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Wednesday, 13 August 2003
Page: 18489


Ms JULIE BISHOP (11:05 AM) —Sections 51(xxi) and 51(xxii) of the Commonwealth Constitution give the Commonwealth government the authority to make laws in relation to marriage, divorce and matrimonial causes, parental rights and the custody and guardianship of infants. Thus the Family Law Act is one of the most significant factors in the social life of this nation, governing as it does the forms of relationship recognised by the state. The profound influence exhibited by the act is apparent from the statistics collected since the passage of various laws and the determination of certain judicial cases.

In State of the Nation 2003 Jennifer Buckingham, Lucy Sullivan and Helen Hughes of the Centre for Independent Studies noted that there were three major `fits and starts', as they described them, to divorce in Australian society. The first was occasioned by state legislation in New South Wales and Victoria in 1899 and 1889, respectively, that rendered divorce in those then colonies relatively easier. The divorce rate in the last decade of the 19th century apparently quadrupled, although it remained very low compared to today. In 1961 the federal Matrimonial Causes Act replaced separate state and territory legislation—with the exception, as is often the case, of Western Australia—and gave as grounds for divorce a five-year separation, thereby doubling divorce rates in the decade from 1963. Finally in 1975—and I recall this well, because it was about the time or a few years later that I entered into the legal profession, and the Matrimonial Causes Act was a thing of the past—the Family Law Act was introduced. Its single ground, the irretrievable breakdown of marriage, caused a massive jump in divorce rates, such that today there are just over 50,000 divorces each year, or just over 2.5 per 1,000 people annually. Interestingly, since the 1980s there has been a trend downwards from a high of just under three per thousand. I will not go into the reasons for that now.

There have also been other changes—for example, in cohabitation prior to marriage, average ages at marriage and marriage rates more generally, as well as child rearing issues and the like. These phenomena are important but are less related to the law per se than divorce. Thus there is obviously some danger in having an increased state manipulation of familial relationships. Government too often has that effect regardless of its architects or implementers. As was well described by British economist Arthur Seldon, overgovernment can mean `government of the busy by the bossy for the bully'.

It is the responsibility of a prudent government to view the Family Law Act in terms of its potential effect on national social life and even future generations of Australians. A constant eye should be placed on the act's workings—and, for that matter, its failings. Reform should be approached in a concerned and aware fashion—which brings me to the Family Law Amendment Bill 2003, an integral part of this government's commitment to ongoing reform of the family law system. As part of that reform program, the government has responded to the report prepared by the Family Law Pathways Advisory Group on the present system and nonjudicial options for conflict resolution entitled Out of the maze: pathways to the future for families experiencing separation. The Family Law Amendment Bill 2003 constitutes that response, and it follows amendments of the act undertaken in 1996 and in 2000. As the Attorney-General noted in his second reading speech, this allows for a `process of continuous improvement' that:

... ensures that the experience of those using the provisions is taken into account and that operational issues are addressed in a timely manner.

More particularly, the bill reforms provisions of the act relating to property and financial interests. Provisions in schedule 6 will allow courts to make orders binding on third parties when addressing property settlements. In other words, the court—within defined limits obviously—will be empowered to make orders that compel third persons or companies to do certain things to meet the requirements of a settlement. As the Attorney-General remarked, this means, for example, that the proportion of a debt that a husband or wife owes a creditor can be changed by an order of the court. This would include the altering of contractual terms within prudent limits. Stipulated procedural rights and the knowledge that their underlying rights have not been altered by this amendment will protect the position of creditors in these circumstances. That is obviously very important and that has been taken into account. This particular reform should aid in determinations of financial equity between husbands and wives in line with the previously enacted reforms of divorce and superannuation.

The certification requirements for financial agreements laid out in the act will also be clarified so as to ensure proper operation of the reforms undertaken in the year 2000. Likewise, schedules 1 and 4 of the bill will amend part 7 of the act so that the reforms of 2000—in this instance related to parenting plans and the parenting compliance regime—will operate as intended.

In other areas, the bill is intended to allow greater accessibility to self-represented litigants in line with the work of the court's own rules revision committee. This is an important amendment. The cost of engaging lawyers at any time can be prohibitive. In family law cases and property and financial cases arising out of divorce, the cost of the lawyers can often outweigh the money at stake. So allowing greater accessibility to self-represented litigants is a good reform. It is a step in the right direction, and hopefully it will even lead to the further ability of people to represent themselves in these circumstances.

The bill is also intended to allow the electronic publication and distribution via the Internet of court lists and reasons for judgments. This is an area that is normally fraught with concern, but in this instance the electronic publication and distribution via the Internet will be without, I must say, any change to the prohibition of personal details publication, and that is very, very important. There is no way that the court should put itself in a position by reason of such publication to be used to disadvantage or advantage one or other party.

The bill is also intended to provide a limited exemption to the inadmissibility of evidence garnered from counselling sessions overseen by the court where that evidence relates to one of the most serious evils in our society—namely, the abuse of children. I think that is also an entirely appropriate and timely reform. This final provision follows the Family Law Council's 2002 report on family law and the protection of children. Concerns have been expressed in some quarters that children might be ill served, if I can put it that way, by a system that prevented judges from having access to all relevant evidence when considering a child's vital interests—in other words, the child's right to the court's protection and a safe environment.

It is to the benefit then of all participants in the family law system—to husbands and wives and importantly children—and therefore, by extension, to our society as a whole that these reforms are passed. They will ensure a better level of procedural efficiency and fairness. The Family Court is criticised constantly—sometimes fairly, sometimes unfairly—and these reforms will hopefully enable the process to be more efficient and fairer. Furthermore, the reforms will help to minimise the trauma that accompanies the breakdown of a marriage and the separation of a family. Of course these reforms will not eliminate the trauma, but anything we can do to ensure that at least there is minimal trauma ought be passed by this chamber. Accordingly, I commend this bill to the chamber.