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Wednesday, 19 October 1983
Page: 1936


Mr MAHER(3.57) —Today the House is debating an important Bill, the Family Law Amendment Bill. I was somewhat concerned by the comments of the honourable member for Fisher (Mr Adermann). Particularly, I reject his wide-sweeping remarks in relation to the children of a broken marriage. He talked of health disorders and nervous breakdowns. I am sure that these situation can arise in any family. We all know that they do arise in ordinary and happy families. We know people who have children who have had a series of mental illnesses. We know that this can happen anywhere. I think it is unfair, not productive and not positive to say that this arises out of divorce. I remind the honourable member that it was his Government that put one million people out of work in this country and made housing rates so dear that ordinary working men or women could not obtain a home of their own. Surely economic considerations cause strain and stress in marriage, just like a lot of other matters.

What really concerned me about the honourable member for Fisher's remarks was perhaps his exaggeration when he said that many people come in to his office and say that they have been divorced, their property distributed and the custody of their children determined without their knowledge. That is either a fraud, which is a very serious crime, or a conspiracy. No one has ever come into my office and said that this has happened. Such a situation would mean that there had been false swearing of documents of service but, probably, I think that the honourable member was just a bit carried away with the occasion. What has probably happened is that some man who could not be found, who had left his children, wife and home and gone to another State, has discovered that he has been divorced. The whereabouts of this so-called caring spouse were not known and some order for service by advertisement in the Press or something like that would have been obtained. If that is not correct, I think the honourable member has a serious duty to go to the Attorney-General (Senator Gareth Evans) and place before him this so-called evidence he has of all these people who have found themselves divorced, their property gone and the custody of their children determined without their knowing. I reject his notion that people have to be dragged before the Family Court of Australia.

I practised as a solicitor in Sydney for some years, but because of my religious beliefs-I believe in the indissolubility of marriage-I did not handle divorce cases. But in emergencies one gets involved in divorce matters as a solicitor acting as an agent for a country practitioner. Anyone who practised in Sydney from 1959 onwards, or who served in Parliament for that matter, would have a knowledge of the working of the Family Law Act, or what we used to call in the old days the Matrimonial Causes Act. Under the legislation before 1959 there were requirements in relation to counselling that were honoured more in the breach than in the observance. I will speak more about that later. All members of parliament who interview constituents-or perhaps even parents of constituents-who have difficulties with marriage breakdown, custody matters and property settlements, know that such matters are very distressing. They are matters in which we need a certain amount of sensitivity and calm. People become very agitated. It is always a very sad situation.

Of course, a lot of water has passed under the bridge since 1959 when Sir Garfield Barwick introduced the concept of two years' separation before divorce and subsequently in 1975 the Attorney-General, Lionel Murphy, brought in the concept of no-fault divorce and one year's separation before a divorce. In this House divorce has always been a matter for the conscience of individual members of parliament, as it is today. This legislation, of course, does not actually touch on the grounds of divorce. I was concerned by one church paper in Sydney in which members of the Australian Labor Party were attacked because it was assumed that they would take the attitude described in the last line of the editorial which was:

My party right or wrong.

That is absolute rubbish. The Labor members of this House-as I am sure do the members of the Opposition-have a conscience vote on any matter that touches on the dissolution of marriage. But of course this legislation does not actually touch on that area. It deals with a number of matters arising from the report of the Joint Select Committee on the Family Law Act several years ago which was chaired by the honourable member for Dundas (Mr Ruddock). Honourable members know that in canon law there are annulments, not just for a non-consummation of marriage but for marriage under duress, with a lack of free will. In the church, annulments are even granted on the basis that there is psychological inability to form a lasting, permanent relationship.

But the Bill before the House has received publicity essentially because of the notion that is put of divorce by post. Several of the churches have communicated with me. They were concerned about this proposal. Having been in public life for some years, I was not familiar with the existing legislation dealing with divorce. I visited the Sydney Registry of the Family Law Court and was received with great courtesy. I had a long interview with the Registrar, a Mr Lee, who explained to me that there is divorce by post at present in a sense, and that any person who lives in the country or out of Sydney can lodge documents for a divorce by sending the documents to the nearest registry together with an amount of $125. So one can file one's divorce proceedings by post. Of course, about 99 per cent of the proceedings lodged in the Sydney Registry are undefended proceedings. The applicant's dissolution of marriage application is filed. After 42 days a return date is given and the matter is listed. If the service is accurate, if a proper affidavit of service is lodged and document has been served and acknowledged, the judge who is the list judge for the day proceeds to grant a divorce.

The only issue that is before the judge under the existing legislation and the only issue that concerns the Court is whether there are children and, if there are, what arrangements have been made for the children. Under section 63 of the existing Family Law Act the judge has to make a declaration that he is satisfied with the arrangements for the children. If that is the case, the judge will pronouce a decree nisi and in one month that decree will become absolute. If the judge is unhappy about the arrangements for the children he pronounces the decree nisi but it does not become absolute until there is evidence before him that the arrangements are satisfactory. The Registrar explained to me that usually an applicant's solicitor appears in cases and that if no one appears the matter is struck out and cannot be relisted unless an affidavit is lodged explaining why no one turned up. The Registrar went on to say that in about 60 per cent of cases both parties turn up. So people who are unfortunately involved in a divorce are interested in the outcome of the proceedings and they attend the court, even though the proceedings are over in a few minutes.

