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Tuesday, 29 October 1974
Page: 2031


Senator MISSEN (Victoria) -The Family Law Bill 1974 is a Bill of the greatest importance to the Australian people. It is of considerable importance in the moral and economic senses and also to the lives of many thousands of people who have been awaiting the appearance of this Bill before the Senate. We must, I think, recall that this is the first major occasion since the Matrimonial Causes Act was adopted in 19S9 on which the legislation has been thoroughly reviewed. During the debate on this Bill we must bear in mind that there is also in existence the Marriage Act which covers many areas that are complementary to the Family Law Bill. I understand that some amendments to the Marriage Act are in contemplation. They may be very necessary to complement the changes which will be made in the family law as provided in this Bill.

It is, as has been said, a matter on which a free vote will be exercised on all sides of the chamber. This is a matter in relation to which we in conscience must give very great consideration. This applies not only to consideration of the Bill but also to the proposed amendments which are complex but highly essential.

The Act that was passed in 1959 was a landmark in its time because it brought together the Commonwealth legislation in this field, whereas previously such legislation had been a subject for the State laws. At that stage the Commonwealth took unto itself the powers which the Constitution had given it and created a uniform divorce procedure and law throughout Australia. In this Bill, and particularly in the amendments which the Senate Standing Committee on Constitutional and Legal Affairs proposes, there are suggestions that the Commonwealth should go further in exercising its powers over marriage, divorce and matrimonial affairs. The present Act stands, as I say, as a landmark in its time, but it has proved to be defective in operation. It is essentially admitted on all sides that there are provisions in that Act which must be changed to bring justice to this area of the law.

I think it must be said early in the debate that the family as we know it in Australia is not broken, as some people seem to think; it is in fact a greater institution than it has ever been in this country. While the divorce rate has risen in Australia rather slowly and not in accord with many other developed western countries whose divorce rates are much higher, nonetheless there is every indication that families and marriage are institutions which are not upheld in the strongest regard by the great majority of the Australian people. It was said in 1 959, when the ground of 5 years separation was introduced, that this would open the floodgates and it would cause the destruction of marriage. Many of the arguments which one hears in various quarters today can be read in the debates and in the writings of 1959. They reappear again. But in 1959 and since then separation did not open the floodgates.

Whereas, for example, in 1967, 17 per cent of the petitioners were using the ground of separation, in 1971 it had been reduced to 12 per cent. It has not become a major ground for divorce. Yet, on the other hand, because of the urgency with which many people in this country required a divorce, because they have lived in circumstances which are intolerable, the ground of adultery has risen considerably. In 1963 there were 17 per cent petitioning on this ground. In 1973, 38 per cent were petitioning on the ground of adultery. That was the immediate ground and together with the ground of cruelty, now makes up something like 45 per cent of all the petitions in this country. One must note that under this Bill- far from it being a 'quickie' divorce Bill which will give quick divorces- a great number, 45 per cent, of petitioners will be required to wait longer for the divorces which they seek. I say this about the development of the Bill up to this day: Many defects have occurred in it, defects which I will not detail because they have been written about many times. I refer to matters of bitterness arising under the grounds which presently exist, matters of great delay and costs, and other indignities and problems which have caused the examination of this matter and the emergence of this Bill.

In this country marriage is, as I said earlier, a popular institution. In 1960- the latest figures I have- 6 per cent of women and 7 per cent of men only were unmarried in Australia. If one goes back to the 1930s one will find twice as many unmarried people. If one goes back to the 19th century one will find 4 times as many people unmarried. It can clearly be said that marriage is still a very popular institution in this country. So far as people who obtain a divorce are concerned, three-quarters of them re-marry. They do not generally re-marry more than once but they are getting their divorces because they want to remarry, not because they have lost their faith in the institution of marriage.

