This chapter discusses the key issues raised in relation to the Bill
during the committee's inquiry, including:
- the need for, and impact of, the Bill;
- the definition of 'de facto relationship';
- the definition of a 'child of a de facto relationship';
- the workload of the Family Court;
- constitutional issues and the position of the states; and
- other legal and drafting issues.
Need for, and impact of, the Bill
As detailed in Chapter 2, the primary purpose of the Bill is to enable
the federal family courts to deal with both financial and child-related matters
arising for separated de facto couples in the one proceeding. As a result, the Bill
aims to avoid the unnecessary additional costs and inconvenience on de facto
couples, as well as reduce the administrative burden on the federal and state
In general, many submissions and witnesses were strongly supportive of
the Bill. A key reason for this support was because it would streamline
processes for both same-sex and opposite-sex de facto couples, and allow them
access to the specialised forum of the Family Court (including its mediation
procedures) to resolve property and maintenance disputes at the same time as
Of those who supported the Bill, many raised drafting issues, but nevertheless urged
the government to proceed with the legislation as a 'matter of priority'.
Those who objected to the Bill outright generally raised concerns about the Bill's
impact on the status of marriage and/or the perceived extension of marriage
rights to de facto couples.
The Family Law Section of the Law Council of Australia (Law Council) described
itself as 'a vigorous supporter of the objective that family law should apply
in a consistent and uniform way to married and de facto relationships
The Law Council argued that this 'much-needed and socially advantageous
...long overdue given the high and ever-increasing percentage of
Australians who live — regardless of gender — in marriage-like relationships in
preference to formal marriage.
Mr Ian Kennedy, Chair of the Family Law Section of the Law Council summarised
some of the problems with the current system:
In more recent years, of course, [de facto] couples have been
able to have issues relating to their children determined under the Family Law
Act. The paradox of that is that it has compounded the impact on them as the
Family Law Courts have not had the power to deal with the financial
consequences of relationship breakdown. So non-married couples have had to have
their issues resolved in two different jurisdictions—the federal jurisdiction
for their children and the state jurisdiction for financial issues—at very
significant additional cost and with stress on the families.
Similarly, Women's Legal Services Australia (WLSA) were strongly
supportive of the Bill. Ms Heidi Yates of the WLSA explained that it wants to
ensure that the justice system produces the most just and equitable outcome for
women and their children:
At present, 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.
Another reason WLSA supported the Bill was from a children's rights
perspective. WLSA believed that, under the current system, the limited coverage
and inconsistent features of state and territory schemes means that children of
de facto couples currently receive less protection compared to children of
Ms Heidi Yates of WLSA explained:
It is essential that when distributing property the court
consider the future needs of the parties, specifically the resources required
by the primary caregiver to housing care for the children after separation...only
some of the existing state and territory de facto schemes allow for
consideration of future needs.
Ms Yates continued:
Further, when it comes to spousal maintenance, the Family Law
Act requires a party to financially maintain their ex-partner if that partner
is unable to support themselves because they are caring for the children. We
also submit that spousal maintenance orders can support a child's right to an
adequate standard of living upon separation by providing the primary caregiver
with additional income. At present a primary caregiver cannot access
maintenance payments in some jurisdictions
and in others can only receive such payments until the children become 12 years
The Australian Institute of Family Studies (AIFS) also supported the Bill.
It outlined some of the research it had undertaken, which shows that:
- cohabitation has become an increasingly common family form (the
2006 census data shows that 15% of all persons living with a partner were
- the number of children being born into cohabiting relationships is
- children living with cohabiting parents appear to be less
well-off than those living with married parents; and
- children living with cohabiting parents appear to be more likely
to experience parental separation.
In response to further questioning on the duration of marriages compared
to cohabiting relationships, the AIFS informed the committee that:
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.
In contrast, the AIFS informed the committee that the median duration of
a cohabiting relationship for those who separated was around 2 years (excluding
first cohabitation following marriage).
The committee notes that 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.
Other information from the AIFS showed that:
'cohabiting relationships are far more likely to dissolve than
- '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 (25–38% vs 7–9%).'
Based on its research, the AIFS supported the Bill, concluding that:
Given the increasing prevalence of cohabiting relationships, and
the increasing number of children cared for in such relationships, the removal
of legal distinctions between the post-separation financial regulation of
cohabiting and married relationships appears justified.
As a representative of the AIFS told the committee:
The primary rationale for the institute's support is that the
scheme has the potential to alleviate some of the family stress associated with
However, some submissions opposed to the Bill argued that same-sex and
de facto couples can use the current state systems and/or contracts and
'civil law' to protect their interests and to access property and maintenance
settlements. For example, FamilyVoice Australia argued that the Bill was
'redundant' and that:
It is open to the parties in a de facto relationship, and to the
parties in a same-sex relationship, to enter into civil contracts to protect
their individual interests in property. Any such contracts should be governed
by State and territory law. There is no need for them to be included within the
purview of the Family Law Act 1975.
However, as outlined above, the committee heard a great deal of evidence
pointing out the problems with the current system, which included duplication,
inconsistency, cost and inconvenience. For example, Mr Ian Kennedy of the Law
Council pointed out that, although states and territories do regulate the
financial aspects of de facto relationships:
...there has not been any consistency in the nature of the rights
conferred, and the types of couples whose interests are protected vary from
jurisdiction to jurisdiction. So couples in different jurisdictions may have
quite different entitlements. Their financial affairs may be dealt with in
quite different ways...The problems are compounded by where the parties just
happen to live or where their assets happen to be. The impact of that is to
leave a large segment of the community, especially women, without adequate
legal protection and to cause many, particularly older women, to be severely
disadvantaged on relationship breakdown.
Impact on the status of marriage
For those opposed to the Bill, a key objection was that the Bill would
undermine and/or devalue the institution of marriage by extending similar
rights to de facto relationships.
For example, Professor Patrick Parkinson, Professor of Law at the University
of Sydney, considered that the Bill 'raises fundamental moral and social
questions that have not been properly considered'. Professor Parkinson
recommended that the Bill be withdrawn until consultation and research is
conducted on issues including:
Whether [the Bill] undermines
marriage (which the Government ought to be promoting because of its much
greater stability), to treat marriages and de facto relationships as being
FamilyVoice Australia was similarly concerned that the Bill would
undermine marriage, and suggested that there are good reasons to distinguish marriage
from other relationships:
Firstly, marriage provides the best environment for raising
children. Secondly, marriage regulates the relationships between men and women
in a way that benefits both men and women as well as society.
Others disputed these sorts of arguments. Mr Ian Kennedy of the Law
Council told the committee that, in his view, 'there is no real substance' to
concerns that the Bill undermines marriage, and that this argument 'has long
since been overtaken by the reality of our society'. He pointed out that one in
seven Australian families are not in a marriage relationship, and that this
'does not seem to have undermined our social fabric to any noticeable degree'.
Mr Graeme Innes AM, Human Rights Commissioner, from HREOC responded in the
same vein to the committee's questions on this issue:
...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 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 AIFS told the committee that its research showed that
marriage is still 'viewed favourably'.
As to suggestions that marriage is a more stable institution and a better
environment for raising children and therefore should be promoted, the AIFS
acknowledged that its research demonstrated that de facto relationships are
less stable than marriage, and that developmental outcomes for children in de
facto relationships were not as good as for children in marriage. However, the
AIFS told the committee that these differences were 'largely explained' by
differences in characteristics between marriage and cohabitation, including that
'those who cohabit are more likely to be younger and to be of a lower
The differences are also influenced by a combination of other factors 'relating
to economic resources of the family, parenting practices of the family,
mothers' mental health and mothers' perception of the relationship quality with
their partners'. Ms Ruth Weston of the AIFS concluded:
The key question is: are children better off in marriage because
their parents are married, or is it related to the differences between the
parents who do marry and the parents who do not? That is very hard to identify...
