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Wednesday, 19 October 1983
Page: 1971


Mr RUDDOCK(7.55) —An amendment to clause 35 was proposed by the Joint Select Committee on the Family Law Act. I move:

(5) Clause 35, page 27, at the end of the clause add the following paragraph:

''; and (d) by omitting paragraph (2) (o) and substituting the following paragraph:

'(o) any fact of circumstances, including any conduct of the parties to the matrimonial relationship, which, in the opinion of the court, the justice of the case requires to be taken into account.'.''.

In moving this amendment I want to make it very clear that I in no way want, nor did the Committee in any way want, to see the general reintroduction of fault in the determination of the substantial issue of divorce or in relation to property circumstances generally in a sense of wreaking retribution or something of that sort. The Committee was very much persuaded by the circumstances of a particular case that came to its attention. I do not think it is a matter of hard cases making bad law. There were some very special circumstances. The Committee was of the view that if these matters could not be taken into account by the Family Court of Australia it would want to see a change. The case I have in mind-our discussion influenced this significantly-dealt with a lady who went away with a Swedish sailor. She left her husband, divorced him and later came back, having left the Swedish sailor, and sought to claim maintenance from her first husband whom she left many years before and against whom she had not sought any maintenance. I understand the courts were able to find a way around this matter eventually, but it was a matter of very considerable concern to the Committee. For this reason an amendment was proposed. I want to make it very clear that it was not proposed for the purposes of a reintroduction of fault generally. I noticed in the comments circulated by the Attorney-General (Senator Gareth Evans ) and the previous Attorney-General that there was some expectation that that was the Committee's objective. It was not. If the Attorney-General had some other form of words which would enable the courts to deal with these special circumstances-not those which the Attorney-General indicated that the Government considered sufficient, that is only those that go to the economic circumstances of the other party, but those that can go a little further to the sorts of cases that were of concern to me and to other members of this Committee-I would certainly be prepared to accept that that matter be reviewed again and to accept such an undertaking from the Attorney-General. The reason this matter is being pursued is the exceptional circumstances; there is no intention to bring about any broad reintroduction of fault in relation to this matter or in relation to divorce generally.