I wish to refer- because I think it is relevant to this whole debate- to some excellent research which has been done by Dr Ailsa Burns. Dr Burns, of the School of Behavioural Science at Macquarie University, has written an article in the magazine 'Search' of July 1974. She entitled it: 'Marital Breakdown and Divorce'. She detailed some of the assumptions that people make which, on examination, prove to be false. She stated:

The history of divorce legislation indicates that harsh laws have frequently been introduced and retained not because they were considered meritorious in themselves but because they were considered a safeguard to the stability of the family. The assumptions underlying this attitude can be stated as follows:

Easy divorce laws will lead to a high divorce rate.

A high divorce rate will weaken the structure of the family in society.

Since society is based on the family unit, society itself will therefore be threatened.

A number of recent writers suggest that this is a false formulation, and that no such conflict of interests in reality exists. Rather it is held that the present high divorce rates found iti virtually all Western countries must be seen in their context of high marriage, parenthood and remarriage rates. Marriage in fact is more popular and more idealized than ever before.

She goes on to explain various other aspects which, I believe, should be borne in mind. For example, the situation in regard to re-marriage rates is stated as follows:

Remarriage rates in the U.S. and U.K. are high (local figures are not available), with around 75 per cent of U.S. divorcees being remarried within five years of divorce, and the divorced-not-remarried group representing at any one time around 2 per cent of the population for men and around 3 per cent for women. Divorce can thus be seen as actually contributing to marriage stability, by rechannelling conflicting partners and their children into more viable family settings.

The doctor makes the following comments on the facts and figures relating specifically to Australia:

Two features of the Australian divorce rate are particularly notable; firstly, it is the relatively low level -

I emphasise the words 'relatively low level' - and secondly, the fidelity with which its course over the twentieth century has paralleled that of comparable countries.

The doctor gives a number of figures and a demonstration of the changes over a period. She makes the point, which I think it important, that over a 20-year period until 1966 the number of Australians who were married but permanently separated was much greater than the number of Australians who were divorced, although I point out that there has been some change in the ratio recently. Taking the figures that she has given and the situation in the United States of America which is even more extreme, she concludes:

Taking Figure 3 and these figures together it seems clearly indicated that Australians have up till now preferred to dissolve their marriages de facto rather than de jure; or perhaps more accurately, that the legal dissolution machinery is not operating efficiently to legitimate the decisions, and the subsequent unions, of separating persons; and that in consequence the country is perpetuating the existence of a large minority of citizens (over 1 per cent of the total population) who are in the marital sense stateless, and faced with all the problems of illegitimacy that statelessness involves.

If we take the situation of pensioners, we find that the ratio of deserted wives to divorcees is 5 to 1; that is, there are 5 pensioners who are deserted wives to one pensioner who is a divorcee. In fact, the position in this country is that those who are privileged have an opportunity to divorce and those who are poor and who are probably in the greatest need of support and of marriage support are the ones who cannot afford divorce. I believe that these figures and calculations do a great deal to remove some of the misconceptions and mere assertions that are made on this subject.

I turn to the Bill which is before the Senate and the features of it. It is designed, as the AttorneyGeneral has said, to alleviate the high costs, delays and indignities of divorce and other aspects of family law. I believe that in many ways it certainly does that. Firstly, I will deal with the grounds for divorce which, of course, have received great attention in the debates that have been conducted in the last few years. The Bill provides a ground based on non-fault and irretrievable breakdown' is described as the term of the ground. But the fact is, of course, that separation for a fixed period is the way in which the ground is proved. I do not propose to repeat the whole argument about fault grounds and non-fault grounds. Of course, since 1959 we have had a non-fault ground in our legislation. So it is no good for people to talk about the function of marriage being changed by the introduction of this type of ground. It has been in the legislation since 1959 and that argument has been resolved.

