximum amount of the rebate, from $4,354 to $7,500 indexed per child per year.

Another example of a real threat to many Australian families and many marriages is binge drinking, which we also addressed in the budget. This problem will not be addressed if those opposite block our efforts to make pre-mixed alcoholic drinks less attractive.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

What’s this got to do with de facto relationships?

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

What this has to do with families is that it is real.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Senator Joyce interjecting—

David Feeney (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I have endured the speeches from your side; you might pay me the same courtesy. It is a pity that those opposite do not listen to Senator Fielding and drop their irresponsible opposition to this measure.

Compared with these threats to many Australian marriages, the fact that equality in superannuation and other matters is being extended to opposite-sex and same-sex couples seems to me to be a very minor threat indeed. I think it is something of an insult to married Australians to suggest that their commitment to marriage and to one another is so weak that it can be ‘undermined’ by the extension of equality to other people and other relationships.

The third reason I wanted to speak on this bill is that it is a good example of how Commonwealth-state relations should work and how they are in fact working under the Rudd government. This bill has been made possible only by the willingness of the six state governments to refer the necessary powers to the Commonwealth under section 51(xxxvii) of the Constitution. It has been more than 30 years since the issue of the property rights of de facto couples, and the need for uniform national laws on this matter, was first raised by Frank Walker, then Attorney-General in the New South Wales Labor government. But agreement could never be secured among the various federal and state governments. With a Labor federal government and six state Labor governments, the necessary referral was finally achieved.

During the 2007 election campaign, those opposite tried to scare the electorate by raising the spectre of ‘coast to coast’ Labor governments. Mercifully, the Australian people were not diverted by that scare campaign any more than they were by the campaigns against ‘union bosses’ and other bogeymen concocted by those opposite. Now we can see the very real benefits of having governments at state and federal level who are willing to work together for the national good. I hope that will continue now that we have a coalition government in Western Australia. I pay tribute to the Attorney-General, Robert McClelland, and to the six state premiers and their attorneys-general for their willingness to work together to achieve the outcomes that these bills represent. I look forward to equally successful outcomes on other issues, such as water.

As I said in my first speech in this Senate, the states have their legitimate interests to defend, and there will not always be immediate or easy agreement among them or between them and the Commonwealth. But with a federal Labor government and Labor governments in the majority of states and territories, we are far more likely to get a constructive outcome now than we were under the Howard government—a government which saw the states as enemies and sought to centralise all decision making in its own hands.

I would like to say how pleased I am that the opposition has decided to support this bill. Unfortunately, it is not so easy to say that, because it is not clear at the moment what position the opposition will be taking. In the other place, some opposition members supported the bill, at least in principle, while others, such as Mrs Bronwyn Bishop, objected to it on the spurious grounds that it would legitimise polygamous relationships. That is, of course, a complete nonsense. This bill does not represent condoning polygamy. It is a matter of fact that it is possible for two relationships to exist in a legal sense, that is to say it is possible for a person appearing before the Family Court of Australia to be in both a marriage and a de facto relationship simultaneously. Mercifully, the judiciary have the discretion to weigh these matters properly; nonetheless, it is possible that more than two parties have rights at any one moment. That is a fact. That is not polygamy. Ms Julie Bishop, the Deputy Leader of the Opposition, moved a rather puzzling amendment that did not oppose the bill but did not support it either. Instead it raised concerns about ‘the central importance of the institution of marriage in Australian society’ and ‘the rights and status of children’. I am sure Ms Bishop is a good enough lawyer to know that neither the status of marriage nor the rights of children are in any way threatened by this bill.

The opposition had 11 years in government, during which they failed to act on discrimination against same-sex couples in superannuation and family law. In June 2004 Senator Coonan, who was then Minister for Revenue, said in a media release that the Howard government would legislate in the area of superannuation. She said:

The Government will expand the potential beneficiaries of tax-free superannuation death benefits to include ‘interdependent’ relationships …

              …              …              …

same-sex couples who reside together and are interdependent but who may not be recognised under the current rules will be eligible to receive superannuation benefits tax free upon the death of their partner.

It is sad, but not surprising, to record that this promise was not kept—apparently because of opposition in the cabinet. Perhaps Senator Coonan can enlighten us about what happened to that promise. It may give us some insight into the schizophrenic approach of those opposite who have sought to placate all sides of this debate while delivering nothing. Now, after only 11 months in government, Labor is delivering these important reforms. It is disappointing to see that the opposition is trying to have it both ways on this bill—not openly opposing it but apparently intending to move amendments so that they can pander to certain elements of their constituency who are totally opposed to the recognition of same-sex relationships—elements who seek to continue discrimination. I call on them to stop this posturing and to actually come to this place with a view.

This is an important and enlightened piece of legislation which will relieve a burden of unjust discrimination from a significant number of our fellow citizens—law-abiding, tax-paying Australian citizens. It is long overdue and I commend the Attorney-General for bringing it forward so early in the government’s term. I commend the bill to the Senate.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

It is a pleasure to rise this afternoon and speak to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. This is the first of several bills that will result in some important reforms in family and relationship law in Australia. I think it is fair to say that this is a case of a legislature catching up with some significant changes in Australian social behaviour, especially in the way we live together, in the way we constitute families and relationships, and in the way we protect the interests of our children. As Senator Brandis has said, the opposition supports the general thrust of these reforms. It recognises the need for change, it acknowledges that community values are changing, and it accepts that, to avoid injustices and unfairness, the law must change to reflect these situations.

To the extent that they aim to end discrimination, I am especially supportive of the bill. But there is a caveat on the opposition’s support for reform, certainly on my personal willingness to support it, and that relates to the institution of marriage and to the treatment of children within the bill. Like many, perhaps a majority in this chamber, I see marriage as an institution constituted between a man and a woman—people of opposite sex. I do not support gay marriage nor do I support legislation that might not protect the interests of our children, who are such a valuable resource to our community. Looking at the bill, I was very anxious indeed to see that neither of these principles were offended—the principle of the institution, as I believe it, of marriage and the rights of our children. No doubt some will say that this is precisely what this bill does, that it goes too far, it might be argued, in compromising the values that underpin marriage and that it goes too far in undermining the uniqueness of this very important social institution. I think that this perspective underscores the wide spectrum of views that exist on this issue within Australian society. My own view is that the bill avoids this danger, and I think this is generally the view of the Senate Committee on Legal and Constitutional Affairs, which reported on the bill.

