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Tuesday, 17 March 1987
Page: 911

Mr RUDDOCK(4.14) —The Committee will recall that on the last occasion this Bill was debated I indicated that, having not had an opportunity to speak at the second reading stage and recognising that the clauses need to be dealt with one at a time at the Committee stage, I would necessarily have to make comments on every clause. Rather than delay the Committee in that way, I seek leave to make some general comments in relation to the Bill at this stage rather than on a clause.

Leave granted.

Mr RUDDOCK —I thank the Committee. I did want to speak in relation to the Jurisdiction of Courts (Cross-vesting) Bill because I see this as very important legislation and I have had some experience of the problems that have been occasioned as a result of courts not being able to deal with and address particular problems. The area which concerned me particularly was that of family law. It is an area with which I know the Attorney-General (Mr Lionel Bowen) is equally familiar. Because of my involvement previously as Chairman of the Joint Select Committee on the Family Law Act that looked at some of the constitutional problems where these jurisdictional difficulties arise, I want to put before the Committee the matters that the family law committee considered to ensure that the difficulties which we noted and which are to be partially addressed by this Bill are before honourable members when considering this legislation.

The purpose of this Bill is to establish a system of cross-vesting of jurisdiction between Federal, State and Territory courts in Australia. As the Attorney has told us, the Bill is the result of extensive consultations between the Commonwealth and the States in the forum of the Standing Committee of Attorneys-General. Of course, the Bill is to be complemented by each State putting in place reciprocal legislation to ensure that it operates fully. The essence of this cross-vesting arrangement is such that it will ensure that, with complementary legislation, State and Territory courts will be vested with the civil jurisdiction of the Commonwealth, except in certain limited industrial and trade practices matters, and that Federal courts will be vested with the full jurisdiction of State and Territories courts.

In the area that particularly interested me, that of family law, this no doubt means that State courts, in accordance with the arrangements that this legislation will put in place, will be able to deal with family law matters, and that the Family Court of Australia will be able to deal with the full range of family matters that would ordinarily be split between the Federal courts and the State courts. The problem has arisen because the Australian Constitution empowers the Federal Government to legislate with respect to marriage and divorce and matrimonial causes, but the way in which those provisions have been interpreted has meant that certain custody, maintenance and property questions that one might ordinarily think would be dealt with by the Commonwealth, exercising its marriage and divorce powers, cannot be dealt with by the Commonwealth. That has led to very considerable hardship in a number of cases.

With respect to custody, guardianship and access proceedings and also with respect to child maintenance proceedings, the High Court of Australia has held that such proceedings could validly be dealt with under a Federal Act independently of divorce proceedings, but it has ruled that such proceedings could not involve parties other than parties to a marriage. That is the reason that this difficulty arises. Very often there can be questions concerning children, property, maintenance and guardianship where parties may have been living together but where a formal marriage is not involved. Sometimes there can be children whose parents have married after the birth of the child. Also, where parties have lived together originally, children can be born in and out of wedlock and if a custody dispute arises, theoretically, the children born in wedlock would be dealt with by the Family Court and the children born out of wedlock would have to have their custody question resolved by the State courts.

The nonsense of having different judges determining where children will be placed should be obvious to anyone. But the fact is that this matter has been considered over a period and the way in which the relevant laws have been interpreted has given rise to this continuing possibility. Of course, there are numbers of other areas in relation to property and the like where these problems arise.

Our Committee dealt with these problems. It was very troubled about them, and it commented on them. It ought to be noted, however, that this Committee reported in 1980. As I mentioned, I had the privilege of chairing that Committee and the Attorney was a member of it when it deliberated on these questions. A great deal of evidence was presented to us that suggested that this was one of the most urgent problems facing those who are interested in reform in the family law area and that this difficulty of constitutional fragmentation of the family law scheme needed to be addressed. Many examples were given to us by the family law committees of various organisations, such as the Law Council of Australia. Australian Legal Aid Office lawyers put before us a number of the problems that existed. The Church of England Social Questions Committee talked about a number of these difficult situations. I would like to mention a couple of situations that were posed by the Church of England Social Questions Committee. It raised the question of what was to happen in particular cases regarding illegitimate, step or foster children who are outside the Federal jurisdiction. I quote from its comments to us:

A widowed mother of children remarries. The second marriage fails but the second husband wishes to obtain access to the children of the first marriage with whom he has built up a relationship during the second marriage. There is no power under the Family Law Act for him to claim an order for access and he would be forced to proceed in the Supreme Court under the Ward of the Court proceedings.

The second case referred to was as follows:

A household consists of a child born during the marriage and a child born to one of the parents prior to marriage or born to the wife after marriage but not to the husband. For such a case the child born before marriage or after marriage but to a person other than the husband is not a child of the marriage and again jurisdiction in the Family Court does not exist.

