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Tuesday, 29 October 1974
Page: 2083


Senator DEVITT (Tasmania) -When the debate was interrupted this evening I had gone so far as to pay a well-deserved tribute to the Senate Standing Committee on Constitutional and Legal Affairs for the very valuable work which that Committee carried out in analysing submissions, approaching 120 in number, which were made to it and which enabled it to produce for the benefit of the Senate, firstly, an interim report and, subsequently, a substantive report based upon the Committee's analysis and judgment of those submissions. I think that in making those comments I would have the support of every honourable senator because whether or not we agree with the terms of a Bill, completely or in regard to some particular, we would nevertheless feel very much obliged and indebted to the Committee for what it has done in enlightening us as to the provisions of this Bill.

The Senate is not debating the question of whether there should be a legal process for dissolution of marriage in this country. Indeed, that decision was made many years ago. The institution, or legal process, of divorce has been part of the legal and social life of this country for many decades. So we are not making a judgment as to whether we should or should not have divorce. If we were, I suggest that the course of this debate would be very much different from its present course. The purpose of the Bill is not to encourage the dissolution of marriage or divorce; the purpose of the Bill, as I see it, is to lay down a humane, sensible code of procedure for people who find that they cannot continue in a marriage relationship and who accept the legal practice laid down for the dissolution of marriage. That is the substance of the Bill as I see it.

The nub of the whole question is, firstly, having a process whereby there can be a dissolution of the marriage. Then it behoves the legislators to bring down a law which provides the most humane, sensible, reasonable approach to this very unhappy and very emotional question. I do not think we can allow ourselves as legislators to become emotional over this issue. I suppose that for most of us the problem of marital relationships is very close to our daily lives. I do not suppose there would be one of us in this chamber who has not at some stage come face to face with the reality of the problems of marital relationships in some part of his family. We have to be honest when we speak on these issues. We have to project into the debate our own experience, so far as we can do so, to bring to it a balance and a roundness which a debate of this kind needs.

We have had a most valuable contribution from members of this chamber who have a legal background, who have been closely associated with and who have worked intimately in this field. But it would be insufficient for us to accept that the legal submissions which have been made to us are enough to enable us to make a total judgment on the merit of the legislation. We come from all walks of life. I accept unreservedly the tremendous value of what has been put to us up to the present time, but it is necessary for those of us who have had experience in family relationships, as many of us have, to relate to this chamber our own experience and to bring a fullness to the debate which will enable us to make a quiet, dispassionate judgment on the merit of the legislation.

What has happened is that in the interim report and in the later report from the Committee there is a brief analysis of the provisions of the Bill which leads us to accept that this legislation will wipe out the fault procedure when people go before a court, or whatever tribunal it may be, to have their marital relationship resolved in the legal sense. We wipe it out; there will be no fault basis for the dissolution of a marital relationship. It is suggested- we are open to persuasion on this-that the ground should be what we have come to understand as the irretrievable breakdown of a relationship for 12 months. This matter can be debated. No doubt, in the course of the various observations which will be made this point will be alluded to very strongly.

But the great attraction that this Bill has for me is the provision of a Family Court and also the understanding which I have that proper procedures will be laid down and proper attention will be given to the economic circumstances of families or parts of families who are so seriously disadvantaged as a consequence of the dissolution of a marriage. If there were not the provision for the Family Court in this legislation, my attitude to it would take a different course altogether. Over the years that I have been here I have mentioned to the Senate that in my past life I was a municipal clerk, town clerk or, as we know them in Tasmania, council clerk. In some of the isolated communities of the country it is not always possible to get immediate legal advice. So people tended to come to me- they did in the case which I am about to relate to honourable senators- as the local municipal person or the administrative officer of the local council to get advice on all manner of problems. So I gained a greater knowledge of the day to day workings of the law than otherwise might have been the case.