The bill itself, as the Attorney-General said in his second reading speech, gives effect to an agreement between the Commonwealth, the states and the territories to refer powers in relation to the consequences of the break-up of de facto relationships. The existing situation is clearly unsatisfactory. There is shared jurisdiction between the Commonwealth and the states and territories. Among the states, the rights enjoyed by the parties to de facto relationships are confusingly different and where de facto relationships break down couples can find themselves dealing with issues related to children in a federal court and issues related to property in a state court or vice versa. This is expensive and it is highly inefficient. The bill will do away with this confusion. It will bring matters within the jurisdiction of the federal court system and it will enable family courts to deal at the same time with all relevant matters of property and the needs of children.

There are other significant reforms in the bill. It aims to treat same-sex couples on a similar basis as opposite-sex couples for certain family matters and to apply similar principles to de facto couples as those in marriages when break-ups actually occur. Most witnesses before the Senate committee accepted the need for these reforms, but, as the report of the Senate committee makes clear, some who appeared before it to give evidence had a different view. But, I think, in general, the weight of evidence was in support of the reforms that the bill seeks to achieve.

There are many issues raised by the bill and I will not try and canvass all of them in my remarks; perhaps I will just mention three important matters. The first of these is the definition of de facto marriage, which has been touched on by Senators Brandis and Barnett. The Senate committee examined this bill at the same time as it examined the Evidence Amendment Bill 2008. In doing so, this exposed an important issue—namely, the definition of de facto marriage. Both bills have definitions but curiously they are different from each other. The essential point of difference is over the criteria a court has to take into account to determine whether a de facto marriage actually exists. The de facto bill proposes to insert into the Family Law Act a section with nine probative circumstances for the court to take into account. By contrast, the Evidence Amendment Bill proposes to amend the Evidence Act with regard to a definition of de facto marriage and require the court to have regard to only seven probative criteria. Issues included in the de facto bill but omitted from the evidence bill are the existence of a sexual relationship and whether a relationship was registered in a state or territory. Two bills drafted by the same department produced two definitions of the same institution—namely, de facto marriage.

I can be tolerant of seeming illogicalities in legislative drafting when there is a compelling issue of public policy behind it, but to be persuasive here the logic really requires some herculean feats of legal argument. In the committee, Senators Brandis and Barnett and I sought to tease out from officials what this logic might be. The futility of this endeavour is recorded in the Hansard and indeed in the committee’s report. Try as they might, officials could not give what I at least regard as a persuasive argument for the two inconsistent definitions. Perhaps one should not blame the public servants because, presumably, this was a matter of government policy. Whatever the reason, officials were not able to provide me with a plausible case for these differences. I cannot see any persuasive reason for the differences in the definitions.

As if to underscore the bureaucratic restlessness of mind on this matter, we now have a third definition. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill, also introduced into the parliament a couple of weeks ago, proposes to amend the Acts Interpretation Act to add yet another definition of de facto relationship—where there are not seven nor nine probative criteria but eight criteria. One bill has nine, another has seven and a third splits the difference and has eight as indicative of the relationship. My simple view is that a relationship is or is not a de facto relationship and the legislature should encourage the court to determine that fact by reference to the same criteria. As a legislature, we should not be inviting the courts to apply three different definitions, depending on circumstances. The answer would seem to be to extend a definition in the Acts Interpretation Act to all circumstances where it is relevant to refer to a de facto relationship.

The second matter that I wanted to raise is the equivalence of marriage with de facto marriage. The evidence before the committee was clear. The bill has provoked community debate about whether marriage should be regarded as much the same as de facto marriage for the purposes of dealing with matters related to the break-up of the relationship, and witnesses came to this issue in very different ways.

Some argued that, by extending to de facto marriages the same rights as marriages, it would actually undermine marriage. It was suggested that there were strong reasons to maintain the distinction, not least because marriage is the best environment for raising children—a proposition which I strongly support. From another perspective, equating the two resulted in the removal of free choice from individuals. De facto couples were being forced into accepting a set of rules relating to an institution—that is to say, marriage—which, seemingly, they were anxious to avoid. Yet another perspective put the proposition that de facto relationships had a specific social purpose: they allow some people to test their compatibility without the burden of responsibilities of marriage. This was especially said to be true of young people. They do not want to be forced into marriage until they are ready. In rebuttal of this point, some witnesses were inclined to say that this was precisely what public policy should be aiming to do—in other words, reinforcing the idea of commitment amongst people. Another line of argument was that couples had the choice to opt out of the Family Law Act by making a binding agreement. On the other hand, the question was raised: would they know whether this option was actually available? Finally, there was an argument, on an equivalence principle reflected in the bill which proposed to protect the weaker party to a de facto relationship, that that in itself was a desirable matter of social policy.

Not surprisingly, the merits of these arguments depend largely on the nature of one’s moral universe and the values that inform it. I can see merits in some of the arguments and rather less in others. On balance, I am inclined to think that the drafters of the bill have the balance about right. But community practice, once the bill has been passed and the new law is in operation, will no doubt determine whether I am correct. In the meantime, I am not persuaded that marriage as an institution is diminished by the bill, and I can see that there is a compelling need to end the considerable confusion of laws that exist around this area of behaviour.

The third proposition I wish to raise is the matter of the child of a de facto relationship, which has been referred to by other speakers and particularly by Senator Brandis and by Senator Barnett. There is a serious problem with this matter in the bill. The main problem revolves around section 60H of the Family Law Act in relation to de facto couples. Senator Brandis in his remarks referred to the fact that it serves, or seems to serve, to homogenise marriage and de facto marriage. The result is undesirable, and, according to some witnesses and the body of evidence before the committee, it may result in the law becoming convoluted, unduly complex and even illogical and iniquitous.

Clearly, there is a need to rethink this provision of the bill. That view is reflected in recommendation 2 of the committee’s report, where a comprehensive general review of terms such as ‘de facto’, ‘couple’, ‘child’ and ‘parent’ is suggested. But it now seems that the recommendation of the committee may have been somewhat overtaken by events. While I think the review is still desirable, the issue has become more urgent as a consequence of the reforms envisaged under some of the other family legislation now before the Senate—namely, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Bill 2008.

