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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-05-14 Daily Xml
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COMMONWEALTH POWERS (DE FACTO RELATIONSHIPS) BILL

Introduction and First Reading

Mrs REDMOND (Heysen) (10:51): Obtained leave and introduced a bill for an act to refer certain matters relating to de facto relationships to the Parliament of the Commonwealth. Read a first time.

Second Reading

Mrs REDMOND (Heysen) (10:52): I move:

That this bill be now read a second time.

Members in this place are probably aware in general terms of the situation in relation to how separating couples deal with matters of property. Until now the case in this state has been that if you were a legally married couple, since 1975 and the introduction of the Family Law Act, you would go to the Family Court, which is a federal court. Generally speaking, for some time after that, if you were not married, if you were a de facto couple, and you wanted to have a property separation, you would then go to a state court.

Sometime after the introduction of the Family Law Act—and it is so long since I practised in that jurisdiction that I cannot tell you when it was—there was an amendment which allowed for matters concerning children, even though they were born to a de facto couple, to go to the Family Court, but matters concerning property would still remain within the jurisdiction of the state court.

It was agreed some time ago that this was creating certain problems. The upshot of a fairly lengthy process has been that, in November last year, the federal parliament passed legislation which was essentially agreed to, as I understand it, by all the attorneys-general around the country to move the de facto relationships property matters into the jurisdiction of the Family Court. So, in November last year the Federal Court passed legislation which added some new provisions into the Family Law Act, and set up within the Family Law Act a regime with identical provisions regarding de facto property matters to the provisions which already applied to married people in property matters.

Those provisions came into operation on 1 March this year. I have been approached by a number of people, at various functions, some of whom were not even known to me, who came up to me and said, 'What on earth is going on in South Australia? We're the laughing stock of the rest of the country, because as family law practitioners we were expecting, pursuant to the changes made in the federal jurisdiction and in every other state jurisdiction, to move, like the other states, to have our de facto property settlements into the Family Court, and it hasn't happened here.'

Indeed, one would wonder why it has not happened. It is certainly not because of any complication in the legislation. If members look at the paper before them, the bill is actually only one and a half pages long and contains four clauses, including the title and commencement clause; so it is not because of any complication in the matter. Indeed, all the other states and territories have already attended to this matter, except Western Australia. But Western Australia is in a peculiar position, because in Western Australia people who have been living in de facto relationships can already have their disputes about financial matters and children determined in one court: the Family Court of Western Australia.

On 26 February 2009, the Law Society wrote to the Attorney-General urging him to take action in relation to this matter. It is because of the failure of our Attorney-General to address this issue that I now bring this private member's bill before the house.

I was speaking to a very senior family law practitioner yesterday who said to me, 'We just can't understand why this government has failed to deal with this matter.' It certainly has not been because of the pressure of other government business in the house. They say that most family law practitioners here—in fact, everyone to whom I have spoken, and I have spoken to quite a number—are bewildered as to why the government has not taken action on this matter.

The Law Society letter, dated 26 February 2009, is quite comprehensive. I want to refer to some of the things that they say in the letter, which urges the government to refer its powers so that South Australia can be covered by the federal legislation in the same way as all the other states and territories. The letter states:

As a matter of priority...In our view, it is imperative that the government takes such action for the following reasons—

They then set out nearly two pages of reasons why this government should have taken the action, which I now seek to take in this private member's bill. I will not read the whole letter into the record, but I will traverse most of the detail of what they cover. They first of all say:

1. The Act provides a comprehensive legislative scheme pursuant to which parties who have lived in a de facto relationship...may divide their property and, in appropriate cases, apply for spousal maintenance.

2. The relevant provisions of the Act are identical to the provisions of the Family Law Act which relate to married couples.

3. Therefore, parties who have lived in a de facto relationship will be afforded the same degree of protection with respect to their financial rights as are married people.

They go on to say:

4. Critically, one of the advantages...is the ability to split their superannuation pursuant to the relevant provisions of the Family Law Act: superannuation often being the most sizeable asset.

Further down they go on to explain:

...no such remedy exists under the Domestic Partners Property Act. The only power available to a court exercising jurisdiction under [that act] is to take the respective superannuation entitlements into account in dividing their other property.

They then say:

As a result, one or both of the parties are left with an outcome that is inappropriate and/or unjust.

They then go on to say:

5. Unless South Australia refers its powers...citizens of South Australia who have been living in a de facto relationship and who then separate will have substantially different (and, in very many cases, inferior) rights to citizens of every other State and Territory of Australia.

6. The Society considers that this is inappropriate and unreasonable.

As the practitioner to whom I spoke yesterday suggests, it also creates enormous extra difficulty if one or other of the parties has moved to a state which is covered by this federal legislation Obviously, that will add complication and, as any person would expect, added complication in any legal matter will add considerably to the expense of it. The Law Society goes on to say:

Couples who have lived in a de facto relationship until South Australia joins this scheme will continue to be obliged to resort to two different courts.

Again, that will add unnecessary complication and, therefore, expense.

One of the other things that the Law Society goes on to point out is that another very significant advantage is that there will be significant savings to the courts which currently exercise jurisdiction under the Domestic Partners Property Act, which is principally the District Court of South Australia. They will no longer have to hear disputes involving de facto relationship property matters and, whilst we do not have any specific figures on just to what extent these matters tie up the courts, there is no doubt that they do tie up the courts. Indeed, the Law Society says:

The society understands that district court judges and state magistrates are content for these powers to be referred to the commonwealth.

Given the figures in other places where perhaps 20 per cent of the work of a court might be tied up in these matters, there is no doubt that it could lead to a significant improvement in our position with respect to court delays, especially in criminal matters (and even other civil disputes) if courts are not having their time tied up dealing with matters which could reasonably and most effectively be dealt with by the Family Court of Australia and the federal magistracy.

The society also points out that, whereas in the Family Court the judges are specialists in these matters, the judges here will freely acknowledge that they are not specialists in relationship breakdown. So, there is a whole range of reasons why it is appropriate for this bill to be introduced. It is concerning that the Attorney has chosen to ignore, to date, the pleas of the Law Society and has failed to bring in this very simple piece of legislation—which the other states and territories have all attended to—leaving South Australia out in the cold on this issue. I will quote again from the Law Society's letter. In February this year, it said, 'The society regards this as an urgent and pressing issue.'

I simply say to the house that I would expect that, within each of their constituencies, there are people whose interests are being prejudiced by the failure of the government to act on this matter to date. I would invite them to seriously consider what I have put to the house this morning. I am happy to write in more detail to each member of the house; indeed, I have already undertaken to give some members further information in relation to the matter.

This will streamline property settlement matters for de facto couples and therefore lessen legal costs for them. It will make the processes simpler; it will free up our state courts to deal with other appropriate matters, particularly matters which might shorten our criminal and civil lists. So, there is no good reason why this state should be standing alone and not according the de facto couples in this state (who find themselves in the sad situation of separation where financial matters need to be dealt with) the opportunity to go to the Family Court and use the new regime, which was introduced by the federal parliament in November last year and which came into effect on 1 March this year, and get the benefit of the new scheme.

From all the information that has been put to me, there is no doubt that there are no disbenefits, only benefits, for people in those circumstances. It will be cheaper and more straightforward and everyone will have the same rights, whether they approach the court as de factos or as a married couple. The regime set up under the new system is identical, and it will therefore benefit all people who are separated and who need to deal with property and financial matters in the course of that separation. I commend the bill to the house.

Debate adjourned on motion of Hon. P.L. White.

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