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Tuesday, 29 October 1974
Page: 2086


Senator WEBSTER (Victoria) - Probably one of the most important pieces of legislation ever to come before a parliament in this country is one that deals directly with the domestic affairs of the community. In such an important area as marriage and matrimonial law or, as it is called in this Bill, family law, we certainly find a great deal of interest shown by members of the Senate. The debate this afternoon and this evening has been of particular interest. I believe the Senate has shown a great depth of understanding of this problem, and one could read into it that there is general agreement that a new type of matrimonial law is required in Australia today. Those who have not had direct participation in the problems of divorce can scarcely understand the problems that are felt by the parties to a divorce. A very large body of people in the Australian community has witnessed at first hand the trauma experienced by the parties to divorce and the effect on related parties. The loyalties of those previously considered close friends to the parties become divided by the assertions and the charges by either party to a divorce. We should be concerned more about the effect upon the offspring of any marriage. This area of the Bill perhaps requires more scrutiny. The subject is of great interest, and sound law is imperative. Our society charges this Parliament with the responsibility of placing a fair and reasonable law upon the statute book. I have met no one in the community who would claim that the existing divorce law is appropriate and completely adequate for this society or for this age. I believe there is a necessity for divorce law to be reformed.

I congratulate the Attorney-General (Senator Murphy) for his persistence in promoting so dramatic a change in the law. I do not agree with all aspects of it, but I do congratulate him for his persistence in this matter. I congratulate those areas of community interest, the various divorce law reform groups, which at very great expense over many years have prompted the Senate, undoubtedly the Attorney-General and those people in areas of legal interest in the community that the present laws are inadequate and do require reform. It is unfair that the charge should be levelled against the Senate, as I have noted it has been done by some members of divorce law reform groups- some who have written to methat the Senate has held up, delayed or frustrated the early implementation of an updated divorce law. I think that that charge is generally unworthy of those who have made it. If one were to apply that comment to the Family Law Bill, as Senator Murphy has named it, one could readily recall what has happened since the introduction of the first Family Law Bill some years ago. Perhaps we should go back further and refer to the fact that immediately on this Government's taking office, in 1973 a great list of regulations was introduced because of a demand from some sections of the community that such regulations be implemented. Had they been implemented I think it would have been to the great disadvantage of our community.

Senator Murphyhas progressively introduced several Family Law Bills- I think that this is the third. After the introduction of the initial Bill he saw wisdom in what was suggested and he altered the provisions in the second Bill. He has been prompted into accepting the view that alteration of the original provisions and clauses was necessary. Finally he has introduced a third Bill. I understand that not only the Opposition believes that a variation is required to a number of clauses of the Bill. Many of the variations are prompted by the report of the Senate Standing Committee on Constitutional and Legal Affairs which was presented this month. The report stated that certain variations are needed to the Bill which has been introduced. I understand that the Attorney-General, even as late as today, believes that certain alterations should be made to his proposed law. So one can be very satisfied that the instigation of alteration to the proposal in this particularly important area of community interest over the years should finally result in a Bill being presented to the Senate on a form which, I believe, in respect of most of its clauses would find support from most sections of the community.

This is a new divorce law Bill. The title of the Bill, the Family Law Bill, is an innovation in terms of its objective. I do not agree that the Bill is correctly cited as the Family Law Bill. Indeed, it can well be argued that some of the provisions of the Bill make it possible for the family to be broken up earlier than would be the case under the existing matrimonial law. But it is an attractive title and it is one which perhaps we embrace as we embark further on into the 1970s in the hope that our society, as has been mentioned, will lead the world in having a sound basis of matrimonial law. If one looks at the nature and structure of the family, one can certainly refer to ouselves as being a signatory to the United Nations International Convention on Civil and Political Rights. Article 23(1) of that Convention states:

The family is a natural and fundamental group unit of society and is entitled to protection by society and by the state.

If we are a signatory to the Convention, we must uphold with law the family group in our society. I believe that that is essential. I know of no society which manages its affairs as well as we do in all the difficulties which we face. Whether it is from the point of view of the development of the economy, whether it is from the point of view of the development of the citizen himself or whether it is from the point of view of the upbringing of children and their gradual enrolment in our society, one sees that the basis of the family unit is something which we in this Senate must uphold.

I think that there can be a criticism of Senator Murphy. In relation to the Bill which he introduced in 1973 he is reported as having said:

The California Family Act of 1969 contains only 2 grounds: irreconcilable differences which have caused the irredeemable breakdown of marriage, and incurable insanity. No period of breakdown is prescribed. Final judgment may be entered 6 months after service of the petition. This is obviously an attractive precedent.

One may be misreading what Senator Murphy said to suggest that such a law would be his ultimate aim were he to have his way in this matter. He is quoted as saying that the California Family Act of 1969 is obviously an attractive precedent There was an English Law Commission which suggested that an explicit agreement that the 2 criteria adopted by the English Law Commission should be the grounds for good divorce law. Perhaps we in the Senate should be interested in that. It was also stated that it should buttress rather than undermine the stability of marriage, and when a marriage is irretrievably broken down it should enable the empty shell to be destroyed with a maximum of fairness and with a minimum of bitterness, distress and humiliation. I would generally support that view. I support the principle inherent in this Bill, in the loose way in which it is expressed, that once established- I emphasise the words 'once established'- by some method, irretrievable breakdown should be the basis on which a marriage contract should be broken.

