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Tuesday, 29 October 1974
Page: 2053


Senator EVERETT (Tasmania) - I think it is true to say that the attention of many thousands of people throughout Australia is focused on the Senate as it debates the Family Law Bill and that that attention will continue to be given to this debate until the Committee stage has been concluded. It is therefore to me pleasing to observe, if I may do so, that the debate on this Bill, which by now has extended over some hours, has been of an extremely high standard, free from the acrimony which is often associated with debates in this chamber and, I believe, indicative of the fact that it is the wish of all honourable senators to ensure that the best family law legislation can be enacted without undue delay. I certainly recognise that the Bill is an extremely important measure which potentially can affect a significant number of Australian citizens. I believe that it therefore merits the utmost attention of the Senate. Before I deal with some matters of detail I wish to place on record 2 facts; firstly that I was a member of the Senate Standing Committee on Constitutional and Legal Affairs which examined the detailed provisions of this Bill and, secondly, that over a long period I practised professionally in this jurisdiction in the State of Tasmania both at supreme court and lower court levels.

When one examines the divorce laws which have existed over a long period in England and in Australia it is obvious that they reflect the social attitudes and the mores of their time. Specifically, it is clear that over the past 15 years there has been a significant transition from the law and practice of the ecclesiastical courts, as it was reflected in our law, towards a less rigid attitude, towards a desire that much of the acrimony that traditionally has been associated with proceedings in this jurisdiction should be abated. For many years, ever since the passage of the Matrimonial Causes Act 1959 and its coming into operation in early 1961, attention has been paid by politicians, lawyers, church groups and the like to whether the existing law measured up to the standards that were appropriate in these times. I simply mention that the former Liberal Party Attorney-General, the Honourable Nigel Bowen, as long ago as early 1968, in writing a foreword to a standard textbook on Australian divorce law and practice, used these words:

Once again, only some 8 years after the passing of the Act, we are entering a further period of discussion and debate as to the adequacy of our divorce law, not because of faults in the legislation but because divorce law is so closely tied to social attitudes and conventions which are these days subjected to continual revaluation.

Proposals of reform have ranged from the suggestion that marriage should be a 5 -year renewable contract, recently put forward by an American social worker, Mrs Virginia Satir, to more sophisticated proposals for including breakdown of marriage as a ground for divorce and the introduction of family courts and courts of domestic relations.

I wish to refer now to what the authors of that standard textbook said in their introduction.' Writing as they were in relation to the new Federal Matrimonial Causes Act, I think it is significant that even then they cast their minds ahead as to whether the 1959 legislation had gone far enough. In their introduction the authors state:

In order to obtain a decree of dissolution of marriage, one of the grounds set out in section 28 of the Act must be proved, but it is becoming increasingly clear that the facts which constitute the individual grounds are normally only manifestations of the breakdown of the marriage. Lawyers practising in this field now, to a greater extent than in previous generations, tend to investigate first whether there has been such a breakdown before they determine what particular ground is then available, or may become available, to the party seeking dissolution. . . . It is to be expected therefore that the next substantial legislative change to the grounds will be to add a ground which refers simply to the breakdown of a marriage rather than a ground which selects yet another of the various types of human conduct which might be thought to be a matrimonial offence.

The proposal has already been made both in England and in Australia that a further ground to be added should be that, if the court is satisfied that the marriage has irreparably or irredeemably broken down that should be alone a sufficient ground for dissolving the marriage.

I think that it is proper in considering whether this Bill should be read a second time and whether the Committee should proceed, to ask oneself the question: Do the existing laws, practice and procedure measure up to the standard that we consider is appropriate and proper in 1974? For that purpose it is necessary to consider what the existing law provides and the extent, if any, to which it has been proved to be deficient. So I proceed in the introductory part of my speech to the Senate to examine the case for change. The first point that I would stress is that the concepts and the procedure of the existing law are still rooted in the ecclesiastical past. The shadow of the ecclesiastical courts of England still hangs heavily over our divorce law, practice and procedure. The 1959 Act really did not achieve the reforms that perhaps some people believed it did achieve. I think that it is true to say that it affected only 2 significant reforms. It did certainly reform procedure- whether for better or for worse I will examine later- but there were really only 2 significant substantive provisions which emerged from that legislation.