The AIFS told the committee that it had not done any research on any
differences between same-sex and opposite-sex de facto relationships, or
development outcomes for children in those relationships.
However, the NSW Gay and Lesbian Rights Lobby pointed to a range of research
which 'demonstrated that children raised by lesbians and gay men are just as
happy and well adjusted as children raised in other familial structures'.
In response to the committee's questions on this issue, a representative
of the Department responded that the government's position was that the bill
does not undermine the institution of marriage:
The government's position is very clear on the importance of
marriage, and the Attorney and the Prime Minister have made a number of
statements in that regard. Clearly the government does regard marriage as a
fundamental institution...They are separate things, the de facto relationship and
the marriage relationship, in this legislation. It may be that they are treated
in a very similar way, but they are separate things in the legislation.
The committee also notes that paragraph 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
Treatment of de facto relationships
compared to married relationships
Professor Patrick Parkinson argued that the Bill will effectively treat:
...de facto relationships (whether heterosexual or same-sex) in
exactly the same way as marriages for the purposes of property division and
spousal maintenance if relationships break down.
Professor Parkinson explained further during the committee's hearing in Sydney
his concerns that:
...this bill is taking the marriage paradigm—the idea of marriage
as a lifelong socioeconomic partnership—and applying it to people who have
never chosen that, who had a free choice whether to choose it and who would be
shocked to know that they are being treated as if they are married when they
Similarly, Mr Richard Egan of FamilyVoice Australia agreed that the Bill
'imposes on de facto couples...the assumption that they have entered into the
same kind of union as a married couple'.
In response to arguments that de facto couples make a deliberate choice
not to be married, Ms Ruth Weston of the AIFS noted that:
...people have different interpretations of the cohabiting
relationship. Some would see it as a no-strings-attached relationship, others
have not really thought about it and are just taking it one day at a time and
others see it as a trial marriage.
Dr Matthew Gray of the AIFS also observed that:
...while there is general lack of quality data available about how
cohabiting couples arrange their financial matters, the data that does exist
suggests that cohabiting couples may have a different financial profile to
Mr Egan of FamilyVoice Australia argued that 'in the absence of more
understanding of how cohabiting couples dealt with financial matters, some
caution should be exercised before this bill proceeds'.
Professor Parkinson similarly believed that the Bill should be withdrawn
until further research and consultation has been conducted as to:
Whether the proposed laws discriminate against people in
heterosexual de facto relationships who have chosen not to marry by depriving
them of the fruits of that choice.
Professor Parkinson explained further:
...we have simply not asked the Australian people whether they
want marriage to be treated the same as cohabitation, and we have not asked
heterosexual de factos whether they want that. Most of the sociological
evidence is against it. Most of the sociological evidence I have read suggests
that there are quite significant differences between people who have chosen to
marry or intend to marry and those who have not. What we are doing in this bill
is wiping out all those differences and treating everybody as 'married'.
In contrast, the Law Society of New South Wales (NSW Law Society) submitted
that the Bill was consistent with community attitudes:
Overall, the reform proposed by the de facto property settlement
provisions is consistent with the changes in attitudes within the community
reflected in the viewpoint that the law should treat the economic consequences
of the breakdown of de facto opposite sex relationships and same sex
relationships in the same way as the economic consequences of the breakdown of
In this context, at least in terms of same-sex couples, it is noted that
research and consultation conducted by the NSW Law Reform Commission indicated
that members of the gay and lesbian community believed that same-sex
relationships should be treated the same as marriages.
In response to the suggestion that the Bill applies the principles of
marriage to people who have chosen not to marry, the Department stated:
The primary purpose of the marriage and de facto relationship
property settlement regimes in Australia is remedial, addressing injustice if
property held by couples at the end of their relationship is distributed
according to their rights under the general law.
Ms Natascha Rohr of WLSA also argued that 'this horse has already
bolted, so to speak...in all states de facto relationships are in fact recognised
Several witnesses also pointed out that de facto couples can 'opt out'
of the Family Law Act by making a binding financial agreement, which can be
done before, during or after the relationship.
Ms Heidi Yates of WLSA explained:
If it was always the intention of both parties not to be subject
or treated in the same way as a married couple, many couples reach an agreement
on what they think is fair and just given their joint understandings of the
nature of the relationship and the intentions of the parties coming in. Some of
them choose to formalise that in a binding financial agreement and others have
that mutual understanding and are able to reach an agreement based on that.
When questioned as to whether de facto couples would be aware of the
need to enter into a financial agreement, Mr Kennedy of the Law Council told
the committee that:
My members from around the country tell me that that is
certainly the case—that there are many, many queries at the moment, because of
the publicity about the bill, as to when it is starting, whether they can have
an agreement and what legislation they have to do it under. So there is
certainly a lot of community awareness about it.
Nevertheless, Professor Parkinson suggested that the Bill could be
amended so that the provisions only apply where a de facto couple has a child,
have made substantial contributions or are in a registered relationship:
...we should treat people as married for property division and
maintenance if they have had a child from the relationship; if they have
registered their relationship, which means they have made a choice and they
have some information about what the consequences of that are; or if they have
made substantial contributions to the relationship which would not be
recognised if they were not given rights under the Family Law Act.
However, in response to this suggestion, the Attorney-General's
Department pointed out that 'none of the State and Territory property
settlement regimes apply only to de facto relationships where children are
In an article in the Sydney Morning Herald published during the
committee's inquiry, Professor Parkinson also detailed his concerns in relation
to the differences between NSW's system for de facto couples and the federal
family system for married couples:
The big difference, in NSW at least, is that the courts only
divide the property based on an assessment of the parties' contributions to
that property (including contributions as a homemaker and parent). For married
couples, the court also looks at the future needs of each partner and their
There are also big issues about property owned before the
relationship began. The Family Court treats marriage as a socio-economic
partnership and, the longer it lasts, the less weight it gives to whoever
brought the property into the relationship. Yet that can be quite at odds with
the intentions of people in de facto relationships...
Add to that the delays, expense and uncertainty of the family
In relation to differences between the federal system and other states, Professor
Parkinson told the committee that Victoria also applies different principles
on the break up of a de facto relationship when compared to the regime proposed
by the Bill.
However, the Department subsequently informed the committee that, in April
2008, Victoria passed the Relationship Act 2008 (yet to be proclaimed),
which would bring Victoria much closer to the principles of the Family Law Act.
Other states and territories, such as Queensland, Tasmania, WA and the ACT have
regimes which are closer to the Family Law Act's regime for married couples.
However, as Professor Millbank stated, 'it does not make sense to me to
have different regimes operating'.
Similarly, the Department responded to Professor Parkinson's concerns about the
differences between the Bill and state laws as follows:
The desirability of uniformity in the laws applying across the
States and Territories on property and spouse maintenance issues between de
facto couples was one of the key considerations bearing on the references of
power given by the States to the Commonwealth...
Any single law, enacted by the Commonwealth pursuant to the
State references, on financial matters between de facto couples will
necessarily depart from one or more of the current regimes, where they vary
from State to State.