I have found in a long period of practice in this jurisdiction that it is very difficult to find a person who can be described as the innocent party in a divorce. We go through a charade of trying to establish guilt; of trying to establish that some person is responsible. I suggest that we do this to no real purpose. In fact, in most cases it is a matter of some sort of incompatibility that has led to the breakdown of the marriage; it is not a matter of one person being at fault. There are no or very few innocent parties in any complete sense. Those who have endeavoured in the past to obtain a divorce in a decent civilised fashion, who have separated and made arrangements, have found themselves either waiting many years or unable to divorce on a ground which exists at present. I suggest to the Senate that this is not a desirable situation. Indeed, it is an exercise in futility and an exercise in creating animosities that we continue to retain that type of requirement of fault.

Mr W.W. Hartin, the Deputy Director of the Cairnmillar Institute of Melbourne, made a submission to the Senate Standing Committee on Constitutional and Legal Affairs on this question of blame, guilt and fault. He said:

The attempt to apportion blame to one or other partner can be nothing more than an exercise in futility, and the grounds on which the divorce is eventually granted reflect only the legal provisions for recognising the breakdown of the marriage, and not its real causes. In the case of such conflict-ridden marriages it would seem realistic and humane to provide a way out of such marriages by the recognition of irretrievable breakdown as a sufficient ground for divorce.

The great consensus of opinion, as it was called by the Chairman, that came in evidence before the Senate Committee over a period of years certainly demonstrates overwhelmingly in favour of that view. We have in the Bill the change in the grounds, about which 1 shall say something when I deal with the Committee's recommendations, and a 12 months period of separation is provided for. I shall speak further of this but let us say that it is a compromise because some people would be giving up immediate grounds- 45 per cent of them- and others would be getting divorces a little earlier than they did before. In my opinion that is a fair compromise and a fair arrangement providing the period of 12 months is absolutely completed before proceedings commence.

At the moment I am detailing what seems to me to be the main aspects of the Bill. The Bill provides for the abolition of various absolute and discretionary bars against divorce- such as collusion, the requirement of discretion statementsthat was once part of the ludicrous practice of this law- the removal of judicial separation and other unnecessary and rarely used remedies. The next important aspect of the Bill is the removal of what was the prohibition on divorce within 3 years from the date of marriage. This was never an overall prohibition because in the case of divorce on the ground of adultery and a couple of other grounds this ban did not apply. One can quote examples of people who have been divorced under the present Act and the decree absolute has been granted within a year of marriage. It is a restriction now to be taken- I trust- from the Act. It was illogical because it applied to some persons and not to others and was positively unjust to some.

In the area of custody and access this Bill does a great deal. Among its most valuable achievements is the work done in this respect. It would create the concept of joint custody under the law, providing for representation of children in cases where their interests are different, possibly, from those of both their parents and where the court feels they ought to be represented. The Bill provides for compulsory conferences in many cases with welfare officers so that the problems, disputes and hatreds can be avoided and so that common sense in the interests of the children can prevail. The Bill also contains enforcement powers in respect to custody and access. They are invaluable. I regret to say that some of the persons who have commented on this Bill- even Archbishop Sambell in Perth- have not noted the fact that the conduct of the parties is not excluded from consideration by a court when considering custody and access. It must be obvious surely that it is a very relevant aspect when the decision is to be made as to which parent will have custody of the children. Unfortunately he based his opinion of the Bill on that. The conduct of the parties cannot be removed from consideration nor it is removed under the Bill.

In the area of maintenance the Bill makes substantial change, and it has been a highly criticised change because it bases the award of maintenance, in the future, on need. It seeks to promote- and I think this is justified- the independence which a wife will have so that she will not forever be in a position of dependence, of self-commiseration, and will be able wherever possible to take her place in the world after divorce. I shall have more to say about that because I think that the provisions which appear in the Bill are too harsh to wives. So far as property and the disposition of property between the parties are concerned, brought together in this Bill are all the miscellaneous jurisdictions of State and Federal governments, of lower and higher courts which deal in one way or other with the preservation and distribution of property. This Bill at least will put to an end the hopping from jurisdiction to jurisdiction to stop and reduce the consequent costs to litigants. Also it will provide some reality and recognition of the contribution as a home maker and in other capacities of wives who have no legal claim to property at the present time.