But one of the most distressing, difficult and exhausting things which I ever undertook was a service of a voluntary nature whereby, so far as it was possible for me to do so, I encouraged people who had problems in their marriages to come and talk sensibly to me about them. This came about initially because, as I was an officer of the court or, as we call it, Clerk of Petty Sessions, people came with their problems, particularly in relation to maintenance questions, they would seek to make a complaint and application under the Maintenance Act for separation on the ground of cruelty, misconduct, or failure to provide the necessities of life, or other provisions which were in the Act and which enabled them to live apart. When these circumstances arose I used to make some sort of private judgment of them. I am happy to say that during the course of those years when I made myself available- I suppose one might call it a counselling role- I was able to restore a number of marriages. I was tremendously happy about this because it involved not only the husband and wife but often the children as well.

My experience in maintenance matters led me to a very real understanding that in proceedings for maintenance and in the subsequent enforcement of maintenance orders there were always great difficulties. There were defaults on the part of the husband in providing the fortnightly maintenance payment, or whatever it was, and there were always great difficulties in enforcing those orders. I saw distress caused to families because before they were able to get any assistance from the community they were obliged to institute legal proceedings and to make it known that legal proceedings had been instituted for the recovery of maintenance arrears. Then the processes of the law took their course and people were able to be helped through the social services system.

I had a very real understanding of the problems, so much so that I think I could sit down right now and write out the terms of a complaint and application under the Tasmanian Maintenance Act, so deeply is the whole thing engrained in my mind. These were distressing matters, particularly when their resolution before the law was done in open court. Can honourable senators imagine a situation in which a husband and wife come before a magistrate? They are bound by the requirements of the law to parade before the court, in their own defence or in justification of their own position, some of the worst features of their married lives together. Some of the most intimate details of their married lives together are paraded for public exhibition and amusement. If anybody asked me to support a situation which took people into open court, where they took their place in the line among the felons, the thieves and the villains of the community, to get a resolution of this deep, emotional and complex family problem, I say here and now that I would never do it. That reason alone is sufficient to induce me to have great sympathy with the provisions of this legislation.

The question of the term of breakdown of marriage during which people live apart is open to another consideration. But in my experience of adopting the role of a quasi-counsellor in relation to those deep, perplexing, distressing and troubling sorts of problems, I found that where there was a sincere desire on the part of both partners to get away from those influences in the community which seemed to want to perpetuate the difficulties between them- often times family, friends, acquaintances and associates in the community- by getting them to talk like sensible, reasonable, fully developed and intellectually developed human beings one could get some sense into the situation. Probably there would be a resolution of a problem which had been magnified to a stage it should never have reached by feelings, thoughts, guilt complexes and a number of other things. As I say, when one got them apart and talked to them about these things, and when they analysed these things sensibly and rationally, frequently it was possible to get them back together.

I found in some people a strong desire- in fact, I think one can pick the people with this desire- to resume their relationship together, to go on and be sensible and normal citizens in the community fulfilling their social obligations, playing their role in the community, bringing up their children and providing the necessities of life for them. Then there was the other type whom all the counselling in the world could not help. I fear that, if such people are required to live apart for a period longer than 12 months when it is evident right from the start that the whole thing is washed up and unworkable, then obliging these people to stay married will cause only deep distress and scars upon their whole being. I think that a law which provides for the acceptance of irretrievable breakdown of marriage after 12 months apart is reasonable and sensible. I am talking about a particular type of person for whom counselling, guidance and the offer of help does not really work. There are many people like this. These are the sorts of people whom we must have in our minds when we talk about 12 months separation.


Senator Baume - Would it ever have worked?


Senator DEVITT - What is that?


Senator Baume - Counselling. Do you think we get to them too late?


Senator DEVITT - As I said a while ago, I think there are cases which are almost identifiable. Somebody has kicked over the traces and done something silly. We can say that concessions have to be made. The parties can say: You have talked to us about this. We see the error of our ways. If we are both prepared to make some concessions, then we will go back together'. But there is the other case in which I do not think anything on this earth can get the parties together. To require them to carry on a fake sort of relationship or to live apart for 2 years and to observe the sorts of social conventions which we talk about is completely unrealistic. While, on the one hand, people may say that we are preserving something- I do not think we are- on the other hand, are we not inviting people to enter into de facto relationships? I think that we are laying the ground for this to a degree at least. I am one of those old-fashioned people who look askance at this sort of thing, believe me, but I have a strong feeling that I am pretty much out of date and people do not tend to conform to the pattern of social behaviour that they used to even 5 years ago.

