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Senate

Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008

Supplementary Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

GENERAL OUTLINE

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (the Bill) amends the Family Law Act 1975 (the Act) to provide for opposite-sex and same-sex de facto couples to access the federal family law property settlement and spouse maintenance regime. The Bill implements references of power by New South Wales, Victoria, Queensland and Tasmania to the Commonwealth in accordance with subsection 51(xxxvii) of the Constitution.

The Government amendments implement the bipartisan recommendations for amendments to the Bill made by the Senate Legal and Constitutional Affairs' Committee in its' report on the Bill to:

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amend the definition of 'child of de facto relationship' in proposed section 90RB of the Bill and the parenting presumptions in section 60H of the Act 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 (Recommendation 1) and
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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 (Recommendation 2).

The amendments also provide power for courts to make injunctions relating to the property of de facto couples, including orders for the 'use or occupancy' of former residences that the couple had, in a similar way to the power that the courts have in relation to married couples.

The amendments also provide for changes to allow for the term a 'child of a person for the purposes of the Family Law Act' to apply in a range of other Acts being amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008 by:

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including commencement provisions around the definition of 'de facto relationship',
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including application provisions to set out the extent to which the amendment of paragraph 60H(1) of the Act affects provisions in the Child Support, Family Assistance, Social Security, National Health, Aged Care and Health Insurance legislation before specified dates,

The amendments also address a range of essentially technical issues that have arisen in consultations on the Bill, including in consultations with the Family Law Section of the Law Council of Australia, by:

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amending new paragraphs 90SD(1)(b) and 90SK(1)(b) of the Bill to provide for couples who have lived in a participating jurisdiction and also in a non-referring State during their relationship to be able to obtain financial orders if they were ordinarily resident in a referring State or in a Territory when their relationship broke down
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amending the definition of 'declaration time' in new subsections 90UF(6) and 90DA(5) so, where a separation declaration is required for a financial agreement and both parties have signed the agreement, the 'declaration time' is measured from the time that the declaration is first signed by one of the spouse parties
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including a note under new subsection 90UE(1) to alert the reader to the existence of significant transitional provisions that may not appear in a reprint of the Act
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amending subsections 60I(5) and 60I(6) to reflect proclamations made by the Governor-General in May 2008 that particular family dispute resolution provisions commenced on 1 July 2008,
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making other technical drafting amendments to clarify the operation of the Bill.

FINANCIAL IMPACT STATEMENT

There are no significant financial impacts from these amendments except to the extent that the provisions in the new Schedule 3A impact upon the Child Support (Assessment) Act 1989. Section 5 of that Act adopts the provisions of section 60H of the Family Law Act dealing with children born using artificial conception procedures. The expansion of persons who will be regarded as parents made by the Schedule will have some impact on the operation of the Child Support Scheme but that impact is not expected to be significant.

NOTES ON AMENDMENTS

Terms used in this Supplementary Explanatory Memorandum

1. The following terms are used in this Explanatory Memorandum:

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'Act' refers to the Family Law Act 1975
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'Amendment Act' refers to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
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'Bill' refers to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008, and
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'State reference Acts' refers to the Acts passed by State Parliaments that refer State powers to the Commonwealth in respect of financial matters arising on the breakdown of de facto relationships, for example, the Commonwealth Powers (De Facto Relationships) Act 2003 (NSW)

Amendment 1: Clause 2, page 2 (table item 2)

2. Amendment 1 substitutes the commencement provisions for item 2 of the table in clause 2. Items 1 to 4, 6 to 20 and 22 to 93 of Schedule 1 will continue to commence on a day to be fixed by Proclamation. However, if any of those amendments do not commence within 6 months from the day on which the Bill receives Royal Assent, they will commence on the first day after the end of that 6 month period.

3. Amendment 1 provides that item 5 and 21 of Schedule 1 will commence on the day on which the Bill receives Royal Assent. Item 5 of Schedule 1 amends the existing definition of the term 'de facto relationship'. Item 21 of Schedule 1 inserts a new definition of the term 'de facto relationship' into new section 4AA.

4. The commencement of the amendments in item 5 and 21 of Schedule 1 has been amended to allow these amended provisions to be relied on for the purposes of the Same Sex (Equal Treatment in Commonwealth Laws -Superannuation) Bill 2008 and the Same Sex (Equal Treatment in Commonwealth Laws -General Law Reform) Bill 2008. These two Bills make similar amendments to range of Commonwealth Acts.

