Volume 11, Issue 1 July/August 2008

New legislation has been introduced by Attorney-General Robert McClelland by way of amendments to the Family Law Act 1975. The legislation entitled Family Law Amendment (De Facto Financial Matters and Other Matters) Bill 2008 ("the Bill") will enable de facto and same sex-couples access to the Federal Family Law Courts for property and maintenance matters.

You may recall our August 2007 newsletter where we mentioned the Family Law Amendment (De Facto Financial Matters) Bill 2007 which had gone back to the sittings at the Federal Parliament. During that time there had been much publicity as to the rights of same sex couples. Therefore it should be no surprise that this issue is still alive and kicking one year after the proposed amendments in 2007.

Mr. McClelland clearly is in favour of this legislation. “These reforms are long overdue. They will provide greater protection for separating de facto couples and simplify the laws that apply” he says.

The primary objective of the Bill is to extend the financial settlement regime under the Act to parties to a de facto relationship. This is done by conferring jurisdiction on certain courts in ‘de facto financial causes’ involving parties to de facto relationships, and providing a new Part VIIIAB of the Act to allow the court to make orders in those proceedings covered by the definition of ‘de facto financial cause’.

At the present stage financial arrangements between de facto couple who have separated are subject to State and Territory law which vary between jurisdictions. “Currently, de facto couples can access the federal family law courts for child-related proceedings but must go to State and Territory courts for property and maintenance matters. This duplication wastes time and money and places an unnecessary administrative and financial burden on de facto couples.”

Therefore, this Bill will allow for de facto couples covered by the bill to have a consistent financial settlement regime which will help minimise jurisdictional disputes and uncertainties which sometimes effect settlement.

What makes this legislation much more versatile is that it will allow for de facto couples to access the family law system for issues such as financial matters arising from relationship breakdown. This works well because the Family Law courts have experience in dealing with relationship issues and have methods such as dispute resolution and other mechanisms to deal with relationship breakdowns.

One of the Bill’s many amendments includes the addition of a ‘de facto financial cause’ in subsection 4(1) of The Family Law Act 1975 ("the Act").

This has been done mainly for jurisdictional purpose for de facto financial matters in all financial matters presently available under the Act between parties to a marriage, such as proceedings for distribution of property or financial resources, or for provision of maintenance between parties to a de facto relationship, and proceedings involving third parties, binding financial agreements and related bankruptcy matters.

There are four Schedules which have been introduced in the legislation.

Schedule 1

This schedule contains the operative amendments to the Act that extend its operation to de facto financial matters. Division 2 of the schedule has added a new Part VIIIAB which deals with maintenance, declaration and alteration of property interests. Division 3 of this schedule discusses orders and injunctions binding third parties. Division 4; discusses financial agreements, Division 5 discusses proceeds of crime and forfeiture; with Division 6 discussing instruments not liable to duty.

With the amendments made under Schedule 1 of the Bill the court may make orders in relation to de facto financial matters if:

• The de facto relationship broke down after the commencement of the Act;
• The conditions relating to the length of the relationship or other matters are met;
• The application is brought within the time limits
• The geographical nexus with a ‘participating jurisdiction’ is satisfied when the application is made, if all States have not referred power, and;
• The proceedings are not otherwise determined to be a matter for State and Territory law by the effect of transitional provisions in Part 2 of Schedule 1 to the Bill.

Schedule 2

This contains amendments to other related legislation which are in essence an extension of the Act to de facto financial matters.

Schedule 3

This schedule contains amendments relating to financial agreements between married couples, separation declarations and superannuation splitting. The definition of ‘matrimonial cause’ has also been amended to now include proceedings by third parties in relation to binding financial agreements.

Schedule 4

This contains an amendment to subsection 60I(8) which now allows for dispute resolution practitioners to give an additional certificate to parties who attend family dispute resolution.

It is important to note however that in order to enjoy the benefits and or the burdens of the Bill it will not extend to a de facto relationship that broke down before commencement as per Division 2 of Schedule 1, section 86. Although this has not yet been made legislation it is still important for people to understand when this would come into effect, should this eventually be made law.

Conclusion

It is not for certain as of yet as to whether this Bill will receive the Royal Assent anytime soon as you will have seen that this is not the first go at introducing an amendment to de facto financial matters. However the new amendments provide for the Federal and Family Courts to allow de facto and same sex couples to have property, maintenance and children matters to be heard together.

In a time where Courts are clogged with matters ranging from property disputes to relocation orders to children issues it is promising to know that with these new amendments to the Family Law legislation that a more expeditious route to resolving these matters, which include de facto and same sex relationships may soon be on the horizon.

The effect of all of the above is that de facto partners who currently have to litigate their children’s matters and financial matters in different Courts ie., Federal for children’s matters and State for property matters, will be able to litigate all of their financial and children’s matters in the one Court, normally the Federal Magistrates Court or the Family Court. This will result in substantial cost saving for them.

As I have predicted for quite some time in my newsletters, the new legislation, if it is passed in its current form by Parliament, will provide de facto partners with spousal maintenance for the first time in Australia. There are some very limited rights in New South Wales under the New South Wales de facto legislation but it is almost impossible to get spousal maintenance there from my understanding.

It is also very important to note that this legislation will come into effect the day it is passed by Parliament, so if you are living in a de facto relationship on the day that Parliament passes the legislation, then you are bound by it, and you and your partner have the same rights as the legislation gives you.

Thus for instance, if the legislation was passed on the 1st December 2008 and you separated on the 30th November 2008 the legislation would not apply to you.

If the legislation was passed on the 1st December 2008 and you separated on that day or the following day or any time thereafter, the legislation will apply to you. Whilst in Queensland as I have advised you on numerous occasions in previous newsletters, we have the most generous de facto legislation in Australia.

It will be more generous for de facto partners especially those without access to income and funds, because they will then be entitled to get spousal maintenance from the other party if they can satisfy the normal requirements of spousal maintenance which are effectively an inability to support themselves and that the other party has the capacity to support them.

Child Support Amendments

As all of you with children under the age of 18 will be aware, the child support legislation has been widely amended over the last couple of years.

New assessments were issued earlier this year in most cases and the Child Support Agency is also reviewing all the child support agreements registered with it. It is likely that the new changes are going to make life tougher for parents who are the principal parent who have the children most of the time as it is likely that their child support payments are going to come down.

The new legislation is complex but you can do an assessment of your own child support entitlements by going to the Child Support Agency’s own website: http://www.csa.gov.au/estimator/index.aspx

CHARLES COOPER LAWYERS

Including:

Charles Cooper (Principal & Accredited Family Law Specialist), Sally Southwood (Accredited Family Law Specialist), Damira Hidic, Anish Rebello and Morgan O’Brien-Powell (Solicitors), and Hayley Condon (Trainee Solicitor).

The material contained in this CCL Family Law Newsletter is of the nature of general comment only. No reader should rely on it without seeking legal advice.

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