Wednesday, 21 February 2007

Proposed Legislation

The Department of Prime Minister and Cabinet has released the bills proposed for introduction to the Parliament in the next sittings.These include:

Evidence Amendment Bill- implement the government’s response to the recommendations of the Australian Law Reform Commission- amend the Acts Interpretation Act 1901 to provide for certain printed and electronic versions of Acts to be taken to be a complete and accurate record of those Acts- amend the Evidence and Procedures (New Zealand) Act 1994 to extend the arrangements for the enforcement of subpoenas to include family law proceedings

Family Law Amendment Bill- amend the Family Law Act 1975 to implement a range of measures

Family Law Amendment (De Facto Financial Matters) Bill- amend the Family Law Act 1975 to implement references of legislative power to the Parliament of the Commonwealth by some states on financial matters arising out of the breakdown of de facto relationships

Family Law (Same Sex Adoption) Bill- amend the Family Law Act 1975 to indicate that adoptions by same sex couples of children from overseas under either bilateral or multilateral arrangements will not be recognised in Australia

The bills have not yet seen the light of day. The Family Law (Same Sex Adoption) Bill has attracted some controversy- see the post of 14th February.

The Family Law Amendment (De Facto Financial Matters) Bill is likely to have the most far reaching changes. Currently the family law system in Australia has with the exception of Western Australia two parts: Commonwealth and State. Some matters fall within State law and some within Commonwealth law. Those matters within State law are dealt with in State courts, and those within Commonwealth matters are usually (but not always) dealt with in the Family Court of Australia or the Federal Magistrates Court of Australia.

WA is different as although there is both State and Commonwealth law, child support is governed by State law (which largely mirrors Commonwealth law), and family law cases have been dealt with in the Family Court of WA, although the Federal Magistrates Court has now started there too.

Confused? You're not alone.

If you're married, ordinarily you go to several courts when your marriage breaks down:

  • for parenting and property disputes to the Family Court or the Federal Magistrates Court
  • for divorce, to the Federal Magistrates Court
  • for domestic violence cases, to the (State) Magistrates or Local Courts.
  • If de facto couples have a property dispute, it is dealt with in the State courts, such as the Supreme Court of Queensland.

There are several problems:

  • different courts mean an increase in costs
  • different courts have different approaches, thereby leading to uncertainty, and increased costs
  • there are issues about jurisdiction of property disputes
  • different States and Territories have different rules as to what relationships are included, how property settlement is calculated, and whether spousal maintenance is payable.


In NSW for example, there is a much stricter view on contributions than in the Family Court (ie in general terms less paid to the woman), but there is the ability to pay spousal maintenance. Queensland's system by contrast largely mirrors the property provisions of the Family Law Act, but makes no allowance for spousal maintenance.

So to change the rules on property settlement for de facto couples to one system from 8 makes a lot of sense, until the devil in the detail is revealed. It is not known, at this stage, whether the same scheme applying to property settlement for married couples under the Family Law Act will apply to de facto couples.

The proposed changes will apply in all States other than SA and WA, each of which has refused to refer power to the Commonwealth.

The proposed changes (whatever they are) will only apply to heterosexual couples. Gay and lesbian couples, and those who are in interdependent relationships (recognised for example in the ACT) will still be under the State and Territory systems.

The proposed changes therefore mean that instead of largely one system for married couples and 8 for de facto couples, there will now be:
1 for married couples
3 for heterosexual de facto couples where their property or their relationship was everywhere but SA and WA, and those in SA and WA- clearly jurisdiction might still be an issue for some
8 for gay and lesbian couples
I will keep updates posted.

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