Several witnesses strongly disagreed with the arguments put forward by Professor
Parkinson. These witnesses addressed Professor Parkinson's concerns by arguing
that the Bill is a major improvement on the current system, in particular
because the proposed system is simpler, cheaper, less traumatic, offers greater
and protects vulnerable parties in de facto relationship breakdowns,
For example, Mr Ian Kennedy of the Law Council described the arguments
raised by Professor Parkinson as 'drawing a very long bow indeed'. In his view,
the Bill's aim:
...is to protect the interests of people who are disadvantaged as
a result of being in a relationship...[and to] provide a conduit to unravel the
more complex issues that arise from a domestic relationship where one person is
disadvantaged from the breakdown of the relationship and their rights are not
recognised and their entitlements, in terms of their contribution, or the
impact of that relationship on their financial future are not currently
Mr Kennedy gave an example of case he was currently involved in:
I am acting for a woman who is 58 years old. She has been in a
relationship for almost 18 years. All of the assets are in the male's name. He
is a very senior professional with a high earning capacity. She has managed his
practice for much of that time and improved it significantly. But he has left
the relationship. She is now 58 years old. She is unemployed because she cannot
work in the practice any more. Her entitlement to a share of assets under state
law is very uncertain indeed. So what we are doing tomorrow is trying to
mediate that and to come to some agreed outcome. Again, to fight that sort of
case in the Supreme Court would be a hideously expensive and time-consuming
process for her. So there are two types: families that have children can be
seriously disadvantaged; and older women in particular tend to be seriously
Professor Millbank described Professor Parkinson's arguments as a
It makes absolute sense to put de facto and married couples in
the same property regime. It does not remove people's choice; it protects the
vulnerable party in an economic and emotional relationship...[E]conomic
interdependence and dependence happens and should be recognised.
Professor Millbank also suggested that the federal family court system
is actually 'cheaper, easier and simpler to use':
The New South Wales system in particular is really antiquated
and the process burden on parties is $20,000 or $30,000 to argue over very
minor property matters. So the family law regime is a better one to use, a more
streamlined one to use and the additional scope of the jurisdiction to separate
superannuation is going to give you fairer results...
In relation to Professor Parkinson's concerns about differences between
NSW law and the federal family law system, the committee notes that the NSW Law
Reform Commission, in its inquiry into the operation of the Property
(Relationships) Act 1984 (NSW), actually recommended that relevant
provisions in that NSW legislation be amended to bring it into line with the
Family Law Act.
The committee further notes that HREOC, in its Same-Sex: Same
Entitlements report considered the federal family law system, in particular
the property division regime, to have a number of advantages over state regimes.
In HREOC's view, one of these advantages was the Family Law Act's broader consideration
of future needs as well as past contributions when making property adjustments. HREOC concluded that:
...the federal property division regime covers a larger pool of
the couple's shared assets, can divide such assets with a far greater degree of
flexibility, and takes into account a wider range of factors and circumstances
of the parties during and after the relationship in making any adjustments.
Ms Natascha Rohr of the WLSA also outlined a number of reasons why a de facto
party, including a more economically powerful party, might prefer the
jurisdiction of the Family Court over state jurisdictions. This included:
- the availability of superannuation splitting in the Family Court
– which may mean 'there would be no need to sell or split other assets for a
just and equitable outcome to be entered into';
- reduced costs: 'because of the greater expenses of proceedings in
state courts, particularly if there are also parenting proceedings on foot, it
may be preferable even for the more financially strong party to pay a future
needs component to their former partner rather than a similar amount in
additional legal fees to lawyers';
- 'access to mediation and conciliation processes, which again
could create a net saving despite the different substantive provisions with
respect to future needs'; and
- 'the process of obtaining consent orders in the Family Court is
far simpler and cheaper than in most state courts'. With access to a greater
body of precedent couples might have a greater degree of certainty with respect
to possible outcomes, which again could assist in negotiation when compared
with the position in state courts around Australia.
Definition of 'de facto relationship'
One of the key concepts in the Bill is the definition of 'de facto
relationship' in proposed section 4AA, which includes both same-sex and
Issues raised in relation to the definition included:
- consistency of the definition with other federal legislation;
- inclusion of same-sex couples;
- recognition of state and territory relationship registers;
- recognition of interdependent relationships; and
- other issues.
These issues are discussed further below.
Consistency with other federal legislation
The committee is currently inquiring into two other Bills: the Evidence
Amendment Bill 2008 and the Same-Sex Relationship (Equal Treatment in
Commonwealth Laws—Superannuation) Bill 2008 (Same-Sex Superannuation Bill) which
contain definitions of 'de facto partner' and 'couple relationship'
respectively. These definitions differ from the definition of 'de facto
relationship' in this Bill. Concerns were expressed during the committee's
hearings about consistency of the definition of 'de facto relationship' in this
Bill and the other Bills currently before the committee, and indeed, with
other federal legislation.
For example, the definition of 'de facto partner' in the Evidence
Amendment Bill 2008 does not contain the criteria listed in paragraphs
4AA(2)(c) and (g) relating to (c) whether a sexual relationship exists and (g)
whether the relationship is or was registered under a prescribed law of a state
The Same-Sex Superannuation Bill uses a definition of 'couple
relationship' to replace the use of other terms such as 'marital relationship'
in relevant superannuation legislation, for example, in the Parliamentary
Contributory Superannuation Act 1948. Again, these definitions are different
to the definitions used in this Bill and the Evidence Amendment Bill 2008.
In answers to questions on notice, the Attorney-General's Department
A range of other Commonwealth Acts contain definitions of terms
other than 'de facto relationships' covering relationships including de facto
relationships. Examples include:
• s.995–1 of the Income Tax Assessment Act 1997 (definition
• s.4B of the Parliamentary Contributory Superannuation
Act 1948 (‘marital relationship’)
• s.4(2) to (6A) of the Social Security Act 1991 ('member
of a couple'), and
• s.44-11 of the Aged Care Act 1997 (definition of 'member
of a couple', differently defined).
Some witnesses suggested that a more consistent approach should be taken
across all three bills and, indeed, all federal legislation. For example, Mr
Wayne Morgan, Senior Lecturer in Law at the Australian National University,
suggested that the ideal approach would be for the Commonwealth to adopt an
'umbrella' term (such as 'couple relationship'),
which could be inserted into the Acts Interpretation Act 1901 to
include to three categories of relationship:
(a) a valid marriage under Australian law;
(b) a de facto relationship; and
(c) a registered relationship.
'De facto relationship' and 'registered relationship' would then
be subject to further definitions.
However, Associate Professor Miranda Stewart, of Melbourne Law School,
Some have suggested that having a single uniform definition of
'couple' might be the simplest way to go...that the word apply across all federal
laws—because obviously we have nearly 100 laws that might refer to this notion.
In some ways, I would support that. From a drafting perspective that would be
simple. But I do acknowledge, and I think it is clear in these bills, that
different federal laws have different definitions of 'couple' for different
purposes and it is appropriate, then, to amend those specific definitions to
remove the discrimination rather than necessarily change the whole structure of
the federal law with one uniform definition.
In response to questioning on the reasons for the differences in the
three bills before the committee, a representative of the Department responded
that 'there are different public policy reasons behind the different tests'.
Another departmental representative further explained that the reason for the
different definition in this Bill relates to the referral legislation from the
Our legal advice was that there was a need to reflect in the
definition that we put in the legislation a definition that was as similar as
possible to the definition that was put within the references of power acts.
A departmental representative explained that, for example, the Commonwealth
Powers (De Facto Relationship) Act 2003 (NSW) defines 'de facto
relationship' as a marriage‑like relationship (other than a legal
marriage) between two persons.
The representative explained further that:
What we are limited to is the definition of 'de facto
relationship' in the referring bill. Our advice is that the factors we have
listed should reflect that definition to the maximum extent, and that is why
paragraph C, for example, is in the definition.
When pressed further, the representative repeated that:
...our advice is that the definition that you have seen within the
legislation now gives us the strongest link, if you like, constitutionally.
