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Tuesday, 29 October 1974
Page: 2060


Senator BUTTON (Victoria) - I rise to speak very briefly in relation to the Family Law Bill- perhaps, Mr Deputy President, I should warn you of that fact in view of the state of the Senate- because much of the ground which one might cover has already been covered so competently by Senator Missen, Senator James McClellend and Senator Everett among other honourable senators who have already spoken. The Bill proposes substantial change in the existing law relating to divorce and to the victims of divorce, if I can so describe them.

I, like previous speakers, have had the privilege of serving on the Senate Standing Committee on Constitutional and Legal Affairs which examined a great deal of material on this matter. The Attorney-General (Senator Murphy) is to be complimented and the members of the Committee, particularly Senator Missen and Senator James McClelland, are to be complimented on the diligence and good faith with which they approached this important social question. I believe that as a result of the deliberations of the Committeeif the Senate sees fit to adopt the report when the legislation is dealt with in the Committee stage- this will be a piece of legislation of which this Parliament can be proud. The bulk of the material which was put before the Committee, in terms of evidence and submissions of one kind and another, led me to the conclusion that the Bill, as recommended for amendment, is deserving of the overwhelming support of this Parliament and of the Australian people. I did not need to be persuaded by the evidence which was put before the Committee, having had some experience, from colleagues and friends and as a legal practitioner, of the injustices and inhumanity, as I see it, of the existing legislation. Those injustices and that inhumanity arise because the present legislation, based, as it is, on a fault ground for dissolution of marriage, is undignified and inhumane in the way it works.

In my experience, divorce is seen by many people who seek it as some form of punishment because the notion is popular in the community that courts are for inflicting punishment on transgressors in society and divorce is often seen as the last round in a series of matrimonial disputes which may have gone on for many years. The effects of that sort of attitude of the fault concept in divorce is measured not so much in terms of its effect upon the parties, which is bad, but more particularly in the effects upon the children of divorced couples. I illustrate the point I am trying to make by referring to the grounds of divorce contained in section 28 of the Matrimonial Causes Act 1 959. 1 do not wish to do this in great detail, but let me enumerate them. They are: Adultery, wilful desertion, refusal to consummate the marriage- however that might be proved- habitual cruelty, the sexual crimes of rape, sodomy or bestiality, habitual drunkenness, convictions for criminal offences, a period of imprisonment, an attempt to murder or unlawfully kill, failure to pay maintenance and so on. All those grounds for the dissolution of a marriage, which may have lasted many years and may have been accepted for a number of years, involve one human being making allegations of that kind against another.

The consequent effects not only on those parties but also on the children, if there are any, is one of complete breakdown- if I can use an expression which we are now using in another contextof any possibility of the continuation of a viable human relationship either within or without marriage. The effects on children are simply that frequently a mother or a father has to explain his or her conduct and what has happened to the marriage by saying to the children: 'Your father is not here any longer because he is an adulterer', 'because he is a drunkard', 'because he has been in prison' or because of the sort of reasons which are set out in section 28 of the present legislation. Not only does that undermine for all time the relationship between the 2 parties to the marriage but it seriously undermines, in my view, the possibility of a proper relationship being arrived at after divorce by the parents with each other and with their children so that some degree of family fabric and a proper relationship may be maintained for the benefit of those children. They are basically the reasons which have led me, both as a legal practitioner and as a member of the Senate Committee on Constitutional and Legal Affairs, to reject entirely the present fault grounds for dissolution of marriage. The experience of most legal practitioners, of most marriage guidance counsellors and indeed of the majority of commentators on the present divorce legislation has led them to the conclusion that the legislation of 1959 is not working in 1 9 74, that the legislation of 1 9 5 9 is no longer socially desirable, that divorce will go on and that in 1974 if that is the case it is desirable that divorces be conducted with the utmost dignity for the people involved and more particularly for the children involved.

There has been much discussion in the course of this debate about the fact that there is an increasing divorce rate in Australia, as there is in most other Western democracies. I think it proper that we try to examine as a serious matter in the course of these proceedings in the Senate the reasons for that increasing divorce rate. As Senator James McClelland and others have told us, marriage as an institution is still extremely popular. Prior to the Industrial Revolution it was part of a much wider network of social relationships. It involved not only the parties to a particular marriage but also a whole network of relationships with relatives of various kinds in what might properly be called an extended family. However, in the 1970s the extended family relationships which existed and which, I believe, may have been a very strong bolster to the institution of marriage, no longer exist to the same extent in urbanised societies. The current urban society is anonymous. Its people are alienated from each other, and its family units are no longer of an extended nature in that they are alienated by distance and by the complexities of travel in large cities and so on. The romantic view of even the 19th century of the marriage which came about through a relationship with the girl next door progressing through school, and so on, to ultimate marriage and the establishment of a stable peer group, is no longer possible.

