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Wednesday, 30 October 1974
Page: 2155


Senator GRIMES (Tasmania) -I wish to speak briefly on the Family Law Bill. I commend the Attorney-General (Senator Murphy) for his patience and persistence with this measure over the years and also for his willingness to accept amendments to improve the Bill. Credit should be given to the Senate Standing Committee on Constitutional and Legal Affairs which worked so hard and helped all of us so much to understand and to improve the Bill. I give credit to all the previous speakers in this debate for the compassionate and objective way they have spoken. I wish that the public debate on the Bill had been equally compassionate and unemotional but I suppose that that is asking a bit too much. Senator Baume mentioned one group which persisted in using cituperation and all sorts of tactics in an attempt to prevent this Bill even being debated.

I have read a newspaper article which announced that this Bill is an evil socialist plot which may be disturbing to honourable senators opposite who support it. Today I had a rather offensive telephone call in which I was told that we were perpetrators of promiscuity. The caller used other alliterative phrases which I am sure I would not be allowed to use here if I wished to do so. I think we can expect this sort of public debate on such an emotional issue. The same sort of reaction occurred to the original Matrimonial Causes Bill. Some honourable senators will remember the personal abuse received by the present President of the Senate. I am sure that those people who condemned him for voting the way that he did then would no longer wish to go back to our old divorce laws.

I have no intention of canvassing all the clauses of this Bill which were so very well considered and looked after by our legal friends and some others. However, I think it is worth while giving reasons why I am likely to support the amended Bill. Probably the most important change to me, and to many of the opponents of the Bill the most objectionable change, is the replacement of the concept of fault in the present law with the one ground of irretrievable breakdown of marriage. Many speakers in this debate have pointed out that this is an extension of the changes brought about when the present matrimonial causes law was introduced. It introduced the concept of divorce with no fault after 5 years of separation. At the time the change was predicted to bring about the dissolution of society and the opening of the divorce floodgates. Senator Missen cited figures yesterday showing that that has not happened and that the use of that means of acquiring divorce has diminished in the last few years. Although this Bill does away with the concept of fault in the situation of divorce it does not completely do away with the concept of fault and or responsibility in the amendments, as I see them, when maintenance and custody of children are involved. These sorts of amendments which aim particularly to protect wives I will certainly support.

The Bill also has very important provisions for counselling and attempts at reconciliation. It can in no way be considered a bill for the production of quickie, Reno or Mexican types of divorce, which seems to be the worry of many people. I believe that a basic and serious misconception is held by some opponents of change in these laws. The misconception seems to be that the divorce rate in the community is a direct measure of unhappiness in marriage or a measure of morality or immorality in the community. Some people assume that in the past all the unhappy marriages ended in divorce and that the remainder were all happy marriages. It is an absurd proposition considering expense, legal barriers and the personal denigration and public disapproval which has hampered divorce proceedings in the past.

One would assume from the argument of those people that the Victorian era with its low divorce rate was a period of unparalleled marital bliss, but today few men and women would wish to return to those days when a wife was frequently just one of her husband's chattels. Like Senator Baume I have had experience in my professional life dealing with problems associated with divorce. I have seen otherwise decent people resort to lying, hypocrisy and personal denigration to end a disastrous relationship. I have seen lawyers, who have sworn to uphold justice, knowingly connive in this sort of charade.

The most distressing side effect to me has been the bitterness and personal hatred, which has split family and friends, arising out of the legal and psychological warfare which seems to have been associated with prolonged divorce proceedings. If this Bill partly reduced this distress I would support it, and I believe it considerably reduces this distress. I have also seen the misery of the unhappy marriage in which one or other partner, usually the woman, is unable to escape from this disastrous partnership for social, economic or psychological reasons. This Bill may help some of these people but probably not enough of them, because, as other honourable senators have pointed out, marital breakdown is a social and psychological problem, not a legal one.