In answers to questions on notice, the Department reiterated this reason
– that is, the definition:
...limits the application of the Commonwealth's new property
settlement and spouse maintenance regime to relationships over which New South
Wales, Queensland, Victoria and Tasmania have referred power to the
relationships covered by each relevant State Reference Act. Each of the four
States has referred power limited to particular matters arising on the
breakdown of 'a marriage-like relationship (other than legal marriage) between
The committee also notes HREOC's submission that the definition of de
facto relationship in the Bill is essentially the same as the model definition
recommended in its Same-Sex: Same Entitlements report.
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.
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
As 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 its Same-Sex:
Same Entitlements report.
Similarly, the Law Council commented that it was pleased that the rights
of unmarried couples (including same-sex couples):
...will now be able to be determined in specialist courts on a
nationally consistent basis throughout the country rather than by a quirk of
geography (dependent upon where they happen to live or where a disputed
property is located) or as a consequence of gender.
A standard submission provided to the committee received from 41
Allowing same-sex couples to have access to the Family Court
will minimise the cost and trauma involved with a relationship breakdown,
whilst increasing privacy of those undertaking proceedings. I strong[ly] urge
the Senate to support this inclusive reform for all defacto couples, including
same sex couples.
Lesbian and Gay Solidarity (LGS) Melbourne supported the Bill,
describing it as a 'step forward', but expressed regret that same-sex couples
were still not being treated as equals with married couples:
...same-sex couples will still have to prove they are in a genuine
de facto relationship by conforming to a set of standards listed in this Bill...It
is still not equality with married couples despite a same‑sex
relationship being a loving partnership. Surely, the government needs to revise
its objection to a legal document (officially recorded and similar to a
marriage certificate) which unites a same-sex couple if they so wish.
In contrast, the Shared Parenting Council of Australia claimed that the Bill
was 'a clear attempt to advance the concept and realisation of same-sex
marriage (de facto marriage) by legislative stealth'.
Recognition of relationship
Proposed paragraph 2(g) of the definition of de facto relationship
provides that one of the circumstances that a court may consider in determining
whether or not a de facto relationship exists is 'whether the relationship is
or was registered under a prescribed law of a State or Territory as a
prescribed kind of relationship'.
Several submissions suggested that registered relationships should be treated
as a completely separate category to de facto relationships, or at the very
least, a registered relationship should be conclusive proof of a de facto
For example, Mr Rodney Croome of the Tasmanian Gay and Lesbian Rights
Group expressed the view that:
...a registered relationship is neither a de facto relationship
with a certificate nor marriage by another name. A registered relationship is a
new kind of legally recognised relationship...when couples choose to enter into
these formalised relationships, they are choosing to no longer to be considered
a de facto couple. That would seem to be a mischaracterisation of their
WLSA also suggested that the Bill should be amended to recognise the
'unique status of registered relationships'. WLSA argued that:
...it is inappropriate that relationships which have been
registered under a prescribed law of a State or Territory be subsumed back into
the category of 'de-facto' relationships under federal law...[R]egistered
relationships should be recognised as an independent, third category of
relationship under federal law, along with marriage and de facto relationships.
Alternatively, WLSA advocated that, at the very least, if a de facto
relationship is registered under a state or territory scheme, this should be
conclusive proof of a de facto relationship:
This approach would promote certainty and reduce the court
resources and legal costs that might otherwise be required to determine the
legal status of the registered relationship.
As noted earlier, Mr Wayne Morgan suggested that the ideal approach
would be for the Commonwealth to insert an 'umbrella' term (such as 'couple
into the Acts Interpretation Act 1901, which would treat a
'registered relationship' as a separate category to a marriage and a de facto
As a fallback position, Mr Wayne Morgan again considered that registration of a
relationship under a state or territory law should be conclusive proof of the
existence of a de facto relationship under Commonwealth law.
In response to suggestions that a registered relationship should be
conclusive evidence of a de facto relationship, a representative of the Department
informed the committee that its legal advice indicated that the Commonwealth
does not have the power to make a registered relationship determinative of a de
facto relationship due to the nature of the state referring legislation:
...our advice is that the breadth of relationships that could be
registered under state law means that they may be relationships that would not
otherwise be regarded as a de facto relationship, and therefore our power does
not extend that far.
The representative further explained that:
What the Commonwealth has done, in its view, is to extend to
registered relationships a recognition, to the extent that it can, firstly, by
making that a factor...[T]here are effectively two hurdles for someone to get
through before they get an order from the court. One is that they have a de
facto relationship. The second is that they have either a de facto of two
years, there are children of the marriage or unjust hardship, or there is a
registered relationship. That is conclusive. Once you have got through the 'de
facto definition', then a registered relationship is enough.
In relation to proposed paragraph 2(g), LGS went further, asserting that
the Federal Government should provide its own genuine same-sex relationship
legal register which is the equivalent of the marriage licence, and that:
As with hetero (different sex) couples who prefer not to marry
but live together in a de facto relationship, there would be plenty of same-sex
couples who would prefer to do the same. Just as many same-sex couples, though,
would be committed to a licensed federal partnership. It is therefore unfair of
the federal government to refuse them equality with a woman and man's married
In contrast, FamilyVoice Australia objected to proposed paragraph 2(g)
due to concerns about its impact on the status of marriage (as discussed elsewhere
in this chapter).
Committee members questioned several witnesses on whether the definition
of de facto relationship in the Bill should cover 'interdependent'
relationships, such as two elderly friends or siblings living with, and caring
for, each other.
Ms Natascha Rohr of WLSA responded that they were 'not aware of' any
need for legal advice or representation to women following the breakdown of
In response to further questioning, Ms Heidi Yates of WLSA told the committee
WLSA supports the most flexible and broadest possible capacity
for recognition of different types of relationships, both conjugal and caring
relationships, whether people [choose] to marry or choose not to marry, and
recognises that you need to have legal remedies available in situations where
the breakdown of those relationships is likely to result in inequity...[W]e have
focussed our submissions on conjugal de facto relationships, both same sex and
opposite sex, simply because that is where our expertise lies. In our
experience the greatest need has come from those groups, but that would not
stop us, of course, from supporting recognition of interdependent
However, Ms Rohr warned that people in interdependent relationships may
not necessarily want to be recognised in federal law – for example, they may be
'horrified to know that their social security payments could be impacted upon
by being considered interdependent'.
HREOC considered the issue of 'interdependent' relationships in its Same-Sex:
Same Entitlements report, and concluded that interdependent relationships should
be dealt with separately.
The committee notes that this issue also came up in its inquiries into
the Same-Sex Superannuation Bill and the Evidence Amendment Bill 2008. In
relation to this Bill, the Department's advice was that the definition in this Bill
is restricted by the referral legislation from the states. As the EM states,
paragraph 4AA(1)(b) of the definition of 'de facto relationship' – which
excludes persons related by family – is derived from the definition of the term
'de facto relationship' in the state reference legislation, which does not
include caring relationships.
Other issues with the definition
Submissions also raised other issues with the definition of 'de facto
relationship' in proposed section 4AA.
For example, the NSW Gay & Lesbian Rights Lobby believed that the
definition should be amended to clarify that two people may still be in a de facto
relationship if they temporarily separate.
Mr Ghassan Kassisieh pointed out that the model definition of 'de facto
relationship' recommended in the HREOC Same-Sex: Same Entitlements report
contained a provision stating that 'two people may still be in a de facto
relationship if they are living apart from each other on a temporary basis'.
He explained further that this proposed amendment would 'clarify that if a
longer relationship does separate in the middle it should not be treated as
two; it should be treated as one'. He also observed that this suggestion
reflects the current common law approach in NSW and the position in WA.