Amendment 2: Clause 2, page 2 (after table item 6) (children)

5. Amendment 2 inserts commencement provisions for new item 6A and new Schedule 3A relating to the changes to parentage presumptions.

6. Amendment 2 provides that the amendment in new item 6A and new Schedule 3A apply from 1 July 2009. This will allow for the Same Sex (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008 which makes similar amendments to a range of other Commonwealth Acts to also fully commence.

Amendments 3 and 4: Schedule 1, item 4, page 5 (lines 25 and 27) (de facto property settlement or maintenance proceedings)

7. Amendment 3 inserts the words 'the distribution of' before the words 'the property' in the definition of 'de facto property settlement or maintenance proceedings'. This amendment ensures consistency with the definitions for 'de facto financial cause' (Schedule 1, item 3) and 'financial matters' (Schedule 1, item 7), which both refer to 'the distribution of the property'.

8. Amendment 4 inserts the words 'the distribution of' before the words 'the vested' in the definition of 'de facto property settlement or maintenance proceedings'. This amendment ensures consistency with the definition of 'de facto financial cause' (Schedule 1, item 3) and paragraph (b) of the definition of 'financial matters' (Schedule 1, item 7), which both refer to 'the distribution of the property'.

Amendment 5: Schedule 1, item 18, page 9 (line 6) (financial agreements after breakdown of a de facto relationship)

9. Amendment 5 includes in paragraph (b) of the definition of 'spouse party', in relation to a Part VIIIAB financial agreement made between parties to a de facto relationship, a reference to a former de facto relationship. This amendment makes the definition of 'spouse party' consistent with paragraph (a) of the definition of 'spouse party' in relation to married couples.

Amendment 6: Schedule 1, item 45, page 20 (lines 28 and 29) (agreements binding on parties)

10. Amendment 6 is one of a series of amendments to replace the term 'binding financial agreement' where it occurs in the Bill, which may be seen as introducing a new concept in the Act, with the phrase 'financial agreement that is binding on the parties to the agreement', or a similar phrase. The phrase is already used in the Act's financial agreement provisions for married couples.

11. This amendment replaces the phrase 'binding Part VIIIAB financial agreement' in new paragraph 79(10)(ab) with the phrase 'Part VIIIAB financial agreement that is binding on the person'.

Amendment 7: Schedule 1, item 50, page 23 (lines 3 to 21) (child of a de facto relationship)

12. This amendment omits proposed new section 90RB and substitutes a new section 90RB that defines the phrase 'child of a de facto relationship' to mean a child of both of the parties to the de facto relationship. The note beneath new section 90RB states that, to determine who is a child of a person, regard is to be had to Subdivision D of Division 1 of Part VII. This Subdivision as amended would set out new rules for determining parentage where children are born:

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as a result of artificial conception procedures and
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where children are born under surrogacy arrangements.

Amendment 8: Schedule 1, item 50, page 23 (after line 31) (use and occupancy injunctions)

13. Amendment 8 inserts a new subsection (d) into the definition of the term 'de facto financial provisions' in subsection 90RC(1) to include a reference to new subsection 114(2A), proposed to be inserted by Amendment 32.

14. New subsection 114(2A) will enable de facto couples to obtain court orders or injunctions, as married couples can under paragraphs 114(1)(b), (e) or (f), relating to the property of both or either of them, or to the use or occupancy of a specified residence of both or either of them.

15. The term 'de facto financial provisions' is defined in subsection 90RC(1) for the purposes of section 90RC. Section 90RC provides for the operation of the de facto financial provisions in the Act to the exclusion of the operation of State and Territory Acts providing a property settlement regime for de facto couples.

Amendment 9: Schedule 1, item 50, page 24 (line 21) (clarifying certain proceedings can be instituted under State or Territory law)

16. Amendment 9 amends new subsection 90RC(3) to include the words 'or Territory' after the words 'law of a State' in subsection 90RC(3), correcting an unintended omission in that provision.

17. It is intended that, except where there is no relevant financial agreement, subsection 90RC(3) should save the operation of both State and Territory Acts providing a property settlement regime for de facto couples where an order can not be made under new FLA Part VIIIAB because:

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the particular de facto relationship does not have the required geographic connection with a referring State (that is, one of the relevant connections under new sections 90SD or 90SK), or
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the particular de facto relationship does not satisfy one of the four grounds in new section 90SB.