The first was the introduction on a national scale, for the first time, of 5 years separation as an additional ground for divorce. But, of course, separation for that period had already been the law in Western Australia since, I think, 1944, and for some time in New Zealand. The second set of provisions of a substantial kind which the 1959 legislation introduced was in relation to property settlements. The rigidity which had applied before 1959, or before 1961 when the Act became effective, was to some degree taken out of the law but- in a manner that I hope to examine later- only to some extent. Side by side with those merely 2 significant amendments of the law, the 1959 legislation still preserved the criminal nature- I emphasise the words 'criminal nature'- of the proceedings in the old ecclesiastical courts. Thus, the 1959 legislation still referred to jactitation of marriage and I doubt whether more than one in a thousand would know precisely what that was; damages against a co-respondent preserved the old action for criminal conversation, as is was called; discretion statements were made which seem to have been devised simply for the edification or enjoyment of the privileged class, the judges, who alone were entitled to read them; collusion was a bar although in a modified form; and there were other relics of an ecclesiastical past that was concentrated on the criminal aspect of these matrimonial matters.

So the first point in considering whether or not there is a case for change is whether or not the concepts and procedures of the existing divorce law are such as improperly and unnecessarily to preserve an association with the attitudes of the old ecclesiastical courts. I think the second matter that is relevant in this consideration is the excessive legalism which has surrounded the divorce law and its practice. I believe that it is true to say that, even worse than the first point I have made, the 1959 legislation preserved the old procedure and the attitude of the courts to matrimonial causes. The result of that has been excessive legalism causing delay and expense in a jurisdiction which even then demanded the very opposite approach. I think it is true to say in this context that the traditional role of the courts has been based on the fallacious assumptionfallacious so I would argue- that to make divorce difficult, costly, degrading and certainly undignified would contribute to the so-called sanctity of marriage. I believe that that concept heavily lies over both our law and our practice during recent decades. I repeat that I consider it to be a fallacious assumption. The result has been that unnecessary humiliation and distress have been caused in a way which I do not think has particularly reflected credit on our legislators.

By and large, the attitude of the courts has been a conservative one. I do not blame them for that because the pattern and the legislative framework were determined by Parliament. One only has to read some of the law reports to appreciate how formalistic the approach of the courts has been, despite the 1959 legislation, and still is. Let me give some examples. So far as the standard of proof of adultery is concerned Briginshaw's case- which perhaps is the most well known- and a number of other subsequent cases laid down that the standard, so the High Court determined, was to be that of the ordinary civil jurisdiction but subject to the rule of prudence, that a court should act with caution before finding such a ground established. That enunciation of the standard of proof has led to lengthy trials in which the evidence is based on association, on opportunity and on intimacy whilstthis is the point in relation to this Bill- the judge, the parties and their counsel all know that the marriage had finished before the acts complained of for other causes and that the alleged ground was the outcome rather than the cause of the breakdown.

Secondly, so far as desertion is concerned, I say positively from experience that perfectly decent people have been obliged to distort the facts to accord with the law's requirement that one party, in order to establish desertion, must be found to have left the other party against the will of that other party; whereas those with experience in this jurisdiction know full well that in a very large number of desertion cases the leaving is consensual; but to prevent the other party defending the case and revealing the true position large sums are frequently paid or extorted from the petitioning party and are blessed by the court- because the court has no option to do otherwise- as a so-called property settlement. These farcical hearings have brought the courts and the administration of justice into disrepute and have been humiliating to judges and to legal practitioners alike.