There are two issues here. First, together the three bills have the potential to result in a very confused and convoluted body of law with regard to the definitions of a child, of a parent, and of other matters within the area of family law. That could not only result in injustice to some members of the community, not least children, but it could be very expensive justice. The second issue is that, taken together, the three bills and the definitions traverse important moral and ethical ground and make assumptions on issues where we have barely had any public debate, most notably on the issue of surrogacy, and I note that Senator Barnett spoke to that issue specifically. It is my belief that, as a legislature, we have a responsibility to address these issues before we give these reforms the authority of law, and I trust that the government will give serious thought to the ways in which this can be done before the legislation passes through the parliament. In this context, I commend to the Senate Senator Brandis’s amendments because I think they contribute to the task of clarifying the intent of the bills.

Finally, these bills contribute to the task of ending discrimination based on sex. They catch up with social change. They rectify some confusing jurisdictional issues between Commonwealth and state courts, and they offer a more rational way of dealing with the affairs of de facto couples on break-up. Given the aims of this legislation, I commend these bills, and the reforms that the opposition has placed on the record, to the Senate.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I rise this evening to provide a contribution to the debate on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I do so in a number of capacities, first of all as the chair of the Senate Standing Committee on Legal and Constitutional Affairs. This provides me with an opportunity, since tabling this report a number of weeks ago, to thank the people who put in submissions to this inquiry and appeared before us. We had public hearings in Sydney, Melbourne and Canberra over three days. I think that, overwhelmingly, the people who appeared before us supported the intention and the content of the legislation. They certainly had gone to a lot of trouble to put their thoughts on paper and submit to us. We had 112 submissions in the course of the inquiry. They were crucial in our getting a view as a committee and charting our way through this piece of legislation, which has become difficult in some areas—and some of those aspects have been raised this afternoon in people’s contributions to the debate.

This also gives me a chance to publicly thank the staff of the committee, who were instrumental in helping us draft this report—particularly Ms Sophie Power, who has now left the committee and gone to be the secretary of another committee; Ms Hanako Jones; and, of course, our secretary, Mr Peter Hallahan. But the whole secretariat of course pitches in and helps deliver good, sound arguments and brings together all of the evidence that we receive, orally and in writing.

This is the first of a tranche of four bills that we will be dealing with through the federal parliament. As Senator Trood said, this finally catches up with what is happening in our social environment in this country and actually recognises that there are same-sex relationships occurring in this country and that laws need to step up to the mark and recognise this.

In June 2007 the Human Rights and Equal Opportunity Commission, now renamed the Australian Human Rights Commission, produced its Same-sex: same entitlements report. This was the report of a national inquiry into discrimination against people in same-sex relationships on financial and work related entitlements and benefits. The report was tabled in the federal parliament, so we are going back some period of time. As Senator Feeney said, in the lead-up to the last federal election the Labor Party stumped up to the mark and committed to actually ending discrimination for same-sex couples in this country. I want to place on record my admiration for Attorney-General Robert McClelland for embarking on what I think is massive reform in this country in this area and doing it swiftly, within the first year of our coming to government.

The Same-Sex: Same Entitlements inquiry conducted by the Human Rights Commission found that at least 58 federal laws relating to financial and work related entitlements discriminated against same-sex couples and their children, that the laws breached the International Covenant on Civil and Political Rights, and that laws that discriminated against the children of same-sex couples and failed to protect the best interests of children in the area of financial and work related entitlements also breached the Convention on the Rights of the Child.

In summary, the Same-Sex: Same Entitlements inquiry recommended that the federal government should amend the identified discriminatory laws to ensure that same-sex couples and opposite-sex couples enjoy the same financial and work related entitlements and that the discriminatory laws identified by the Human Rights Commission should be amended to ensure that the best interests of children in same-sex and opposite-sex families are equally protected in the area of financial and work related entitlements.

The Same-Sex: Same Entitlements inquiry also considered family law matters. Currently, for constitutional reasons, only married couples are able to access the federal Family Court to decide property related matters. The Same-Sex: Same Entitlements inquiry argued that both opposite-sex and same-sex de facto couples should have access to the federal Family Court for property matters. This bill implements that reform. This bill amends the Family Law Act to allow for opposite-sex and same-sex de facto couples to access the federal Family Law Courts on property and spouse maintenance matters. Amendments which the government will be tabling will extend that to a number of other areas.

The bill also makes consequential amendments to other acts that refer to the property and spouse maintenance areas of the Family Law Act so that they now apply to de facto couples. It makes minor amendments to the Family Law Act affecting financial agreements and superannuation splitting between married couples and it creates a new family dispute resolution certificate.

This bill is long overdue. It gives effect to an agreement between the Commonwealth, states and territories made in 2002. You have to wonder why it took a Labor government to introduce these reforms and make a move. The previous government, now the opposition, had five years in which to make this agreement become a reality. I have not heard, in any of the speeches on the second reading from the other side, why they failed to do that while in government. But what we want to do now is move on and recognise that same-sex couples exist in this country, and rightly so, and to ensure that barriers and discrimination affecting those couples no longer exist.

The primary objective of the bill before us is to allow opposite-sex and same-sex de facto couples to access the Family Court on property and spouse maintenance matters. The reforms will provide greater protection for separating de facto couples and will simplify the laws governing them. I will go through the four schedules quickly. Schedule 1 creates a Commonwealth regime for handling the financial matters of de facto couples on the breakdown of their relationship. This regime is similar to the financial regime that currently exists in the Family Law Act 1976 for married couples. It implements the powers referred by New South Wales, Queensland, Victoria and Tasmania over financial matters arising on the breakdown of de facto couples and it will only apply in referring states. At this stage it does not include Western Australia and South Australia unfortunately, particularly in the case of Western Australia. And of course we do not need referring powers in relation to the territories. That actually happens by virtue of the Commonwealth’s territories powers.

