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Wednesday, 30 October 1974
Page: 2138


Senator MELZER (Victoria) -I rise briefly to support this Bill because I think it is a measure for which we in this country have been looking for a long time. The lawyers have had their say in this debate and their lucidity has painted a very broad picture of a very good measure, but I think that before we finish the debate the point of view of the consumer- the customershould should be put. I am very much in favour of the Bill from that point of view because I think it takes out of divorce the shoddy, dirty aspect, and that is what I am sure the majority of the community is very anxious to do. It is a great advance to have one ground for divorce- the irretrievable breakdown of marriage. I accept that. I look forward to the Committee stage when we can convince ourselves that all contingencies have been covered. Senator Webster expressed some fear that one ground for divorce might break down or tear aside the fabric of society. In answer to that point I cite the words of the Bishop of Durham who, speaking in the House of Lords in June 1 937, stated:

If the number of divorces were a safe indication of social morals, it were indeed possible to make the whole community pure at a stroke by prohibiting divorce.

I think the fact that we have come to the point of having a 12-months separation period as grounds for divorce is a very good idea. I believe this will do away with the long period of bitterness which only grows with time. It is the more corrosive the longer it goes on. By the time people come to the point of actually signing the papers for a divorce they have been apart for a long time. The time of travail and agony has gone on before that 12-months period. In many instances hope of reconciliation is long past. The reconciliation procedures which are taken into account in the present circumstances are a farce. They are no more than a phrase read to people by a law clerk. One law clerk told me that when she read the requisite phrase to the petitioner she almost had the book thrown at her because the petitioner was so incensed that at that stage the law clerk should talk about reconciliation. The petitioner asked: 'Whose side are you on, anyway?'.


Senator Durack - We used to have to do that when the ground of divorce was the disappearance of one of the parties.


Senator MELZER - That was just to prove it. It is still there and they still say it. They say it woodenly and automatically. It has nothing in the world to do with reconciliation. I think the fact that we are moving towards no fault in divorce is an excellent idea. We will not get there quickly. I am afraid that the bitterness, the spite and the revenge will go on for some time. But at least if we establish that we believe there is no fault in divorce then I hope this will filter through the community. Some of the gentlemen who sit on the bench are apt to blame people where perhaps they could take a slightly lesser view of the position. While children from the marriage exist they are a reminder of an association that has gone wrong. Bitterness remains and can build up. Every effort must be made to do away with so much of the bitterness because of the very bad effect this has on children. Out of that our hope is this concept of a family court. I think that the definition of the Senate Standing Committee on Constitutional and Legal Affairs should be noted. It states:

It generally involves the creation of a special court (or division of a larger court), the assimilation of all family matters into one court, with active pre-divorce and post-divorce counselling not merely to assist reconciliation, but also to provide for the reduction of bitterness and distress and in alleviating on-going post-divorce problems. It is the concept of the ' helping court .

I think this is a most important thing to bear in mind. It is so badly needed. If we talk about free and post-divorce counselling we must see that the personnel who carry out that counselling and the provisions under which they carry it out are brought into effect. So often those sorts of phrases are used by Parliaments and governments and in legislation to pay hp service to an idea to make it more palatable for people. If ever there were an area where that sort of counselling should be made available it is in this area because in no other areas are human beings torn apart as much as they are in the divorce area. The circumstances of the present courts, if nothing else, would be grounds for wanting changes in divorce legislation and procedures. For one thing, the gentlemen on the bench so very often feel degraded. One can hear judges talk about being in the divorce jurisdiction, with a curl of the lip and a smell under the nose, as though they were being soiled by the very fact that they were in it. The whole emphasis is on sex. The only thing that seems to come out of the marriage as far as those courts are concerned is sex. There is no regard for loyalty, for companionship which might have been built up or for the people who are being ripped apart. I noticed the report of the Committee states:

It is of the essence of our recommendation that the Judges appointed to this Court (men and women) -

I am pleased to see that- should be chosen for their experience and understanding of family problems and should be drawn from existing Judges, members of the bar and solicitors, according to their particular suitability. They would need to recognise their responsibility in developing a new type of court, acting with a minimum of formality, co-ordinating the work of ancillary specialists attached to the court encouraging conciliation and applying, only as a last resort, the judicial powers of the court