I believe that the provisions in the Bill in relation to counselling and guidance will help and will show the way in the future. The change from the extended biological family we had in the past to the more fragile nuclear family, the increase in the breadth of education for women in our society and the changing role of opportunities for women have all made marriage a more stressful situation. But I cannot see that harsh, inequitable divorce laws, and a situation of warfare in law courts where personal recriminations are the norm, will do anything to strengthen the marriage bond. I sympathise with Senator Baume and Senator James McClelland who both made the observation that it would be perhaps better to make the marriage contract harder to achieve.

If they can produce a fair and reasonable method of doing this, I would support them. But in the meantime the future of stable marriage, I think, lies in education in human relationships, in education in the home, in education in the schools, and in our whole way of life. This is where our emphasis should lie before the years of breakup.

I cannot see, as some people apparentyl assume, that retaining the present divorce laws will make any difference to the situation. I cannot see how the passage of this Bill will hinder any such program to improve our human relationships and perhaps prevent more marriage breakdowns. This Bill deals with the legal problems associated with divorce in a more humane manner than in my view has ever been legislated for before. The setting up of a family court, which Senator Durack mentioned, will, one hopes, remove the sort of stigma of criminality which was associated with divorce proceedings in some people's minds. The provision of counselling services will help some marriages which are not beyond saving. The reduction in the period of separation necessary before divorce can be obtained will prevent a lot of bitterness and frustration which I think all of us have seen and which certainly those of us in the legal profession have seen very frequently

I look forward to the Committee stage of this Bill. From what I have seen and from what I have heard from my colleagues, the maintenance provisions and the provisions concerned with the custody of children will be explained and will be made clear to us all. From the discussions which I have had, I think that I can support those provisions. I am sure that these aspects will be adequately covered. The problems of marital breakdown are enormous, and they are not solved by this Bill. I have not heard anyone who is associated with this Bill pretend that they will be solved by it. But I believe that the principles behind the Bill are a giant step forward in our social history.

I repeat that I remember well the bitterness with which the proposals which brought in the present Matrimonial Causes Bill were attacked. I remember the predictions of the end of marriage, of the floodgates opening, of people being divorced every second year. There were even predictions of impending social dissolution and destruction of our civilisation and all sorts of things like that. As I said before, I do not think any of those people who made those statements in 1959 or 1966, except the most rigid and the most doctrinaire, would want to go back to the days of divorce as we had it before that time. I feel sure that after the Committee stage and after the amendments have been explained and passed this will be an excellent Bill which will be a credit to this Parliament. I commend the Bill to the Senate.

Senator Sir KENNETHANDERSON (New South Wales) (9.35)-The Family Law Bill 1974 is a Bill in relation to which any honourable senator will, as we say in parliamentary language, have a completely free vote. All honourable senators will have an open vote on the Bill; they are not obliged to vote according to a decision taken by their Party. So when honourable senators cast their votes they will be doing so completely, absolutely and utterly according to their own views and their own approach to the Bill. I have a view about the Bill and I feel that I have a personal obligation to express that view. I believe, as does Senator Grimes who preceded me in the debate, that the Bill has been dealt with with restraint in this place, and I certainly will do that myself. Nevertheless, I would be failing in my duty if I did not express the views that I have in relation to the Bill. In due course I will be moving an amendment to the motion for the second reading of the Bill. Before I formally move that amendment I want to talk in some generality, but perhaps before I do move that amendment to the Bill the terms of the amendment could be circulated to honourable members, if that conforms with your requirements, Mr Deputy President.

Before I move more particularly to my amendment I want to talk in terms of the overall pattern of the Bill, because I think that my amendment really contains the thrust of some of the things that I need to say. I shall address my remarks to the Bill in the form in which it stands as a document of the Parliament at the present time. I do not choose to talk about some possible amendments that somebody may move at the Committee stage and which may be agreed to or not be agreed to. We must debate this Bill in the form in which it has been circulated, and not in relation to some prospective amendments which might emerge if it is considered in Committee. In my view, if the Bill is passed by the Senate in the form in which it stands at the present time- it was, of course, put down by the AttorneyGeneral (Senator Murphy)- it will be to many people, including young people and people who may wish to marry in the future, a threat to the sanctity and ultimate security of marriage.