Amendment 10: Schedule 1, item 50, page 24 (line 27) (agreements binding on parties)

18. Amendment 10 replaces the phrase 'binding Part VIIIAB financial agreement' in new paragraph 90RC(3)(b) with the phrase 'Part VIIIAB financial agreement that is binding on the parties'.

Amendment 11: Schedule 1, item 50, page 27 (line 18) (agreements binding on parties)

19. Amendment 11 replaces the phrase 'binding Part VIIIAB financial agreement' in new paragraph 90SA(1) with the phrase 'Part VIIIAB financial agreement that is binding on the parties to the agreement'.

Amendments 12 to 14: Schedule 1, item 50, pages 29 (line 24, after line 24 and lines 27 to 31) (geographical requirement)

20. Amendments 12 and 13 amend new paragraph 90SD(1)(b) and insert a new subsection 90SD(1A). New subsection 90SD(1A) will enable parties to a de facto relationship who have lived in a participating jurisdiction and also in a non-referring State during their relationship to be able to obtain a spouse maintenance order if they were ordinarily resident in a referring State or Territory when their relationship broke down.

21. Amendment 14 amends new subsection 90SD(3) consequential on the insertion of new subsection 90SD(1A). New subsection 90SD(3) will enable, once all States have referred power to the Commonwealth, the geographical requirement in new section 90SD to be limited by Proclamation in relation to new applications for spouse maintenance orders to the ordinary residence of one or both of the parties to the relationship when an application is made.

Amendments 15 to 17: Schedule 1, item 50, pages 39 (line 25, after line 25 and lines 28 to 32) (geographical requirement)

22. Amendments 15 and 16 amend new paragraph 90SK(1)(b) and insert a new subsection 90SK(1A). New subsection 90SK(1A) will enable parties to a de facto relationship who have lived in a participating jurisdiction and also in a non-referring State during their relationship to be able to obtain an order or declaration about property if they were ordinarily resident in a referring State or Territory when their relationship broke down.

23. Amendment 17 amends new subsection 90SK(3) consequential on the insertion of new subsection 90SK(1A). New subsection 90SK(3) will enable, once all States have referred power to the Commonwealth, the geographical requirement in new section 90SK to be limited by Proclamation in relation to new applications for an order or declaration about property to the ordinary residence of one or both of the parties to the relationship when an application is made.

Amendments 18 and 19: Schedule 1, item 50, page 45 (lines 14 and 15, and 23) (agreements binding on parties)

24. Amendments 18 and 19 amend new paragraphs 90SM(10)(c) and 90SM(10)(e) respectively to replace the phrase 'binding Part VIIIAB financial agreement' in each paragraph with the phrase 'Part VIIIAB financial agreement (that is binding on the person)'.

Amendment 20 and 21: Schedule 1, item 50, pages 57 (lines 26 and 27) and 58 (line 21) (agreements binding on parties)

25. Amendments 20 and 21 amend new paragraphs 90UB(1)(b) and 90UC(1)(b) to replace the phrase 'binding Part VIIIAB financial agreement' in each paragraph with the phrase 'Part VIIIAB financial agreement that is binding on them'.

Amendments 22 and 23: Schedule 1, item 50, page 59 (lines 12 and 15) (financial agreements after breakdown of a de facto relationship)

26. Amendments 22 and 23 amend new subsection 90UD(1) to include a reference to a former de facto relationship so that paragraphs 90UD(1)(a) and (b) are consistent with their counterpart provisions applying to married couples.

27. Amendment 22 amends new paragraph 90UD(1)(a) to insert the word 'former' before the phrase 'de facto relationship' to make it clear that after the breakdown of a de facto relationship, it is the parties to the former de facto relationship who can make a written agreement under section 90UD. This amendment makes paragraph 90UD(1)(a) consistent with paragraph 90D(1)(a), in relation to financial agreements made after parties to a marriage divorce.

28. Likewise, Amendment 23 amends new paragraph 90UD(1)(b) to insert the word 'former' before the phrase 'de facto relationship' to make it clear that the provision applies to the parties to the former de facto relationship. Amendment 22 makes paragraph 90UD(1)(b) consistent with paragraph 90D(1)(aa), as amended in item 11 of Part 1 of Schedule 3 to the Bill, in relation to financial agreements made after parties to a marriage divorce.

Amendment 24: Schedule 1, item 50, page 59 (line 16) (agreements binding on parties)

29. Amendment 24 replaces the phrase 'binding Part VIIIAB financial agreement' in new paragraph 90UD(1)(b) with the phrase 'Part VIIIAB financial agreement that is binding on them'.

