Thursday, 16 October 2008
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008
The government does not support the amendment. It does not support the primary premise of this amendment that the senator is relying on. The amendment concerns a matter that I took the opportunity of outlining in my summing-up speech: the bill does not provide recognition or endorsement of polygamous relationships. It is unlawful to enter into a polygamous marriage under Australian law and under the laws of the states and territories. The bill itself simply allows a court to determine, taking into account all circumstances, the just and equitable distribution of property between couples in a range of relationships. This is currently the situation under the state and territory laws. In fact, this bill simply picks up the referrals given by the states and territories which were pursued and received by the former government. Those opposite agreed to it, as we understand it, when they were in government. I find it difficult to see—as I think I said during my summing-up, it all now seems bizarre—why the opposition are now continuing on this course.
I can understand sometimes the points the opposition wish to make about it. The Senate Standing Committee on Legal and Constitutional Affairs raised in part a whole range of issues that the government took on board. Similarly, the family law section of the Family Law Council raised a whole range of issues, although they were more technical in nature. But it does seem difficult to see why the opposition are continuing to press for this. It does not seem to be even part of what you would sometimes refer to as a belt and braces approach, one that is sometimes adopted in this place as a matter that the opposition might want to pursue. It seems to be an issue that would be a difficult matter for the government to accept with regard to the remarks that have already been made about this. The common law is able and apt to deal with this area.
Quite frankly, we do not think the case is as the opposition have argued. Our advice is that the implication of removing the provision that allows more than one relationship is that there is a greater chance that a court could find that a de facto relationship has to be exclusive of any other relationship, whether that is a marital relationship or another de facto relationship. That seems to be the nub of the issue. The advice that we have on this matter is that you should not remove the provision that allows more than one relationship, and I guess we have to examine this as to the chance that a court would find that a de facto relationship has to be exclusive of any other relationship. In the absence of any clear statutory intervention, the courts have not taken a consistent approach to this issue. There are already some court decisions that indicate exclusivity is required. There are also some other court decisions that indicate that it is not essential. It seems that for that purpose alone, so as to give some certainty, this provision is the best position to adopt. Therefore we should act on the advice that the government and I think should be followed in this instance.
The point seems to be that if we were to follow the opposition’s position we could wait on the common law and await the courts’ decisions. If those decisions are made, and they vary in the primary courts, then you do have a position where you may find that there are different outcomes. It would not be the intention of this government to pursue those. It would then be a matter of waiting for matters to be appealed, with people incurring those expenses, to settle the law in respect of this. I understand that, in that instance, the opposition would want to rely on the common law to pursue the matter. However, in this instance, where we think we have it right and can make a clear legislative intention, that provides the basis upon which the courts may then examine the legislation and determine cases accordingly without recourse to litigation and making the parties go to the expense of finalising these matters, should they need to.
Of course, in this area things are not always litigated. Parties do not always have sufficient funds available to them to litigate, so they are left with a decision they may not wish to have. Therefore, I think it makes more sense to accept the advice that we have about the implication of removing the provision that allows more than one relationship and that there is a greater chance that a court would find that a de facto relationship has to be exclusive of any other relationship. As I said, I dealt with this matter in the summing-up and I would urge the chamber not to accept the amendment as circulated by the opposition. We think this legislation has been sufficiently examined. I know that Senator Brandis, the shadow Attorney-General, has spent a considerable amount of time on examining the provisions of this legislation, so I do not take the position that is being put forward by Senator Brandis lightly. The amendment before us is a matter that Senator Brandis would have turned his mind to in a sufficiently deep way. However, in this instance my advice is contrary to the shadow Attorney-General’s position, so I would ask him to reconsider his position and not pursue the amendment.