The Bill also abolishes imprisonment for maintenance debts. Many people have had doubts about this matter. But it should be recognised that, far from effecting the abolition altogether of imprisonment, there will remain the weapon of imprisonment in the case of the flouting of a court order or in the case of a contempt of court. This is the most important area where it should apply. The latest figures which the Senate Committee obtained on the number of such people who were imprisoned showed that in New South Wales there were 70 persons, in Queensland there were twenty, in South Australia there was one and in Victoria there were nine at that time. Consequently it appears that imprisonment is not a major factor in the enforcement of maintenance payments. I draw attention to the figure for South Australia. In that State a successful family court is operating and that may be the reason why it is not found necessary to use the power of imprisonment.

Lastly in dealing with the aspects of the Bill as I see them, the right to an order for costs is partially removed and orders may be made only in exceptional circumstances. I will have something further to say about that. The important thing is that, if the provisions of legal aid are properly clarified and if they are applied fairly and generously to the persons involved, they will do a great deal in bringing within the range of persons who need not only divorce but also remedies in the courts, some opportunity of having their cases heard. I summarise those matters as the main features, as I see them, of the Bill.

Since the Bill first came before the Senate in December 1973 there has been quite a deal of public criticism and comment on it. I think it has to be recognised that the Bill came forward in association with a Senate committee which sat for a period of 3 years taking submissions, hearing witnesses, discussing, receiving and reading the comments on each of the Bills. It should be borne in mind also that not only were 190 letters and 108 formal submissions received but also several have been received since and members of the Committee have read them. Recent submissions raise no new changes or new suggestions but they show the great interest throughout the community in this Bill. This Bill which is now before us is the third Bill. Anyone who has made a study of the 3 Bills will recognise that there are many, not major but quite valuable changes from one Bill to another. I compliment the AttorneyGeneral not only on his persistence in regard to this legislation but also on his adaptability and his willingness to listen and to change the Bills progressively as they have come along. Although there has been no debate on them, this Bill is already a great improvement on the first Bill.

I suggest that the criticisms which have appeared in the submissions and the various suggestions, have been embodied in very great degree in the Bill. They have been embodied still further in the recommendations of the Senate Committee. I will come to that matter in a moment. It is the constructive work that has been done by persons throughout the community that has built up this Bill and made it adequate for debate today. Two features of the community's attitudes I think are worthy of note. Two polls were taken late last year just before the first Bill was first tabled. The first one was a Gallup Poll. The question asked of the people at that stage was:

The Federal Attorney-General has proposed that in future the only ground for divorce should be evidence of 12 months separation. This will make divorce easier to obtain. Do you think that this is a good thing or a bad thing?

I observe that I do not accept the contention that this makes divorce easier. Against that question, which I think was phrased unfortunately for the yes' vote, one finds these answers: Sixty three per cent of all people said that it is a good thing, 32 per cent said that it is a bad thing and 5 per cent gave no answer. Among the States Western Australia, with 68 per cent, had the highest poll. I feel that this is some useful reflection of the opinion of the people on the subject of this type of Bill. Another poll, the results of which I shall seek leave to incorporate in Hansard, is a Morgan poll which was held at much the same time. That poll also covered the religious denominations of those who answered the questions. The subject was:

If a husband and wife tell the court their marriage is broken should a divorce be granted or not. If granted, immediately or after an interval. If interval, after how long.

The total Australian vote in favour of the proposition that a divorce should be granted immediately was 31.1 per cent. The percentage in favour of granting a divorce after an interval of 12 months was 38.6 per cent. That makes a total vote of those who favour a Bill of this nature of 69.7 per cent or almost 70 per cent. If one takes the Roman Catholic vote, the figure is 6 1 . 2 per cent. The total Protestant, Anglican and other votes in favour of granting a divorce immediately or after an interval of 12 months was 71.8 per cent. Throughout Australia 3.7 per cent of persons wanted a divorce granted after 2 years; those who would not grant a divorce at all were 12.2 per cent; and 8.8 per cent were undecided. I seek leave to incorporate the detailed poll records in Hansard.

