Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY LAW AMENDMENT (WESTERN AUSTRALIA DE FACTO
SUPERANNUATION SPLITTING AND BANKRUPTCY) BILL 2019
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)
AMENDMENTS TO THE FAMILY LAW AMENDMENT (WESTERN AUSTRALIA
DE FACTO SUPERANNUATION SPLITTING AND BANKRUPTCY) BILL 2019
(Government)
GENERAL OUTLINE
1. The purpose of these amendments to the Family Law Amendment (Western Australia
De Facto Superannuation Splitting and Bankruptcy) Bill 2019 (the Bill) and the Explanatory
Memorandum to the Bill is to address the recommendations of the Senate Standing
Committee on Legal and Constitutional Affairs, following its inquiry into the Bill.
2. The Committee recommended the Bill be passed by the Senate, subject to two
recommendations for amendment to the Bill's transitional provisions.
3. Based on the recommendations of the Committee, the amendments would extend the
application of the new superannuation splitting regime contained in Part VIIIC of the Bill to
all de facto relationships (including those with proceedings on foot), without the need for
both parties to 'opt in' to the regime, as originally proposed in the Bill.
4. In line with the Committee's recommendations, the amendments would also expressly
prevent de facto couples who have property orders (other than interim orders) in place upon
commencement of the Bill, from applying for superannuation splitting orders under
Part VIIIC. If the property orders (other than interim orders) are set aside following the
commencement of the Bill, then the de facto couple could apply for superannuation splitting
orders under Part VIIIC.
5. In line with the Committee's recommendations, the amendments would also expressly
prevent de facto couples who have a financial agreement under Part 5A of the Family
Court Act 1997 (WA) (FCA) upon commencement of the Bill, from applying for
superannuation splitting orders under Part VIIIC. If the financial agreement is
terminated or set aside after the commencement of the Bill, the de facto couple could
apply for superannuation splitting orders under Part VIIIC.
6. The amendments will also allow Western Australian couples to participate in private
arbitration in relation to their superannuation proceedings, in the same circumstances as
their counterparts in other states and territories, which was a matter raised during the
Committee's inquiry into the Bill.
FINANCIAL IMPACT
7. The amendments to the Bill have no financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Family Law Amendment (Western Australia De Facto Superannuation Splitting and
Bankruptcy) Bill 2019
1. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the amendments
2. The amendment to section 10L(2)(b)(i) of the Family Law Act 1975 (Cth) (FLA) in
Schedule 1 of the Bill will allow Western Australian de facto couples to participate in
private arbitration in relation to their superannuation proceedings, in the same
circumstances as their counterparts in other states and territories.
3. The amendments to Schedule 4 of the Bill will extend Part VIIIC to all de facto
relationships (including those with proceedings on foot) without the need for both
parties to 'opt in' to the new superannuation splitting regime as originally proposed in
the Bill.
4. The amendments will also expressly prevent de facto couples who have final
property orders in place or who have a financial agreement under Part 5A of the FCA
upon commencement of the Bill, from applying for superannuation splitting orders
under Part VIIIC.
Human rights implications
5. The amendments to the Bill engage the following human rights:
The rights of equality and non-discrimination: Articles 2, 16 and 26 of the
International Covenant on Civil and Political Rights (ICCPR)
The right to freedom from interference with the family and protection of the
family: Article 17 of the International Covenant on Civil and Political Rights
(ICCPR).
Right to equality and non-discrimination
6. Article 26 of the ICCPR states that '[a]ll persons are equal before the law and are
entitled without any discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as ... national or social origin, property ... or other
status'.
7. Consistent with the original Bill, the government amendments seek to redress a gap in
the law which prevents de facto couples in Western Australia from splitting their
superannuation interests following separation.
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8. The amendments to the Bill will enable Part VIIIC to automatically apply to all
parties who have not yet received final property orders without parties having to o pt-in
the regime, as proposed in the original Bill.
9. The amendments to the Bill will also enable Western Australian de facto couples to
participate in private arbitration in relation to their superannuation proceedings, in the
same circumstances as their counterparts in other states and territories.
10. In ensuring a consistent law to that which applies to separating de facto couples in
other jurisdictions, the amendments will promote equal protection before the law for
separating de facto couples in Western Australia.