I mention a third so-called fault ground that is in our present law and that is, cruelty. The simple fact is that the anxiety of the courts in Australia to avoid divorce on the ground of mental cruelty or incompatibility has made the legal requirement to satisfy this ground increasingly difficult to meet, thus causing considerable hardship to wives who are regrettably ill-treated. The legal position is that until 1963 when the House of Lords made 2 decisions in this context, it was necessary for the petitioning party to prove that the other spouse intended to injure her by the cruel acts alleged. Similarly, in constructive desertion it has been necessary that the other spouse intended his expulsive conduct to drive a petitioner out of the home, that is, that an intention to cause those results had to be established. It is true that this position was rectified by section 29 of the present Matrimonial Causes Act. But, almost as if by a reflex action in reverse and in response to the legislature's amendment- this is well acknowledged in the legal profession- the courts toughened up the standard of conduct required to justify a spouse leaving the home to such an extent that in Tasmania constructive desertion has almost disappeared as a ground for divorce.

Also, it is true in Tasmania and I believe in at least some other States, depending upon the particular judge before whom a particular matter comes, that in respect of the ground of cruelty although it is no longer necessary to prove an intention it is still necessary to establish what the courts have called 'grave and weighty misconduct' and, in addition, actual injury to the health of the complaining spouse or serious apprehension thereof. The simple fact is that continuous physical violence for 12 months and sexual perversity of an aggravated kind for the same period, so far as Tasmania is concerned and I do not imagine the position there is essentially different from that in other States, have become the only certain criteria for divorce based on the ground of cruelty.

One can consider finally in this context the question of habitual drunkenness. I make the assertion that the standard of proof in relation to habitual drunkenness has been maintained at unrealistic standards by many judges. In a recent case in Tasmania a judge held that because there was no definition of 'habitual drunkenness' in the present legislation the proper course to take was to apply the common law rules, and that he could not grant a petition in the case of a person who was habitually drunk but was not violent in association with his drunkenness. This case is reported in the law reports; I do not mention the names of the parties involved. It was a case in which a man drank himself into a condition of complete stupor continually and habitually. He did this until he reached a stage where it was necessary to take him to hospital. He was there dried out and returned home, where the same procedure went on again until he was again back in hospital. The court, no doubt thinking that it was applying the law properly, took the view that because there was no actual violence or cruelty to the wife in the course of the drunken episodes the ground of habitual drunkenness had not been made out.

Another respect in which I think it is necessary to examine whether or not the present law is in need of alteration is the procedure. This is because it is based on the adversary system of justice. That simply means that from the moment a party approaches a solicitor the conflict begins in a litigious form of a very complex kind. I do not doubt that most solicitors do their best to resolve matrimonial disputes short of divorce in an understanding way, in the hope of reconciliation or at least with a view to agreement rather than litigation between the parties. But the adversary system makes that very difficult and highly improbable in most cases.

The present adversary system is, in my submission to the Senate, singularly unsuitable for the trial of matrimonial issues which under a fault system involve a meticulous examination of the most minute details of marital life to be conducted in an atmosphere of bitter recrimination, usually involving relatives and children and sometimes dividing families. As a supreme example of that, I cite a fairly recent Tasmanian case in which a woman in defended divorce proceedings was cross-examined so comprehensively in relation to the intimate personal details of her marital life that during the course of the case she committed suicide. Do we really wish to retain a system that can lead to those results? I suggest no.

The procedural rules and the legal principles developed over centuries in relation to the application of the Matrimonial Causes Act to factual circumstances are extremely complex. They are choked with fine definitions and doctrines having little bearing on the reality of life as it exists today. The fact is that the standard text book on Australian matrimonial law, practice and procedure runs to over 1,000 pages, with already a supplement of over 200 pages. There are over 300 procedural rules. By the time all the prescribed steps have been taken, an ordinary undefended divorce usually occupies some months in preparation for hearing and then there is a wait of another period of months and at times years before a judge can be found to deal with the matter.