The Department responded to this suggestion as follows:
While the concept of two persons 'living together' or who 'live
together' is contained within the definitions of the relationships to which the
de facto property settlement legislation of five States (NSW, Qld, Victoria (Property
Law Act 1958), WA and SA) applies, none of the definitions contain a
provision stating that they may still be in a de facto relationship if they
Two cases decided under the NSW legislation separations (Hibberson
v George (1989) DFC 95-064 and Mao v Peddley (2002) DFC 95-249)
indicate that courts have not had any particular difficulty with the issue of
temporary separation, and that persons can continue to live together through
occasional separations, for example, because of work responsibilities, holidays
taken separately or periods in hospital.
LGS suggested that the definition should be amended to provide that a de facto
relationship can exist even if one or both of the persons is/are
transsexual/transgender or in the process of realignment.
However, in response to a question on notice on this issue, the Department
A de facto relationship can exist even if one or both of the
persons are transsexual, transgender or in the process of realignment. The sex
of that person or those persons will be determined in accordance with the
principles enunciated in the Full Family Court of Australian decision in In
Re Kevin (Validity of marriage of transsexual) (No 2) 
FamCA 94. The sex of the person will be that given at birth or, in the case of
post‑operative transsexuals, as men or women in accordance with their
FamilyVoice Australia submitted that the definition of de facto
relationship is vague and flawed and that it would be difficult to establish
the existence of a de facto relationship, which could in turn lead to 'grave
injustices' and leave the provisions 'open to fraudulent claims'.
FamilyVoice Australia was particularly concerned with paragraph 4AA(5)(b),
which provides that 'a de facto relationship can exist even if one of the
persons is legally married to someone else or in another de facto
relationship', which in turn could undermine the status of marriage in
Australia. FamilyVoice Australia felt that this provision condones adultery and
Others, however, were very supportive of paragraph 4AA(5)(b). For
example, the NSW Gay & Lesbian Rights Lobby argued that a significant
number of people in de facto relationships were still married, and that 'it is
important that the de facto definition recognises the diversity of people
and relationships which may come before the court'.
Similarly, Ms Heidi Yates of WLSA argued that this provision 'reflects
the reality of people's lives'. She told the committee that WLSA's clients
often found themselves in circumstances where a de facto partner had separated
from their married spouse but has 'just never got around to divorcing'. She
told the committee that:
Those cases are incredibly complex, because it could be that the
first partner, the spouse, could make claims...At present when those situations
arise it may be that they are caught in two proceedings, one in the Family Court
and one in their local Supreme Court. The complexity of running two cases in
that regard, compared with the current bill which provides for the court to
take account of the circumstances of all the parties in one room...means that
there is a much higher likelihood of a fair and just outcome than the present
Ms Yates further pointed out that:
There is nothing preventing de facto relationship proceedings
being brought in Supreme Courts when one of the parties was at the time of the
de facto relationship still married. The difference will be a practical
difference. It will be the difference that both proceedings can be heard in one
court and perhaps even in one proceeding.
Once again, the Department advised that this aspect of the definition
reflected the state referring legislation. For example, a representative of the
Department told the committee that the NSW referring legislation:
...talks about a de facto relationship existing even if the de
facto partner is legally married to someone else or is in another de facto
relationship. The understanding of the state referrers was that the
relationship did not have to be exclusive.
Definition of the 'child of a de facto relationship'
Another major concern related to the Bill's approach to the definition
of 'child of a de facto relationship', and particularly the relationship
between this definition and the existing section 60H of the Family Law Act.
As outlined in chapter 2, proposed paragraph 90RB(1)(c) defines 'child
of a de facto relationship' to include a child who is a child of the
parties to the de facto relationship under the existing subsection 60H(1) of
the Family Law Act.
Section 60H makes presumptions about who are the 'parents' of a child
born as a result of assisted reproductive technology (ART) for the purposes of
the Family Law Act. Section 60H effectively recognises a birth mother and the
male partner of a birth mother as parents. However, a female partner of the
birth mother (lesbian co‑mother) and a male partner of a birth father (a
gay co-father) are not considered to be parents. As HREOC pointed out in its Same-Sex:
Same Entitlements report, a child born to a same-sex couple will often have
only one legal parent for the purposes of the Family Law Act.
Proposed subsection 90RB(3) of the Bill provides that subsection 60H(1)
applies to same-sex de facto couples in a corresponding way to the way in which
it applies to opposite-sex de facto couples. The EM states that 'this provision
extends the application of subsection 60H(1) to both opposite-sex and same-sex
de facto couples'.
However, during the committee's inquiry, proposed subsection 90RB(3) was
variously described as 'convoluted',
'illogical and iniquitous',
and 'unduly complex'.
In particular, several submissions pointed out that it would mean that lesbian
co-parents would be recognised under the Family Law Act, but only in relation to
property matters and not matters regarding children.
Or, as the NSW Gay & Lesbian Rights Lobby submission put it:
...lesbian co-mothers will only be mothers for the purposes of
property‑related proceedings but not for the purposes of being mothers!
HREOC was concerned that 'this inconsistency will disadvantage same-sex
couples when it comes to determining parental responsibility'.
As Mr Graeme Innes pointed out, 'in some cases property matters and issues
dealing with children are inseparable; they are fundamentally connected'.
Professor Jenni Millbank submitted that the Bill's approach to section
60H was its 'major failing'. Professor Millbank expressed the view that:
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.
Professor Millbank explained further during the committee's hearing:
We have a quite crazy position where children are children for
the purposes of assessing contributions—homemaker and care-giving
contributions—through the course of a relationship. Children are children for
the purposes of being assessed for future needs provision if one parent is the
primary caregiver for the children after separation, but children are not
children for the purposes of being children. They are not children for the
purposes of parental responsibility or for the presumptions or guidelines in
the division of time with children when parents separate. For lesbian couples
who have children through ART, that is a completely unnecessary burden...
Similarly, Mr Kassisieh of the NSW Gay & Lesbian Rights Lobby
explained to the committee:
So 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.
Associate Professor Miranda Stewart similarly agreed that the approach
to section 60H in this Bill is 'illogical':
Why recognise for property division purposes but not for
parental responsibility purposes that this couple is raising a child? It is a
gap, I think, in the bill, and I would submit that...it would be appropriate to
extend that parenting presumption.
She further observed that:
The bulk of children of same-sex relationships at the moment, I
think the statistics make clear, are born to and raised by lesbian couples. In
most cases, obviously, there is donor insemination generating these new
families. An appropriate and easy way to recognise all of those families would
be to amend section 60H of the Family Law Act...
HREOC had other concerns about the reliance of subsection 90RB(3) on section
60H of the Family Law Act. HREOC pointed out that the application of section
60H 'is uncertain due to judicial interpretation' – for example, different
cases have found both that a donor father is not a parent and that a donor
father is to be considered a parent.
HREOC also pointed out that extension of section 60H to same-sex couples does
not ensure parental status for gay fathers whose child is born through a
Similarly, Professor Millbank suggested section 60H 'has been crying out
for amendment for the past 15 years' as it is 'confusing, inconsistent with
state law, uncertain in operation and discriminatory'.
Indeed, the committee heard that section 60H of the Family Law Act and
the approach in this Bill is inconsistent with the majority of states and
territories. The committee was told that in WA, the Northern Territory, the ACT,
New South Wales and under proposed Victorian legislation, a female de facto
partner of the birth mother is also accorded parental status.
Some witnesses noted that it was possible for certain gay and lesbian co‑parents
to go 'through a complicated legal process to be recognised as parents under
That is, they can go to state courts, or apply to the Family Court in its
cross-vesting jurisdiction to apply territory law, for recognition as a parent.
They can then use section 69S of the Family Law Act, which provides that, where
an order has been made that someone is a parent in another court, this order is
conclusively binding on the Family Court. However, it was argued that this is a
costly and cumbersome legal process and not in the best interests of children.
