Thursday, 22 March 2018

6PR – Mornings with Gareth Parker



Subjects: WA Family Law Reform - superannuation

GARETH PARKER: Now, I've got to tell you this, just before I introduce Christian Porter.

England are playing New Zealand in the first of a two-test series. The match is in Auckland, the first session of the first test is underway. England lost the toss, were sent into bat, they're currently six for 18, 11.2 overs gone.

Christian Porter, good morning.

ATTORNEY-GENERAL: There's only one thing better than New Zealand doing badly: that's England doing badly. That's great news.

GARETH PARKER: That's unbelievable.

ATTORNEY-GENERAL: Yeah, it's incredible, isn't it? Let's hope it's a less robust series than in South Africa. It's been pretty wily.

GARETH PARKER: It certainly has. Root, Stokes, Barstow, all out for ducks. Did you every play in a collapse like that in your grade cricket days?

ATTORNEY-GENERAL: Oh yeah, responsible for most of them, mate. So …

GARETH PARKER: Plenty to talk about today.

I am interested in the story in the papers this morning about the potential changes to the way that superannuation is dealt with when a de facto relationship ends. This is something that's been- well, I think we've been an outlier in WA for some time. Just explain what's going on.

ATTORNEY-GENERAL: Okay. So there'll be family lawyers out listening to this who will think this is too simple a summary, but I think this is the clearest way to put it.

The Commonwealth has power over marriages under the constitution. So, we've had, basically, family courts around Australia administering the relevant acts over marriage. States are responsible for administering the laws relating to the breakdowns of non-marriage relationship, you know basically, de facto couples. By about 2009, all of the states except for WA have referred powers to the Commonwealth over de facto couples. WA did not. The Commonwealth had long taken a view that they wouldn’t accept a part referral. They wanted a full referral from WA over all de facto relationships.

So, what does that mean at the end of the day for couples in WA? In every other state and territory in Australia, de facto couples and marriages are treated exactly the same way through the system, in terms of the applying of principles to split assets. In WA, there is one area where the assets are not split according to the general family law principles that exist everywhere else in Australia, and that's superannuation. And what that's basically meant is that, for couples who have most of their assets, or a large chunk of their assets, in superannuation. You know, some with the woman in the relationship, some with the man, that there's been no ability to split those assets in accordance with the same principles that exist everywhere in Australia. So, that's not very fair in terms of having an equitable system across all of the states and territories. But it's often ended up being very unfair for women because in a relationship where there might not be many assets outside of superannuation, basically, the woman always comes off much worse because there hasn't been any ability to split superannuation.

GARETH PARKER: So, does it, and we've had discussion about this issue in the past with family lawyers, most of whom I have to say have expressed a view similar to yours, that it's not equitable and that we're out of step with the rest of the nation on this. I do wonder whether it raises the stakes in de facto relationships that perhaps haven't had a very long duration. Maybe they've been two or three years, or something of that nature. Does it raise the stakes if there is, in crude terms, a bigger pot of gold at the end of the rainbow to fight over

ATTORNEY-GENERAL: Well, I mean, those sort of scenarios exist and play out everywhere else in Australia and are managed according to principles. And I'm not a family lawyer, but in essence, the longer the relationship, the way in which one party's contributed to the career of the other, are all things that are taken into account in how you would split superannuation assets that are held between the woman and the man in the relationship. So, you will still apply all the principles. But the point about the situation in WA is that there's been no ability to split the superannuation according to general family law principles at all. So, in the extreme circumstances, Gareth, for instance, where a couple have been together for some time, had never been married, were de facto and the relationship broke down and they had very few or no assets outside of their superannuation and all their assets were inside the superannuation, and the woman had contributed very significantly to the man's career and he had large superannuation, she had small superannuation; there's no ability to have any equitable split according to the standard principles that exist everywhere else across Australia for those superannuation assets.

And ultimately that ends up being a very, very unfair system for West Australian women. And the Commonwealth's position has been to kind of hold out, if you like, now this isn't over yet and all of this has to go through a range of processes, including Cabinet, but as the Commonwealth Attorney-General, my view is that there's no reason to hold out for a full referral, where doing that just disadvantages West Australians, particularly West Australian women, and leaves them in a less equitable situation than their counterparts in exactly the same circumstances everywhere else in Australia.

GARETH PARKER: Any idea when there might be a deal reached between yourself and John Quigley to make this partial referral happen?

ATTORNEY-GENERAL: Well, I've agreed with John in principle, but I will do my level best to push the principle through the Commonwealth and through the Cabinet processes and through the legislative processes, and ultimately it takes legislation. So that would have to go through both houses of Parliament and the Senate. So, there's a range of hurdles, but the first and foremost hurdle is that John, as state Attorney-General, made the request to me as the federal Attorney-General and I've taken a different view from previous federal Attorney-Generals and that is that we should refer, we should accept a part referral because it's fairer for de facto couples in WA. I don't want to see them disadvantaged and I particularly don't want to see women in de facto relationships disadvantaged compared to someone in exactly the same circumstances in Victoria or New South Wales or elsewhere in Australia

GARETH PARKER: Thanks for your time this morning, Christian.

ATTORNEY-GENERAL: That’s a pleasure Gareth, cheers.

GARETH PARKER: Christian Porter, the federal Attorney-General.

So there you go, that sounds like it will happen in due course. It'll take a bit of time to work through the details of it all, but that change is going to happen to the family law system, based on the fact that both the state and federal Attorney-Generals’ think it's a good idea.