The proposed reforms will apply to de facto relationships that have lasted for two years, or to shorter relationships if there is a child of the relationship or if a party to the relationship has made a substantial contribution to the relationship and it would cause serious injustice not to grant an order. The bill also extends to couples whose relationships both satisfy the definition of ‘de facto relationship’ in the references of power and are registered under state or territory relationship registration legislation. Schedule 2 contains consequential amendments to other related legislation. These pick up references to property settlements and financial matters that apply currently only to married couples and extend those references so that they also apply to de facto couples. Schedule 3 makes several amendments in relation to binding financial agreements between married couples. For example, such agreements can include persons other than the married couples, such as a parent of one of the spouses or a family company. The amendments also simplify the requirements for splitting superannuation interests when one spouse dies. Schedule 4 creates a new type of certificate which can be given to parties by a family dispute resolution practitioner where it becomes apparent that it would be inappropriate to continue the family dispute resolution session. Schedule 4 also makes minor drafting corrections to the Proceeds of Crimes Act.

This bill is in fact the commencement of watershed reform in this country when it comes to dealing with opposite- and same-sex de facto couples and their access to the federal Family Law Courts on property and maintenance matters. The bill is consistent with the government’s policy not to discriminate on the basis of sexuality and it offers de facto couples’ access to the federal Family Law Courts, which have experience in relationship matters and have procedures and dispute resolution mechanisms more suited to handling family litigation for determination of financial matters when a relationship breaks down.

I want to go to a number of issues that have been raised by a number of speakers this afternoon. The first, of course, is the claim and the hesitation about the protection of marriage. At no time in this bill, or in the other three bills that you will see come before this chamber to end this discrimination, is the Marriage Act amended. At no time is there any intent to actually change the intent, the content, the reverence or the importance of marriage in this country. There is no amendment to the Marriage Act before this parliament. There is no attempt to either water down the relationship in the marriage, or the legal, binding nature of a marriage or to change that in any way at all when it comes to dealing with this situation. This was raised a number of times in our public hearings by a number of witnesses, and it goes to the impact on the status of marriage. Mr Graeme Innes, who is one of the human rights commissioners, summed it up very well in a public hearing when he said:

... in no way does this legislation undermine or threaten the institution of marriage. The level of keenness and desperation that I heard from a range of the same-sex couples—

and he is referring to their inquiry into these issues—

who wish to become married and join that institution would suggest that in fact it is supported by those views rather than undermined by them.

In response to the committee’s questions as to whether the institution of marriage continues to hold people’s affection despite increases in de facto relationships, the Australian Institute of Family Studies told the committee that its research showed that marriage is still viewed favourably. So, as I said, there is no intention at all to undermine the concept of marriage or the relationship. The committee noted that section 43(a) of the Family Law Act, which is not being amended in any way by the bill, provides that the family courts must have regard to ‘the need to preserve and protect the institution of marriage.’

What we are simply seeking to do here with this tranche of legislation is to actually recognise that in this day and age in this country people fall in love with members of the same sex. They have a right to do so, and they do. There may be some elements of our society that do not like or tolerate that but it occurs and it happens and we should be, where we can, ensuring that when people make that choice in their life there is no discrimination. I want people to perhaps think about the impact that this has on families when a son or a daughter chooses to identify as a lesbian or a homosexual and seeks to fall in love with a member of the same sex. As a family and as a parent I am sure that you would want that child—no matter who they choose to love in their life—to have the same rights and access as other members of our society. Abhorrent as it may be for some members in this chamber and in this parliament to accept that, the fact is that it happens. And the fact is that these people are very happy. The fact is that these people choose to live with their lifelong friend and become lifelong partners. The fact is that there are some elements in this society, including myself, who believe that these people ought to have the right to marry. But what is before us now is the matter of actually looking at the rights of these couples when those relationships do not work out the way they would want them to, particularly when there are children involved.

As a committee, we also looked at the issue of de facto relationships. Many submissions were particularly supportive of the inclusion of same-sex couples in the definition of ‘de facto relationship’ on the basis that it would remove discrimination against same-sex couples in the area of family law and therefore implement aspects of the HREOC same-sex inquiry. Again, Mr Graeme Innes stated that HREOC supported the definition of de facto relationship contained in the bill ‘because it brings equality to same-sex and opposite-sex couples’. As I noted earlier, in HREOC’s view the definition of ‘de facto relationship’ in the bill is essentially the same as the model definition recommended in HREOC’s own report, the Same-sex: same entitlements report.

Finally, I want to turn to the recommendations of the committee. There is an issue with section 60H of the Family Law Act, although I note that the government will be proposing amendments to change this, as identified in Mr McClelland’s press release of a number of weeks ago. We noted that this area of the legislation needed to be dealt with further. I think that is one benefit, perhaps, of Senate inquiries and one of the reasons why Senate inquiries can sometimes do a great job in improving and amending legislation.

As the Gay & Lesbian Rights Lobby from New South Wales pointed out when they wrote to the committee following the tabling of our report, they support the five recommendations made by the Senate Standing Committee on Legal and Constitutional Affairs. One of those was in relation to amending the definition of ‘child of a de facto relationship’ in the proposed section 90RB of the bill and the parenting presumptions in section 60H of the Family Law Act. We had suggested as a committee that those be amended:

… to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act …

That then goes, of course, to access rights and child support rights. As the Gay & Lesbian Rights Lobby pointed out:

An estimated 20 per cent of lesbian women have children, and the Committee recommendations will ensure these children gain important protections and rights via the Family Court and child support scheme.

One area of particular significance is Section 60H of the Family Law Act. Currently, co-mothers are not recognised as a legal parent for the purposes of child support obligations and family law. The Family Law Act only recognises a consenting “husband or male de facto partner” of the birth mother (of a child born through assisted reproductive technology) as a parent.

This means a birth mother cannot pursue child support payments from the co-mother; nor can the co-mother be recognised as a parent in proceedings before the Family Court. The recommendation of the Senate Committee is to simply refer to a “husband or de facto partner.” This reflects similar provisions in NSW, WA, ACT and NT—

and those proposed for Victoria. I note that the minister has picked up this recommendation and that there will be amendments in relation to this as we proceed with the debate on the bill.

