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Thursday, 13 October 1983
Page: 1703


Mr DUFFY (Minister for Communications)(10.16) —I move:

That the Bill be now read a second time.

The law reform policy released before the election stated that a top priority for a Labor government would be the introduction of a Bill to propose overdue reforms of the Family Law Act. This Bill is the fulfilment of that promise.

Any government that cares for people and is concerned to minimise unhappiness and social conflict must give paramount consideration to family law matters. Family law affects more Australians-adults and children-than any other single area of law. When marriages break down, for whatever reason, every effort must be made to ensure speedy resolution of differences with the minimum of trauma and expense and the maximum possible benefit to all parties.

I believe it is overwhelmingly accepted that the Family Law Act was a landmark in social legislation. It was a great Labor achievement and is one of the enduring legacies of Senator Murphy's time as Attorney-General. Its removal of the concept of matrimonial fault from the law relating to this most complex of human relationships was a revolutionary advance. Its establishment of the single ground, no fault divorce, must on no account be jeopardised. The Family Law Amendment Bill 1983 will give effect to many recommendations of the parliamentary Joint Select Committee on the Family Law Act that reported in August 1980. I am sure the honourable member for Dundas (Mr Ruddock) who so ably chaired that Committee will, for one, join with me in hoping that the Bill will have a swift passage in this House.

The Bill before honourable members has been subjected to extensive and intensive examination by bodies like the Family Law Council, the Law Council of Australia, by judges and others. It was, of course, the subject of lengthy debate in the Senate. Because of its concern for people the Government would like to see the proposed reforms operative as soon as possible. The amendments contained in the Bill fall broadly into three classes: Those which expand the jurisdiction of the Family Court of Australia; those which relate to the structure and procedures of the Family Court; and those which affect the substantive law applied in courts exercising jurisdiction under the Act.

Expansion of Jurisdiction of the Family Court

By far the most important amendments in the Bill relate to the expansion of jurisdiction concerning children. At present, proceedings under the Family Law Act can be brought only in relation to natural or adopted children of both parties to a marriage. The Bill in clause 4 adopts the Joint Select Committee recommendation that the category be extended to cover step-children and even foster children. The Bill seeks therefore to increase the number of children in Australia who may be assisted by the enlightened conciliatory procedures of the Family Court. But there will unfortunately remain, for constitutional reasons, some children who in the event of domestic disruption cannot be dealt with by the Family Court. It is hoped that by means of an appropriate referral of powers by the States or by a constitutional amendment, the Commonwealth may one day be able to legislate for the guardianship, custody and maintenance of all children in Australia.

In addition, the Bill provides in sub-clause 3 (1) that a third party, say an uncle or grandparent, may bring proceedings under the Act against one or both parties to a marriage in relation to a child of the marriage. At present where a third party wishes to institute such proceedings he or she must do so in a State court under State law unless the child had previously been the subject of proceedings under the Family Law Act. It will be seen therefore that the Bill seeks to reduce the number of situations that require resort to two different courts and legal systems.

Further, the Bill will expand the jurisdiction of the Family Court concerning children to enable proceedings to be brought relating to the welfare of a child. Courts exercising jurisdiction under the Family Law Act will be invested with power similar to the wardship power of the State supreme courts. This gives effect to another of the major recommendations of the Joint Select Committee. I would, however, stress that the Commonwealth does not intend to intrude into the area of State child welfare law. I trust that the relevant provisions of sub- clause 3 (1) of the Bill make this abundantly clear. To reinforce this policy, clause 5 of the Bill will repeal sub-section 10 (3) of the Act which provides for the Family Court to override State welfare orders.

Property proceedings at present can only be brought in relation to concurrent, pending or completed proceedings for dissolution or annulment of marriage between the parties. The Bill in sub-clause 3 (1) will enable proceedings to be brought by parties to a marriage in relation to property of the parties at any time where the proceedings arise out of the marital relationship. This is a further significant recommendation of the Joint Select Committee and will be of advantage to many persons faced with marital breakdown who wish to secure a settlement of property rights before the 12 month period of separation required for divorce proceedings has expired. This amendment would ensure that all married people are entitled to the benefit of the principles of the Family Law Act which are generally more just than under State law in that they permit a spouse, who has contributed to the acquisition of marital property in an indirect or non-financial but nevertheless significant way, to claim a share in the property without having to institute divorce proceedings.

