On 5 December 2019, the Senate referred the provisions of the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 13 March 2020.
The Senate referred the bill to the committee following a recommendation from the Selection of Bills Committee. The referral was to allow the legislation to be reviewed for any possible unintended consequences.
Conduct of the inquiry
Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 24 January 2020 and also wrote to a range of organisations inviting them to make a submission. The committee received 10 submissions which are listed at Appendix 1. All submissions are available on the committee's webpage.
The committee thanks all submitters for their participation in the inquiry.
Structure of the report
This report consists of two chapters:
This first chapter provides an overview of the inquiry, the background to the bill, and a summary of the provisions.
Chapter 2 examines the key issues raised in evidence and provides the committee's view and recommendations.
Background and purpose of the bill
The bill would give effect to a referral of power from Western Australia to the Commonwealth in respect of superannuation matters in family law proceedings for separating de facto couples in Western Australia. In simple terms, the bill would bring Western Australia in line with other states and territories, where separating de facto couples can split superannuation along with other assets.
Superannuation splitting was introduced into the Family Law Act 1975 (Cth) in 2001 and extended to de facto couples in 2008. Over subsequent years, all states except Western Australia have provided the Commonwealth with ‘full subject matter referrals of power for de facto property, maintenance and superannuation in family law matters’. Family courts have been able to consider superannuation as part of settlements in all states and territories except Western Australia since 2010.
The minister explained that, by allowing couples to split their superannuation, the bill would ‘end the inequality faced by separating de facto couples in…Western Australia that has endured for the past 10 years’.
According to the minister, the fact that separating de facto couples in Western Australia are unable to split superannuation ‘has led to increasing inequity’, especially in cases where superannuation is the only asset, or the major asset. It has also ‘disproportionately’ impacted upon women in Western Australia. The minister said:
To ensure de facto couples in Western Australia are treated consistently with de facto couples across the country in terms of superannuation, the Australian Government decided in October 2018 to accept and implement a narrow referral of power from Western Australia.
The bill would also extend federal bankruptcy jurisdiction to the Family Court of Western Australia, allowing it to hear bankruptcy proceedings concurrently with family law proceedings. The explanatory memorandum states:
The ability to have bankruptcy and family law matters heard together will bring de facto couples in line with married couples in Western Australia, and with married and de facto couples in the other states and territories.
Schedule 1 of the bill would create a new Part VIIIC in the Family Law Act 1975 (Cth) which would deal solely with superannuation splitting for separating de facto couples in Western Australia. Part VIIIC would allow superannuation splitting proceedings to be heard concurrently with Part 5A property proceedings in either the Family Court of Western Australia or the Magistrates Court of Western Australia.
Schedule 2 would confer jurisdiction in bankruptcy on the Family Court of Western Australia in these circumstances:
when a party to a marriage or de facto relationship is bankrupt and the trustee of the bankrupt’s estate is a party or an applicant in relation to property settlement or spousal maintenance proceedings under the FLA or the Family Court Act 1997 (WA); or
when proceedings which are before the Federal Court or the Federal Circuit Court are transferred to the Family Court of Western Australia.
Consideration by other parliamentary committees
The Senate Scrutiny of Bills Committee had no comments on the bill.
The Parliamentary Joint Committee on Human Rights had no comments on the bill.