Sunday, 6 July 2008

De facto changes to go to Senate committee

The Senate has referred the bill to allow for de facto property settlement to the Legal and Constitutional Affairs Committee for inquiry and report by 27 August, with public submissions to be received by 25 July 2008.

The Bill, as Attorney-General Robert McClelland correctly states, contains landmark changes. It will make major changes to the Family Law Act to enable de facto couples, whether of the opposite or same sex, to use the same test as married couples for property settlement, super splitting and spousal maintenance.

The Bill, if passed, will mean huge (and positive) changes for same sex couples splitting up. It will allow for uniform laws, instead of the current 8 jurisdictions. One submission to the committee is from Western Australian Attorney-General Jim McGinty, who notes that WA has always had separately legislated family law, with its own Family Court of Western Australia, but essentially the same system as the rest of Australia.

The current system, in effect, discriminates against de facto couples, including same sex couples. The current system particularly discriminates against same sex couples because they cannot decide if they are to be under a system for married couples or one for de facto couples. Putting that more accurately- they are denied that choice because same sex marriages are not recognised in Australia.

Currently there is a less certain outcome for de facto couples than for married couples under the Family Law Act, and in some States, such as New South Wales, the partner with lesser financial contributions would receive less than that partner would likely have done under the Family Law Act.

Why there is a less certain outcome is simple:
- cases under the Family Law Act concerning married couples are brought in 3 courts: the Family Court of Australia, the Family Court of Western Australia, and the Federal Magistrates Court of Australia
- appellate decisions of the Family Court of Australia are binding not only on that court but also on the other two courts
- therefore there is generally a consistent approach in the three courts, no matter where the dispute might be
-because it is a national system, and because there are more married couples splitting up than de facto couples, there is therefore more case law, which is able to guide other courts, to ensure a more consistent approach
-family lawyers regularly practise in the Family Court and Federal Magistrates Courts, and are therefore able to give advice to their clients as to the most likely outcomes with some certainty
-most Family Law Courts judges were family lawyers before their appointment and were therefore specialised, or have following their appointment had that specialty thrust upon them, and therefore are quite familiar with the caselaw on point- and try to ensure a reasonably consistent approach, bearing in mind that each case turns on its own facts

The State jurisdictions are limited in many ways:
- first and foremost there are 8 separate jurisdictions with 8 separate rules, not only as to complex rules of procedure, but more so as to substantive matters, for example as to jurisdiction, or as to whether or not spousal maintenance could apply. If a couple were to live at Coolangatta, and one then moves across the street to Tweed Heads, but the relationship has not ended- some obvious questions lawyers would ask are: does the jurisdiction only apply in Queensland, or New South Wales or both; is it better for my client to be in a Queensland or New South Wales court; my client cannot obtain/pay spousal maintenance in Queensland but might obtain/pay it in New South Wales. There is nothing like seeing someone charge into court seeking property settlement and leaving with their tail between their legs, and costs order to boot because they forgot to check whether to start in this jurisdiction will be the right one.
- because there are 8 jurisdictions, and because de facto relationships are relatively a lot fewer than family law decisions, the case law is much more limited
- because of the different rules in different States, caselaw in one State is not binding and may not be effective in another State
-again because there are different laws, (with the possible exception of Western Australia) decisions of the Family Court of Australia or the Federal Magistrates Courts in like matters may not be followed. Indeed, in New South Wales and Queensland the tendency in some matters is to move away from the Family Court model
- State courts, with the exception of the Family Court of Western Australia, are not specialist courts. In Queensland, for example, most Part 19 Property Law Act matters are dealt with by Supreme Court judges, who were prior their appointment barristers in commercial disputes, and who after their appointment mainly deal with commercial disputes
-for these reasons, family lawyers have had difficulty in predicting outcomes in the State courts in de facto property disputes.

And finally, a less certain outcome means that the chances are that it will be a more expensive outcome. If one party wants to take the risk, knowing that there is a chance of success, why not? For the other party in particular, the legal costs just keep climbing.

Family lawyers have hoped and prayed for a long time that there would be consistent, national laws. This isn't for their sake, but for the sake of their clients- people who don't care whether something is a Federal or State responsibility, but don't want to spend money arguing a possible jurisdictional point, and just want the problem with the laws fixed- a simple request really. This Bill seems to offer that hope.

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