Page 1807 - Week 06 - Thursday, 19 May 1994
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I note that the court will retain discretion to hear matters outside a two-year period if the hardship suffered by the applicant if refused an extension would be greater than the hardship suffered by the respondent if granted one. I think that there are circumstances where people can suffer hardship that is unforeseen. A person may have expected to gain employment after the ending of a domestic relationship and have found subsequently that they could not, or there may be a situation involving care of a child who has acquired a disability or who has been particularly ill over a period. Therefore, the courts will consider applications from parties in circumstances where they have been disadvantaged.
There is some discussion in the Minister's presentation speech about the issue of "rehabilitation based maintenance", and I note that those words are included in other legislation in other jurisdictions in Australia. That was not considered appropriate wording for this Bill. We have referred instead to "compensation based maintenance" as a more appropriate term, and I would agree that it is more appropriate. "Rehabilitation based maintenance" does imply that a person receiving that maintenance is deficient or perhaps has a particular disability. I welcome the change which has been made to our legislation in that respect.
In discussing the agreements which can be drawn up between parties in a domestic relationship, at the beginning of, during or at the end of that relationship, I noted that advice is available to both of the parties. The legislation refers to solicitors' advice being available, but it does not specify that the parties should be advised by different solicitors. I have noted that ethical law practice requires that different solicitors advise different parties over an agreement, and I am happy for that situation to continue to be handled in that way. I also note that the Magistrates Court will have a greater jurisdiction to consider applications. Its role will be extended. The Government believes that this will enable people to have greater accessibility to the court system. It also is considerably less expensive. I also note that both the Magistrates Court and the Supreme Court were consulted on the provisions in the legislation, and the Supreme Court had no difficulty with the Magistrates Court having extended jurisdiction in these areas.
The Act will not apply to domestic relationships which have ceased prior to the commencement day. It occurred to me that there was no transition period for people whose domestic relationships may be about to cease. Those people have no recourse to this legislation until the Act commences. I am advised that that is the situation as it has applied elsewhere in Australia; that the decision revolves around legal reasoning and relates to the legislation coming into effect on a particular day. I sought advice as to when this legislation may come into effect. I have been advised that that is likely to be as quickly as possible. There is unlikely to be a delay of several months for further matters arising from the legislation to be taken up. It does look as if this legislation will come into being fairly shortly, and that will be of considerable benefit to a number of people currently in domestic relationships.
Mr Humphries referred to a matter which the Scrutiny of Bills Committee raised about possible prejudicial retrospectivity applying to some people in relation to this Bill. My understanding is that the court does not regard prejudicial retrospectivity as being a negative to a person in particular circumstances. Often it is a situation where a person's
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