The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted. (The document read as follows)-

Q 1 C- If a husband and wife tell the court their marriage is broken should a divorce be granted or not.

Q1D- If granted, immediately or after an interval.

Q1E- If interval, after how long.

 


Senator MISSEN -I thank the Senate. Both these polls indicate- I see no reason to think that the views have changed- an acceptance of the basic strategy and opinions which this Bill now incorporates. I believe that this is important in our consideration.

I turn to the work of the Senate Standing Committee on Constitutional and Legal Affairs which has presented 2 reports to the Senate on this subject. I am concerned mainly with the main features of the Final Report of that Committee. In that report we suggest substantial changes which pervade the Bill and which, I believe, will make many of the provisions of the Bill more effective.

The first of these proposals, which I consider the most important, is to recommend the establishment of a family court of Australia. It recommends that the court deal with all the various elements of jurisdiction which the Bill describes and that the court do this uniformly and with all necessary facilities which are of importance in this country. If honourable senators read pages 16 to 22 of the Final Report they will see the type of court which we recommend should be existent in this country.

It is important to recognise that in relation to the suggestion which we make we believe that judges should no longer be appointed for life as the Constitution requires. The judges who will go around the countryside sitting in one provincial city after another and doing most of the hard work of a family court should not be old judges or 'geriatric judges' as they have been described by one of our Senate colleagues. In fact, that work should be done by judges who are appointed by the States in agreement with the Commonwealth. Thereby we can have younger judges who are particularly suited to the work which a family court requires. That, above all, is the important thing. At the moment a judge might deal at one stage with this jurisdiction and at another stage with another. Occasionally he might do a little family court work, very often disliking that sort of work because it is not the matter on which he has spent most of his legal career. We have to have judges who are interested and qualified in this area. We have to have courts which will have the right types of facilities and will meet in an atmosphere which will be conducive to reconciliation. Such courts will need to have ancillary support from such people as social workers, conciliators, and legal advisers. It must encourage people to come to the court and use its facilities, not when proceedings have started but before, so that it can be an advising, helping court. I think that in doing this we will see a new era of law reform in this country.

Not so very long ago Mr G. J. F. Yuill of the Attorney-General's Department went to the United States of America and Canada. In a very detailed study which he made of the family courts of America and Canada he came to the conclusion that such a court was a very suitable facility for this country. I quote his conclusions:

I have reached the conclusion that family courts would be a desirable improvement to Australia's legal system, provided they have this ancillary function of counselling.

I also feel that the gathering together in the one court (or in 2 courts along the lines suggested by the Sydney University Law Graduates Association) of all the family matters mentioned in paragraph 4 above would be attractive to the legal profession and public alike.

The Committee recommended along the lines of that and many other recommendations. It recommended that a family court be adopted and that there be co-operation with the States so that it will work with success. In addition let me refer to a report from certain Canadian specialists who were asked to consider the question of a family court. This report is quoted in 'The Australian Law Journal' of November 1973 at page 653:

We believe that these problems of conflicting and fragmented jurisdictions, and the advantages of consistency in philosophy and approach, expertise in dealing with the family relationship, and practical use of social services, can best be dealt with by the creation of one Court with exclusive jurisdiction in the field of Family Law . . .

The group further concluded:

As a blue print for the future, this kind of scheme is being given very serious consideration in Canada, and indeed a pilot Family Court Conciliation scheme has recently been set up by the Canadian Federal Government in Edmonton, where its success is exceeding all expectations.

In Australia the one family court which has been set up in South Australia, which unfortunately is dealing only with those jurisdictions below the Supreme Court level, has been an outstanding success in the last year. The Committee heard evidence of this court's operations and it concluded that a court of this nature ought to be operating throughout this country.