For example, Professor Millbank explained that:
For intact lesbian couples, it is incredibly important that both
parents have parental responsibility for their children. In all states and
territories, if they are having kids through donor insemination at home or
through a clinic or IVF, there is no legal father and there is one legal
mother—the one who had the child. The other mother in that household does not
have parental responsibility over her child, despite the fact that she is a
functional and intended parent of that child and is caring for that child. That
is terribly difficult for families while they are intact. Many lesbian mothers
now go to the Family Court to seek orders by consent to get themselves parental
responsibility. It is not as though the law has made that impossible; it has
just made it very hard, expensive and available only to the people who have the
gumption to pursue it.
Professor Millbank further explained that the current section 60H causes
problems in related provisions in the Family Law Act and related legislation.
For example, several witnesses pointed out that the definition of parent in the
Child Support (Assessment) Act 1989 (Cth) relies on the definitions in
the Family Law Act. This causes further disadvantages to same‑sex
parents, which would not be removed by this Bill.
Most submissions and witnesses suggested that a preferable approach
would be to amend section 60H directly so that it is expressed in gender
As Ms Heidi Yates of WLSA told the committee: 'no child should suffer discrimination
because of the gender of the parents'.
The Victorian Gay and Lesbian Rights Lobby supported the 'limited
extension of section 60H' in the Bill, but urged that its application be
extended 'to all circumstances to ensure that children of same-sex couples are
protected without limitation like every other child in Australian families'.
Professor Millbank suggested that section 60H also needs to be amended
to 'make it clear how 60H fits into the Family Law Act as a whole'.
In addition to amending section 60H, Professor Millbank considered that the
definition of 'parent' in section 4 of the Family Law Act should also be
However, the Human Rights Commissioner, Mr Graeme Innes, pointed out
that, even if section 60H were amended to use gender neutral language, 'there
will be no protection of a child born through a surrogacy agreement to gay fathers'.
Currently, a gay co-father of a child born following an ART procedure is not
considered to be a parent under Part VII of the Family Law Act.
Mr Innes suggested that an amendment of section 60H would need to be
accompanied by 'uniform reform of state surrogacy laws'. In the absence of such
reform, HREOC's preferred approach was the 'more inclusive definition' of child
as a 'product of a relationship' contained in the Same-Sex Superannuation Bill.
In contrast, Professor Millbank felt that the definition of child as a
'product of a relationship' in the Same-Sex Superannuation Bill was a mistake
and should not be used elsewhere.
Professor Millbank was concerned that there is a range of different
definitions of child across federal legislation. She suggested a 'quick and
dirty' audit of federal legislation with a view to developing a 'uniform,
simple definition', that is:
...a simple conceptual basis of the parent-child relationship that
is put into either the Family Law Act or the Acts Interpretation Act and then
mirrored out to all the other acts. So every other act could say that 'parent'
or 'child' means the definition in the Family Law Act or the Acts Interpretation
Act. I think it is time we did that. I do not think it is that hard a thing to
do. That is what I would like to see come out of some of this process, rather
than this kind of ad hoc approach of: 'Oops, we’ve got this problem. We've got
some people who are left out. Let's toss in another thing.'
Professor Millbank agreed that there would still then need to be reform
of surrogacy laws. She acknowledged that:
HREOC and I have disagreed a little about this. They favour the
'product of the relationship' category because they are concerned about the
coverage of gay men who have children through surrogacy...I do not want to
exclude gay men who have children through surrogacy, but there are issues with
how they have children. The issues around consent and so on are the very same
issues that heterosexual families who have children through surrogacy have, and
that should be reformed through the reform of surrogacy law... [T]he issues are
very similar and should be dealt with across the board rather than through ad
hoc messing with the existing presumptions.
Similarly, Mr Kassisieh of the NSW Gay & Lesbian Rights Lobby also
suggested that 'where gay men have children there needs to be other types of
reform, particularly in surrogacy'.
Ms Kassisieh and Ms Gray noted that surrogacy reform was needed in the
context of heterosexual couples as well, and that this issue was perhaps
outside the scope of this Bill.
When questioned by the committee as to why section 60H of the Family Law
Act had not been directly amended by the Bill to use gender neutral language, a
representative of the Department responded:
...in relation to the issue of parentage presumptions more
generally 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.
Burden on the Family Court
Many submissions were concerned that extending the Family Law Act to
opposite and same-sex de facto couples would increase the workload of the
Family Court. This was one of the objections raised by those opposed to the Bill
— that it would increase the burden on the 'already overstretched' Family
Even those who supported the Bill, such as WLSA, were concerned that the
Bill, if passed, would 'substantially increase demand in the family law
system', including demand on the courts and community‑based family
dispute resolution services (FDR), Family Relationship Centres and other FDR
providers. It also believed that:
...there is likely to be a substantial increase in the proportion
of de facto and registered couples who will consider using the courts to
resolve their disputes. This is because parties may have more confidence in the
family law system and more to gain from the range of expert services and
outcomes available under the Act, in comparison to those available in state and
Ms Heidi Yates of WLSA was further concerned that:
In WLSA's experience, a large number of opposite sex de facto
couples who are separating and looking at property settlements simply do not
pursue proceedings in their local, state or Supreme Court because of the
expense, the complication and the lack of certainty in terms of the limited
precedents available. We are concerned that not only matters that are currently
in state and Supreme Courts transfer across but perhaps an increased volume of
cases will want to be using the Family Court processes, which are more
efficient and which provide for mediation and conciliation. The volume overall
across both courts will in fact increase.
WLSA submitted that the government should allocate appropriate resources
to the federal family law system to ensure that waiting times and delays are
minimised and that 'all parties can access dispute resolution and obtain the
requisite FDR certificates in a timely way'.
As noted in Chapter 2, the Financial Impact Statement in the EM states
The Bill will confer additional jurisdiction on federal courts
and the Government will monitor, in consultation with the courts, the impact of
the new jurisdiction created by the Bill. Additional resources were provided to
the courts in the 2007-08 Budget to deal with the increased workload.
A representative of the Department also confirmed that:
...there will be four additional magistrates made available to the
Federal Magistrates Court and one additional Family Court judge to deal with
the additional workload.
The consultation statement in the EM also states that the Family Court
of Australia and the Federal Magistrates Court of Australia were consulted
about the financial impact of additional workload generated by the proposed
Other legal and drafting issues
Some submissions raised a number of other legal and drafting issues in
relation to specific provisions of the Bill. For example, the Law Council
stated that, while it strongly supported the policy objective of the Bill:
...there are a number of areas where the drafting could be
improved to provide greater clarity and to rectify what are largely technical
defects which may lead to unintended consequences or unnecessary complication.
Both the Law Council and the NSW Law Society called for the Family Law
Act to be renumbered. The Law Council submitted that its provisions should be
rearranged in a 'more logical and accessible form':
As a result of numerous amendments over 30 years the structure
and numbering in the Act have become unwieldy and unnecessarily complicated and
increasingly difficult to navigate for experienced practitioners let alone the
The NSW Law Society similarly suggested that the general structure of
the Bill is not 'user friendly' and that it was a 'missed opportunity' to
renumber the Family Law Act 'to avoid having numbers which have triple letters
Other drafting issues raised are discussed further below.