There has been a dramatic change in our society. I have very sincere reasons for saying that when people are compelled to present a facade of a relationship together, my goodness, it can have a damaging effect upon members of a family. I know of one situation- I will not go deeply into the circumstances of it- in which a husband and wife were compelled by all sorts of social conventions, family urgings and that sort of thing to stay together. Eventually they wrecked the mental health of the 3 children of the family. Those parents fell into a category which I remember was referred to by a great public speaker some years ago. I am referring now to the American Catholic Bishop Fulton Sheen. I was terribly impressed by him. I heard his address on 2 occasions on the subject of delinquent children. I recall very clearly his reference to the 3 'Ds' when he spoke on the subject of delinquent children. His final comment was: 'There are no delinquent children, there are only delinquent parents'. The 3 'Ds' related to drinking parents, doting parents and discordant parents. I think the latter is the most important. One of the worst crimes in American history was committed by children of doting parents who had every conceivable thing they could wish for. I think that if a husband and wife are compelled by social conventions or some other reason to maintain a false relationship of this kind there can be very serious consequences indeed. I would think that every honourable senator would have had experience of a situation of this kind.

I want to see the removal from the ordinary courts of the land of any process for the resolution of family problems, whether it is divorce, maintenance or anything else. I think that will be one of the consequences of the Bill. Another consequence will be a greater emphasis on councelling. I think we are indebted to Senator Laucke for raising the question of the serious lack of qualified counsellors in Australia. As Senator Baume will recall, a few nights ago during the consideration of the Estimates we were all, I think, pretty unhappy to see the lack of sufficient people in the social welfare area. I think this is something to which we, as legislators, ought to turn our attention with great force and direction because if anything is needed in this country it is in the area of counselling to which Senator Laucke referred. I suggest that emphasis will be placed upon that aspect of human behaviour as a consequence of this Billfamily courts, counselling. There must be a considerable focus upon the economic welfare of people who are affected as a consequence of the dissolution of marriages.

I think I have indicated to the Senate that the present situation in which there is a court contest between 2 parties who were married as to who can produce the most telling evidence of the worst features of their lives together must be taken out of the public forum where it provides a source of great amusement to people who are not working at the time. I am referring to shift workers and so on. I am quoting again from my past experience. People go for a day's amusement to hear the dreadful, sordid details of people's lives. If we were completely honest with one another we would all have great difficulty in standing up in court and justifying some of the things which we do. This is the reality of the situation. The Senate is dealing with the reality of the situation. I think we have reached the stage in the social history of this country which we must face up to the fact that if somebody were to say we will abolish divorce', one would then be looking at this matter in an entirely different light. I do not think anybody- somebody may correct me on this- who made a submission to the Committee suggested that the legal process of divorce should be wiped out. If that is the accepted standard that the community wants we must make a law that is humane, decent, reasonable and appropriate in all the circumstances.

I do not wish to weary the Senate any longer with my observations on this matter. I felt it was important for me as a layman, which I claim to be, to speak of past experience of matters of this kind. I have had some success in counselling and have seen very clearly that there are cases which all the counselling in the world will not help. I think that in those circumstances we must do all we can to assuage the grief of people who are caught up in these matters and apportion a reasonable degree of responsibility to people who have accepted an economic responsibility of raising a family. I think that if we pay proper attention to these matters we will bring into being a law that is humane, reasonable and, in this day and age, necessary. I wished to say these things because many people have asked me my attitude. A great many people have been quite surprised when I have spoken as I have to them and as I now speak publicly tonight. One cannot run away from reality, especially in this chamber. We have the custody of the social well-being of the people of this country in our hands. I do not think this is a bad piece of legislation. I think it is an appropriate, well-meaning and good piece of legislation. I commend it to the Senate.







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