The Committee considered many other aspects of the Bill apart from the family court. It considered the question of 12 months separation which had been so criticised in various parts of the country. It was firmly of the conclusion that there should be a period in which persons could not rush out of their house after an argument and seek immediate remedies which they later feel they must go on with. The opportunity for reconciliation should always be retained. At a seminar approximately 2Vi years ago a most experienced judge in this field, Mr Justice Selby of the New South Wales bench, in answer to a question from me, said: 'Yes, there must be a cooling-off period'. He agreed that people 'must not be able immediately to take proceedings which they may regret'. The recommendation of the Committee, which the Attorney-General (Senator Murphy) accepted, is that there should be a 12-month period of separation before a divorce can commence.

In the last few days I received a letter from the Secretary of the Anglican Synod of the Diocese of Melbourne advising me of a resolution which the Synod adopted on 10 October. The resolution states:

That Synod urgently commends to the Australian Parliament that the Family Law Bill 1974 be amended in the interests of the preservation of the family as the basic unit of our society to provide that no application may be made for divorce under the Bill until the parties have lived separately and apart for at least 12 months.

That was also the recommendation of the Senate Committee. The secretary of the Synod said in his letter that although the Synod considered that there were other matters of importance, the amendment supported in the motion appeared to be the most important. I think there are many other people in this society who feel that this is a very important matter.

The third aspect to which one must draw attention is that in the final report of the Committee there was no unanimity on the subject of whether the period of separation should be a completed period of 12 months or a completed period of 2 years. This is an important matter for the consideration of the Senate. From my experience and the views which I have formed over the years, I believe that a 2-year period would be unfair and that it would be quite wrong for people who are having great difficulty in their marriages, who are suffering because their husband is living with someone else and the marriage is really dead or who are suffering cruelty. They will have their immediate grounds taken from them. I think that it would be unfair to expect those persons to wait 2 years before they can re-marry.

Sitting suspended from 1 to 2.15 p.m.


Senator MISSEN -Mr Deputy President,when the sitting of the Senate was suspended I was dealing with the one area in which there was some difference amongst members of the Committee; the majority favouring 12 months as the period of separation and the minority, 2 members, favouring 2 years. I had referred to the question of fairness which I pointed out was one basic reason why I favoured one year. I think that 2 other matters should be mentioned. We on the Committee see that we are dealing with a completely new 'ball game' in the sense that a family court will make a tremendous difference to all areas covered by the legislation and that proper operation of that family court will mean that throughout the year of separation there will be a helping, on-going court to which people can appeal and which can actually be involved in the problems surrounding the question of whether a reconciliation is possible. That is not the situation now. The court now comes upon a divorce situation after, say, 2 years of desertion have elapsed and after possibly another year has been wasted in bringing the proceeding to the court. In most cases the marriage is dead at that stage. But it is a different situation if there is an active, operating family court operating during the period of the separation. In that event I think that 1 year is sufficient for all those purposes.

There is a third reason. It is that throughout the experience which I have had in this jurisdiction over many years I have regarded the second year of separation when people are waiting for a divorce on the ground of desertion as largely a year of bitterness. It is a year in which very few reconciliations are achieved and in which very little change occurs. Often what happens in that period is that the parties grow to hate each other; they have fights over maintenance, custody and access, and it finishes with the children of the marriage no longer seeing one parent again. I really believe that in that second year very little is achieved in preserving the marriage or the interests of the children of the marriage. For those reasons I favour one full year as the period of separation.

The third area in which a question of time is involved and which is important in the Committee 's recommendations relates to the question of a marriage continuing for 3 years before a party may petition for divorce. I have already mentioned that matter. Honourable senators will read in the Committee's recommendations that while we agree with the abolition of this provision, we strongly recommend the insertion of a provision that if any divorce application is made and the attention of the officials is drawn to the fact that the marriage has been in existence for no more than 2 years, they should be required to bring this fact to the attention of the judge, and the judge can require reconciliation proceedings between the parties to see whether in that young marriage, that new marriage, there are still grounds and hopes for believing that something can be done. This, I think, is completely different from what has happened in the past where there has been a 3-year prohibition with no active involvement by the court in that period. We strongly urge that change on the Senate as a desirable change.