Dealing with the complexity of the present rules, I hope I do not bore honourable senators when I read out to them what seems to me to be a supreme example of complexity that I hope will not be perpetuated in the new regulations under this legislation if it is passed. I refer to rule 20 sub-rule (2). If honourable senators who are listening cannot understand it, let me assure them that I have read this many times over many years and I do not know what it means. But let me see whether somebody else does. It is a rule relating to proceedings for default in payment of amounts assessed. It states:

The last preceding sub-rule does not require the registrar to refer proceedings to the court unless the registrar is satisfied, by affidavit, that the total amount of the payments (including payments in respect of a period preceding the date of the assessment) that would have become due and payable on or before the date on which the request is filed if the assessment has been an order for the payment of maintenance in accordance with its tenor exceeds, by more than the amount of the weekly rate, or the sum of the weekly rates, specified in the assessment in pursuance of paragraph (a) of sub-rule (5.) of rule 204 of these Rules, the total amount paid by the spouse of the claimant for the maintenance of the claimant, of the child or of the claimant and the child, as the case may be, since the date of the assessment (excluding so much of any maintenance so paid as relates to a period preceding the date specified in the assessment in pursuance of paragraph (b) of that sub-rule).

All that is stated almost without a comma, but with a few brackets apparently intended to make it a little more comprehensible. All I can say is that the draftsman has not made it comprehensible to me and I do not know what it means.


Senator LAWRIE (QUEENSLAND) - It is as clear as a dust storm.


Senator EVERETT -As Senator Lawriesays, it is as clear as a dust storm. The next aspect with which I deal as indicating that the present law is inadequate relates to the property law provisions under the existing legislation. Without pausing to deal with it at any great length, I make the observation that one English judge- Lord Denningwhen he was a member of the Court of Appeal a long time ago endeavoured to ameliorate the position of a wife in this situation by holding that she had a right that transcended the ordinary legal position to an interest in the matrimonial home. But neither the House of Lords on appeal nor the High Court of Australia, in a case that went to that court, was willing to accept Lord Denning 's principle. So, as I have said, an endeavour to ameliorate the wife 's position failed.

There are other respects in which the law relating to property matters is inadequate. One of them sees a situation in which, in order to prevent a particular piece of property, usually the matrimonial home, being dealt with by the courts in future divorce proceedings under the existing legislation, a husband will take action prematurely outside the divorce law in order to beat the wife's claims that he apprehends. I simply mention it now as the sort of thing which the Bill before the Senate makes impossible in the future. The detail of it I shall deal with later.

The other area in which I feel there is considerable injustice now- injustice of a real characteris in relation to costs. I say without hesitation that a vast amount of the money that has been paid to lawyers over the years under the present system would have been far better spent in being applied to the proper purposes of the family, including the children. So long as the present system remains and so long as present procedure remains, the payment of sums that ought to be kept within the family or within one or more members of the family will go on. That also is one of the matters under this new Bill that I shall refer to later.

Very briefly I have traversed a number of respects in which I believe it is true to say that the present law is inadequate and ineffective and there is a strong case for change. Once you reach the situation where you acknowledge that there is a strong case for change the question is: To what do you change the existing law? It was with that thought that I played my part as a member of the Senate Committee in making the report that has been distributed to the Senate.

Although I do not know the precise form of the amendments to be moved, I understand that most of the recommendations of the Committee will be accepted by the Attorney-General. So it is proper that one should look at what is proposed to be substituted for the existing law. One should look at some of the detail of the Bill and of the Senate Committee's report. It would, of course, be true to say very simply that the 2 principal amendments that are proposed to the existing law are, firstly, with regard to the ground for dissolution of marriage and, secondly, with regard to the family court, and I propose to deal with each of those in turn. So far as the ground is concerned, I submit to the Senate that the experience of those who are familiar with the problems with which we are concerned- lawyers, sociologists and many other types of persons, including marriage guidance counsellors- is that the time has come to eliminate the fault concept so far as dissolution is concerned. In an endeavour to get what I hope would be regarded as an unbiased approach to this matter I quote a letter which I have no doubt all honourable senators have received from the Marriage Guidance Council of Australia, a Council with no vested interest in any respect in this matter. Its members have done considerable voluntary work in this context over a very long period and are persons who are able to see both sides of a deeply human problem. The letter, dated 24 September this year, reads as follows:

Recently the Annual General Meeting of the National Marriage Guidance Council of Australia, comprising representatives of its Constituent Councils from all States, the Australian Capital Territory and Darwin, was held in Hoban. During its sessions a Resolution was carried in relation to the current Family Law Bill, August 1974.

