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Tuesday, 29 October 1974
Page: 2064


Senator LAUCKE (South Australia) - This legislation is indeed of supreme importance to our society. I have listened with great interest to the debate this afternoon and have admired the tenor of calm and critical reference to the legislation. I pay tribute to the Senate Standing Committee on Constitutional and Legal Affairs for having done in a very short time a terrific amount of work on this highly important legislation. But I must say that I am deeply concerned at the implications which go with and are part of family law legislation generally and, in particular, that legislation which is before us now. There are two distinct schools of thought, as I see them, on this highly important matter. On the one hand we have people who strongly emphasise the need for abolishing the concept of matrimonial fault or matrimonial offence. That is just what this Family Law Bill does; it provides for a separation of a couple for 12 months as absolute grounds for a divorce. There are people who are forceful in their praises of the concept of no matrimonial fault and of having the separation period of 12 months as the only ground for dissolution. They say that this is good divorce law and that the time has come to rid the law entirely of the 14 grounds for divorce which are now standardised in Australia with the advent of the Matrimonial Causes Act 1 959.

It is true to say that the present divorce procedures are, to many people, too complicated, too expensive and totally outdated. It has been argued that the application of the existing law has caused much abuse, much intrusion into one's private life and a great deal of hardship and bitterness. One could very quickly give instances of those things. The time has certainly come when we have to have a serious look at the existing state of affairs relating to divorce, the existing legal provisions, and the actual experience of those who have decided to break their marriage relationship. We all know that marriages break down. We know that the number of people seeking divorce is increasing. We all know that the area of family law has become the object of increasing concern to the whole community. Therefore a thorough contemplation of the Family Law Bill is very necessary, but to look at the proposed Bill solely from the viewpoint of divorce is, I think, irresponsible.

I refer now to the other group which looks at the Bill in the light of what the Australian community understands by marriage and the family. Section 69 (2) of the Marriage Act 1961 defines marriage ' as follows:

Marriage, according to law in Australia, is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

The United Nations International Covenant on Civil and Political Rights, article 23(1), with which we have declared ourselves to be in agreement, says that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. If we accept these 2 definitions, I cannot but have serious doubt about the consequences of enacting the Family Law Bill 1974 as it has been presented to us. It will certainly have to be amended in areas which, in my view anyhow, must be varied better to ensure a continuation of our society as we now know it. Clause 26 ( 1 ) of the Bill-without this the Bill becomes meaningless- introduces irretrievable breakdown as the sole ground for dissolution of marriage without the necessary consent of both parties. This means that whatever one of the partners to the marriage says is sufficient for a court to give a divorce, and the only procedural formula necessary is described in clause 26 (2) which simply states that the court must be satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the commencement of the hearing of the application.

Those who take the marriage contract seriously and those who verify the importance of a stable family life within society point to these facts: The Bill is not related merely to divorce. The Bill makes major changes in the structure of the existing marriage. It changes marriage from a contract between 2 parties for permanent union, determinable in law only by the intervention of a State, to a contractual union determinable at any time by one party subject to a 12 months procedural wait. This Bill's divorce aspects do not deal with marriage as now understood but deal with the breakdown of a new kind of marriage and change all existing marriages into the new kind of marriage to which I have referred and which can be broken up within 12 months on the say of one person. It is more than divorce by consent or deregistration by consent because one party to the agreement is capable of terminating that agreement, and the Bill implies that the state has no say in the matter of dissolution of marriage. The court of the land must grant a divorce if one party says that the marriage has irretrievably broken down and shows that they have been separated for 12 months. There are no objective tests of breakdown.

The Bill also changes relations within marriage itself which society has so far accepted. It is the law that the husband has the duty to support his wife. A wife has no legal duty to support her husband. On these concepts marriage in the Australian society has been built, and from them spring much of the laws which relate to property rights, to testamentary disposition and so on. Clause 5 1 of the Bill says that a party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so and the extent to which the other party is unable to support himself or herself adequately. This is what I am perturbed about, because this clause removes from the husband his legal duty to maintain his wife. This has been a basic principle. I may sound as though I am talking at a level which is not in keeping with a very modern attitude towards the independence of people, even within the marriage set-up, but fundamental to our society through the ages has been the principle that the husband is responsible for the wellbeing of his wife and his children. Now we find this is to be pushed aside and the wife is to have imposed upon her the positive primary legal duty of maintaining herself. It imposes on a wife a positive legal duty to maintain her husband in certain circumstances. It imposes on a husband a legal duty to maintain his wife only in special circumstances.

