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Wednesday, 30 October 1974
Page: 2141


Senator DURACK (Western Australia) - I believe that we are debating the most important subject that could ever come before a parliament. I say that despite all the current concerns about the economy, unemployment, resources and so forth. But I think it is incontrovertible that the status of marriage and the relationship between the parties to marriage and the children of the marriage are absolutely of fundamental human importance to all those who enter into marriage and indeed to those who decide not to enter into it. I believe that the question of divorce can be approached only if one begins from the standpoint of marriage itself and what one's view of marriage is. I think that a number of honourable senators have pointed out that this Bill, although it is styled the Family Law Bill, does in fact fundamentally alter, in their opinion, the nature of marriage. Although not agreeing with that, I believe that the question of divorce cannot be approached without having a clear view of what marriage is or what one's views of marriage are.

In my view, the institution of marriage is absolutely fundamental to our society. This has been so for centuries not only in our society but in all societies. I believe that it is just as fundamental today and that it will continue to be so. I fully agree with those honourable senators who have spoken about the popularity of marriage today. They have quoted statistics to show the percentage of people in the community who marry, the number of people who are divorced, and even more interestingly the number of people who divorce and in fact marry again. I think it is of great interest and importance to note that the vast majority of people who are divorced do in fact marry again. Having that view of marriage, I approach this Bill with some very fundamental beliefs which I should like to express. Although today there is talk about changes in marriage- I believe that there are quite significant changes in the relationships in marriage, and Senator Webster spoke about that this afternoonnevertheless, I still believe that the view of marriage in our society, whether it is regarded as a Christian society or not, is still basically the Christian view, and that is the voluntary union of a man and a woman for their joint lives to the exclusion of all others. I believe that that is the accepted view, and it is certainly the ideal for marriage.

The incredible network of personal and social responsibilities which derive from the mere fact of a man and a woman joining their lives together for any reasonable length of time necessitates a legal institution to protect those rights and to enforce the duties which undoubtedly flow from a marriage. Other members of the community, particularly the children of a marriage, are also vitally affected. So it is not just a relationship that 2 people happen to be entering into. That is why a marriage cannot be looked at as just an ordinary contract It is clear that there is this need to establish rules for the preservation and the dissolution, if appropriate, of that institution. The intervention of the law into such a relationship as this requires the application of the basic legal principles of justice, certainty and practicability, which we always try to apply. However, these rules must be flexible, they must be kept under constant examination and they must be changed and be changeable according to movements in social ideas and habits. I think that is why, after many years of the present divorce laws, it is necessary to look at the laws again. That is why this Bill has now been brought forward.

However, I must emphasise again that I reject any concept of marriage other than the one man, one woman, one family institution. But I am prepared to recognise that in certain unfortunate circumstances this institution may well break down, and in that event it is in the interests of all concerned, including the children, that it should be dissolved. In this event one or other of the parties may hopefully form another and more satisfactory and permanent marriage. Indeed, as I have said, that is the case, because three out of four people who are divorced marry again, and in most cases the second marriage works out as a permanent institution and a happy relationship for the party who, by misfortune, had entered into an unhappy relationship in the first place.

From these basic views that I hold in relation to the nature of marriage, honourable senators may rightly assume that I approach the question of divorce law or divorce law reform with great caution. I believe that the divorce law must be designed, as Senator Melzer has just said, to buttress the institution of marriage. Therefore, the divorce law should not be one which will encourage people to enter into marriage lightly and unadvisedly, as the marriage service says. I also believe that the law should be one which encourages people to work at their marriages and to try to make them as satisfactory as possible. If there is so-called easy divorce, not only will people be more inclined to enter lightly into marriage because they know that they can easily get out of it, but also, having entered into it, many people may not make the effort which I think all marriages, to some extent, require. All marriages have their ups and downs and their strains. If people, after having some tiff or another, can immediately run off to the divorce court, the law will not be a law which will buttress the marriage relationship, as the Church of England's Commission has suggested the law should do.

I agree that it is high time that the present divorce law should be reformed, and I therefore welcome this Bill. I will certainly support its second reading. But at the Committee stage many amendments will be moved. I will move some amendments myself and I will support other amendments. But broadly, having been a member of the Senate Standing Committee on Constitutional and Legal Affairs for many months, indeed years, I will be supporting the recommended amendments of that Committee. I should like briefly to refer to the Senate Committee inquiry because there has been a good deal of ill-informed talk about this matter, both in the Senate and outside it. The fact of the matter is that the Senate Committee commenced its inquiry on the reference, which was given to it in December 1971, early in 1 972 when it advertised widely for submissions from interested groups in the community, or indeed from anyone interested in the subject. At that time as the Chairman of the Committee I wrote to a number of people who I thought would be able to give us special help. We received a great response. Many valuable and interesting submissions were received, and they are detailed in the appendix to the report.

In the early days of the inquiry- speaking now about 1972, more than 2 years ago- one feature was that we did not receive submissions, or very many submissions at that stage, from churches and church groups which I would have expected to come forward then with their views. Early in 1973 I personally wrote to Archbishop Loane and Cardinal Knox, who was then the Catholic Archbishop of Melbourne. I wrote on 17 April pointing out to them the lack of submissions and seeking to encourage their respective churches to lodge submissions with the inquiry. As one would expect, I received courteous and prompt replies from both of those eminent ecclesiastics. Writing to me on 30 April 1973 Archbishop Loane indicated that the General Synod of the Church of England in Australia in 1969 had appointed a commission to consider marriage, divorce and re- marriage with a view to bringing in a canon for the then next session of the General Synod to be held in May 1973. In fact the commission did report and the report was sent to the Senate Committee.

Cardinal Knox referred in his reply to me to a forthcoming report of the Australian Episcopal Conference- that is of Catholic bishops- and their report has been received by the Committee. So back in April/May of last year two of the leaders of the Catholic and Anglican communities in Australia had clearly had their attention drawn to the inquiry and had responded to the requests made. That is why I find it a little curious now for the Senate to be confronted with a very concerted move to delay our further debate on this subject for 6 months because it is, as I have said, perfectly clear that for a long time leading members of the churches in Australia had had their minds directed to it and had been working on it for some considerable time.

Before going on to consider the changes that the Bill makes to grounds for divorce and maintenance, to the courts and so on, I would like briefly to refer to the view that not only should the law on marriage and divorce buttress and encourage the marriage state and the permanent union of the parties to marriage for the sake of their own happiness and that of their children, but I believe the Government also should be more active in this field. I agree with honourable senators who have spoken at length in this debate about the need for adequate counselling services to be provided. I mention in particular Senator Baume, Senator Webster and Senator Melzer.

I know we have marriage guidance councils and that they have done very good work but in this year's Budget only a little over $lm is provided for that work. I think it is a responsibility of government to make much more generous provision for the work of marriage guidance counselling, research into marriage and matters such as education for marriage and sex education. I ask for leave to continue my remarks as I understand that another matter is to be interposed.

Leave granted; debate adjourned.

Sitting suspended from 6 to 8 p.m.







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