I have been instructed to write to you and your colleagues in both Houses of the Australian Parliament giving information concerning the terms of the Resolution.

Resolution: 'That this National Marriage Guidance Council of Australia, in relation to the Family Law Bill, August 1974, welcomes the removal of" fault", and the introduction of "irretrievable breakdown" as the sole ground for dissolution of marriage. Far from viewing the change as a threat to the basis of marriage in Australia, it views the Bill as upholding the voluntary principle in marriage and thus enhances the marital relationship. It is also pleased to see the opportunity taken for the introduction in the Bill of a uniform Australian law concerning maintenance of spouses and children.'

That, one would imagine, was the unanimous resolution of the Council and it is something that ought to be taken into account quite seriously by the Senate in determining whether or not clause 26 of this Bill expresses a proper attitude.

I was interested in listening to the remarks of Senator Baume in relation to this matter and I would like to deal with two of the aspects with which he dealt. Although this is not necessarily the order in which Senator Baume presented them, first he said that he would like to see intolerable conduct introduced as an alternative basis of proof of irretrievable breakdown. I concede that superficially that is an attractive proposition. I want to be quite frank with the Senate and say that the Committee canvassed this quite considerably over a significant period and at one stage there was even an amendment prepared for consideration. But as the Committee's consideration went on, the view that I ultimately reached- albeit with some reservation- and that other members ultimately reached, I believe, and it is so recorded in the report, was that to introduce that alternative ground would be really putting the clock right back to a full maintenance of the concept of fault in our legislation. Senator Baume, I think rather charitably, did not refer in the context of having a fault ground retained, to the class of person- regrettably it exists and we have all had experience of itwhich will insist on complete vindictiveness in this situation. Where the alternative existed I concede that a lot of people would choose the easier path but there would be many persons, regrettably, who would choose the fault path. I believe that would destroy many of the good basic features of this legislation.

Secondly, I am not certain that I was satisfied that Senator Baume was completely understanding what is meant in the technical sense by 'separation'. At one stage I thought he was and at another stage, perhaps because I missed some words, I thought he was not. But I want to make it perfectly plain that clause 26, as presented and in the form recommended by the Committee, requires that there be an actual separation followed by a period of continuous separation and living apart for 12 months. 'Separation' in this context is a well understood legal expression. It means an abandonment or repudiation if it is unilateral, or it could be bilateral, of the normal things that are involved in the marriage relationship. It is not a case of going to the Antarctic and having one's ship not turn up till 9 months after it should have. There must be a proven actual severing of the marriage relationship and a continuance of that for a period of 12 months before the ground could be established. Even so, there is in sub-clause 3 of clause 26 the saving provision so far as the court is concerned that it must not make a decree if it is satisfied that there is a reasonable likelihood of cohabitation being resumed.

Let me say to Senator Baume that the experience of persons who have been involved, collectively, in thousands of cases- I will explain why I say that in a moment- is that after 12 months separation the chances of a resumption of the relationship are minimal in the extreme. I did not want to take my own professional experience as the only proof of that. I have taken pains in recent weeks to question my colleagues in the legal profession as to what their experience has been. Invariably, persons with 20, 30 or 40 years active experience in this jurisdiction have said: 'I find it hard to recollect a case in which, after separation of 12 months, the parties have come back again together in a normal matrimonial relationship'. I concede that that is not good proof. It is not the best proof, but perhaps it is the best proof that is available to me in this situation because I am not aware of statistics existing in relation to this matter. But that is the experience of those people.