The transitional provisions in Division 2 of Part 2 of Schedule 1
provide that the new Act will not apply to de facto relationships which broke
down before commencement. Ms Judy Harrison of the Australian National University's
College of Law described these provisions as 'very harsh'. Both Ms Harrison
and WLSA suggested that de facto couples should be able to 'opt in' to the new
Act by mutual agreement where their relationship breaks down before
commencement and their maintenance or property matters have not been finalised
The Department responded to this suggestion as follows:
The application of the Bill to relationships that have already
broken down provides a clear test relating to the relationships to which the
new regime will apply. It also reflects the same approach taken by each State
and Territory, with the exception of the Northern Territory, when its property
settlement regime was introduced. The suggestion that couples should be able to
'opt in' to the new regime by mutual agreement, particularly where they 'opt in'
for an adjudicated determination of issues between them, would need to be
accompanied by safeguards, to ensure informed choice and also to protect those
in an unequal bargaining position.
The committee notes that WLSA and Ms Harrison did suggest a safeguard
requirement that an eligible party certify in writing that they have given
informed consent after receiving independent legal advice.
WLSA and Ms Harrison also state that no time limit would be necessary on this
'opt in' arrangement, as a 2 year limit will effectively be imposed by another
item in the Bill:
If the opt in provision is included, it would not be necessary
to limit this to parties whose relationship ended within a specified time
before commencement because this is already achieved by item 36 [of Schedule 1]
which would amend section 44 of the Act. The new section 44 would in effect
provide that an application can be made to the court within a period of 2 years
from the date the relationship ended and an application can only be made after
that date if the court grants leave based on hardship or inability to support
The NSW Law Society was concerned about the impact of section 90RC
(which deals with the relationships with state and territory laws) and the
on the validity of agreements made before the commencement of the Bill. The NSW
Law Society pointed out that many parties have entered into agreements under
NSW law. It was also concerned that the Bill should include a specific
provision to ensure that a party will not be able to set aside such agreements
'simply because the legislation has changed'.
The Department noted the NSW Law Society's concerns, but responded that:
The Law Society of NSW in its submission to the Committee
suggests that the ground in new section 90UM(1)(f) might apply to set aside an
agreement made under NSW law. It is difficult to see how a change in the law,
subsequent to the making of an agreement, about how property settlements
between de facto couples are determined, would make it impracticable to carry
it out. New section 90UM(1)(f) is in equivalent terms to sections 90K(1)(c) and
79A(1)(b) of the Family Law Act 1975, applying to binding financial agreements
and property alteration orders between married couples. The Department notes
that the test of impracticability in section 79A(1)(b) of the Act has been
discussed in cases before the Family Court of Australia... 
Proposed section 90SD sets out the geographical requirements in relation
to maintenance orders. The NSW Law Society was concerned about the requirement
in paragraph 90SD(1)(b)(ii) that both parties to the de facto relationship were
ordinarily resident in a participating jurisdiction during at least a third of
the de facto relationship. The NSW Law Society submitted that:
...the reference to one third rather than a substantial period may
lead to situations where parties are unable to [avail] themselves of this
legislation because of their relationship being conducted across several states.
People have become increasingly mobile. By referring to a substantial period
rather than a set period the Court still has discretion.
The Department explained the reasons for the approach taken in proposed
section 90SD as follows:
The residence requirement in the Bill provides a clear test,
while the discretion implicit in the test suggested by the Law Society of NSW
would not encourage parties to settle outside litigation. The geographical
connection in section 90SD reflects the requirements under the property
settlement legislation of most jurisdictions (NSW, Victoria, WA, ACT, NT and Norfolk
Island). The 'substantial period' test applies in NSW, although couples are
taken to satisfy the test if they have lived together in the State for one
third of their relationship. SA requires couples to have lived in the State for
the whole or a substantial part of the period of their relationship. Queensland
and Tasmania do not have a residence requirement.
A similar issue was identified by the Law Council in relation to
proposed section 90UA, which provides that a financial agreement can only be
made 'if the spouse parties are ordinarily resident in a participating
jurisdiction when they make the agreement'. The Law Council pointed out that
this requirement seems 'unduly restrictive and confusing':
It is unclear whether the provision as drafted contemplates the
requirement that both parties reside in the same participating jurisdiction; or
whether they can be in separate jurisdictions; or if it is necessary for only
one party to be in a participating jurisdiction.
The Law Council recommended that section 90UA be clarified, recognising
that there may be restrictions contained in the power conferred by the
Ms Judy Harrison of the Australian National University's College of Law
identified the same issue in relation to proposed section 90UA. She noted the
contrast with other proposed provisions, such as proposed sections 90RG which
refers to 'one or both' people being ordinarily resident in a participating
jurisdiction. Ms Harrison suggested that the ambiguity could be resolved by
inserting the words as underlined below:
...are ordinarily resident in a participating jurisdiction, being
the same or a different participating jurisdiction, when they make the
Cessation of spousal maintenance
The Law Council noted that proposed section 90SJ provides that a
maintenance order ceases to have effect upon the death or marriage of the
The Law Council commented that, under subsection 82(4) of the Family Law Act,
maintenance orders for married couples cease on the re‑marriage of the
party (unless a court otherwise orders in special circumstances). The Law
Council recommended that proposed section 90SJ be amended to provide that
maintenance orders cease if a party re-partners by entering into another de facto
relationship (unless a court otherwise orders in special circumstances) — in
the same way that re-marriage is a terminating event for married couples.
Duty of court to end financial
Proposed section 90ST relates to the duty of the court to end financial
relations and avoid further proceedings between parties to the de facto
relationship. The NSW Law Society submitted that there is a 'strong argument'
that proposed section 90ST is 'superfluous'. This provision reflects the
existing section 81 under Family Law Act. The NSW Law Society commented that
'family law academics have long doubted the public policy basis and need for
Other drafting issues
The NSW Law Society also made some suggestions for technical amendments
to the transitional provisions for 'consistency and clarity' and pointed out a
possible typographical error in item 69 in proposed subsection 90MP(5).
The Law Council also noted that it had identified various other technical
issues in relation to a number of other provisions that it was working on with
the Department. This included a 'detailed list of the provisions which require
clarification or correction'. However, Mr Ian Kennedy of the Law Council
advised the committee that none of these were major issues.
Constitutional issues: position of the states
As noted in Chapter 2, the Bill relies on referrals from the states to
the Commonwealth. NSW, Victoria, Queensland and Tasmania have referred powers
in this area to the Commonwealth, and the Commonwealth has the territories power
in relation to the ACT, Northern Territory and Norfolk Island. Western
Australia has not enacted referring legislation, but administers its own
In relation to South Australia, which has also not referred any powers
to the Commonwealth at this stage, a representative of the Department told the
committee that 'the Attorney-General is still in discussion and consultation
with the South Australian counterpart'.
Mr Ian Kennedy of the Law Council noted that it would eventually like to
see 'complete national consistency'. He gave the example of a current case he
is working on where:
...there is property in Darwin, Melbourne and rural New South
Wales. At the moment, technically, for the person who does not control the
property to get any share of it they need to be litigating in three different
jurisdictions. That is just crazy. We do not want Western Australia hanging out
there in the same position. We are a very mobile country; people move around a
great deal. Indeed, when relationships break down they tend to move back
interstate or to other parts of the country or perhaps out of the country.
The WA Attorney-General, the WA Family Court and the Law Society of WA
all queried why the Commonwealth had not taken up the opportunity to provide
the WA Family Court with power to make superannuation splitting orders.
The WA Attorney-General explained that the Family Court
Act 1997 (WA) enables de facto partners (both same-sex and
opposite-sex) to use the WA Family Court in property and other disputes. The WA
Family Court explained that the WA legislation 'effectively replicates almost
all of the property provisions of the [Commonwealth] Family Law Act'.
The WA Attorney‑General was pleased that the Bill would provide the same
benefits to de facto couples in other Australian jurisdictions that 'WA
legislation already provides to similar persons in this State'.