At the moment one gets the feeling that the first and only thing to be applied is the judicial power of the court. The physical circumstances of these courts into which people go are appalling. Ordinary people who do not know anything about the law are confused by the formality. They are covered with a feeling of guilt. If they have families, there is no place to leave the children or have them cared for while their parents attend these courts. There is no possible way for one to know how long one will be there. One could turn up one day and at the end of the week one could still be waiting in the line for one's turn. People are confused by all this formality. They are overwhelmed by all the unnecessarily complicated procedures which these courts insist on going through.

One of the worst things about courts- there may be courts in Australia which are better- in Melbourne are the wretched circumstances in which one meets with barristers and solicitors. One can walk around those dirty, cold, miserable, stone corridors and find people literally taking their lives apart bailed up in corners with nowhere to sit. They are bailed up in one corner with their barristers. The opposing party- the terms in this case give one a picture of what it is all about- is around the corner with his barrister and solicitor. The bargaining goes on from one to the other- 'If we get that much, how much will you give?' The question is not what we are doing to people's lives or to children's lives but bargaining, and usually over money. The thing that occurs to me out of this pre-divorce counselling is this: We all know that people are liable, because we are all human beings, to have an argument. It builds up into what seems to be an overwhelming thing. People could rush out and decide that divorce is the only answer. At the moment there is nobody to whom they can go in privacy and dignity, without filling out papers, and going through that indignity to ask what will happen to them and where they can go. There should be somewhere people can go before the papers are signed, where they can be told that bank accounts have to be closed, other accounts have to be closed, property has to be divided, insurance has to be changed, new wills have to be made, the welfare of the children has to be concerned with and schooling arrangements have to be made for the children.

These are the far reaching effects which will apply in the change from the current situation. I feel that if they could take a deep breath and have another look at the situation this might lead to some real reconciliation. I hope that the Government will look to the fact that local facilities are much more accessible to people than a room tucked away in the High Court in the middle of Melbourne. That building itself is enough to put anybody off. A woman with small children should feel she can go to the local town hall or some such place and find out factually what happens, what to do, how much it will cost because, really, there is nowhere she can find out these things other than by making an appointment and fronting up to a solicitor. Then things are moving and people wonder whether they can pull back.

One hopes that in this new Bill a new atmosphere will be engendered which will take the bitterness out of the fights over the custody of children. If there is any more terrible thing in society than seeing children used as pawns between bitter and spiteful people, each feeling hurt and wanting revenge, I do not know what it is. One hopes that people will stop and consider children, not as part of their property to be allotted like a lump of land, but as human beings who have to be cared for. Under this Bill the Court has the right to place children with people other than parents. I suppose we all know of cases in which grandparents and aunts were in fact, if not in deed, parents and children have almost literally been dragged out of their arms to be sent to strangers whom they did not know merely because they were part of the property of those people. The main aim of any divorce Bill should be the welfare of the children, I believe. I hope that in this instance it will not be a tongueinthecheek effort, which other attempts have been in the past, but a real striving to make sure that no matter what happens to the adults the children have been catered for. One can be sorry for adults who are caught up in all sorts of difficult circumstances, but children cannot help themselves. I note that under this Act no decree will be issued unless the Court is satisfied about the welfare of the children. I hope that although welfare workers will be used to ascertain the needs and desires of children, not too much emphasis will be placed on what have become known as welfare workers, with all that the term implies, but that a lot of emphasis will be placed on a great deal of informal, friendly, helpful discussion to find out what truly is needed for children.

Like other speakers in this debate, I am concerned about the maintenance provisions. I can imagine people saying: 'Oh, well, she is a woman, so she would be concerned.' I was pleased to hear one senator forecast amendments to take some of the harshness out of those provisions. I truly believe that they are very harsh on a wide section of women. It is not enough just to say that equality is desirable and is being attained by women. Equality or independence, or call it what you will, is being achieved slowly. In this instance, 'slowly' is the operative word. Many women can and will manage. They have the capacity, the training and the sheer determination to manage and to manage very well. There is a whole generation of women who have devoted their lives to home, children and husband. They have achieved a great deal. They have had a very honourable profession. There is no more honourable profession than having brought up children well, in a good home and provided all the ancillary services that husbands need so they can earn a livelihood. Because she and her husband proved incompatible does not mean that this woman, who probably received no training to earn her living, or if she did it was at best 25 years since she did, and who has no assurance in her own ability, should be forced out into the community to earn her living.