I turn to the reconciliation provisions in this Bill. We bear in mind again the effect which a family court would have in filling out and giving substance to these provisions. It is also a fact that this is a change which will be a real change so far as the law is concerned, because lawyers throughout Australia recognise that to a great extent the reconciliation provisions of the present law have not really operated. We hope that the provision of a family court will make them matters of reality. But in addition we want to see the provision that there will be proper facilities for reconciliation; that there will be attempts at reconciliation not only at the time of divorce but also before, as soon as some problem arises in the marriage. The parties will have somewhere to go; a helpful facility will exist.

Part of the provisions which, we suggest, should be amended relates to the documents which should be given to the parties contemplating divorce. They should be informative, useful documents; that they should make clear to the parties not only the problems that they will experience after divorce but also the facilities that are available to them now and in their period of trial.

One other amendment which I think warrants the attention of the Senate is the one relating to the making of applications for various ancillary proceedings. There is a provision in the Bill that where applications are made for maintenance, custody or other ancillary matters like that, they must be made at least within 12 months of the decree for divorce being made. After 12 months a party cannot come back to the court; cannot proceed with these matters. Of course, the result could well be a grave injustice being done to the parties. A wife who is promised various things by her husband and who relies on that promise and takes no proceedings for maintenance or custody would find, after 12 months, that the time for taking such proceedings has elapsed. In the original 1973 Bill there was an exception to this; there was a provision that application could still be made by regulation or by leave of the court. It allowed the court to intervene and to take account of such circumstances and give redress. We want to see that provision, which went out of the 2 subsequent Bills, restored to this Bill because we believe that it is necessary to have it in the Act.

I turn to the question of custody and access proceedings. I have already said that I think that the provisions in this part of the legislation show great promise and great advance. But one or two things require alteration. One provision says that children's opinions, views and wishes on matters of custody should be taken into account by the court when it is making orders. This, I think, is sensible. But there is a further provision which says that where a child is 14 years of age or over, no order shall be made contrary to the wishes of that child. The Committee believes that provision is not desirable. Some children of 14 years of age are mature; others are strongly under the influence of one parent. Therefore, it would be undesirable to deny a court the opportunity to make a decision on all the facts, and we believe that this embellishment on the general regard for a child 's wishes should be removed.

I turn to the very important area of maintenance. I mentioned earlier that there is the possibility of harshness being done to wives who have served and helped their husbands for many years, who have brought up the children and who find themselves turned away, and denied maintenance. There is a harshness in the present provisions of the Bill which I believe should be changed. We are proposing that clause 5 1 , which deals with the needs provision- it provides that maintenance is available only in a situation of need- should be tied more closely to the provision in clause 54 which sets out all the considerations and all the rights which the parties have which should be taken into account in making a maintenance order. We have made a number of proposals for changing various aspects of clause 54. We want to see standard of living taken into account, so far as a wife is concerned. Perhaps it should be the standard of living which she could reasonably have expected but which by reason of the breakup of the marriage she may not now enjoy.

The last of our amendments to this section, I believe, will create some controversy, but I think it is a matter of importance. We propose to have among the things considered in the awarding of maintenance, any fact or circumstance which the justice of the case requires to be considered. Some will say that this will bring into question argument about the conduct of the parties in this matter. But I do not think that it is possible to exclude altogether such conduct. I give 2 examples of this. There is the example of a husband who chooses to depart from his wife who has for many years worked and scraped and has not enjoyed the pleasures of life which she would reasonably expect in later life. The husband is in every position to maintain her but he chooses to go away and not do so. There may be such special circumstances where a wife is not by law entitled to any family property which she owns. She should not be expected necessarily to work, perhaps to become a junior typist in some firm; rather, she should be entitled to expect some further order for maintenance. There is the other case where a wife may leave her husband to go to live with some other man for many years and the husband may be left to bring up the children. Ten years later her friend dies. She goes back and says: 'I want maintenance from my husband. He has not divorced me. I have been away 10 years. I now want some maintenance. ' On the mere test of need she would possibly be entitled to have it but we want it left open so that a court in such circumstances can say: 'No, the special facts here require that in justice you be denied maintenance from your husband'. Looking at it from both sides, some amendment is needed in the maintenance provisions. There is also a need to amend them in regard to the variation of existing maintenance orders because, unless a court is left with some discretion, wives who are dependent on maintenance orders for 20 years and who are no longer capable of going to work, or who should not be expected to go to work, may be dealt with unjustly. We propose an amendment to that provision.