Today engagements tend to be of shorter duration and are part of a much more anonymous society than the one which existed when marriage was a truly viable institution of the extended family. What I am really putting is that the problems of existing marriages are not problems of marriage law or divorce law. They are problems of the pressure which our society inflicts on the marriage institution and on human relationships generally. We, as legislators in this Parliament, all have a responsibility, whether we are considering social welfare legislation, economic legislation or the various other types of legislation which come before us, to consider the effect of that legislation on these types of pressures which exist in our society which are detrimental to the institution of marriage and to human relationships altogether. Mr Deputy President, I put it in the words of Peter Berger, the eminent American sociologist and theologian, who. said:

Divorce is not a denial of the importance of marriage. On the contrary it is an affirmation of the crucial need for meaning and self-validation through an intimate relationship.

I believe that that sort of view of human relationships is supported by the work of a number of Australian sociological institutes and other organisations which have arrived from practical experience at much the same conclusion. I refer, for example, to the work of the Cairnmillar Institute in Melbourne where the experiences of social workers reinforce the view that a relationship which is maintained by the parties being locked together, as it were, is not one which can be anything but acrimonious and socially undesirable. It has been suggested that this legislation in fact constitutes an attack on the institution of the family. As I said earlier, the family as an institution is under attack, and it is under attack because of the pressures of urban life, the alienation of citizens one from the other, and an inability to cope with the pressures and complexities of life generally. There is no indication that that situation will get anything but worse. I remind the Senate of works such as 'Future Shock' by Alvin Toffler which suggests that these pressures will greatly increase.

Senator Baumereferred at some length to these inadequacies which exist within our society. I agree with many of the criticisms which he made and I will support any private member's Bill which he introduces into the Senate to try to tackle some of the problems to which he referred. However, I do not think that this Bill is the appropriate one in which to try to legislate for all the problems of human relationships to many of which Senator Baume referred. The simple point that I would try to make about this matter is that we cannot preserve the institution of marriage, if that be considered desirable, by constraint. I am reminded of Aldous Huxley's work 'Brave New World' in which happiness was attained by the citizens of that society by taking a soma tablet. I regard some of the views which have been expressed in opposition to this legislation as in the same way trying to prescribe for citizens in our community a happiness remedy which is seen by the protagonists of that view as being constituted by the institution of marriage and an absence of breakdown of marriage in a significant way.

I think that it is important to distinguish between the bond of a happy marriage and the miserable bondage of an unhappy marriage. For those who enjoy the bond of a happy marriage it can surely be said that they are to be envied. For those who suffer the bondage of an unhappy marriage it is surely the task of legislators to see that that unhappiness can be ended. Some of the criticisms which have been made range from those profound and, I believe, quite sensitive criticisms of, for example, the Catholic bishops' statement. In their concern to preserve the institution of marriage, for reasons which are expressed in that document, they set out a number of considerations which they regard as important in the institution of the family. Of course, most of the comments made in the bishops' statement go directly to this question of trying to arrive at legislative systems for relieving the pressures which are placed on people both in families and elsewhere.

I think it is proper to say that the institution of the family must be seen in its historical context and as subject to change under contemporary pressures which cannot be relieved or even improved upon by legislation of this kind. There are, however, some other criticisms of the legislation which I think can be described only as irresponsible. For example, one claim made by a body known as the Foundation for the Family in relation to the fault ground is as follows:

Fault should be disclosed so that a possible future spouse of the guilty party can be aware of the type of person with whom a marriage contract can be made. The law protects the citizen from contracting to buy a second-hand motor car which has revealed 'faults'. Is the contract of marriage not more important than the purchase of a second-hand car?

Of course, Senator Missen pointed out that there is a high incidence of re-marriage amongst divorced persons, and that is an obvious factual answer to that sort of a comment. But it needs more than a factual answer because it is in itself an indictment of that view expressed in comments of that kind. It is a view which in the first place tries to draw an analogy between the contract of marriage and contracts of another much more venial kind, if that is the right description in the circumstances.


Senator Durack - Venial?


Senator BUTTON -I am using the word 'venial' as it might be denned not in the 'Shorter Oxford Dictionary' but in a more technical theological sense.


Senator James McClelland (NEW SOUTH WALES) - A term of art.


Senator BUTTON -I am indebted to Senator James McClelland. My Latin fails me, but I am sure that there is an appropriate expression to describe a theological term of art. The point that I am simply trying to make is that we are concerned with this legislation on human relationships and the viability of human relationships. To draw this kind of analogy is nothing but a commentary on the lack of understanding of human relationships of the sort of people who make comments of that kind. In dealing with this legislation I think it is perhaps necessary to say that in our society there are people who are very adamantly opposed to the legislation and, I quite frequently believe, they are opposed to it for reasons which they see as being sound. But of course we live in a pluralist society, and we should not just use that expression without making some effort to analyse what it means.