Some women, whether they come from the working class or the most affluent, have never had any money of their own. They have had to ask their husband even for their tram fares. It seems to me hardly fair that we then force them out onto the world. They are entitled to assistance for the years of work that they gave to the children, the home and the care of a husband. While I am waving the women's lib banner, let me point out that even some of the younger wives are not trained to earn their living and do not expect to go out into the work force, and it is hardly fair of us to force them out. I quote from the Melbourne 'Age' of 30 September 1974. A woman teacher stated:

One high school student delegate claimed she had been actively discouraged from continuing her education after fourth form.

My maths teacher called me aside after the School Certificate exam and told me I was making a grave mistake by going on to sixth year because I could not hope to marry if I were better educated than my prospective husband '.

While that goes on- we all know that it does; it is not a thing of the past- we have not a work force or a community of women who are fitted for outside work. They do not have the confidence; they do not have the jobs. They must be looked after. Those who do work generally work in the lower paid jobs at the moment, and many women in professions are more lowly paid than the men in those professions are. The women who do work ease the financial burden on their husbands. They contribute to the family welfare and still have 2 jobs. They must be a mother, homemaker and housekeeper and they must be a bread winner as well. Even those who after the divorce say I will manage and I will look after my children and my home', still have 2 jobs. The community should take some cognisance of this fact.

I know that the question of maintenance orders rouses deep bitterness in the community. A newsletter published by the Divorce Law Reform Association states:

Section 90 has been introduced as a substitute and it is possible to foresee that most divorces in the hands of the neurotic, the greedy and the vindictive will proceed under this section grabbing the assets of the marriage. The new wife and her children also have rights and should not be expected to be deprived and forced out to work to provide for the lazy, good for nothing and often neurotic woman whose own ineptitude or greed caused the breakdown of the marriage.

For people to write that, one can imagine the sort of bitterness there is in this area and the very real job that a family court, a family law commission and those who give post and pre-divorce advice will have to do. I am interested in the Committee's recommendation regarding certain social welfare laws that make it mandatory for a wife to take out a maintenance order before she can get any sort of social welfare pension. They are confusing, humiliating and useless because the woman must show that she has tried to implement it. How can she with the sort of facilities that she has?

I feel that society is placing more and more pressure on people at the moment, and it is certainly placing more pressure on women. One must admit that older women are sometimes abandoned when their sexual attraction fails. Young women are abandoned when the pressure of supporting a family forces husbands to desert them. This Government must take note of human frailty and safeguard these people until they can care for themselves. Every chance must be taken to make sure that we are safeguarding children and those who are unable to take care of themselves, remembering that our prime aim is to establish a decent divorce law without the concept of fault. I am very much in favour of a family law court and a family law commission which will work to the greatest advantage of all concerned and do away with the spite and bitterness as much as possible. The fabric of our society is changing. I quote from 'Reform of the Grounds of Divorce: The Field of Choice' published by the English Law Commission:

A good divorce law should seek to achieve the following objectives:

(i)   To buttress, rather than to undermine, the stability of marriage; and

(ii)   When, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.

The second objective has two facets. First, the law should make it possible to dissolve the legal tie once that has become irretrievably broken in fact. If the marriage is dead, the object of the law should be to afford it a decent burial. Secondly, it should achieve this in a way that is just to all concerned, including the children as well as the spouses, and which causes them the minimum of embarrassment and humiliation. Above all, it should seek to take the heat out of the disputes between husband and wife and certainly not further embitter the relationships between them or between them and their children. It should not merely bury the marriage, but do so with decency and dignity and in a way which will encourage harmonious relationships between the parties and their children in the future.

I ask the Senate to acknowledge that, although our society is changing, the cry of women's lib is not an excuse for bypassing social and economic justice. I look forward to the Committee stage of this Bill.







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