Amendments 25 and 26: Schedule 1, item 50, page 59 (lines 20 and 27) (financial agreements after breakdown of a de facto relationship)

30. Amendments 25 and 26 make a further amendment to new subsection 90UD(1), and also amends new subsection 90UD(2), inserting the word 'former' before the phrase 'de facto relationship' in each provision.

31. Amendment 25 amends the closing sentence of new subsection 90UD(1) to insert the word 'former' before the phrase 'de facto relationship'. The closing sentence of new subsection 90UD(1) clarifies that, after the breakdown of a de facto relationship, the parties to the relationship can make a Part VIIIAB financial agreement with one or more other people. This amendment makes the closing sentence in new subsection 90UD(1) consistent with the closing sentence in subsection 90D(1), as amended in item 12 of Part 1 of Schedule 3 to the Bill, in relation to financial agreements made after parties to a marriage divorce.

32. Amendment 26 amends the closing words of new paragraph 90UD(2)(a) to insert the word 'former' before the phrase 'de facto relationship' to make it clear that the provision applies to the parties to the former de facto relationship. The amendment makes new paragraph 90UD(2)(a) consistent with paragraph 90D(2)(a), in relation to financial agreements made after parties to a marriage divorce.

Amendment 27: Schedule 1, item 50, page 60 (lines 19 and 20) (agreements binding on parties)

33. Amendment 27 replaces the phrase 'binding Part VIIIAB financial agreement' in new paragraph 90UE(1)(d) with the phrase 'Part VIIIAB financial agreement that is binding on them'.

Amendments 28 and 29: Schedule 1, item 50, page 61 (line 4, and after line 6) (note drawing attention to transitional arrangements)

34. Amendments 28 and 29 insert a new note after new subsection 90UE(1) to draw attention to Part 2 of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, which provides for other agreements, made under a law of a State that is or becomes a participating jurisdiction, or made under a law of a Territory, to be Part VIIIAB financial agreements.

Amendment 30: Schedule 1, item 50, page 61 (line 31) (agreements binding on parties)

35. Amendment 30 replaces the phrase 'binding Part VIIIAB financial agreement' in new subsection 90UF(1) with the phrase 'Part VIIIAB financial agreement that is binding on the parties to the agreement'.

Amendment 31: Schedule 1, item 50, page 62 (lines 28 to 30) (declaration time)

36. Amendment 31 amends the definition of 'declaration time' in new subsection 90UF(6) to omit the phrase '(or last signed by a spouse party to the agreement, if both spouse parties to the agreement have signed)'. A separation declaration signed by at least one spouse party to a Part VIIIAB financial agreement is required before its post-breakdown property distribution provisions have force or effect. Where both spouse parties have signed a separation declaration, this amendment will ensure that the 'declaration time' is measured from the time that the declaration is first signed by one of the spouse parties (and not last signed as the Bill proposes), noting that the signature of one party is sufficient.

Amendment 32: Schedule 1, item 50, page 63 (line 3) (agreements binding on parties)

37. Amendment 32 replaces the phrase 'binding Part VIIIAB financial agreement' in new section 90UG with the phrase 'Part VIIIAB financial agreement that is binding on the parties to the agreement'.

Amendment 33: Schedule 1, Part 1, page 80 (after line 9), new item 84A (use and occupancy injunctions)

38. This amendment amends section 114 to insert new subsection 114(2A) to enable de facto couples to obtain court orders or injunctions, as married couples can under paragraphs 114(1)(b), (e) or (f), relating to the property of both or either of them or to the use or occupancy of a specified residence of both or either of them.

39. New subsection 114(2A) will provide that the court may make such order or grant such injunction as it considers proper relating to:

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the use or occupancy of a specified residence of the parties to the de facto relationship or either of them: paragraph 114(2A)(a), and
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where a court has made an order or granted an injunction under paragraph 114(2A)(a), make an order or grant an injunction restraining a party to the de facto relationship from entering or remaining in that residence, or in an area in which that residence is located: paragraph 114(2A)(b), and
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the property of the parties to a de facto relationship or either of them: paragraph 114(2A)(c).

40. An order or injunction under new subsection 114(2A) will only be able to be made in relation to a de facto relationship in respect of which a spouse maintenance order or an order or declaration about property can be made under Part VIIIAB.