There is a fear that the aims for divorce reform can result in the destruction of marriage prior to that point of irretrievable breakdown being reached. One has to establish the suggestion that 12 months should be the period in which to establish irretrievable breakdown- the period in which the parties have separated. It has been suggested that it would be better if the period were 2 years, and I find that that extra period was suggested in the minority report that accompanied the report of the Senate Standing Committee on Constitutional and Legal Affairs. From my reading of this Bill, this legislation is creating the situation in which one partner, should he or she so desire, can leave the family bed for a period of more than 12 months. One party may wish to do that and the other party may be left distressed or in distressed circumstances. It is upon that basis that an application for the voiding of this contract can be made. I would not agree with that basis. I think that there is a necessity for those parts of the Bill to be emphasised. I also think that great wisdom has been shown in the promotion of certain clauses of the Bill. I refer to Part III which states that reconciliation is to be a vital part of the proposed new family law. The provisions for that reconciliation are set out in that section.

I think that the recent development of marriage counselling organisations should be encouraged. It is interesting to note that not so many years have passed since public attention has been directed to marriage guidance counsels or counselling organisations. In my own State of Victoria many church organisations are available which would call themselves professional bodies capable of giving sound advice based on experience here and in other countries so that reconciliations may be effected.

I have been attracted by the efficient way in which the Attorney-General has welcomed, at least on one occasion to my knowledge, the approach by a marriage guidance organisation in Victoria. On my approach to the AttorneyGeneral he acted as I have scarcely found any other Minister to act. He immediately picked up his telephone and contacted the organisation, arranging inside half an hour's discussion to see its representatives in Canberra. I have not had that information from the Minister but from the organisation with which he treated. He was efficient in discussion and conducted direct questioning between the organisation and the departmental heads. The representatives of the organisation were able to go away satisfied that at least they had had sound attention from the Minister. I am confident that Senator Murphy has acted efficiently in relation to this Bill and in acting on a marriage guidance basis, at least in respect of Victoria. I repeat that it is an efficiency which I have not noted in Ministers on other occasions and I congratulate him for it.


Senator Murphy - Thank you.


Senator WEBSTER -There will be other times. As the Attorney-General is here I think I should say that he has attempted in many ways during his term to place among the statutes of this country acceptable matrimonial law, irrespective of whether it is called family law. He has taken every action possible to see that church groups, bodies which are interested in psychology and all other areas in the community have had an opportunity to approach him or his officers. That cannot be denied. Some sections of the Bill concern me greatly. I would like the Minister when he is replying to assist me in understanding the meaning of 'domicile' in this Bill. It has not been raised by any of the legal people associated with the report. It has not been raised by any senator who has spoken so far in this debate. My understanding from discussion with divorce judges in Victoria is that there is a very loose interpretation of 'domicile'. It is a subject which I am not competent to debate but I understand that eventually in court proceedings it may raise some difficulty.

Part IV deals with matters that are very much in the air at the moment. Whilst it is not authenticated I believe that the Minister is likely to agree with the proposal for family courts. The suggestions that there will be jurisdiction of the Superior Court in this matter will not necessarily be applicable. The problems of divorce are not readily acknowledged purely by a parting for 12 months, a decision then being made. Parts of this Bill will create great hardship if they are put into effect. I cite the instance of a husband of a wife who married him at the age of 20 or 21 years. After 30 years of marriage during which she faithfully served her husband and family she may find that her husband wishes to dissolve the marriage. From my reading of this measure upon the application of only one of the partners the divorce can take place. That is of great concern to me. I turn now to Part V which is headed'Dissolution and Nullity of Marriage'. Clause 26 provides:

26.   ( 1 ) An application under this Act by a party to a marriage for a decree of dissolution of the marriage shall be based on the ground that the marriage has broken down irretrievably.

(2)   Subject to sub-section (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and a decree of dissolution of the marriage shall be made, if, and only if, the court is 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 commencement of the hearing of the application.

My reading of those provisions prompts the belief that only one party need be truly separated for the application to be made. Sub-clause (3) of clause 26 provides:

(3)   A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

Clause 27(1) provides:

27.   ( 1 ) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.

I again refer to the situation of a wife who has lived 30 years away from any type of business or factory employment. She has left far behind her the two or three years of work in which she acquired expertise in an office of factory and now, being competent only as a mother and housekeeper, is left to fend for herself, according to the provisions of this Bill, if she is in good health and capable of getting a job. I do not believe that that provision is in the interests of the community or of our society. Surely we should do something to see that in such circumstances a woman is supported if it can be readily proved that her husband caused the problem. Clearly the courts must take some interest in determining the liability for the breakdown of marriage. My understanding is that under this Bill the situation I have described could arise and no objection could be put to the dissolution of the marriage or to the requirements to be found in other clauses of the Bill.


Senator Everett - The Committee's recommendation will take care of that.


Senator WEBSTER - If the Committee's amendment is accepted and Senator Everett can assure me that that would take care of the position I will readily support it.


Senator Everett - Senator Missenearlier today referred to that situation and in particular to a proposed new paragraph (m).


Senator WEBSTER -That would probably apply to clause 5 1 which appears in Part VII entitled 'Maintenance and Property'. It provides:

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, if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 1 8 years, or by reason of age or physical or mental incapacity for gainful employment or for any other adequate reason.

That wording appears to be very loose.

Debate interrupted.







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