Senator Hanson-Young -Regarding the bill's treatment of section 60H of the act, how do you see that that fits with HREOC's recommendations in their equal entitlements report?
Prof. Millbank -It is a step towards it, but it does not implement their recommendations on parentage at all, I would say. It is really sidestepping them.
Senator PRATT -What would section 60H, regarding children born as a result of artificial conception procedures, look like under a reformed model with an ideal definition?
Prof. Millbank -In my submission I say what I think the bill should do, and that is to amend 60H but also make it clear how 60H fits into the Family Law Act as a whole. As I will mention later on the superannuation legislation, part of the problem with the Family Law Act-part of the problem with federal law generally-is that, for 20 or 30 years, no-one has really thought about who a parent is, so the developments of the definitions have been really shambolic. We have seen in cases like Re Patrick and Re Mark the Family Court going, 'Um, there is no actual definition of parent in the Family Law Act.' We have different definitions in different sections, but we do not know whether they apply to the whole act or not. I would say: start with a definition of parent under section 4 of the act and say the obvious, which the court has said in the case of Tobin-a child is a child born through intercourse to two biological parents. That is not so hard. With assisted conception methods where you have partial genetic connections, it becomes more complicated. So I would say: (1) the biological parents of a child conceived through intercourse (2) the parents of a child lawfully adopted by them (3) parents who are recognised under section 60H and (4) parents recognised under state law as prescribed by the Family Law Act. Then I would amend section 60H to make it gender-neutral. I would use the words 'assisted conception' rather than 'artificial conception' because I think artificial is quite insulting to the tens of thousands of people who use assisted conception procedures every year in Australia.
You make section 60 gender-neutral so that you cover the children of lesbian couples. By mirroring state provisions or having a process whereby you can prescribe particular state acts, you then leave the door open. You give the ability in family law to recognise other developments such as surrogacy. As I will say in a moment, I think those developments should start with the states. I think it is important that parentage start with the states because they keep the birth registries and the birth certificates. Federal law should be largely mirroring those developments. By having the ability to pick up parentage by prescription of state acts, you then leave it in the hands of the federal law to determine whether they are going to take those up in the future, whether they want to do it one by one as the states do it or whether they want to wait and do it all at the same time. That is how I would see it going.
Senator PRATT -What are the potential problems of having a 'product of the relationship' definition?
Prof. Millbank -It is interesting to me that the 'product of the relationship' definition has been used in the super legislation and not in family law legislation. That in itself is quite telling. It has been used in the super legislation because it is very broad-it is quite ill defined, in my view-and it has not been put in the family law legislation for precisely the reason that you cannot be absolutely sure who the child's parents are. You have the possibility of four parents, I would say, in surrogacy arrangements. You do not have a clear connection with the assisted conception parentage presumptions in state law. I am seguing into what I am going to talk about with the super legislation, but you do not have a point in time and you do not have a consent requirement. You have the definition pulling in two different directions with the assisted conception presumptions and with surrogacy. The fact that it has not been put in the Family Law Act shows that it is not a workable definition.
Senator Hanson-Young -I understand that the majority of your concerns in relation to this particular bill are in relation to the children. We just heard from Professor Patrick Parkinson, who suggested that the bill may unintentionally discriminate against heterosexual couples by removing the fruits of choice. I would like to hear what your response to that is.
Prof. Millbank -Yes, I am happy to comment on that. I touched on it in a one-liner in my submission. It makes absolute sense to put de facto and married couples in the same property regime. It does not remove people's choice; it protects the vulnerable party in an economic and emotional relationship. These arguments were thrashed out in great detail when New South Wales first introduced the de facto regime in 1984-85. There was a real panic-'these people have chosen not to be married and now we are forcing all of these obligations on them'-and there was real care taken in the New South Wales legislation to differentiate between marriage and de facto, and that is why New South Wales had only the past contribution focus and not the future needs focus. I think that is a real furphy these days, particularly when people cohabit for lengthy periods and particularly when they have children. That economic interdependence and dependence happens and should be recognised. A number of the states in their later de facto regimes, such as the ACT, have a model now which is almost identical to the Family Law Act anyway. It does not make sense to me to have different regimes operating. You can contract out of it, and the family law provisions to contract out have become significantly broader since about 2000, when the binding financial agreement provisions were put in place. So before your relationship, during your relationship, after your relationship you can contract out of the family law regime if you do not want it to apply to you.
The other thing I would say is: if people are going to fight about money when they separate, they should be doing it in a forum which is cheaper, easier and simpler to use. The New South Wales system in particular is really antiquated and the process burden on parties is $20,000 or $30,000 to argue over very minor property matters. So the family law regime is a better one to use, a more streamlined one to use and the additional scope of the jurisdiction to separate superannuation is going to give you fairer results. The additional jurisdiction to give needs adjustments is very minor. Most needs adjustments are in the order of five to 10 per cent out of lengthy relationships with children. It is very rare that you see spousal maintenance and it is very rare that you would see a needs adjustment of more than 10 per cent of the property pool. And for most people, they will have saved that money by using a family court instead of a state court. So that is money that is going into the mouths of children who need to be fed rather than into the pockets of lawyers who are going to be spending a lot of time totting up people's pay slips and who paid the rent to do contributions assessments under the state scheme. I think that argument is a real furphy.
Evidence was then taken on the Same-Sex Relationship (Equal Treatment in Commonwealth Laws-Superannuation) Bill 2008-