Amendments 34 and 35: Schedule 1, item 85, page 81 (after line 6, and before line 7) (opting into the new regime)

41. Part 2 of Schedule 1 to the Bill contains transitional provisions relating to the application of the amendments made by the Bill to de facto relationships to which State or Territory laws currently apply.

42. Item 85 of Schedule 1 to the Bill sets out definitions of terms for the purpose of Part 2 of Schedule 1.

43. New items 86A and 90A, which Amendments 38 and 46 would insert into Schedule 1 to the Bill, sets out a procedure for parties to a de facto relationship to be able to choose that Parts VIIIAB and VIIIB and subsection 114(2A) of the Act, providing for the new property settlement and spouse maintenance regime on the breakdown of a de facto relationship, apply to their relationship.

44. Amendments 34 and 35 amend item 85 of Schedule 1 to the Bill to include definitions of the additional terms 'designated agreed matters' and 'designated State/Territory financial agreement'. These are terms used in the new items 86A and 90A.

Amendments 36 and 37: Schedule 1, Part 2, Division 2, page 81 (lines 22 to 24 and line 27) (opting into the new regime)

45. Amendment 36 makes an amendment to the Heading to Division 2 of Part 2 of Schedule 1 to the Bill consequential on the new procedure provided by new item 86A.

46. Amendment 37 amends subitem 86(1) consequential on the new procedure provided by new item 86A and Amendment 32 inserting new subsection 114(2A).

Amendment 38: Schedule 1, new item 86A, page 82 (after line 17) (opting into the new regime)

47. Amendment 38 inserts new item 86A into Division 2 of Part 2 of Schedule 1 to the Bill. New subitem 86A(1) sets out a procedure enabling parties to a de facto relationship:

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in a State that is a referring State on the commencement of Schedule 1, or in a Territory; and
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whose relationship has broken down before Schedule 1 commences

to choose that Parts VIIIAB and VIIIB and subsection 114(2A) of the Act, providing for the new property settlement and spouse maintenance regime on the breakdown of a de facto relationship, apply to their relationship.

48. New subitem 86A(2) will require any choice made by parties to a de facto relationship, that Parts VIIIAB and VIIIB and subsection 114(2A) apply to their relationship, to be unconditional. The subitem will also provide that any choice made will be irrevocable.

49. Under new subitems 86A(3) and (4), parties to a de facto relationship will only be able choose that the provisions apply to their relationship if they have not finalised property and spouse maintenance issues between them under State or Territory law by either:

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a final court order dealing with all or any of their property or financial resources or spouse maintenance, or
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a written financial agreement dealing with any of those matters, other than an agreement that the parties have revoked before any property has been distributed or maintenance paid.

50. The choice made by the parties to a de facto relationship that Parts VIIIAB and VIIIB and subsection 114(2A) apply to their relationship must, under new subitem 86A(5), be in writing and signed by each party. It must be made only after the party has been provided with independent legal advice from a legal practitioner about the advantages and disadvantages of making the choice. Before signing, each party must also have been provided with a signed statement by the legal practitioner stating that the advice was given to the party.

51. The choice can be included in any financial agreement that the parties to the relationship might make under Division 4 of Part VIIIAB of the Act (new subitem 86A(6)).

52. Under new subitem 86A(7), a court will be able to set aside the choice if it is satisfied that, having regard to the circumstances in which it was made, it would be unjust and inequitable if the court did not do so. Situations where a court might do so include where one of the parties was overborne by the other, or there was an inequality in their respective bargaining positions. The court, if it sets aside the choice that parties have made, will be able, under new subitem 86A(8), to make orders to return, so far as is practicable, the rights of the parties, and any other interested persons, to their position immediately before the choice was made.

53. New subitem 86A(9) will apply subsection 90UM(8) of the Act in relation to proceedings to set aside a choice made under new subitem 86A(1) to ensure that the proceedings will not abate on the death of one of the parties to the relationship. Such proceedings will be able to be continued by or against the legal personal representative of the deceased party. The new subitem will also apply subsection 90UM(9) of the Act to prevent a court making an order under new subitem 86A(8) that would acquire property from a person otherwise than on just terms, contrary to paragraph 51(xxxi) of the Constitution.

