22 February 2012Court bungle to hit de factos as error throws property settlements into doubt
By Nicola Berkovic
Thousands of Family Court orders relating to de facto couples, including property settlements and maintenance agreements, have been cast into doubt by a major federal government blunder.
The government neglected in 2009 to arrange for the Governor-General to proclaim a start date for legislation that handed power to the Family Court to handle property and maintenance disputes between de facto couples. The mistake, which Attorney-General Nicola Roxon last night labelled an "unfortunate administrative error", means all such property and maintenance orders by the Family Court and Federal Magistrates Court between March 2009 and February 11 this year are now uncertain.
Ms Roxon, the Federal Attorney General said
The the government was working to fix the issue as soon as possible
but the opposition seized on the blunder as an "astonishing act of incompetence" that reinforced the view that the government could not get anything right.
Previously, heterosexual and same-sex de facto couples had their property matters dealt with by the state courts.
In 2009, the states referred their powers to the commonwealth, for the first time enabling de facto couples to have their property disputes dealt with by the Family Court as married couples do. However, no start date for the proclamation was arranged.
It is understood this oversight occurred within the Attorney-General's Department, when Robert McClelland was attorney-general. This meant the changes failed to begin.
The result is that since 2009 the Family Court has been making orders relating to de facto couples for which it had no jurisdiction.
Ms Roxon said she had directed her department to put its full attention to fixing the problem as quickly as possible. "This is a very unfortunate administrative error where a small mistake can have extensive consequences," she said.
The blunder was detected only earlier this month during Family Court proceedings in Melbourne. The case was adjourned until the issues with the legislation could be resolved.
A proclamation by Governor-General Quentin Bryce was rushed through on February 9 and the changes to the laws finally took effect on February 11.
This means that any orders made from February 11 cannot be challenged.
However, any orders made between March 1, 2009, and February 11 this year are potentially invalid because the Family Court did not have jurisdiction to make them.
The chairman of the family law division of the Law Council of Australia, Geoff Sinclair said
The Family Court and Federal Magistrates Court were trying to ascertain how many cases were involved, but he believed they were in the thousands.
We are looking to see whether there can be retrospective legislation to deal with those cases . . . I think that is certainly doable.
We are urging the Attorney-General to take whatever steps are necessary, as soon as possible, to make sure legislation is enacted.
He said about 90 per cent of family orders were made by consent so he hoped they would not be challenged by the parties.
Geoff Sinclair said
It doesn't matter whether parties are in a de facto relationship or a marital relationship; when the relationship breaks down there'll often be a lot of emotion from both sides.
We certainly don't want a position where people have to go back and revisit issues that have occurred in the past, when hopefully people have put things behind them.
Opposition legal affairs spokesman George Brandis said
This is an astonishing act of incompetence at the heart of government. It reinforces every impression the Australian people must already have that this government cannot get anything right.
However, it is understood a similar oversight occurred under the Howard government in 2006 when the Family Law Act was amended to give the Family Court jurisdiction to consider appeals from family law magistrates in Western Australia.
A proclamation was made to fix this oversight. Senator Brandis said the opposition would support legislation to fix the current problem.
Former Family Court chief justice Alastair Nicholson said
The oversight was serious: If those settlements are called into question, it's obviously very significant for the people involved.
It seems the government has no real choice but to pass legislation retrospectively approving them."
NSW Attorney-General Greg Smith said it was disappointing the federal government had failed to deliver the reforms properly.