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.