Amendment 39: Schedule 1, item 89, page 85 (line 4) (use and occupancy injunctions)

54. This amendment amends the opening line of item 89 consequential on Amendment 32 inserting new subsection 114(2A).

Amendments 40 and 41: Schedule 1, item 89, page 85 (lines 5 and 6) (opting into the new regime)

55. These amendments amend paragraphs (a) and (b) of item 89 consequential on the new procedure provided by new item 90A.

Amendments 42 to 44: Schedule 1, item 89, page 85 (lines 8 and 12, and after line 13) (opting into the new regime)

56. Amendments 42 to 44 make amendments to the note following item 89, and insert an additional note following the provision, consequential on the new procedure provided by new item 90A.

Amendment 45: Schedule 1, item 90, page 85 (line 35) (opting into the new regime)

57. Amendment 45 amends subitem 90(1) consequential on the new procedure provided by new item 90A and Amendment 32 inserting new subsection 114(2A).

Amendment 46: Schedule 1, new item 90A, page 86 ( after line 17) (opting into the new regime)

58. Amendment 46 inserts new item 90A into Division 4 of Part 2 of Schedule 1 to the Bill. New subitem 90A(1) sets out a procedure enabling parties to a de facto relationship:

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in a State that becomes a referring State after the commencement of Schedule 1; and
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whose relationship has broken down before the referring State becomes a referring State

to choose that Parts VIIIAB and VIIIB and subsection 114(2A) of the Act, providing for the new property settlement and spouse maintenance regime on the breakdown of a de facto relationship, apply to their relationship.

59. New subitem 90A(2) will require any choice made by parties to a de facto relationship, that Parts VIIIAB and VIIIB and subsection 114(2A) apply to their relationship, to be unconditional. The subitem will also provide that any choice made will be irrevocable.

60. Under new subitems 90A(3) and (4), parties to a de facto relationship will only be able choose that the provisions apply to their relationship if they have not finalised property and spouse maintenance issues between them under State or Territory law by either:

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a final court order dealing with all or any of their property or financial resources or spouse maintenance, or
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a written agreement financial agreement dealing with any of those matters, other than an agreement that the parties have revoked or terminated before any property has been distributed or maintenance paid.

61. The choice made by the parties to a de facto relationship that Parts VIIIAB and VIIIB and subsection 114(2A) apply to their relationship must, under new subitem 90A(5), be in writing and signed by each party. It must be made only after the party has been provided with independent legal advice from a legal practitioner about the advantages and disadvantages of making the choice. Before signing, each party must also have been provided with a signed statement by the legal practitioner stating that the advice was given to the party.

62. The choice can be included in any financial agreement that the parties to the relationship might make under Division 4 of Part VIIIAB of the Act (new subitem 90A(6)).

63. Under new subitem 90A(7), a court will be able to set aside the choice if it is satisfied that, having regard to the circumstances in which it was made, it would be unjust and inequitable if the court did not do so. Situations when a court might do so include where one of the parties was overborne by the other, or there was an inequality in their respective bargaining positions. The court, if it sets aside the choice that the parties have made, will be able, under new subitem 90A(8), to make orders to return, so far as is practicable, the rights of the parties, and any other interested persons, to their position immediately before the choice was made.

64. New subitem 90A(9) will apply subsection 90UM(8) of the Act in relation to proceedings to set aside a choice made under new subitem 90A(1) to ensure that the proceedings will not abate on the death of one of the parties to the relationship. Such proceedings will be able to be continued by or against the legal personal representative of the deceased party. The new subitem will also apply subsection 90UM(9) of the Act to prevent a court making an order under new subitem 90A(8) that would acquire property from a person otherwise than on just terms, contrary to paragraph 51(xxxi) of the Constitution.

Amendments 47 and 48: Schedule 1, item 91, page 86 (lines 38 and 39) and page 88 (lines 15 and 16) (agreements binding on parties)

65. Amendments 47 and 48 amend paragraph (d) of subitem 91(1) and paragraph (d) of subitem 92(1) respectively to replace the phrase 'binding Part VIIIAB financial agreement' in each paragraph with the phrase 'Part VIIIAB financial agreement that is binding on them'.

Amendment 49: Schedule 3, item 16, page 101 (lines 24 to 26) (declaration time)

66. Amendment 49 amends the definition of 'declaration time' in subsection 90DA(5) to omit the phrase '(or last signed by a spouse party to the agreement, if both spouse parties to the agreement have signed)'. A separation declaration signed by at least one spouse party to a financial agreement is required before its post-separation property settlement provisions have force or effect. Where both parties have signed the separation declaration, this amendment will ensure that the 'declaration time' is measured from the time that the declaration is first signed by one of the spouse parties (and not last signed as is currently the case), noting that the signature of one party is sufficient.

