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Wednesday, 19 October 1983
Page: 1907


Ms MAYER(11.51) —I find myself in a position of agreeing almost entirely with the honourable member for North Sydney (Mr Spender), so I hope that I will be able to add something to his remarks, rather than to detract from them. I would like, however, to correct one comment that he made last night about members of the Opposition having a conscience vote on this issue. Government members also have a conscience vote on a number of clauses in the Family Law Amendment Bill 1983.


Mr Spender —I am sorry to say that I was unaware of that. I thought it was a Government issue at this stage.


Ms MAYER —That is quite all right. I have some problem about assuming that conscience is necessarily involved, but as that is a purely private matter, I will make no further comment. The honourable member for North Sydney made some very cogent comments on the background to the Family Law Act which were most helpful in putting these amendments into perspective. He has reminded this House that before the Family Law Act was originally passed under a previous Labor Attorney-General, now Mr Justice Murphy of the High Court, the legal provision for the dissolution of marriage and the care of children of the marriage was more reflective of the nineteenth and twentieth centuries. The amendments to the Family Law Act in 1981 provided some improvements to a law which broke new ground when it was originally passed and which clearly, in the light of experience, was going to need amendment. The amendments in the Bill now being debated make further improvements which take into account both developments in Australian society and the recommendations of the report of the Joint Select Committee on the Family Law Act and the Watson report for the Family Law Council .

Experience in the courts for those people who are not in the legal profession is very limited. The law generally means trouble as far as these people are concerned. Just as illness indicates that one goes to a doctor, legal problems would indicate that one seek legal advice. But that fact is that people have more familiarity with illness than they do with legal situations. I think that the Family Law Act needs to be continually looked at to make sure that people who have to deal with the law-perhaps in this single instance in their lives-are able to do so with the least possible fear and ignorance of the provisions of the law. In moving the amendments to the Family Law Act, the Attorney-General ( Senator Gareth Evans) said:

Any government that cares for people and is concerned to minimise unhappiness and social conflict must give paramount consideration to family law matters.

It is true that, free from the burden of attributing fault, the Family Court can concentrate on matters of importance. The matter of overwhelming importance, in my opinion, is the best possible arrangement for the welfare of the children of the marriage. We have already been reminded that 44,088 marriages were dissolved last year. The evidence is before us therefore, that marriage, however hopefully and earnestly entered into, is an especially difficult relationship which often simply does not work. Even if the decision to abandon the marriage affected only the two people who originally entered into the contract, that decision is difficult to make and harrowing to implement, because no one enters into divorce proceedings lightly or as some kind of a game.

When there are children in the family, however, it is much more difficult. In those circumstances, the law must address itself to the most thoughtful way of dealing with all the factors, taking into consideration both people and their children. It is important, therefore, that the law should be so constructed that if the nature and the circumstances of the people concerned permit, the marriage can be dissolved leaving the smallest possible residue of continuing unhappiness and bitterness. In many cases this is so, but where hostility and disagreement occur and continue, it is the rights and protection of the children of the family that must be addressed. Nothing exacerbates already poor relations more than the issues of custody, access and maintenance.

I wish to deal this morning with the amendments which change the provisions for children. These amendments, like several others, are based on recommendations of the report of the Joint Select Committee on the Family Law Act and the Watson report for the Family Law Council. The need for these amendments reflects the changing understanding of parenthood and the implications of that change for the law. As a society, we have moved from regarding only children born into a marriage as having need of the protection of the law in the case of divorce. We know that a family may include adopted children-adopted by one or both parents- children from previous marriages of one or both of the partners, children born as a result of advances in medical science and children who are part of the family without having any of those relationships with it.

The Joint Committee report points out that provision for most of these children was included in the original Act. But a High Court judgment limited the provisions of the Act to the natural and adopted children of both parties to the marriage. This effectively left in limbo children outside the two categories or required parents to settle custody matters for the same family in both the Family Court and the appropriate State Supreme Court. Otherwise, it was left to two people already in conflict to reach a sensible and amicable agreement. That is a most unlikely outcome. If custody hearings could deal with only two of the six possible classes of children listed by the amendment, the possibility of continuing dissension is virtually built into the legislation. That is clearly undesirable and I think it is a persuasive argument for the amendment.