I say that in relation to the question whether the period should be 2 years or one year. As a member of the Committee, I supported one year because I felt that the very purpose of those who would seek to make it 2 years would be frustrated unwittingly if they did it. I will explain what I mean by that in a moment. In many cases in which a separation has begun there is association between one at least of the parties and someone else. If that situation is to continue legally for 2 years then I suggest that it would discourage the very moral desiderata that the proponents of 2 years had. I do not think there is any doubt whatsoever from actual cases that it could mean that a person who had been badly wronged- if I may continue to use that expression for the moment- matrimonially would have to wait for what could appear to that person to be an unconscionable period.

I have in mind the young wife who is perhaps married to someone considerably older and a situation arises- the husband, let us say, leaves the matrimonial home. The wife is compelled to wait for a period of 2 years. The point is: Should she? Once we recognise that statutory provision for divorce is proper, and we have recognised it for a very long time, why should we impose an undue waiting period in those circumstances? The only reason, I feel, could be that it would preserve some marriages. But again I come back to the point that has been made by Senator Missen and Senator James McClelland this afternoon, that those with practical experience in these situations are convinced that it is not a case of saving marriages at all but that the breakdown has occurred before the parties seek advice and determine what they are going to do. The next thing I say to Senator Baume is that, under clause 90 of the present Bill, there is an immediate right of access to the courts in relation to matters other than dissolution. I would think from a practical point of view that clause 90 would be frequently availed of. Indeed, it would be necessary for some persons to avail themselves of clause 90 in that period after separation had begun and before any proceedings could be instituted under this legislation.


Senator Baume - But they lose their right to immediate dissolution which now exists.


Senator EVERETT - Yes, they do, but I think that in that respect one has to remember that the procedure under this new legislation will be much quicker than under the existing legislation and that although one could immediately- let us say, in 3 months- institute proceedings now, in most States it would probably take another year before one could get to court, especially if there were any contest on the matter, because of the procedural requirements to which I have referred. I do not know whether anyone has the statistics on what is the average period from the time of the filing of a petition to the actual appearance in court. Even in Tasmania, where the numbers are not so great and the facilities to determine these matters exist, the period between the case being ready and the case being heard is now several months. That was not the position some few years ago. In other words, the delay is increasing. It has been said that in New South Wales in particular the delay is very great. I do not know precisely what it is. We may be told.

But I just want to point out to Senator Baume that by this Bill there is not a full period of 12 months being withdrawn, as it were, from the party who wishes to avail himself or herself of the legislation because the simplified procedure will reduce the period that it will take in order to obtain a dissolution of marriage. I hope I have made that clear. So for those reasons I submit that the Committee's majority report is propernamely, that the period should be 12 months and not 2 years, as two of the members of the Committee urged.

The second basic feature of the Committee's report which one understands will be accepted by the Government is the institution of the family court and the making of the family court the kernel of the administrative processes of the system established by this Bill. Senator Missen and

Senator JamesMcClelland dealt with it in considerable detail. I will not pause to delay the Senate on that other than to say 2 things: Firstly, at the time of the Committee's deliberations the South Australian family court system was beginning to be regarded as the model on which the States could well base their systems. I know that in one State an investigation had been made and early this year legislation was about to be prepared for the establishment of a court on lines similar to that of South Australia. Secondly, and this is specifically in reply to Senator Baume, if the Committee's recommendation is adopted by the Senate there will be provision for reconciliation procedures without the filing of any papers whatsoever. Under the Act no application need be made if the Committee's recommendation is adopted before the counselling procedures of the family court can be set in train. That is something that may not be clear to some persons. I think it appears on page 22 of the report.

The Committee certainly did not envisage, so far as I am aware, that the only source of counselling should be through the family court. It envisaged that twin streams of counselling procedures would be available. Those who chose to use the court's stream would have the right to do so irrespective of whether there was any application of any sort in contemplation or in actuality. On the other hand, if they preferred to use the stream of counselling procedures in what I might term the private sector they would be equally at liberty to do that. So it is not a case, if this was what Senator Baume had in his mind, where the family court counselling procedures would be in any way exclusive. The 2 streams would be available. I do not wish to detain the Senate on matters of detail at this stage because I imagine that it will be necessary to canvass many of them in the Committee stage.

