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Wednesday, 19 October 1983
Page: 1942


Mr GRIFFITHS(4.35) —At the outset, I congratulate the honourable member for Dundas (Mr Ruddock) on his chairmanship of the Parliamentary Joint Select Committee on the Family Law Act. It was certainly before my time in this place but his reputation precedes him in that role. I comment on the assertion by the honourable member for Dundas against three Ministers of this Government who served on the Joint Select Committee. He was disturbed that they were not making a contribution during this debate. I simply say that to my knowledge the three Ministers to whom he adverted have made a significant contribution not only, of course, while on the Committee but certainly in our own party room. It seems to me that it is a little unfair to imply that particular Ministers, by their absence, do not perceive these matters to be of the utmost import. Certainly in my view that is not the case.

The honourable member for Dundas also adverted to the setting up of the Institute of Family Studies. That development is one which I personally warmly endorse. Honourable members may recall some weeks ago receiving a recent publication from the Institute called, I think, from memory, 'Equity and the Australian Tax Transfer System'. I commend a detailed reading of that document to members of the Opposition because its central theme seemed to me to be in total contradiction of the policy prescriptions being embraced by the Opposition ; that is, the central theme of the document was that there ought not be a greater reliance on regressive indirect forms of taxation as opposed to the more traditional progressive taxation normally embraced by Australian governments. That is one welcome document to come out of that body and I commend a detailed reading of it to members of the Opposition.

I also pay tribute to the then senator and now, of course, Mr Justice Murphy for his pioneering role in family law in Australia. It is my view that the current Attorney-General (Senator Gareth Evans) will continue with that reforming approach to this most contentious area of law. There certainly have been delays in terms of the implementation of this type of legislation and they are essentially predicated upon what is obviously a widespread community concern about matters that go to the very heart of personal relationships in a society such as ours. The old fault system, I hope, will never return. Having regard to the unanimity embraced on that point by the people on the Joint Select Committee and generally within the House it appears that it will not return, but certainly the system that called for almost a compulsory degradation of the parties seeking divorce should be relegated, as it seems to be now, to the history books . The single ground of no fault divorce must never be threatened.

A number of previous speakers have taken particular note of the impact on children of the breakdown of marriage. It is worth making the point that from the experience I have had in family law matters it is, whilst not in a majority of cases certainly in a sufficient number to take note of the problem, the case that the children in some marriage breakdowns are actually far better off once the marriage has been dissolved and the parties have set up their own lives. If one is to take the criterion of the welfare of the child as the most important aspect of these matters-certainly that is my inclination-one ought not to assume that marriage breakdown will necessarily adversely affect the children involved.

I wish to comment briefly on that part of the Act relating to what has been commonly called divorce by post. It has been suggested that the proposed amendment will introduce a divorce by post procedure. The description 'divorce by post' is somewhat inappropriate in my view. The proposed new section will enable regulations to be made giving the Family Court a discretion, in certain circumstances, to determine undefended divorce proceedings, whether commenced by one party or jointly by both parties, without the necessity for the parties or their legal representatives to attend a court hearing. The circumstances in which the Family Court is to be able to exercise the discretion will be as follows: Firstly, where the proceedings are undefended, that is, not contested; secondly, where one party has requested the Court to determine the proceedings in the absence of the parties; and, thirdly, where the other party has not requested the Court not to so determine the proceedings.

The proposed amendment will provide benefits to parties to Family Court proceedings in two ways. Firstly, there will be significant cost savings for those parties who do not wish to be present or to be represented at undefended divorce hearings. Secondly, there should be a considerable saving of court time which will enable the more difficult, contested proceedings to be heard and determined expeditiously. In my experience of the family law jurisdiction I have often been amazed at the relative ease with which some of my professional colleagues earned their dollar for the day. It seems to me that, at a time of immense personal hardship for most of those involved in divorce proceedings, regardless of their particular assets, the very nature of the dissolution of marriage and the impact that that has on any assets holding almost presupposes that both parties will experience financial difficulties. To sit around the Family Court and see how easily or how quickly the meter is ticking over for some disputants is a little disconcerting. One aspect that ought to be commended is the resolution of that sort of enforced increase in costs.

