High Court judge Michael Kirby has declared his support for the Family Court to deal with property disputes between gay couples.
He told an international family law conference in Melbourne yesterday that, in the unlikely event that he were to break up with his male partner of 33 years, he would hope to be treated equally before the law.
"But if it were to happen, it would seem more seemly to me, it would seem more equal to other citizens, that it should be dealt with in a Family Court with other people whose relationships have broken down rather than in an equity court," he said.
The Chief Justice of the Family Court, Alastair Nicholson, later said it would be "a very sensible idea" for the Family Court to have jurisdiction over both gay and heterosexual couples.
Federal Attorney-General Daryl Williams has clashed with his Victorian counterpart, Rob Hulls, because the Commonwealth wants to extend family court powers over property settlements from married couples to separating de factos. But the extension would exclude gay couples.
Justice Kirby said it was time we all faced up to the reality that there were many sexual minorities demanding equality under family law.
At present, separating married couples have custody and property issues determined in the Family Court.
But when de facto couples separate, the Family Court deals with custody matters and property settlements are decided in state Supreme Courts, with the exception of Western Australia, which has its own Family Court that deals with same sex breakdowns.
The Federal Government wants to take over state and territory powers for property settlements for heterosexual de facto couples in order to save themtime and legal expense.
Mr Hulls says Victoria is willing to transfer powers to the Commonwealth but the move should cover all de facto couples, regardless of sexuality, otherwise it would be homophobic.
In his address yesterday to the 16th World Congress of the International Association of Youth and Family Judges and Magistrates, Justice Kirby said the community needed to consider questions of sexuality before the law.
"It is important, I think, that people like me should tell people like you these things so that you realise that the issue of sexuality is not something odd and peculiar of tiny minorities," he said.
"It is something that reaches in the highest constitutional offices of countries. It always has, but in the past it has been subject to the pressure 'Don't ask. Don't tell.'
"Thanks in part to genetic information . . . and in part to the work of Alfred Kinsey and others like him, that edict is in its last days - at least in Western countries - and it is important that all of us should face up to these scientific realities."
Mr Williams responded: "The government believes that regulating the property settlements of same sex couples is properly the province of the state and territories."
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