However, the WA Attorney-General was concerned that the Bill does not
implement WA's reference of powers to the Commonwealth in the Commonwealth
Powers (De facto Relationships) Act 2006 (WA). The WA Attorney-General
explained that this law refers powers over superannuation matters arising out
of the breakdown of de facto relationships (both same-sex and opposite-sex).
The WA Attorney-General was concerned that, by not implementing the WA
reference of power, WA de facto partners will be discriminated against, 'in
comparison to those in other Australian jurisdictions in superannuation
Similarly, the WA Family Court pointed out that the court is currently
unable to make 'superannuation splitting orders' in cases involving de facto
couples and that:
State Parliament lacks the necessary constitutional authority to
enact legislation that would allow the Court to make such orders and hence
parties to de facto marriage relationships in this State do not have the
flexibility afforded to married couples to resolve disputes in cases involving
The WA Family Court felt that the Bill's failure to deal with this issue
...unfortunate as the passage of the proposed legislation affords
what would appear to be a suitable opportunity to provide the Family Court of
Western Australia with this additional jurisdiction.
In response to questions on notice as to why the Bill does not deal with
the reference of powers from WA, the Department explained that:
Implementation of the narrower reference from WA would leave
jurisdictional issues arising in 'cross-border' cases involving WA and any
State outside the scheme, where different laws applying in those States will
affect outcomes in cases...
WA is not able, under its own de facto property settlement and
spouse maintenance law, to oust the jurisdiction of the other States, as the
Commonwealth is able to do, to the extent that it has power to do so.
Implementation of the narrower reference from WA would also
require duplication by WA of future amendments to the Commonwealth's regime
relating to the making of orders altering interests in non-superannuation
property held by de facto partners. Otherwise, the Family Court of Western
Australia, in proceedings between de facto partners with superannuation (as
most couples will have), would need to take into account one set of
considerations, under the Family Law Act 1975, in considering whether to
make a superannuation splitting order, and another set of considerations, under
WA law, in considering whether it is appropriate to make an order altering
interests in their other property.
This Bill gives effect to a decision at the November 2002 meeting of the
Standing Committee of Attorneys-General and is supported by many of the key
stakeholders. The Bill also implements important aspects of the HREOC Same-Sex: Same Entitlements report. In this context, the
committee strongly supports the inclusion of same-sex couples in the definition
of 'de facto relationship' and considers that the removal of discrimination on
the basis of sexuality in the family law system is long overdue. The committee
commends HREOC for its excellent work in this area.
The committee considers that it is important to recognise the reality
that increasing numbers of Australians are living in de facto relationships,
and that there is a need to streamline legal processes for such couples if
their relationship breaks down. It makes sense to provide a consistent national
scheme to enable de facto couples to access the federal family law system for
all proceedings, instead of the current process of federal court access for
child-related matters and state and territory courts for financial matters. In turn,
the committee agrees that this will reduce the costs and inconvenience for de
facto couples, as well as reduce the administrative burden on the federal and
state court systems. The committee considers that this is particularly
important where there are children involved in the breakdown of a de facto
relationship. The committee accepts that it is not the objective of this Bill
to undermine the institution of marriage in any way.
For the above reasons, the committee supports the Bill and believes it
should be passed as a matter of priority.
At the same time, the committee is mindful of concerns and suggestions
for improvements in relation to the Bill. Some of the main concerns related to
key definitions in the Bill – the definitions of 'de facto relationship' and
'child of a de facto relationship'.
The committee believes the definition of 'de facto relationship'
contained in this Bill is broadly appropriate and notes in particular that the
definition is largely consistent with the model definition proposed by HREOC. However,
the committee acknowledges that there is an issue of the consistency of this
definition with related definitions in other federal legislation, including other
legislation currently being inquired into by the committee. In this context, the
committee recognises the evidence from the Department that the Commonwealth is
limited in some respects in this Bill by the referring legislation from the
states. For example, the committee respects the Department's advice that it did
not have the power under the state referring legislation to make a relationship
registered under state or territory law conclusive proof of the existence of a
de facto relationship for the purposes of the definition in proposed section
4AA of the Bill. In any case, the committee imagines that a court would look
very favourably upon such registered relationships when determining whether a de
facto relationship exists.
However, the committee is troubled by the approach taken in the Bill to
the definition of 'child' and the parenting presumptions currently contained in
section 60H of the Family Law Act. While proposed section 90RB of the Bill is at
least an improvement on the current situation, the committee is concerned that
this approach still leaves room for discrimination and uncertainty. In
particular, it does not seem to make sense for lesbian co-parents to be
recognised under the Family Law Act only in relation to property matters and
not matters regarding children. The committee therefore recommends that section
60H of the Family Law Act be directly amended to use more gender neutral
language. Indeed, the Commonwealth is currently considering a request from state and territory Ministers to
consider amending section 60H of the Family Law Act to allow children of same-sex
relationships to be recognised as a child of the relationship for the purposes
of this section.
The committee considers that this Bill is an ideal opportunity to make this
amendment. However, the committee is aware that further reforms will still be required
to remove all discrimination and uncertainty, particularly in the area of surrogacy.
In this context, the committee notes that, until appropriate surrogacy reforms
are realised, HREOC preferred the definition of 'product of the relationship'
used in the Same-Sex Superannuation Bill 2008, which is also currently being
considered by the committee.
In addition, the committee recognises the importance of consistency and
uniformity across federal legislation. The committee notes, for example,
suggestions that a consistent definition of 'de facto relationship' and 'child'
be inserted into the Acts Interpretation Act 1901 and/or the Family Law
Act. For this reason, the committee recommends that the government review the
definitions of 'de facto' or 'couple' relationship and related definitions, as
well as definitions of 'child' and related definitions, including parenting
presumptions, across all relevant federal legislation with a view to ensuring a
consistent terminology is used wherever appropriate.
The committee also notes that the Law Council is liaising directly with
the Department in relation to number of technical drafting issues which may
need to be resolved in relation to the Bill. The committee hopes a sensible resolution
of these issues can be reached in a timely manner, and that amendments will be
made to the Bill where appropriate. In this context, the committee also recommends
that the government renumber the Family Law Act in subsequent legislation in
order to make it less complex and more user-friendly and accessible.
In relation to technical amendments put forward during the inquiry, the
committee was persuaded by the suggestion that de facto couples should be able
to 'opt in' to the new Act by mutual agreement where their relationship breaks
down before commencement and their maintenance or property matters have not
been finalised before commencement. This amendment would need to be accompanied
by appropriate safeguards, such as a requirement that an eligible party certify
in writing that they have given informed consent after receiving independent
The committee notes that no time limit is required on this 'opt in'
arrangement, as a 2 year limit will effectively be imposed by item 36 of
Schedule 1 of the Bill.
Finally, the committee is mindful of concerns about the Bill's potential
to increase the workload of the federal family court system. The committee is
reassured that additional resources have been provided to the federal family
courts in the 2007‑08 Budget to deal with the increased workload. Nevertheless,
the committee encourages the government to continue to monitor the family law
system, including the impact of the new regime created by the Bill, and to
continue to ensure that the federal family law system is adequately resourced
The committee recommends that the definition of 'child of 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.
Without derogating from the independent and privileged status of
marriage, the committee recommends that the Federal Government undertake a review
of all federal legislation containing definitions of:
'de facto' and 'couple' relationship and 'de facto partner'
and all related definitions; and
'child' and 'parent', including parenting presumptions, and all
with a view to ensuring consistent concepts
and terminology are used wherever appropriate.
The committee recommends that the Federal Government renumber the Family
Law Act 1975 in subsequent legislation.
The committee 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.
Subject to the preceding recommendations, the committee recommends that
the Bill be passed.
Senator Trish Crossin
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