Senate Committee Releases its Report

The Senate Standing Committee on Legal and Constitutional Affiars has released its report into the proposed changes to the Family law Act which will allow de facto couples, including same sex couples, access to uniform property settlement in either the Family or Federal Magistrates Courts.

The committee recommends that the Bill be passed with only minor changes. It said:

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.

The recommendations of the committee are:

• 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 related definitions;
  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. [Hooray- now it will no longer be like the Tax Act and can possibly be read!]
• 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.

A full copy of the report of the committee can be found here– PDF files.

Extracts from the Report

(T)he 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 court systems.[1]
3.3 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 child-related proceedings.[2] 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’.[3] 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.[4]
3.4 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 nationally’.[5] The Law Council argued that this ‘much-needed and socially advantageous legislation’ is:
…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.[6]
3.5 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.[7]
3.6 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.[8]
3.7 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 married couples.[9] 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.[10]
3.8 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[11] and in others can only receive such payments until the children become 12 years of age.[12]
3.9 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 ‘cohabiting’); [13]
the number of children being born into cohabiting relationships is also increasing;
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.[14]
3.10 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.[15]
3.11 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).[16]
3.12 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.[17]
3.13 Other information from the AIFS showed that:
‘cohabiting relationships are far more likely to dissolve than marriages’; and
‘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%).’[18]
3.14 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.[19]
3.15 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 relationship breakdown.[20]
3.16 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.[21]
3.17 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.

3.25 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.[31] 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’.[32]

3.34 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.[40]
3.35 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’.[41]
3.36 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 marital relationships.[42]
3.37 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.[43]

Same-sex couples
3.69 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.[78]
3.70 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 opposite-sex couples’.[79] 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.[80]
3.71 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.[81]
3.72 A standard submission provided to the committee received from 41 individuals stated:
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.[82]
3.73 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.[83]
3.74 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’.[84]
Recognition of relationship registers
3.75 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’.
3.76 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 relationship.[85]
3.77 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 relationship.[86]
3.78 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.[87]
3.79 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.[88]
3.80 As noted earlier, Mr Wayne Morgan suggested that the ideal approach would be for the Commonwealth to insert an ‘umbrella’ term (such as ‘couple relationship’[89]), into the Acts Interpretation Act 1901, which would treat a ‘registered relationship’ as a separate category to a marriage and a de facto relationship.[90] 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.[91]
3.81 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.[92]
3.82 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.[93]
3.83 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 partnership.[94]
3.84 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).[95]

3.101 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.[115]

3.105 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.[124]
3.106 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…[125]
3.107 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.[126]
3.108 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.[127]
3.109 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…[128]
3.110 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.[129] 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 surrogacy arrangement.[130]
3.111 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’.[131]
3.112 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.[132]
3.113 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 the law’.[133] 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.[134]
3.114 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.[135]
3.115 Professor Millbank further explained that the current section 60H causes problems in related provisions in the Family Law Act and related legislation.[136] 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.[137]
3.116 Most submissions and witnesses suggested that a preferable approach would be to amend section 60H directly so that it is expressed in gender neutral language.[138] As Ms Heidi Yates of WLSA told the committee: ‘no child should suffer discrimination because of the gender of the parents’.[139]
3.117 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’.[140]
3.118 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’.[141] 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 amended.[142]
3.119 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.[143] 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.[144]
3.120 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.[145] 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.’[146]
3.121 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.[147]
3.122 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’.[148] 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.[149]

3.132 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 general public.[159]
3.133 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 after them’.[160]

Transitional arrangements
3.135 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 before commencement.[161]
3.136 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.[162]
3.137 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.[163] 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 themselves.[164]

Western Australia
3.151 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.[179]
3.152 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’.[180] 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’.[181]
3.153 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 matters’.[182]
3.154 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 superannuation.[183]
3.155 The WA Family Court felt that the Bill’s failure to deal with this issue is:
…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.[184]
3.156 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.[185]

Coalition Senators

The three coalition senators have made two further recommendations:

1.1 The Coalition Senators support recommendations 1 to 5 of this report but wish
to make two additional recommendations in relation to this Bill.
Amendment to Item 21 of Schedule 1 to insert new section 4AA
1.2 Paragraph 4AA(5)(b) in the Bill currently provides:
A de facto relationship can exist even if one of the persons is legally
married to someone else or in another de facto relationship.
1.3 A person cannot be part of ‘a couple living together on a genuine domestic
basis’ with more than one person at a time unless the Parliament wants to endorse de
facto polygamy. It would be hard to describe the parties as a ‘couple’ when there are
other de facto partners in residence.
Recommendation 1
1.4 The Coalition Senators recommend that the words “or in another de
facto relationship” in paragraph 4AA(5)(b) of the Bill be omitted.

Recommendation 2
1.10 The Coalition Senators recommend that the proposed section 90SB be
omitted, and substituted with the following:
90SB When this Division applies – that there is a child etc.
(1) A court may make an order under section 90SE or 90SG, in relation to a
de facto relationship, only if the court is satisfied:
(a) that there is a child of the de facto relationship; or
(b) that the relationship is or was registered under a prescribed law of a
State or Territory.
(2) A court may make a declaration under section 90SL if it is satisfied that
the applicant or respondent was in a de facto relationship with another
party to the proceedings.
(3) A court may make an order under section 90SM, in relation to a de facto
relationship only if the court is satisfied:
(a) that there is a child of the de facto relationship; or
(b) that:
(i) the party to the de facto relationship who applies for the
order made substantial contributions of a kind mentioned in
paragraph 90SM(4)(a), (b) or (c); and
(ii) a failure to make the order would result in serious injustice
to the applicant; or
(c) that the relationship is or was registered under a prescribed law of
a State or Territory.
(4) If the court has power to make an order under section 90SM by reason
only of the fact that the party to the de facto relationship who applies for
the order made substantial contributions of a kind mentioned in paragraph
90SM(4)(a), (b) or (c), then the court is limited in its considerations under
section 90SM, to paragraphs 90SM(4)(a), (b) or (c).