It may be a very shallow analogy to say, for example, that a change in the price of meat should not affect vegetarians and, accordingly, that a change in the law of divorce should not affect people who are happily married, who are in that fortunate position. That may be a shallow analogy because divorce may be said to affect in some way the fabric of our society if one accepts the view, which I think we must subject to critical analysis, that the family is not itself a changing institution and that the tendency in our society is for relationships to develop outside the marriage extra-marital relationships- in a way to which we might not have been used some 20 years or 25 years ago. But I think we have to accept the consequences of living in a society where there are people with different social and personal problems. We have to accept the consequences of living in a society in which there are people who are happily married and those who are not. Of course, this legislation is concerned with those who are not happily married.

This legislation does direct itself in a positive way to trying to grapple, insofar as man-made institutions can do, with the preservation of family relationships and of human relationships in a much more meaningful way than I believe the existing legislation does. I refer to just 4 matters which have been dealt with in great detail by my colleagues on the Senate Standing Committee on Constitutional and Legal Affairs. The first of those relates to the provision of a family court. I urge senators who have some doubts left as to whether the present fault ground should be maintained to spend some time in the forthcoming break visiting divorce courts or magistrates courts in which matters relating to custody of children, maintenance and so on are being dealt with.

I believe that the divorce court as it is currently constituted in most States is one of the most degrading institutions in our society. Its atmosphere is one of suspicion and allegation- often false allegation, I believe. Not only does it become a court which is concerned to break legal bonds; in most instances it has become a court which breaks most human bonds in the same process. I invite senators who are concerned about the maintenance and custody of children to visit magistrates courts and observe the atmosphere in which these matters are dealt with. I put to the Senate that it is a most degrading experience in terms of the social wellbeing of our community.

This legislation proposes a family court. I wish that all honourable senators had had the opportunity to hear the views of the witnesses who gave evidence to the Senate Standing Committee on Constitutional and Legal Affairs and particularly the evidence of Judge Burnett of the South Australian Family Court. We heard the views and experience of a very distinguished South Australian legal practitioner, now a judge, who after years of almost despair and synicism, as he put it, over the operations of divorce law and its effects in Australia, is now a judge of the Family Court of South Australia. We gained the impression from him- and I hope that some honourable senators will have an opportunity to visit the South Australian Family Court and to observe it- of a court which deals with problems which come before it with great dignity, humanity and compassion.

It is set in a physical environment and atmosphere far away from the courts which are associated in the minds of most people with criminal matters and various ether matters involving money transactions. It is set quite apart. It provides its own welfare and counselling facilities and the judge plays a relatively informal role, almost as an adviser to the parties, and ultimately if reconciliation cannot be effected providing the particular orders in relations to custody, maintenance and so on. Its atmosphere is totally different from that with which lawyers are currently familiar. I commend the family court proposals to the Senate, without dealing with them in any detail, as a new and desirable social concept.

I likewise commend the reconciliation provisions which under the 1 959 legislation have become recognised by practitioners and observers generally as nothing more than a farce. The new reconciliation provisions, as other speakers have informed the Senate, will make available expert counsellors and advisers at an early stage and will do so before proceedings have even been started in the courts. As Senator Missen pointed out, we have in Australia a quite desperate need for increased expertise and the availability of persons trained in the social sciences. We have a quite desperate need, if this legislation is passed, for lawyers who have a much greater appreciation of the social sciences. I hope that this need for the ancillary skills of people trained in these disciplines will be fulfilled and these services will be available to the courts in the future.

I turn now to the question of legal aid in divorce. Under the present legislation legal aid has been largely absent and questions of whether a marriage unhappily constituted can be dissolved, custody and maintenance have in many instances been the prerogative of people who can afford them. The Committee's report recommends a substantial improvement in this situation so that future family problems will not be determined in part by the availability of finance to the parties involved.

Clause 9 1 of the Bill provides for the establishment of a Family Law Advisory Committee in respect of which a new draft section has been suggested in the report of the Constitutional and Legal Affairs Committee. The importance of the establishment of such a body is simply that it recognises something we have lost sight of in the last few years, namely, the fact that marriage is an important social institution. It is a social institution which is subject, like everything else in our society, to changes in social mores, views and pressures generated from within our society. The suggestion to establish a Family Law Advisory Committee to see family law legislation as a continually evolving and growing thing is a very important recommendation of the Committee and a very important provision in the Bill.

For the reasons which I have given and which have been given in much more detail by earlier speakers I believe that this measure has the support of all those people who are concerned with the problems with which it seeks to deal in a practical and personal way. It is supported by marriage guidance counsellors and social workers. Judged by the correspondence one receives as a senator it is supported by all people who have had some personal experience of problems associated with the existing legislation. I believe that it is also supported by the majority of the Australian people and that belief is reinforced by the figures which Senator Missen had incorporated in Hansard this morning.

Since 1 959 our society has changed. The views of the majority of the people have changed considerably as changed pressures have affected human relationships. In the minds of most people an obvious need has developed for a revision of divorce legislation. At the Committee stage we will no doubt have an opportunity for discussion, and one hopes agreement, on many of the issues suggested in the report. At this stage I am concerned for reasons which I regard as being of fundamental principle to the wellbeing of our society to support the second reading of this Bill.







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