The Bill removes the existing grounds for the dissolution of marriage which are provided for in the Matrimonial Causes Act 1959-1966 and substitutes a single no-fault ground of irretrievable breakdown of marriage. In certain circumstances I am choosing my words when I say that- if this Bill as it is circulated becomes law, I believe that it will encourage some young people to regard marriage as an easy-come easy-go thing into which they can enter. The overwhelming majority of the community in this land of ours wants to preserve marriage. We have to live with our divorce laws, but the point I want to make is that the overwhelming mass of the Australian community wants to preserve marriage as a sacred ceremony and as a contract. They want marriage to remain as an honourable estate. Perhaps I could paraphrase some of the beautiful lines which we find in the marriage ceremonies as they are conducted, I think, by all denominations. Marriage is an honourable estate, not to be taken inadvisedly, lightly or wantonly. I know that to some this may sound corny but it represents the conditions to which people who marry in church still adhere in this day and age. Indeed those conditions are adhered to by those who undertake a civil marriage.

Marriage is not to be entered upon wantonly. It is to be entered upon reverently, discreetly, advisedly and soberly. We all know the famous words 'in sickness and in health '. It may be funny to the Attorney-General but it is the way in which I was married and it is the way in which thousands of people still get married. Thank God for that. I can only speak as I feel on this matter because there is to be an open vote. I would be failing if I did not say what I had in my heart. I believe that marriage is undertaken on the basis of forsaking all others. I think the famous words are: 'till death do us part'. I am prepared to accept that those who get married other than in a church, when they enter into this contract, sincerely and faithfully accept this condition of the union. The contract is voluntarily entered into between one man and one woman for life.

It is true that the law of our land very properly has to provide grounds for divorce. I do not need to canvass those grounds here. We are all aware of them. Briefly they are adultery, desertion and separation for 5 years. I think Senator Grimes, who preceded me in this debate, said that the period of 5 years separation was not regarded as a fault ground of separation. Other grounds for divorce are habitual cruelty and, I think, bestiality. This Bill eliminates the concept of matrimonial fault. It makes the contract of marriage more easily terminated by a single act of one of the parties. Because the Attorney-General (Senator Murphy) was not present when I made this point earlier, I mention that we are talking about the Bill as it is before the Senate not in terms of any projected amendment because we are still in the second reading stages of the debate.

I turn now to an extreme absurdity which is contained in the Bill. In relation to the single no fault condition in the Bill there could be, regrettably in my mind, a circumstance where a marriage could take place and be almost immediately consummated and the conditions for a separation could be established by one of the parties almost within a matter of days. Even though this period of separation is on the basis of 12 months, or some other term which may be suggested, the period contained in the Bill is completely inadequate. Of course, we have the second absurdity that the no fault separation can be due to an act by one of the parties which takes place while both parties remain within the one home. Provided the conditions of the Bill were observed, the separation could take place within the home. I could think of nothing more humiliating, more degrading or more calculated to do irreparable harm to the contract of marriage than provisions for such a separation. So I hold the view- as I have said I feel obliged to say this-that the single no fault proposal should in fact not stand in its own right.

This no fault proposition takes away the fundamental responsibility of the parties to make the marriage endure. That is my complete feeling in relation to that provision. Honourable senators who have spoken for the Bill and others who have some reservations believe that marriage requires a lot more than the glamour and all the other things that precede the union. It needs understanding on behalf of the parties. It needs the parties to be thoughtful to one another, to be tolerant to one another, to be patient with one another and to attempt to be compatible. The partners have to learn to live with one another in terms of habits, language and their inclinations in relation to behaviour. They require adjustments to make a success of marriage- adjustments which in fact may enter a whole field of areas which I do not need to canvass here because I am sure all honourable senators understand them. I believe those conditions for a successful marriage are more asserted in the young than is inherent in those of us who are in the older brackets. With all the experience, judgment, efforts to co-operate, and all the love and affection that can be present between husband and wife, there is a necessity for adjustments in living.