I think this is watershed reform when it comes to dealing with this section of our society. As I said, it is the first of four pieces of legislation that we will be dealing with in coming days and that will be passed by this federal parliament. I think it signifies a shift in the maturity of this parliament to recognise same-sex couples and to acknowledge and recognise the work that the Australian Human Rights Commission has done in keeping this drawn to our attention and highlighting the need to end this discrimination. It is with some pleasure that I commend this bill to the Senate.

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

I rise to speak as a member of the Senate Standing Committee on Legal and Constitutional Affairs inquiry into the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. In so doing, I want to endorse and support not only the comments made by my colleagues—in particular, Senators Brandis, Barnett and Trood—but their hard work and that of others that has gone into this process. I will be brief, whilst not wishing to in any way take away from the very important aims of this bill and the three bills to which this bill is essentially related.

I want to express twofold concern, unfortunately, about the government’s approach to the four bills. The concerns relate, firstly, to the government’s again disappointing nonperformance of a core election promise, which is to provide evidence based policy. It has been exhibited in respect of this bill and the three related bills by the presentation of inconsistent definitions of a range of terms used in everyday language—in particular, inconsistency in the proposed definition of ‘de facto relationship’. We have had not one but three different definitions of ‘de facto relationship’ proposed by the government with this series of bills.

How can this be? How can this be in 2008? How can a government seriously propose that a parliament—the same parliament—consider and pass bills which contain differing definitions of mainstream terminology like ‘de facto relationship’? How can a government seriously propose such provisions when, at the same time, maintaining or attempting to maintain that a key tenet of some if not all of the bills is to deliver simplicity and certainty and—in particular, in respect of the amendments to the Evidence Act—to present uniformity across the nation? How can that be if you are proposing three different definitions of the term ‘de facto relationship’? Disappointing is an understatement.

The second failing of the government exhibited in terms of this legislation is the non-fulfilment of the government’s promise to provide to the Senate copies of amendments which the government has said it proposes to move in respect of two of the four bills that attempt to deliver equality for same-sex couples. It is very disappointing that we have not had the opportunity to consider those amendments as we start to progress further our debate about and consideration of this bill and the three to which it is related—because they are, let us confess, inextricably related.

The opposition supports the goals of the four bills, which can be put as seeking to remove discrimination against same-sex couples and, in respect of this particular bill, seeking to provide for separated de facto couples, both heterosexual and homosexual, and particularly where there are children. The coalition keenly supports the intent to protect and provide rights for children. The coalition supports doing so, provided that the institution of marriage is protected and upheld.

The proposed amendments to section 60H of the Family Law Act, as presented in this bill, risk traversing some of those principles. I am referring to the so-called ‘presumptive parenting’ provisions arising out of assisted reproduction and, in particular, assisted reproduction in the case of same-sex couples. The opposition, in our additional comments, have suggested an alternative approach, and Senator Brandis has tabled some suggested amendments in this respect. I ask the Senate to give favourable consideration to those amendments. In so doing I am sure that the Senate will appreciate the sensitivities underlying the debate from both sides, indeed all parameters, of this chamber.

This chamber and the witnesses who provided evidence to the inquiry in relation to this bill reflect the broad spectrum of views that are essentially touched upon by this bill and the three related to it. The broad spectrum can be said to range from, on the one hand, more conservative views. These are the views of people who are concerned about maintaining what they consider to be an expectation that a child will enter into the world usually as a product of a marriage or, if not a marriage, usually as a product of a heterosexual relationship. However, people with those conservative views, through the process of the Senate inquiry, have demonstrated their preparedness to accept that other circumstances do occur and that providing, through legislation, for the consequences of a situation that some might consider to be less than ideal does not mean that you are condoning or encouraging the creation of that set of circumstances. So the more morally conservative, if I may describe those amongst us in that way, are prepared to accept and accommodate the legislation, if it takes into account that sensitivity.

I therefore urge the Senate to be mindful that, on the other hand, in accommodating that sensitivity, for those who may wish to promote more vociferously the rights of same-sex couples, it is possible to remove discrimination—and, I would suggest, desirable to remove discrimination—in respect of same-sex couples whilst not violating the sensibilities of those with a more conservative approach. So I urge the Senate to consider the opposition’s amendments. Thank you.

Carol Brown (Tasmania, Australian Labor Party) Share this | Link to 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.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I also would like to speak on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. I am very pleased to be able to support the purpose of this bill. However, like some of my colleagues who have spoken earlier tonight, I do have some concerns about not only the quantity of amendments that we have coming from the government for this legislation but also the processes that were used for presenting these amendments in the time frame that they were presented.

I was speaking to a group of young people at the weekend who were talking a little bit about this legislation, and their view of it was that it was rather dry and boring. I am very glad that that was their view of this legislation. It is, on the face of it, a very dry piece of legislation whose time has more than come. The legislation however does bring into effect some very substantial, far-reaching and, as I have said, somewhat overdue reform in the way we go about managing disputes for couples, be they same-sex or heterosexual couples, especially when their relationships break down.

The bill’s explanatory memorandum notes that the aim of the bill is to amend ‘the Family Law Act 1975 to provide for opposite-sex and same-sex de facto couples to access the federal family law courts on property and maintenance matters’. Additionally, the bill also amends the act to provide for amendments relating to financial agreements between married couples and superannuation splitting, and for an amendment to the act for certificates in relation to family dispute resolution.

For its constitutional validity, this bill relies upon the Commonwealth Constitution’s reference power in accordance with section 51(xxxvii) of the Constitution. It is interesting, I think, to look at this use of the reference power in the Constitution as an excellent example of how the Commonwealth and the various states can work together to achieve seamless machinery in governance and maintain a flexible and efficient working relationship between these two level of government in our Federation. I think this use here of the reference power is another example that our constitutional arrangements can function as a living tree and that they are able to grow and develop according to contemporary needs.