Clause 16 of the Bill will enable the Family Court in the Australian Capital Territory to be invested with as broad a jurisdiction as possible in family law matters. This was a further recommendation of the Joint Select Committee and this Government hopes that the Family Court throughout Australia will one day exercise such a broad jurisdiction.

Procedures and Structure of the Family Court

There has for some time been a call for the Family Court to be opened to the public. The Bill in clause 52 gives effect to the majority report of the Joint Select Committee and the Family Law Council that proceedings in the Family Court may be held in open court although it empowers the Court to exclude persons from proceedings. While the Bill relaxes the present total prohibition on the publication of details of proceedings under the Act, it provides, in clause 72, severe penalties for publication of any account of proceedings or part of proceedings that identifies a party to the proceedings, a person related to or associated with a party to the proceedings or a witness in the proceedings.

Another important recommendation of the Joint Select Committee was that there should be a pool of Family Court judges from which full courts would be constituted to hear appeals. Certain of these judges could be permanent members of the pool; others would sit on appeals by rotation. The Bill provides in clauses 11, 12, 13 and 14 for an Appeal Division comprising up to five permanent members together with an unspecified number of other judges who would hold appointment in the Appeal Division for a maximum period of two years.

On the basis of the High Court decision in the Commonwealth of Australia v. HCF of Australia the Bill in clause 73 will empower registrars and deputy registrars of the Family Court, as officers who in fact form part of the Court's organisation, to exercise a greater range of powers in proceedings under the Act but subject always to review by a judge. It is expected that this course will achieve the more effective use of judicial time and a reduction in the delays in the hearing of matters before the Court.

An amendment moved by the Attorney-General (Senator Gareth Evans) and passed in the Senate directed to the preservation of marriages is contained in clause 21 of the Bill. It requires that where in dissolution proceedings the parties have been married less than two years, the application cannot be heard by the Court unless, before filing the application, the parties have considered reconciliation with a marriage counsellor. This amendment will replace the existing provision in sub-section 14 (6) of the Act that provides that where there is an application for the dissolution of a marriage of less than two years duration the parties must have marriage counselling before the hearing of the application. The general view is that once the application has been filed and the divorce process set in train it is often too late to effect a reconciliation .

A further amendment accepted by the Attorney-General and passed in the Senate and directed at conciliation is contained in clause 9 of the Bill. It requires the Family Court or any other court exercising jurisdiction under the Act and any legal practitioner acting in a matter to have regard to the need to direct the attention of parties or persons considering taking proceedings to the facilities for counselling and to the procedures for the resolution by conciliation of matters. The Bill provides in clause 29 that there should be no final order in guardianship and custody cases until the parties have attended a conference with a court counsellor. This amendment reflects the philosophy of this Government that every effort must be made to resolve disputes by processes of conciliation and counselling and that recourse to the Court and the adversary process must be a last resort.

An amendment accepted by the Attorney-General and passed in the Senate and contained in clause 36 provides that no final order in contested property proceedings be made, except in special circumstances, unless the parties have attended a conciliation conference with a registrar or deputy registrar of the Family Court. Here again the emphasis is on achieving amicable settlement of disputes rather than having orders imposed upon the parties by the Court.

The Bill as introduced in the Senate would have enabled all undefended divorce applications in certain circumstances to be dealt with without the necessity of either of the parties or their legal representatives to attend before the Court. Notwithstanding safeguards in the proposal and in the Act the proposal attracted opposition from certain groups. The Attorney-General moved an amendment in the Senate, now included in clause 53, that will enable undefended divorce applications to be dealt with in this way but only where there are no children of the marriage under 18 years of age. By excluding all cases where children are involved, this amendment answered most of the objections to the original proposal while preserving much of the benefit, particularly in savings of time and cost, of the simplified procedure.