Amendments 50 and 51: Schedule 3, item 17, page 102 (lines 3 and 6) (agreements binding on parties)

67. Amendments 50 and 51 amend new subsections 90DB(1) and (2), inserted by item 17 of Schedule 3 to the Bill, to replace the phrase 'binding Part VIIIAB financial agreement' in each subsection with the phrase 'Part VIIIAB financial agreement that is binding on the parties to the agreement'.

Amendment 52: Schedule 3, item 30, page 104 (line 6) (agreements binding on parties)

68. Amendment 52 amends subsection 90DA(1), as amended by item 30 of Schedule 3 to the Bill, to replace the phrase 'binding Part VIIIAB financial agreement' in the opening words of the subsection with the phrase 'Part VIIIAB financial agreement that is binding on the parties to the agreement'.

Amendment 53: Schedule 1, page 108 (after line 17), after Schedule 3

69. This amendment inserts a new Schedule 3A into the Bill.

Item 1: Subsection 4(1) (definition of 'child')

70. This item amends the definition of 'child' in subsection 4(1). It expands the definition of child to reflect new provisions in Subdivision D of Division 1 of Part VII dealing with the parentage of children born as the result of artificial conception procedures while the woman who gave birth to the child was married to, or a de facto partner of another person. It will also expand the definition of child to include a child born under surrogacy arrangements as set out in a new section 60HB.

71. A note has been included to indicate that Part VII of the Act is to be assumed as extending to all States and Territories for the purpose of working out if a person is a child within the meaning of the Act. The Government's intention is that all children who would fit within the meaning of child as detailed in subsection 4(1) will be covered by any other provisions which relate to this subsection. In particular, the Government wants to ensure West Australian children who are not covered by Part VII of the Act pursuant to subsection 69ZE(s) as they are not children of a marriage will be treated as though they are for the purpose of any legislation referring to a child 'within the meaning of the Family Law Act 1975', howsoever expressed.

Item 2: Before section 60F

72. This item inserts new sections 60EA into Subdivision D of Division 1 of Part VII to provide that a person is a de facto partner either when they are one of a couple registered under a prescribed law of a State or Territory. Alternatively a person is a de facto partner when the person is in a de facto relationship with the other person. The term 'de facto relationship' is defined in new section 4AA in item 21 of Schedule 1 to the Bill.

Item 3: Paragraph 60F(1)(c)

73. This item inserts a reference to a new parentage presumption dealing with children born under surrogacy arrangements in section 60HB.

Item 4: After subsection 60F(4)

74. This item inserts a new subsection 60F(4A) to provide that, to avoid doubt, for the purposes of this Act a child of a marriage is a child of the husband and of the wife in the marriage. The term 'child of a marriage' is defined in section 4 of the Act.

Item 4A: Subsection 60G(2)

75. This item inserts a reference to new provisions on the effect of granting leave for adoption proceedings to be commenced in relation to a child or current or former de facto partners in new subsection 60HA(3)(a).

Item 5: Subsection 60H(1)

76. This item repeals subsection 60H(1) and substitutes a new subsection 60H(1) that deals with both married and opposite and same-sex de facto couples. Opposite-sex de facto couples were previously covered in subsection 60H(4). This subsection is repealed.

77. These changes will mean that section 60H(1) applies, as well as to married couples, to current or former de facto partners who are of the same-sex and to current or former de facto partners who are of different sexes where children are born as a result of artificial conception procedures. This would mean that female same-sex de facto couples would be recognised as the parents of a child born where the couple consent to the artificial conception procedure and one of them is the birth mother. In addition, genetic material from other than the couple must be used with the relevant donor's consent. The provision provides that the child is to be the child of the woman giving birth and her de facto partner.

Item 6: Subsection 60H(4)

78. Opposite sex de facto couples were previously covered in subsection 60H(4). This item repeals subsection 60H(4). The new subsection 60H(1) deals with both married and opposite and same-sex de facto couples where one of the parties is the birth mother.