The government has made it very clear that the primary policy objective of the bill is to extend the financial settlement regime under the Family Law Act to de facto relationships of all types. This is very much supported by the coalition. The bill sets out to achieve this by conferring jurisdiction on certain courts in ‘de facto financial causes’ involving parties to de facto relationships and providing a new part in and amending existing parts of the Family Law Act to allow the court to make orders in those proceedings covered by the definition of ‘de facto financial cause’. This passing over from the respective state jurisdictions to the Commonwealth jurisdiction expands the role—

As I was saying before the dinner break, the passing from the respective state jurisdictions to the Commonwealth jurisdiction of laws regarding property, dispute resolution matters and in particular child matters expands the role of the federal Family Court and the Federal Magistrates Court to bring in all matters relating to de facto relationships. As a member of the committee of management of a community organisation some years ago, I know that we were faced with the issue of defining what a family was for the purposes of membership of that organisation. We came to the conclusion that a family was any group of people who said they were and behaved as though they were a family. Unfortunately, we cannot adopt such a general, forgiving and broad definition of a family for legal purposes, so I think it is timely that in this legislation we have recognition of the changing nature of family relationships. It is recognition that Australian families are no longer seen as only those involving a traditional heterosexual marriage relationship of mum, dad and 2.2 kids. It is no longer acceptable in modern society to deny de facto couples and their families the rights and entitlements, such as those to do with property settlements and orders, that de jure couples have received since the abolition of the old matrimonial causes by the Family Law Act when it introduced no-fault divorce in 1975.

This bill provides that two people in a de facto relationship, if they are not married or not related to each other by family, have a relationship as a couple living together on a genuine domestic basis. As the explanatory memorandum states, under current statutory arrangements the financial arrangements between separated de facto couples are subject to state and territory law, and of course these laws vary from jurisdiction to jurisdiction. The bill offers de facto couples a nationally consistent financial settlement regime that would minimise the jurisdictional disputes and uncertainties that certainly impede settlement of matters under state and territory law. It also offers de facto couples access to the family law system for determination of their financial matters arising from a relationship breakdown. The family law courts have a long history of experience in relationship matters. They have procedures and dispute resolution mechanisms that are very suited to dealing with family litigation. We would have one court exercising jurisdiction under the bill dealing with the one proceeding for both financial and perhaps, even more importantly, child related matters arising when de facto couples separate.

I note that the government have said that they will be moving a number of amendments—in fact, numerous groups of amendments—to this bill to incorporate not only some recommendations that have been made by the opposition but also recommendations that have been made by the government and other groups. In particular, we have a number of technical amendments. We also have the government’s amendment proposing that the definition of a ‘child of a de facto relationship’ be amended to recognise the ‘child of a relationship’ for the purposes of the Family Law Act. If this amendment were to go through—and I must admit to having some confusion about which level of amendments we are up to at the moment; it is a shame that these were not provided in a more timely way by the government—it would bring into line contemporary expectations about what the definition of a ‘child of a relationship’ is, irrespective of whether the couple in the family of that child are opposite sex, same sex, married or not married. It would mean that the children of de facto relationships would be considered to be equal in the eyes of the law in matters before the courts. The government amendments would also allow for transitional arrangements to enable de facto couples to opt in to the new regime by mutual agreement. This is welcome, and both of these amendments have the potential to improve this bill considerably.

As you would have noted from the extra report submitted by the coalition senators to the report of the inquiry by the Legal and Constitutional Affairs Committee into this legislation, we continue to have a number of concerns about the lack of uniformity of definitions that are provided by the government within this suite of legislation and within other legislation relevant to it, such as the Family Law Act. However, this bill is a significant step forward in the management of disputes between de facto couples and it will especially assist in the orderly resolution of disputes regarding their children, not just their property.

Interestingly, this bill has been a very long time in gestation. It began more than six years ago as a Howard government initiative, put forward by the then Commonwealth Attorney-General, the Hon. Daryl Williams QC, at a November 2002 meeting of the Standing Committee of Attorneys-General. Naturally, as it was complex legislation, it relied upon intergovernmental agreement and will continue to. We have seen, from the swag of amendments we have been presented with, that very detailed drafting often takes time to get through for consideration. I am personally disappointed that this legislation has taken so long to come before the Commonwealth parliament for consideration.

As I have said, in speaking to young people earlier in the week there is a view, certainly within the youth of Australia, that the time for this legislation has well and truly arrived, that it is no longer remarkable that people live in relationships other than as a married couple or that people live in same-sex relationships. So, on the face of it, this is an extremely common-sense amendment to make to the machinery of family law dispute management in Australia. However, I think we need to look underneath it and think about some of the other issues that we have yet to grapple with. One issue that is mentioned in the report here is the effect that this legislation could have on some same-sex couples who currently receive Centrelink benefits in that they may be worse off financially under the proposed suite of legislation than they previously were. As this report recommends, we need to develop a lot of educational material and provide a lot of support to assist those people to ensure that they are no more disadvantaged than is absolutely necessary in achieving the results of uniformity that we are now looking for in the treatment of all relationships, especially the treatment of children of those relationships.

Interestingly, evidence given to the inquiry revealed that, according to the 2006 ABS census, 15 per cent of Australians living with a partner live in de facto relationships—that is, one in eight couples are not technically or legally married to each other. However, all these people raise families and have the same dreams and aspirations for their children as everybody else has in the community. If their relationship breaks down then they should be able to access federal courts to have property and child maintenance issues dealt with in the same way that any other couple in a relationship can.

The Australian Institute of Family Studies said that, unfortunately, de facto relationships are three to four times more likely to end in separation than married couples. One wonders whether that may partly be due to the ease with which people slip out of de facto relationships, given that in some jurisdictions there is no financial imperative in place. But I do not think we ever want to go back to a system where people stay together because of the cost of separating. We want people to stay together so that, as healthy individuals, they can provide the sort of unit that produces healthy children.

According to material from the Australian Institute of Family Studies, married couples in fact have a seven to nine per cent chance of separating within five years, whereas de facto couples currently have a 25 to 38 per cent chance of separating. However, there were no statistics for the number of opposite-sex couples in de facto relationships who go on to marry, and I am aware of many. I suspect that many de facto couples in same-sex relationships would also go on to marry if they were legally able to. In some ways, those statistics suggest that traditional marriage might still be the best way to go, but it does not take away from the fact that the most vulnerable people in relationships, irrespective of whether they be in a marriage or in a de facto relationship, deserve to be protected by legislation. It is generally women and definitely children of couples who suffer the most. This legislation will allow women and children who are currently in a cohabiting relationship to have access to the federal courts so that they experience, one hopes, the least amount of financial and legal hardship as possible. Certainly, children should not be financially disadvantaged because their parents are not officially married. I do not think there will be a dispute from anyone in the Senate on that issue.