The second portion of clause 5 1 relates to the maintenance of children who have not attained the age of 18 years. The whole matter of maintenance is based on need and ability and not on responsibility and paternal care. I can see that this will cause a major change to the situation which we have come to accept in Western countries as the basis of our society. The family is the centre of our way of living, and I can see more and more that this will be broken down unless some amendments are introduced to the Bill. I shall be seeking to move amendments in the Committee stage which will the better ensure that in the first instance there is provision for more than just 12 months' separation as the sole ground for divorce. There has to be greater consideration given to children under 18 years of age. This could well call for an amendment to clause 26 of the Bill which would increase the period of separation to 3 years in the case of a family in which there are children under the age of 18 but retain the period of 1 year where the children have been brought up and are over the age of 18 years. That is just an indication of an intention to propose an amendment to clause 26 of the Bill during the Committee stages of the debate.

This Bill does not simply update or simplify and cheapen divorce proceedings. It changes fundamentally existing marriages, continuing marriages and the family which develops about those marriages and, as I have said, our whole society. These facts, I think, are in themselves serious and will have far reaching consequences which lead me to view this Bill with doubt and with trepidation. It is true that the Family Law Bill does attempt to improve reconciliation and counselling procedures. I am all for that. It is also true that it imposes upon the parties to a marriage a legal duty to maintain their children until the children are aged 18 years. The Bill provides also for separate representation of a child before a court under clause 44. It clearly states, with respect to the custody of, guardianship of or access to children of a marriage, that the court shall regard the welfare of the children as the paramount consideration. But maintenance and custody decisions issued by the court cannot take into account irresponsible parental behaviour on the part of a husband or wife because the Bill itself eliminates the present concept of matrimonial fault which is very often the cause of irresponsible parental behaviour.

So if one weighs the arguments for and against the proposed Family Law Bill; if one takes into account the fact that the majority of people have not been in a position to study the Bill and do not have a clear picture of the implications of the Bill; and if one has serious doubts whether the Bill promotes marriage and the family as stable institutions guaranteeing the healthy nurture of children, one cannot but have feelings of grave doubt with respect to the enactment of this Bill in its present form.

I believe that family law should at all times be beyond any reasonable doubt of benefit to the members of our society. The Family Law Bill certainly will benefit those who wish to break the marriage relationship in a speedy and convenient manner but it does not benefit those who seek the legal protection of their marriage relationship and their family and who are prepared to do their part by living up to individual and communal responsibilities. I understand that it is anticipated that an amendment will be moved to have further consideration of this Bill in the Committee stages deferred for a time. I shall be supporting that motion because I feel that it is necessary when considering legislation of such wide importance, the ramifications of which go so deeply into the structure of society, that every person who is now alert to the contents of this Bill in its present form should have an opportunity to discuss with honourable senators further the clauses of the Bill with a view to amending the legislation so as it will ensure to the best possible degree the retention of what has been so basic to us through the years.

I have indicated in broad and general terms my attitude to this legislation. I felt it was my duty so to do. I look forward to the ensuing debate and further discussion. I hope that this will not take place quickly and precipitately but after due time has been given to allow all persons in the community who are interested in this legislation to indicate their points of view. Again I say to the members of the Committee who brought down the 2 reports, the interim report and the main report, that they did an enormous job in a short while. They considered and reported on the matter in 35 days, from the time when the reference was first given to them. The Committee was granted an extension of time on 1 7 September to 18 October, or thereabouts. The Committee did a very fine job based on the evidence presented to it. I do not take the credit for that away from the Committee at all. But I do think there is room for further amendment to this legislation before it is acceptable to many of us.







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