Right to respect for the family
11. Article 17(1) of the ICCPR states that 'no one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to unlawful
attacks on his honour and reputation'.
12. Consistent with the original Bill, the government amendments promote the protection
from interference with the family by ensuring a proper and effective system for
superannuation splitting agreements, to empower families to take responsibility for their own
affairs without interference of a court.
13. The amendments to the Bill will prevent a court from making Part VIIIC orders in
relation to the superannuation interests of de facto couples who have final property orders
in place or who have a financial agreement under Part 5A of the FCA upon
commencement of the Bill.
14. The amendments therefore promote the right to freedom from interference with
the family and home.
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NOTES ON AMENDMENTS
Amendment 1: Schedule 1, page 3 (after line 4), before item 1
1. Item 1 will amend subparagraph 10L(2)(b)(i) of the FLA to include proceedings
under Part VIIIC of the Act, alongside proceedings under Parts VIII, VIIIA, VIIIAB, VIIIB
and section 106A.
2. The amendment will allow superannuation splitting proceedings for Western
Australian de facto couples to be privately arbitrated if both parties agree, consistent with the
arrangements currently in place for married couples in Western Australia, and married and
de facto couples from other states and territories.
Amendment 2: Schedule 4, Part 2, item 3, page 86 (line 5) to page 88 (line 6)
3. Item 2 will omit and replace item 3 in Schedule 4, Part 2, of the Bill.
Proceedings on foot
4. Subject to subitems (2) to (5), subitem (1) will apply section 90YX to all de facto
relationships, including those that ended before the Bill commenced. This time is referred to
as the start up time.
5. This will allow a court to make orders splitting the superannuation interests of
parties, including those with family law proceedings already on foot in respect of their
non-superannuation property interests, if those proceedings have not been finally
determined at the commencement of the Bill.
6. The amendments remove the requirement in the Bill for both parties to mutually
agree to the new regime applying to them, and for them to make this choice in writing,
after receiving independent legal advice. In effect, this will allow a court to make
superannuation splitting orders upon application by either party.
Finalised proceedings
7. Subitem (2) expressly prevents de facto couples from seeking a superannuation
splitting order under section 90YX if they have a property settlement order made under
section 90SM of the FLA or section 205ZG of the FCA in force on commencement of
the Bill. This provision does not apply if the couple only has an interim order in place.
This is consistent with the 'clean break' principle in family law property proceedings, and
will ensure certainty for parties with final orders in place.
8. The intention of including a reference to section 90SM of the FLA in this provision is
to ensure that couples who resided outside of Western Australia, and had final property
orders in place under section 90SM of the FLA upon commencement of the Bill, would be
prevented from later applying for superannuation splitting orders under section 90YX if they
subsequently moved to Western Australia. In practice, this is unlikely to apply, as parties
residing outside Western Australia when their proceedings were settled, who wished to split
their superannuation, would have been able to seek such orders when their matter was heard.
The inclusion of a reference to section 90SM is for the avoidance of any doubt.
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9. Subitem (3) provides that if that property settlement order is subsequently set aside
after commencement of the Bill, under section 90SN of the FLA or section 205ZH of
the FCA, then either party could seek superannuation splitting orders under section 90YX.
10. The intention of including a reference to section 90SN of the FLA in this provision is
to allow couples who resided outside of Western Australia, and who have final property
orders set aside under section 90SN of the FLA after commencement of the Bill, to apply for
superannuation splitting orders under section 90YX if they subsequently moved to Western
Australia. As with the item above, this is for the avoidance of any doubt.
Financial agreement in force on commencement
11. Subitem (4) expressly prevents de facto couples from seeking a superannuation
splitting order under section 90YX if they have a financial agreement, made under Part 5A
of the FCA, in force on commencement of the Bill. This is intended to provide certainty for
parties to existing financial agreements made under the FCA that those agreements will not
be disturbed as a result of the amendments in the Bill.
12. Subitem (5) provides that if the financial agreement is subsequently terminated or set
aside, under sections 205ZU or 205ZV of the FCA, after commencement of the Bill, then
the parties could seek superannuation splitting orders under section 90YX of the FLA.
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