We need to look at the quality of life that is currently experienced by children who are born into de facto relationships. The Institute of Family Studies noted that the number of children in de facto relationships is naturally increasing as the number of people in de facto relationships increases, but that those children are more likely to be less well off than children of marriages and that their parents are more prone to separation, as I have talked about before. We need to be particularly careful about ensuring that we create the best possible safeguards for children of all relationships and that they have the same access to legal and other services as any other children.

Currently, there are different rules for different states. Parents and children in Queensland, South Australia and Victoria cannot access maintenance from the separated de facto partner. In New South Wales and the ACT, child maintenance for children from de facto relationships stops when the child turns 12. Obviously, that is a great and discriminatory problem that we need to address.

I think we have to accept that the role of this Senate is to reflect our society—not to be too far in front of it and not to be too far behind it—and to understand and accept that family structures certainly have changed and that they encompass a far wider range of structures than some in this place may be personally comfortable with but that it is nevertheless what Australia’s society looks like right now. As society and our communities evolve, so must the legislation that guards them. I am not suggesting that we take away from the traditional at all but we must allow, and enforce, equality for all. This bill sets out some common sense measures for couples who are separating and, more importantly, for their children. I am sure that with goodwill this Senate can, as a unit, produce good results with the proposed amendments to this legislation for the benefit of all Australian children.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I rise tonight still in a quandary as to exactly what is best in this issue. It is fair to say that it is none of my business whether a couple is heterosexual or gay. However, where children come into play, then this parliament, and I as part of this parliament, do have a role.

Tonight I have heard predominantly—though not exclusively—about the rights of the couple. I have heard such terms as ‘the partners’, ‘the heterosexual couple’, ‘the co-habitants’, and ‘co-mothers’. I have heard a whole range of terms in respect of the rights of the adults, but there has been very little attention paid to the rights of the children. I would love to say that the world is a wonderful place, that it has changed incredibly and that everything now is different, but I think the world remains remarkably the same in how cruel and intolerant it can be. We have to bear in mind that we must not make children a social engineering exercise. We must not make children a product of our aspirations, making ourselves the primary instrument and children the secondary instrument. Once you have them, children are your foremost responsibility. Your job is to try and make their lives as unaffected and as real as possible, not to foist on them your wishes of how the world should be. When you decide that the way you wish the world to be is what you foist on your children—and it is the way that they have to live their lives—it is incredibly selfish. I do have close knowledge of people with children who are in gay relationships so, without bearing a value judgement, I do think that the life of such kids becomes a little bit tougher than it is for most other kids—in some cases, exceedingly more tough.

If this were just about a property issue then I think it should be a no-brainer and it should go straight through. However, I have been listening to the debate from the word go, and so many of the speeches tonight seem to be about the proffering of a social engineering exercise. It has gone beyond just an issue of what is right for the child to an aspiration of the way the world should be. It is a property rights issue standing in proxy for a social engineering exercise. You can water down everything that surrounds marriage so much that in the end marriage itself does not mean anything. If you take away all that marriage stands on but say, ‘We are not touching marriage,’ you have still ultimately touched marriage. You have changed everything that surrounds it, so ultimately you have affected it. I think it is a bit insincere to say, ‘We are not making a statement about marriage, but we are going to change everything that pertains to it and is closely associated with it and in all other circumstances is to be deemed part of it.’ When you do that you are changing marriage. You might not be changing it in form but you are changing it in substance by the things around it that you have decided, and that you have legislated, will be affected by it.

I have heard Senator Feeney give an exposé of today’s financial rescue package—and that is his endorsement of this bill. I fail to see the relevance between the two issues. I think it is an avoidance of the issue. This debate is supposed to be about what would be a reasonable unfairness in property rights issues affecting same-sex couples, yet we got a discussion piece about the financial rescue package put forward by Mr Rudd today. That in itself, coming across the chamber, rather appears to be a statement of insincerity. Senator Feeney also talked about pitching to a pool of ‘venal political intolerance’. But people are not pitching to a pool of venal political intolerance, they are pitching to what they actually believe in. They are pitching to what they sincerely believe in from the depths of their being. It might be different to what others believe in, but they are not out there trying to canvass votes—in fact, I would say that this would generally be a vote loser for the conservative side of this debate. So you cannot say that it is political opportunism and that you are going to broaden your voting base by daring to err on the side of caution on this issue. I think Senator Feeney’s statement on that issue is unfair—as are the others, on both sides, that have gone down that track.

If this is about property and maintenance then, from what I can see, it all hangs on an amendment to section 60H of the Family Law Act. For this to have substance in any form, section 60H needs to be amended. But we are going to see two opposing amendments come up. I have seen the amendment put forward by the coalition and, to be honest, like many of my colleagues, I have serious concerns even on that one. But we have at least come to an agreement to have good intent for this legislation while keeping all people on board.

I think this legislation is about an inch and a half away from being a conscience vote, because it does drag out some fundamental beliefs that people on both sides of the chamber hold dearly. This skirts around the edges of what is fundamentally the essence of how they see life and the structures and rules by which they would like to see life lived. The structure of society is not malleable to all desires and ideas. It is an unfortunate reality that certain lines in society are ever present. Whether we legislate for them or not, they exist. When you ignore their existence then you end up hurting yourself and, more importantly, hurting others who have not bought the ticket that you bought. I think that is the big issue: when your decision is going to hurt somebody else who has not decided to buy a ticket for the ride that you are on. That is really what people are looking at in this legislation: are we foisting onto children something about which they are in no position to make a judgement but, if we are honest with ourselves, of which we know what the effect will be?

The expansion of the recognition of co-mothers by a more liberal interpretation of an amendment to section 60H does have ramifications that start to firmly progress the agenda of the destruction of the institution of marriage. I have not been convinced tonight that that is not going to be the case. It is really going to revolve around how the definition of section 60H will be dealt with. I note from the whips’ meeting that there will be no votes and divisions tonight. So I imagine that the greater part of the committee work will have to be done at a different time if there are going to be any divisions on the issue.