Clause 26, which contains the thrust of the Bill and which I believe is the gravamen of the whole

Bill relies on this one condition- no fault separation for a period of 12 months. It is something which could be carried out, conforming to the requirements of the legislation, as we have it in front of us; yet we could have the horrific situation of people living in the one home who could be regarded as being separated under the Bill.

I read in the paper this morning a letter which was signed by the Rev. Alan Walker, superintendent of the Central Methodist Mission in Sydney. In fairness to him, I say that he dealt with the pros and the cons and he brought out the good points in relation to certain aspects of the Bill and also criticism of the Bill. But in relation to my argument about the main thrust and the gravamen of the Bill he said:

However, the heart of the Family Law Bill is weak, even dangerous.

He was referring to this particular no fault clause. There have been strong statements made for the defeat of the Bill. Here again, I think that one could deal with many views of various people who have advocated the defeat of the Bill. I have in my hand a letter signed by His Eminence, Cardinal Freeman, Archbishop of Sydney- a Roman Catholic Cardinal of Sydney- and His Grace, Archbishop Loane of Sydney, who is the head of the Anglican Church in New South Wales. Having regard to their position in the community I think it is fair that I should read what they have said in relation to this Bill. In a letter addressed to the editor of the 'Sydney Morning Herald' on 10 September they stated:

We wish to draw attention to certain basic changes which will be made to the nature of the marriage contract if the Family Law Bill 1974 becomes law.

1.   Marriage is now, in the eyes of the law and of the Church, the voluntary union of one man and one woman to the exclusion of all others for life. From the Christian standpoint, this union ought not to be terminable during the lifetime of the marriage partners. From the broader viewpoint of law, it can only be terminated by due legal process when the Court, representing the interests of the community, determines accordingly.

So, they acknowledge the reality of divorce laws. The letter continues:

2.   The Family Law Bill, by sections 26, 27 and 28, effects a fundamental alteration in the nature of the marriage contract by making it voluntarily terminable by either party to the marriage, even when one party abandons the other against his or her will.

3.   The Bill also effects a fundamental alteration in the obligations of the parties of the marriage contract towards each other. Section51 (1) of the Bill, which is significantly different from Section 51 of the 1973 Bill, effects this in two ways:-

(   1 ) The duty of a husband to maintain his wife may be removed.

(2)   A duty to maintain her husband may be imposed on the wife.

The final paragraph states:

For these as well as other reasons, we are opposed to the Family Law Bill which has been introduced to the Senate by the Attorney-General and hope that it will be rejected by both Houses of Parliament.

I could pick up references from a whole variety of people and organisations who have written to the Press and who have expressed themselves on this subject. Indeed, they have written to parliamentarians. I am sure that all members of Parliament have received arguments on the pros and cons of this legislation. But the fact is that there is a group of people within the community- petitions to this effect have been presented in the Parliament- which suggests that this Bill as it now stands should be rejected. I am prepared to acknowledge that apart from clause 26 which has been referred to, there are other provisions in the Bill some of which, I believe in certain circumstances, could be incorporated into a matrimonial causes Bill. There are other provisions in the Bill that I find completely unacceptable and these urgently need further examination, examination beyond the limited examination that was made of them by the Senate Standing Committee on Constitutional and Legal Affairs. I will make some reference to that, subject to time, in a short while. I find great difficulty in accepting some of the proposals particularly in relation to the wife who is wholly dependent on her husband and, indeed, in the final analysis in relation to the welfare of children. I propose to move an amendment to the Bill that will seek its deferment. It is proper to point out that as at today some 82 petitions containing the signatures of 5,520 people have been presented in the Senate asking for the deferment of the Bill. Today I received a telegram from His Grace, Archbishop Little of Melbourne. As I understand it, he is the Head of the hierarchy of the Roman Catholic faith in Melbourne. The telegram is addressed to me and states:

I would support strongly suggestion to defer consideration of Family Law Bill for 6 months to enable interested people to examine report of Senate Standing Committee on Legal and Constitutional Affairs presented 2 weeks ago.