There has been some criticism of the proposed amendment since it was first recommended by the Parliamentary Joint Select Committee in 1980. It has been said that, given the seriousness attaching to the termination of marriage, both parties should be present in court when the decree is pronounced. At present, however, parties are not required to be present in court but need only be represented by a solicitor. In fact, in undefended divorce proceedings this is required of only one party-that is, the applicant in the proceedings. Moreover, in my view, the requirement of 12 months' separation to establish irretrievable breakdown of marriage is of far greater import than a brief court appearance in bringing home the consequences of divorce to intending divorcees. It has also been said that divorces will be easier to obtain under the proposed procedure. Whatever the precise procedure, under the proposed amendment the Family Court will still have to be satisfied, on the basis of evidence before it, that the ground for granting a divorce has been established and that there is no reasonable likelihood that cohabitation will be resumed.

At present, the evidence upon which the Family Court grants the great majority of undefended divorce applications is mainly in documentary form, consisting of application forms and supporting affidavits. It will, of course, remain open to the Family Court to decline to grant a decree if the evidence before it warrants that decision. Of course the procedure will not apply now in most cases as the Government has gone some way towards compromising on this issue. Where there are children of a marriage under the age of 18 these provisions will not apply. I think it is worth noting that children were involved in 61 per cent of the dissolutions that were granted during 1982. On the assumption that that sort of ratio will not radically change in the foreseeable future, in 61 per cent of the dissolutions after the application of this amendment the divorce by post process will not be utilised.

But there seems to me to be some far more fundamental aspects of the family law legislation that we ought to be addressing. One of the problems I found in that jurisdiction was that it seemed that the adversary system has the almost inevitable result of pushing the disputants apart. In most marriages a brief period or a number of periods of hostility, engendered for whatever reason, is a normal occurrence. When people went to a legal practitioner and sought legal advice with respect to the dissolution of that marriage it was often the case that legal proceedings were initiated. Those very legal proceedings acted to force the parties apart. Certainly, counselling facilities were available in the Family Court jurisdiction but often they were of little avail because hostility had built up more as a function of the legal proceedings than as a result of the problem that the parties faced. In my view, the adversary system itself, even though it is not the full adversary system that we know in other jurisdictions, is one of the most important determinants of the breakdown-the complete breakdown as opposed to temporary breakdown-of marriages.

In 1982 only 3.7 per cent of dissolutions involved contested hearings. I suppose that these are the types of cases that many people argue make bad law. That certainly is a view that I endorse. The general area of family law seems to me to be based more on a form of industry assistance to the legal profession than it is to looking after the interests of the various parties. But one of the functions of that sort of interpretation has been a related initiative of this Government to ensure that the Australian Legal Aid Office scale with respect to family law matters is adhered to throughout Australia. That will have the effect of forcing some of the States that work on different scales and charge much higher fees to come back to the field. An end result of that will be a far greater availability of limited resources to people in the unfortunate position of finding themselves before the Family Court.

Other fundamental issues need to be addressed in terms of family law. I have already adverted to improving the counselling facilities. The inherent delays in any legal jurisdiction can often act in this jurisdiction to calm down the parties, I suppose, and give greater hope for reconciliation. But the delays stretch a little too far. The general view would be that they just prolong the suffering for the parties involved.

The other important factors that are not addressed by this Bill are the more broadly based factors that have an impact on marriage, such as unemployment, the stress of living in a modern society and the stress that is put on marriages in the pursuit of material goods. I think these sorts of things are the ones that we ought to be addressing in the longer term in a far more substantial way than has been the case to date. Mr Deputy Speaker, I shall not go on as I know time is limited. I thank you for your indulgence.