But this debate will go on, and the attention that I give to the discussion pieces and what people say on both sides will also go on. Children’s rights, I believe, are best served by a mother and a father—if they are lucky enough to have them. That is a belief that I have. I know that other people have a different belief. I will go on fighting for the family structure to have a mum and a dad—not because of mum and dad but because of the kids. And others will go on fighting for something different. That is the crucial issue. It will really come down to whether this issue is a stalking horse for a social engineering exercise or whether it is a genuine attempt to try to bring about a fairer outcome in the inevitable breakdown of any relationship, whether it is between a man and a woman or between members of a single-sex couple.

I will give my attention to the proposed amendment that will be put forward by the government and to the alternative amendment proposed by the opposition. How the chamber decides on that amendment will have an effect on my vote. It is vitally important. If you start putting aside everything you believe in then there is really no point in being here; you are really just compromising yourself and everybody else; you are doing it for the money. If that is the case then there are better people to take our place in here. I have serious concerns about what inspires this legislation. I looked for a genuine approach to resolving what we were initially discussing. I was part of a committee last year that talked about getting equal property rights for single-sex couples. I am on the conservative side on this issue—I make no bones about that—but I agreed with that, and I put that in writing in the committee’s report. But the rider was always that, when it starts to involve others, predominantly children, I entirely reserve my right to withhold my agreement to that. If you do not want to stand up for kids and for what you truly believed in when you first came into this place, then it just confirms that you have evolved into a piece of political fluff.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Family First believes that the important and overriding principle that should guide us when looking at this legislation is that marriage should keep its privileged status and should not be undermined. A second important principle is that relationships other than marriage should be recognised as ‘interdependent relationships’ rather than ‘marriage-like relationships’.

I am a great believer in marriage and the value of working on your relationship to stay married. I share the community’s great concern over the rate of marriage and relationship breakdown. I also understand the argument around wanting to improve the system to allocate property and provide for maintenance if a de facto relationship breaks down. Obviously, if a level of economic interdependence has formed then couples need help when they separate. The importance of a fair allocation of property is heightened when children are involved. But Family First comes at this from a different angle to that of the government, regarding these relationships as essentially ‘interdependent relationships’ rather than ‘marriage-like relationships’. Interdependent relationships could include same- and opposite-sex couples in sexual relationship but they could also include a couple of mates, or two sisters, who live together and share pay, housework, rent and other bills and who are genuinely financially interdependent.

Breakdown in de facto relationships produces financial disputes that need to be resolved, but does that resolution have to be found by treating de facto relationships the same as marriage? Society provides benefits to married couples, and the institution is encouraged and supported because marriage also provides benefits to society. Advantages are given to marriage to encourage and support it because marriage is such a social good. We know, from evidence to the Senate Standing Committee on Legal and Constitutional Affairs from the Australian Institute of Family Studies, that marriages last much longer than de facto relationships do. Different measures of this were pointed to, and one was that de facto relationships are three times more likely to end within five years than are marriages. The institute also agreed that children in de facto relationships do not do as well on developmental outcomes as children in marriages.

I agree with Professor Patrick Parkinson, who told the committee:

If we are to treat all those who have lived in a heterosexual de facto relationship for two years or longer as in a relationship equivalent to marriage then we further undermine any distinctiveness that marriage might have.

Marriage is more than just a relationship option. Family First is also concerned about specific clauses in the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008. Subclause 4AA(2)(g) gives federal government recognition to registered relationships, which is recognition of a form of relationship that undermines the status of marriage. Subclause 4AA(5)(b) says that there can be a de facto relationship even if one of the people in the relationship is still married to someone else. That is a provision that demonstrably undermines marriage. It is absurd that, if one spouse in a marriage cheats on the other with a long-term affair, a breakup of that affair can lead to a claim on the property of the husband and wife in that marriage—so the husband or wife, unaware of the affair, ends up losing money to someone who threatened the marriage. The minister himself says that the bill:

… will give separating de facto couples the same rights as divorcing couples under the comprehensive Commonwealth family law system.

Family First is very concerned that this draft law does undermine the status of marriage.

The bill also raises important questions for de facto couples. The question of who is or is not in a de facto relationship is a big issue and is not clearly defined in the bill. The bill has a definition of de facto that requires the court to consider seven different criteria, but none of the criteria are definitive, so no-one knows if they are legally in a de facto relationship until the court says so. How is that workable? Under the definition proposed, people deemed to be in a de facto relationship do not need to have made an explicit decision to take on that status, so what one person may consider a casual, ongoing relationship may be deemed by another to be a de facto relationship with all the legal status that that could entail. For de facto couples, it removes choice. It states that they have legal status whether they have sought it or not. It is something that can sneak up on you without you ever deciding you want your relationship to have legal status. The obvious question is: do de facto couples want to be treated the same as married couples? If they do, it would seem likely that they would get married. If they do not, why is parliament, in effect, forcing them into a box they may not want to fit into?

One argument put to the Senate committee that examined the bill was that you can make an explicit decision to organise legal papers to opt out of being in a de facto relationship. But that depends on people being aware both that they might be classified as being in a de facto relationship and that de facto relationships will be treated the same as marriage for the distribution of property after a relationship breaks down. It seems ludicrous that people would have to go to the trouble of legally stating they are not in a de facto relationship to avoid being classified as de facto.

The other point, of course, is that few people contemplate their relationship breaking down. Signing papers that anticipate the breakup of your relationship can tend to take a bit of the magic out of life. It also requires couples who may be classified as de facto to go to some work and expense to, in effect, say they are not in that particular type of relationship. Most people, I would think, believe that if they have not taken the decision to walk down the aisle they will not be treated as if they have. If this bill is passed, a lot of people may get a rude shock. Family First agrees with the argument put by Professor Parkinson that the status of ‘de facto relationship’ takes on extra meaning and importance when children are involved. That is because the financial interdependence of the couple also needs to provide for the welfare of children.

I am a big fan of marriage, but I think people need to choose to be married rather than be deemed to be the equivalent of married. And I think that deeming de facto relationships to be the equivalent of marriage undermines marriage, which involves much more commitment and expectation than a de facto relationship. De facto relationships are interdependent relationships and should be recognised as such for the purposes of division of property. This bill has taken the alternative approach of giving de facto relationships the same status as marriage for the purpose of the division of property, which Family First cannot support.

Debate (on motion by Senator Stephens) adjourned.