Other amendments of a procedural or structural nature that were proposed by the Joint Select Committee and which are included in the new Bill are: Amendments that will permit the judges of the Family Court to make rules of court, as do judges of other superior courts, clause 75; amendments that will enable parties to make joint applications for divorce, sub-clause 3 (1) and clause 24; and amendments to expand the duties of a full time marshal of the Family Court, clause 17. One of the principal duties of a full time marshal will be, as recommended by the Joint Select Committee, liaison with the various police forces to ensure the more effective enforcement of Family Court orders.

Changes to Substantive Law

In relation to children, clause 29 of the Bill requires the Family Court to take into account any wishes of a child, no matter of what age, and to give to such wishes what weight it considers appropriate. The Bill also implements certain Joint Select Committee recommendations in relation to children which were not taken up by the previous Government but are endorsed by this Government . In particular clause 29 provides that Government departments, instrumentalities and other persons or bodies who have information concerning the whereabouts of a missing child who is the subject of a custody order may now be required to divulge this information to the Court, subject to appropriate safeguards.

The Bill also contains in clause 29 an express statement of the criteria that the Family Court must take into account in determining guardianship and custody matters. The Joint Select Committee had argued that the inclusion of criteria would assist the more rapid resolution of disputes over children by introducing greater certainty and predictability into the exercise of the Family Court's discretion in this controversial and emotive area. Following debate in the Senate some additional criteria have been included in the Bill now before the House. A further significant recommendation of the Joint Select Committee which is implemented by clause 65 of the Bill is that there is to be a discretion given to the Court to attach a power of arrest to an injunction granted for the personal protection of a party to or a child of a marriage or to exclude a person from certain premises. The Court will be able to attach a power of arrest order to an injunction not only where violence has already been committed but also where violence is threatened. Relevant provisions in the Bill take account of State legislation dealing with domestic violence and seek to preserve the operation of effective State legislation. The Joint Select Committee recommended that the terms 'guardianship' and 'custody' should be defined and that their usage should be consistent with other Commonwealth and State legislation. The Bill in clause 26 defines these terms.

In relation to property settlement proceedings, an amendment moved by the Attorney-General and passed in the Senate relating to maintenance agreements under section 87 of the Act is contained in clause 44 of the Bill and is of significance. It will have the effect of widening the circumstances in which the approval of a maintenance agreement may be revoked by the Family Court and it invests the Family Court with the common law and equity powers of the High Court in proceedings in relation to such agreements. Proceedings in relation to section 87 maintenance agreements are made a matrimonial cause and will come within the exclusive jurisdiction of the Family Court.

Clause 36 makes it clear that the Court has the power to adjourn property proceedings where this is necessary to enable justice to be done between the parties in cases where the financial circumstances of one of the parties are likely to change in the future. This provision will be of particular value where one party in the foreseeable future will become entitled to superannuation benefits although at the time of the hearing there may be little other property available for distribution between the parties. Clause 37 of the Bill proposes an extension of the range of circumstances in which the Court may vary or set aside an earlier property order. A recommendation along these lines was made by the Joint Select Committee.

The Bill revises and relocates in the Family Law Act the provisions of Part III of the Migration Act relating to offences for the removal from Australia of children in respect of whom custody or access orders have been made or sought. Clause 33 provides for increased penalties for these offences. It is hoped that relocation of these provisions will more effectively bring them to the notice of the public and the legal profession. Also relevant to the issue of the wrongful removal of children is the amendment in the Bill in clause 61 which enables regulations to be made so that Australia can implement the Hague Convention on the Civil Aspects of International Child Abduction. Provision is also made in clause 55 and 61 respectively to enable Australia to accede to the Hague Convention on the Recognition of Divorces and Legal Separations and to the Hague Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. The reforms to be implemented by the Bill are urgently awaited. I commend the Bill to honourable members.

Debate (on motion by Mr Spender) adjourned.