The inclusion in the amendment of children born as a result of in vitro fertilisation and embryo transplant or by artificial insemination, including those by a donor not of the marriage, straightens out a situation created by the successful developments of these medical procedures. The very significant number of children born as a result of these procedures need to have the protection of the family law, as does the child who lives with a family, as part of that family, but who is neither a natural or adopted child of either parent, provision for whom is properly included in the amendment. Many families include children such as these-children perhaps from the extended family whose natural parents are for some reason unable to care for them, but for whom adoption is not appropriate, children not of the family who may have been informally fostered and whose natural parent or parents have disappeared and children who have, for many reasons like that and others, entered and become a normal part of a family. These children have as much need for and as much right to the care and concern of the Family Court. They should have the right to express a choice, to be maintained and be secure and to have the same treatment as other children in the same family. The inclusion of the extra four categories of children in the family law legislation corrects a situation which could adversely affect, and no doubt has adversely affected, many children.

Of the 44,088 divorces in 1982 to which I previously referred, 38.4 per cent of those couples had no children and 3.5 per cent had four or more children. A total of 53,010 children were affected by divorce in 1982. That number illustrates the responsibility that we have to make the best possible arrangements under the law for those children. Custody arrangements are not always easily or amicably arrived at. From January to July of this year, 7,435 people were involved in confidential court-ordered counselling, and 8,553 people were involved in non-confidential court-ordered counselling. Most of this counselling dealt with custody and access matters. These figures illustrate the good sense of the amendment requiring that there should be no final order in custody and guardianship cases until the parties have attended a conference with a court counsellor. There is no magic in counselling. Counselling will not solve all of the problems that arise in this very difficult area. However, it is an advance on the present system.

At a seminar organised by the National Women's Advisory Council in Geelong earlier this year on the subject of custody and maintenance matters in the family law, the point was very strongly put that it is more likely that a satisfactory discussion of these very emotional matters can take place in the presence of a third person not involved in the outcome and able to be objective than in the other ways that are available to the disputing parties. I think in that situation one would have to agree that it is better for people to argue about things, or put their points of view about things which they are seeing emotionally only in the light of their own interest, before a third person who can put unemotionally the facts as he or she sees them. That counselling session which must take place before a final order is granted, I think, will motivate people to be as reasonable as they can in those circumstances, because being unreasonable would clearly be counterproductive to the custody order that they might wish to have. So, I hope that that amendmen will provide some advance towards the better settlement of custody and access matters.

The only people who suffer when custody and access matters are in dispute continually, of course, are the children. The parents who are in dispute may be affected adversely by it and may find themselves unhappy because of it, but adults can deal with that situation. Children cannot, of course, do that easily. However, a custody order is not the end of it. Children grow, develop and change , and so do their parents. Lifestyles and circumstances change. A custody order made at one time may not be in the best interests of a child at another time. To deal with this situation the Bill contains an amendment to allow one of the parties to a marriage to take proceedings with respect to the welfare of a child . This will give the Family Court powers similar to the wardship powers of State supreme courts and the continuing ability to deal with the needs of the children of a dissolved marriage. The need for coherence and continuity in this area does not need to be canvassed, as the benefit to the child is obvious.

Another amendment which I believe to be necessary to the wellbeing of children in the unfortunate position of being threatened with or subjected to violence from a person, usually a parent or a step-parent, is the amendment which will permit the Family Court to attach an arrest order to an injunction. That desperate position that many women and children are in is attested to by the numbers who need to take advantage of women's refuges. The horrifying stories of violence committed and threatened not only point to the necessity of this power for the protection of those threatened and abused but also will make it possible for women who presently are too afraid of doing so to seek dissolution of their marriages. Very large numbers of women who are presently in refugees or who have been in refuges in the past are so afraid to go out on the street, so afraid to appear in any public place at all, that they will not take the action which will dissolve the marriage to the person who has been threatening them and in fact carrying out violence on them. I believe it is necessary for us to make it possible for those women to take advantage of the law which is there to dissolve a situation which nobody should have to put up with.

It is in a situation in which both parents have failed to carry out their responsibilities that another amendment allows a third person to take proceedings in the Family Court with respect to the welfare of a child or children. This will allow another family member, for example, who is prepared to take responsibility for a child to do so legally should the Court so determine. This situation exists informally today in many families in which grandparents or other family members regard the welfare of the children in the wider family to be their responsibility. They will be able to ask the Family Court to consider the best interests of the child and possibly give legal status to their guardianship. Again this is a recognition of a situation which exists in the community. While we tend to believe that only parents are responsible for their children and that only parents take responsibility for their children, in fact every community will have families in which grandparents, aunts and uncles, cousins and all sorts of members of the wider family regard the responsibility for all the children in the family as theirs and will carry out that responsibility carefully and in the best interests of the children. This amendment recognises that that can and should be made a legal situation where possible.

There are other amendments which deal with the position of children of a dissolved marriage, but I believe the ones that I have dealt with provide for a great many of the sorts of problems that have become apparent and for which recommendations have been made in the two excellent reports I have mentioned. I believe they show a real understanding of and concern for the children in a very difficult situation.