I move:

Leave out all words after 'That', insert 'this Bill be postponed until the first sitting day of the Senate in 1 975, in order that-

(a)   full and proper consideration can be given by senators and all other interested persons to the report of the Standing Committee on Constitutional and Legal Affairs, tabled in the Senate on15 October; and

(b)   full and adequate opportunity be available for all interested persons to consider the details of the Bill and the possible or likely effects of its implementation, if carried.

I understand that copies of the amendment have been circulated to honourable senators.

The ACTING DEPUTY PRESIDENT (Senator Marriott)- Is the amendment seconded?


Senator Laucke - I second the amendment and reserve my right to speak to it.

The ACTING DEPUTY PRESIDENT- I call Senator Sir Kenneth Anderson.


Senator Sir KENNETH ANDERSON - I think it is competent for me to say that whilst many petitions have been presented to the Senate suggesting a 6 months deferment, we have a connotation in the Senate that a 6 months deferment of the Bill possibly could be interpreted as being a defeat of the Bill. That is not the intention of this amendment. This amendment is intended to defer the Bill for further consideration. Of course, if this amendment is defeated I reserve my personal right to consider whether I can in fact vote for the motion for the second reading of the Bill. But it is clearly demonstrable that throughout this country there are humble people, indeed people in high places, who believe that in this issue of divorce which is linked irrevocably with marriage there needs to be the maximum time for people to understand the full and absolute implications of what the Bill proposes. My proposed amendment will give such people that opportunity. I have received an open letter dated 25 October 1974. 1 understand that other honourable senators also have received this open letter. It is signed by the Reverend Thomas J. Connolly of St Patrick's College, Manly, New South Wales; Mr K. Harrison; Dr Clair Isbister of the North Shore Medical Centre; the Reverend B. Judd; Mrs J. Lonergan; the Rev. F. Nile; Dean Lance Shilton of St Andrew's Cathedral, Sydney, and Mrs Margaret Slattery. It is a very long letter and obviously, I cannot do other than read passages from it. At a later stage perhaps I may have it incorporated in Hansard if it is the will of the Senate so to do. These people make many points in this letter. In fairness, I must admit that I have selected the words which are germane to the points I am making for deferment of the Bill. They say:

However we must, in good conscience, speak out against the radical changes proposed in the new Family Law Bill 1974, and ask for six months' delay in any further debate on it, so that the clauses of the Bill and the extensive amendments proposed by the Standing Committee on Constitutional and Legal Affairs, can be properly and responsibly assessed.

In this regard we are attaching a submission which points out, amongst other things:

This is a matter to which I feel I must make reference because the interim report is now a public document that everybody is able to read. The letter goes on: the Interim Report of the Standing Committee on Constitutional and Legal Affairs appears to give a false impression of the Hon. Mr Justice Selby's view of irretrievable breakdown of marriage as a single ground of divorce.

I will come back to that in a moment or two. The letter continues: the evidence taken by the Standing Committee with regard to the Family Law Bill, 1974, appears to have been taken in camera, thus putting it out of the reach of Parliament and the public, and therefore being inconsistent with the concept of Open Government. there' are likely to be far-reaching changes in the structure of marriage and society if the Bill is passed in its present form. the full implications of the setting up of the Australian Family Court are not yet realized. Proper research and investigation is necessary to see that any such Court does not overlap and undermine already existing facilities.