In regard to property the major amendment which the Committee has recommended is that a person can claim a settlement of property and not necessarily be required to start divorce proceedings to do so. On the present reading of the Bill it is almost essential that people who want a property settlement take divorce proceedings. I suggest to the Parliament that it is within the power of the Commonwealth to make provisions irrespective of whether divorce proceedings have been instituted or not. We do not want to see divorce proceedings instituted just because somebody has to take steps in respect of property.

Another recommendation of the Senate Committee relates to alteration to the injunctions provision in clause 90. It is proposed that orders can be made now whereby wives are not required any longer to live with their husbands. The Committee, and particularly myself, have been concerned about the problem of somebody who cannot leave a home because he or she has not the facilities to do so. Because the party has nowhere to go he or she is forced to stay on in intolerable circumstances. I am persuaded, with some remaining doubt, by my colleagues on the Committee that there should not be a second ground of divorce although I may be persuaded to another course. I think it essential that at the very least there should be a right by a party to go to a court and say: 'I want an order in these circumstances. I am not required any longer to be regarded as living with my husband and I can enjoy the benefits of instituting divorce proceedings after a year of separation. '

On the question of costs the Committee recommends changes. We want to see the word 'exceptional' taken out. The present provision is that only in exceptional circumstances can costs be awarded. We put before the Senate the idea that in circumstances where the court actually sees some real cause it may make an order for costs. We hope that it will not often need to be used if the legal aid provisions are adequate and properly and consistently applied.

Another recommendation is that publicity of divorce proceedings should be stopped. We cannot see that any good is done except for the profits of certain newspapers when publicity is given to the travails of people in a divorce situation. Under the Commonwealth legislation at present very little can be printed but under the State maintenance legislation, which is to be taken over by this Bill, we want to see the same restriction on this type of publicity which is hurtful to children, harmful to individuals and of no benefit to the people generally.

One major recommendation of the Committee is the upgrading of the advisory body recommended in the Bill into a Family Law Commission. We want created an ongoing body which will not wait 1 5 years for the alteration of divorce legislation but will be able to act of its own volition, will be well representative of interested organisations, to pursue the need for law reform as it constantly sees it and be able to make recommendations to the Parliament. In that way we may have a law which remains constantly just and can pick up defects and which will not require such a major amendment every 15 years.

I have examined the Bill and the amendments which the Committee has recommended. I have examined as best I can the community needs and requirements. I have read with other members of the Committee and other senators the pleas and submissions which have been made over a long period by members of the public and interested organisations. A lot of fine work has been done which now puts the Parliament in the position where it can make a just law in this respect.

I believe strongly in the institution of marriage, in seeing it preserved and in making it workable. I believe that any family law must be strong, useful and constructive. We should not have to wait until the damage is done before we make any change. I hold out no real expectation that we will have a sudden change of human behaviour so that most of the threatened dissolutions will now be repaired. Nobody expects that. Most of the marriages which have broken up will stay broken up but surely we must provide for the necessary courts and facilities so that the break-up occurs with the least bitterness and humiliation and so that people will be able to have a continuing relationship one with another. I support the Bill, particularly with the amendments which the Committee has recommended. I support it with all my heart. I believe it is fair and just to the people of Australia and I hope that the motion for the second reading will be carried.







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