Item 7: At the end of Subdivision D of Division 1 of Part VII

79. This item inserts new sections 60HA and 60HB into Subdivision D of Division 1 of Part VII.

Section 60HA - Children of de facto partners

80. New section 60HA sets out the rules for determining when a child is a child of a person who has, or had a de facto partner. The child will be a child of the person if the child is a child of both the person and the person's de facto partner. In addition the child will be a child of the person if either the person or the person's de facto partner adopted the child with the consent of the other. And the child will be a child of the person if under subsection 60H(1) the child is a child of the person and the person's de facto partner. Section 60H(1) sets out the rules for determining the parentage of children born as a result of artificial conception procedures for both married and de facto couples.

Section 60HB - Children born under surrogacy arrangements

81. New section 60HB deals with children born under surrogacy arrangements. It provides that where a court order has been made under a prescribed law of a State or Territory relating to the parentage of a child that order will determine the parentage of the child.

Item 8: Application

82. Paragraph 1 of this item provides that, subject to subitems (2) to (8), the amendments made in Schedule 3A apply to children born before, on or after the commencement of this item.

83. Paragraph 2 of this item provides that to the extent that the amendments made by Schedule 3A affect the definition of who is a 'dependent child' in paragraph 44-11(2)(a)(i) of the Aged Care Act 1997, they apply in relation to that definition on and after 1 July 2009.

84. Paragraph 3 of this item provides that to the extent that the amendments made by Schedule 3A affect who is the 'FTB child of the adult' in paragraph 22(2)(b) of the A New Tax System (Family Assistance) Act 1999, it applies in relation to that definition on and after 1 July 2009.

85. Paragraph 4 of this item provides that to the extent that the amendments made by Schedule 3A affect paragraph (b) of the definition of the term 'parent' in subsection 5(1) of the Child Support (Assessment) Act 1989, it applies in relation to that paragraph on and after 1 July 2009.

86. Paragraph 5 of this item provides that to the extent that the amendments made by Schedule 3A affect the definition of the term 'child of a marriage' in subsection 4(1) of the Child Support (Registration and Collection) Act 1988, it applies in relation to that definition on and after 1 July 2009.

87. Paragraph 6 of this item provides that to the extent that the amendments made by Schedule 3A affect the definition of who is a 'dependent child' in subsection 10AA(7) of the Health Insurance Act 1973, it applies in relation to that definition on and after 1 January 2009.

88. Paragraph 7 of this item provides that to the extent that the amendments made by Schedule 3A affect who is a 'dependent' for the purpose of subsection 84(4)(b) or paragraph (a) of the definition of 'dependent child' in subsection 84B(4) of the National Health Act 1953, they apply in relation to those paragraphs on and after 1 January 2009.

89. Paragraph 8 of this item provides that to the extent that the amendments made by Schedule 3A affect, in relation to the Social Security Act 1991, whether a 'young person who has not turned 16 is a dependent child of another person' in subsection 5(2), or affects the calculation of the maximum basic rate of youth allowance pursuant to subparagraph (b)(i) of point 1067G-B3AA, or affects how the actual means of a person is determined pursuant to subparagraph (b)(i) of subpoint 1067G-G9(2), or affects the calculation of the maximum basic rate of Newstart Allowance, Mature Age Allowance or Sickness Allowance pursuant to subparagraph (a)(i) of point 1068-B1B, it applies in relation to those provisions on and after 1 July 2009.

90. The application of these amendments on and after 1 January 2009 or 1 July 2009 respectively ensures that the necessary systems and frameworks are in place to support the application of these laws to children of same sex couples.

Amendment 54: Schedule 4, page 109 (inserting proclaimed dates)

91. Amendment 54 inserts new items 1A and 1B in Schedule 4 to the Bill, to reflect dates recently proclaimed by the Governor-General in relation to the requirement for people to attend a dispute resolution process before applying for a Part VII order relating to a child. The Family Law Amendment (Shared Parental Responsibility) Act 2006 introduced this requirement, with a staged commencement. Phase 1 was for proceedings filed from the commencement of that Act to 30 June 2007.

92. Phase 2, in subsection 60I(5), applied to a new application for a Part VII order (that is, where none of the parties has applied for Part VII order in relation to the child) made on or after 1 July 2007 and before the date fixed by Proclamation.

93. New item 1A amends subsection 60I(5) to reflect that 1 July 2008 was the date fixed by the Proclamation made by the Governor-General on 30 May 2008.

94. Phase 3, in subsection 60I(6), applied to all applications for a Part VII made on or after a further Proclamation.

95. New item 1B amends subsection 60I(6) to reflect the Proclamation made by the Governor-General on 15 May 2008 fixing 1 July 2008 as the date on which Phase 3 commenced.


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