The Government is inserting an amendment into the Family Law Amendment Bill before the House today which will change the situation only where there are no children under the age of 18 years to a marriage. If there are no children to a marriage, neither party will have to have a day off work. No one will have to attend. But if one party objects, and says 'I want to attend', that is quite all right. It is allowed for in the Bill. He or she may still appear. However, the provision saves difficulties for people who live in the country. With the present job situation no one will suffer a loss of time or put their position at risk by having to come to Sydney for a hearing. Under the existing law people did not have to attend anyway. Only one of their solicitors had to be there, either the solicitor for the applicant or the solicitor for the defendant. There is a continuing need-it is of extreme importance-for the court to be satisfied that proper facilities exist and proper arrangements are being made for the custody of the children.

It is important that positive steps be taken by Parliament if it is at all possible to save marriages. Perhaps there should be a select committee on the Marriage Act to reconsider the whole aspect of it. A select committee worked for some years on the divorce Bill, as it were. It may be in the interests of Parliament at this time, with the concern in the community about the incidence of divorce and the breakup of marriages, to have a select committee on marriage- a positive committee, a committee to prevent breakup. As I said earlier, it is not just incompatibility at all times. I believe that economic factors come into the crisis, such as the inability of people to obtain a home of their own, the stresses and strains of unemployment and all the other difficulties that arise for young couples.

Provisions in the Bill are being highlighted to enforce counselling for anyone who is seeking a divorce and has not been married for two years. If a period of less than two years has expired from the date of the marriage it is essential before proceedings start that an applicant file documents concerning attemped reconciliation with reference to marriage counsellors and organisations which work in the area of family counselling. There is also provision in the legislation for a further strengthening of counselling or, as it is called, ' conciliation counselling', by the inclusion in the Bill of proposed new section 16A which stresses the obligation on legal practitioners to direct parties to proceedings to the existence of family counselling and all of the organisations that exist to help marriages remain viable.

I noted that in another place Senator Harradine proposed various amendments related to counselling. I have read the amendments of my good friend, Senator Harradine, with interest. I noted also the rejection by the Attorney-General of these proposals because, in his opinion, although they related to compulsory counselling, they were not counselling at an appropriate time. It appears to me that Senator Harradine is harking back to the pre-1959 situation when it was essential merely to file documents to show that counselling had been attempted. In my experience this was a farce. Senator Harradine's proposal unfortunately appears to be a double farce. The parties to young marriages, as they are called , already have, and by this Bill will continue to have, an obligation to file documents concerning counselling, but if parties who have been married for at least two years are determined on a divorce they would have to undergo a very bitter meeting to qualify to receive the certificate.

Senator Harradine's proposal is that there be an actual bringing together of the parties for attempted final reconciliation. Everyone is in favour of reconciliation, but if people have been separated for a year and are determined on a divorce, little is to be gained by the course of action proposed by the honourable senator. On Saturday a constituent of mine who is also a friend came to see me. He and his wife have parted and he is extremely distressed about that . He told me that there is no way he can get his wife to undergo counselling. They have not resolved to divorce, and they have not resolved to separate permanently but they are living apart. It appears to me that, were Senator Harradine's amendment carried and these people obliged to file a notice of separation, that would work against what the honourable senator proposes; it would in effect be the first step towards divorce. Many married couples separate and ultimately come back together. They separate on an informal basis after some incident or some problem, but they get back together. Under Senator Harradine's proposal, those who separate apparently are supposed to file a notice of separation. In the present climate, with the availability of legal aid and other things in our modern society, once someone files a notice of separation the whole situation will proceed with only more expedition towards divorce. I believe that what the honourable senator hopes for in his proposal will never come to pass. I do not see how I can support this proposal. I know of only one instance in which his proposal would ever have been used. That was the Crabtree v. Crabtree situation where a man lived apart from his wife in their home for a year. He looked after himself, washed his clothes and cooked for himself. His wife did not really know that they were living apart and that, therefore, he had qualified to divorce her. After a year she realised that he obviously had some mental problem and she herself tried to get some sort of family counselling. Under Senator Harradine's proposal, that man who was living apart from his wife for a year should have filed a notice that they were living apart. That was an unusual and devious situation. Certainly that person would never have undertaken reconciliation counselling and, had he done so, it would have been a total waste of time.

Senator Harradine has proposed a number of worthy things, including reconciliation programs and two compulsory conferences but, having read the debates and studied his amendments, I do not see how I can support them. Those are the matters I wished to put before the House today. The Bill does not deal with the grounds of divorce. The amendments contained in the legislation before the House essentially provide for the saving of costs for applicants, mainly people from the country, in undefended proceedings where no children are involved. I recommend the legislation to the House.