Other points are made that I do not need to read. However, as I have said, any honourable senator who wishes to read this letter subsequently is at liberty to do so. It goes on to deal with Mr Justice Selby's evidence. As the Senate is dealing with something which is within its own perimeter, as it were, I think I should read part of what is said:

Several persons are cited as supporting that view and extracts from their evidence quoted. The Hon. Mr Justice Selby, Chief Judge of the Family Law Division of the N.S.W. Supreme Court is one of the persons cited as apparently supporting that view.

However examination of the evidence given to the Committee by Mr Justice Selby indicates that he does not support that view, and indeed supports the opposite.

On being approached on 10th October, 1974, in regard to this apparent conflict between his remarks quoted in the Interim Report of 24th September, 1974, and his original evidence, his Honour states:

I propose now to read the quotation contained in the letter of what the judge is reported to have stated:

I have consistently advocated a combination of grounds providing for dissolution of marriage where the Court is satisfied that the marriage has broken down but also providing for such dissolution on the petition of a person against whom specified matrimonial offences have been committed.

The portion of my answer which has been quoted in paragraph 17 of the Interim Report does appear to conflict with the submissions which I made and which represent my view. The Interim Report conveys the false impression that I held the opposite view. This false impression could be reinforced by the fact that my remarks are cited amongst those of several others who are quoted as advocating irretrievable breakdown as the sole ground for divorce.

I have looked at the Senate transcript of evidence and have the interim report in front of me. I say no more than that it is apparent both from what is attributed to the judge and from the evidence of our own parliamentary documents that there is a misrepresentation. Because my time is running out I want to go back to my main theme. This new virtually single ground for divorce, the no-fault ground resting only on the break-up of the matrimonial home, standing in isolation as the ground for divorce, has in it an inherent risk that it could prejudice in some circumstances the concept of and adherence to the marriage contract.

I believe that not enough organisations and not enough people, other than lawyers, who have constant contact with matrimonial affairs and the break-up of marriages have been consulted. I particularly refer to people in the church organisations. Do not let it be thought that the only people who have anything to do with matrimonial affairs are in the legal profession. They are consulted very properly when there are break-ups or threatened break-ups of marriages, but there are people in Australia, and in any country- people in the church, people in charity bodies and people helping others, who have a very constant day to day concern for and contact with marriage. In the short time that we have had to deal with this Bill and look at the report of the Constitutional and Legal Affairs Committee, there are people who are saying: 'Please defer it; let us take a little bit more time '.

I am suggesting that because of the mechanics of the Senate the Bill should be deferred until the first day of sitting next year. If the AttorneyGeneral (Senator Murphy) does not want to deal with it on the first day of sitting next year he could bring it forward on the second, third or fourth day or any day thereafter. He is not obliged to do it, but we are asking him to hold the Bill until at least the first day of sitting in 1975 so that all those people of good heart who want to do everything possible to preserve, build and maintain marriage when it is under threat will have an opportunity better to examine the Bill. Who knows- it may well be that if that is done there will be, as there has been with some other Bills, an opportunity for further adjustment and further amendment which will make the Bill meet more appropriately the wishes in the minds and hearts of so many thousands of people.

We are all aware of the hurt and suffering of people who have to go through a break-up of marriage, but, whatever else we do, let us not prejudice the marriages that survive by what we are trying to do for the unfortunate marriages that have failed. We have to make certain that whatever we do will not prejudice marriage, and I say that because I believe it. This is an open vote. People can say that I am right off the target if they like. They are entitled to say that. But that is what I believe. There is a group in the community, including the leaders of our churches, which believes that this Bill should be defeated. There is another huge section of the community which says: 'Let us have some deferment'. And, in fairness to the Attorney-General, there are some in the community who want this Bill passed quickly. My views are clearly expressed.

The ACTING DEPUTY PRESIDENT (Senator Marriott)- Order! The honourable senator's time has expired.







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