I refer to 2 aspects of the Bill and the Standing Committee 's report which I think are important from a practical point of view. One such aspect is legal aid and the recommendation of the Committee that it should be widely available. I do not hesitate to say that I am in no doubt that in the past there have been many cases in which the question of costs in relation to divorce and associated matters has been a complete scandal. I know of cases in which thousands of dollars has been expended on legal procedures which, as I said earlier, could much more properly have been put at the disposal of members of the family. Following the Committee's report I hope that the Australian Government in this area- I regard it as extremely important because it relates among other things to human happiness- will be generous in the degree of legal aid which it makes possible. That is not the present position. I understand that in some States legal aid is not available for matrimonial matters and in other States it is available but on a somewhat parsimonious scale.

The remaining matter I want to mention relates to the Family Law Council which is dealt with on page 35 of the report of the Committee. Again I agree with Senator Baume. Even if this Bill is passed, I doubt whether we have seen the last of the efforts of the Australian Parliament to pass a completely proper family law Bill. I believe that that will occur only when the Council which is dealt with in clause 91 of the Bill- it is called a committee in the Bill as printed; but the Senate Committee recommended that it be termed a council- has embarked on its task in the expanded form which the Committee recommended. I think it is absolutely essential that that expansion take place. My personal comment on clause 91 as it stands is that it reads far too perfunctorily of a body which is set up to keep an eye on things and, maybe, to do something about them. I think the Family Law Council has to be brought into the on-going consideration of the propriety of our legislation in a very vital and very concerned way. I believe that out of its consideration of the effect of this legislation will ultimately come, together with some constitutional amendments- if they are possible- the ideal measure which Senator Baume has in mind.

I wish to mention only 2 other matters. I see this Bill, if it is passed in substantially the form recommended by the Committee, as introducing for the first dme a benign, nationalistic approach to a matter which either affects or potentially can affect any family in the community. As such it must be regarded as an extremely important piece of legislation. Too often in the past we have had fragmented State approaches to these matters. I do not pause to go into them in detail. I can remember how clients used to ask about the blessedness of Western Australia as a place where they would like to live purely to enable them to establish a period of separation of 5 years when Western Australia was the only State in which that provision was the law. So, as I have said, this Bill is a nationalistic approach to a national problem. As such, in my submission, it should be accepted by the community.

I conclude on a somewhat poignant note by giving the Senate the experience of a personal friend of mine who, unfortunately, at this moment is having to seek redress under the existing matrimonial law and whom I advised to write a full account of all the details of the matrimonial life for the benefit of his legal adviser. Only last Friday I was shown a copy of the document which runs to 43 pages. It concludes with these words:

Writing this account of my life has given me no pleasure at all and it goes without saying that if I had my time all over again I would have gone about things very differently, lt is to be hoped that the new Family Law Bill will go a long way to eliminating this humiliating and degrading exercise and make settlements fairer and less traumatic. I hope that it also strengthens marriage. A marriage based on loyalty, faithfulness, stability, and security, without the need to always be looking over one 's shoulder, must really be bliss. One hopes that such marriages are possible.

That was an unsolicited and spontaneous acceptance of the basic principles of the Bill by a person who is obviously in a traumatic state. If this Bill does not pass, one apprehends from what he writes that he will be subject to the indignities, the expense and all the other defects which a law, based essentially as it is on preserving the attitudes of ecclesiastical courts, has brought into our community. I would have supported the Bill in its original form. I even more enthusiastically support the Bill in the form in which I hope it will be when it leaves the Senate, namely, with the incorporation of most of the recommendations of the Senate Committee of which I was privileged to be a member.

I conclude by paying a tribute, because I feel it ought to be paid, to the manner in which Senator Missen, Senator Durack and Senator Chaney combined with the 3 members of the Committee from the Government side to examine a matter of extreme social importance. I wish it to be recorded that at no stage during a very long series of deliberations were party political considerations intruded into the matter. I hope that, as far as that Committee is concerned, I will have the pleasure of working again on an important subject with persons who are as objective as were the 3 honourable senators opposite to whom I have referred.







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