These sorts of question were raised with us over and over again and a number of solutions were suggested by the Committee in its report. In essence, we saw that there were five alternatives, which were not mutually exclusive, but which could be pressed by government. The first was to obtain a reference by the States to the Commonwealth of the relevant legislative power to overcome this jurisdictional problem. The second was to establish State family courts, similar to the one that exists in Western Australia, which would administer both State and Federal laws relating to children and property. The third was the issuing of dual commissions to judges of the Family Court to enable them to exercise, in addition to their powers under Federal law, any powers granted to them under a State law. In essence, that is what we are dealing with now. This suggestion made by the Joint Select Committee of a system of dual commissions is notionally a form of cross-vesting that is being proposed in this legislation that we are discussing today.

The fourth proposal that was before us was unilateral legislative action by the Commonwealth to test before the High Court the full extent of the Commonwealth constitutional powers with respect to marriage and divorce. In relation to that point, there has been further development since the Committee reported. Matters of this sort have been before the High Court of Australia. The courts have not assisted in resolving the problem significantly in those further cases. While there may have been particular changes, the broad difficulty still remains. the fifth proposal was a referendum to amend the Australian Constitution to give the Commonwealth full legislative power to deal with all children and matrimonial property.

The Committee saw the reference of powers approach as being most preferable. That was its most favoured solution. It noted that in 1975 and 1976 the Australian Constitutional Convention had resolved that certain matters be referred to the Commonwealth, including illegitimacy, adoption and maintenance. I had the privilege, along with the Attorney, of attending a Constitutional Convention meeting in Adelaide in 1983. We expected that there would be certain advances, in terms of reference of power to deal with these difficult family law questions. Regrettably, we found that there was very considerable opposition and that the States were anxious to maintain aspects of the powers that are presently before them. So after 10 years of discussion there has been no effective reference of power by the States to the Commonwealth of the constitutional provisions to enable us to legislate adequately in this area. It was the most preferred solution, but 10 years has elapsed and we have not been able to get it in place.

The second solution that we suggested was the State Family Court proposal. That has been adopted very successfully in Western Australia. I have always had doubts about the establishment of separate family courts because the jurisdictional problems remain. The problem remains because there would still be appeals to a Federal system in relation to those matters that are Commonwealth responsibility, and to a State appeal court system in relation to those matters that are dealt with by State law. While there have not been many cases, I understand, from the Western Australian Family Court which have gone different ways on appeal, it is still possibly a problem. More importantly, it was not possible to establish separate family courts in each of the other States, as one would be undoing the system of family courts that had been put in place nationally. It was too difficult to unscramble the eggs.

The dual commission proposal which was first put to us by the Law Council of Australia was more forcibly put by Professor P. H. Lane, Professor of Constitutional Law at Sydney University, a very eminent constitutionalist. He proposed a dual court system. If anyone is interested in seeing his paper, it is reproduced in volume 2 of the report of the Joint Select Committee on the Family Law Act. That volume contains extracts from Professor Lane's opinion entitled `A Dual Court System'. He was proposing at that point a system of ensuring that the Commonwealth jurisdiction could be exchanged with the States for theirs. It seemed to us at that time a very worthwhile proposal, and it was one that the Committee in its deliberations said, in addition to the reference of power question, ought to be taken up and pursued by the Commonwealth. The Committee stated:

. . . the Committee considers that the possibility of joint commissions for federal judges or of a dual court system along the lines suggested by Professor Lane should also receive thorough examination by both the Federal and State governments. Accordingly, the Committee recommends that the governments of the States and the Commonwealth examine the possibility of issuing State Commissions to federal Family Court judges and federal Commissions to selected State judges to enable the exercise of a unified jurisdiction in family law matters throughout Australia.

The other two matters that were mentioned-that is, unilateral legislative action by the Commonwealth to exploit the fullest constitutional powers with respect to laws on marriage, and also a referendum proposal-were not seen as being at all desirable. They were seen as being somewhat confrontationist with the States and for that reason were not pressed by the Committee as being the most appropriate solutions.

I have wanted to draw attention in this very difficult area of family law to the problems that have arisen over time. I am sorry that it is 10 years or so since these questions were first addressed in a meaningful way and we still do not have a solution in place. But I am delighted-and I congratulate the Attorney-that at this time we are proceeding with proposals that may well enable us to overcome some of the problems occasioned by this difficulty of split jurisdiction between the Commonwealth and the States in family law matters. I note that the Attorney has drawn attention to certain problems, particularly the difficulty of forum shopping; that is, people might decide to go shopping for a particular judge who they believe will give them a more satisfactory result. Difficulties can arise with people undertaking such steps. I would certainly hope that such difficulties do not arise, because the problems in this area are enormous, without people being faced with the fact that the law cannot adequately address their problems. I certainly hope that the States will move quickly to introduce and implement their complementary legislation so that this scheme can be put in place as quickly as possible in the general way in which the Attorney is proposing and particularly in dealing with the family law problems that I have addressed.

Clauses agreed to.

Clause 3 (Interpretation and application).