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Tuesday, 19 November 1974
Page: 2513


Senator DAVIDSON (South Australia) - The Senate is debating a very important measure described as the Family Law Bill. Entry into this debate and participation in it are not easy because the Bill is complex and the measures to which it refers are complex. The Bill deals with an area which has been interpreted in many discussions not only in this Senate but also in the community at large through the legal and related professions. Therefore it becomes a problem of interpretation particularly to people who are not of the legal discipline. But while we are appreciative of the arguments that have been put forward at the legal and academic levels I want to say that it becomes very much the responsibility of all of us, legal, academic or otherwise, who are involved in community affairs and that it becomes the responsibility of anyone who is concerned for the well-being of the community to give it their attention and to do their best to make a considered judgment and contribution. In addition to what I will call the personal and material aspects of this measure there are those aspects which might be described as the moral and spiritual factors which have to be taken into account. Having said that, one must beware that one does not get lost in an over-concentration of piety and areas of self-righteousness and tend to lose all sight of reality.

The Bill sharply challenges us all boldly to examine all the circumstances relating to family life and to recognise that as problems arise they should be examined and, what is more, they should be examined frankly and properly. They should under no circumstances be disguised or overlooked and there should be no pretense that the problems that arise in family life and in family law do not exist. In presenting this Bill the Attorney-General (Senator Murphy) said:

The Bill is not presented as my ideal solution to the very difficult problems that arise in this area of human relationships, but is presented as proposals which may be generally accepted now.

He indicated that he was looking for solutions even more compatible with the dignity of the individual. Since the measure has been put down we have had the benefit of a report from the Standing Committee on Constitutional and Legal Affairs. We are indebted to the Committee for its study, for its collection of opinions and for the recommendations which it has made. This measure is described as a family law Bill. Family law, as I understand it, is the law which governs the relationships between men and women and parents and children and particularly when that relationship is governed by the institution of marriage. It would be true to say that family law should be more concerned with relationships and their retention than, say, with individual issues which might happen to be in conflict. So I suppose the areas covered by family law legislation could be said to include the establishment of marriage and the dissolution of marriage, the wellbeing and the protection of children and the maintenance of affected persons in this relationship, the arrangements connected with property and all of the legal consequences that are similarly connected with these matters. But the basis and principal theme of our debate revolves, firstly, I would say, around the institution of marriage, the preserving and protection of this institution, this ideal of marriage of the union of one man and one woman voluntarily entered into for their lives. In this simple statement is an extraordinary and diverse network of responsibilities and disciplines which sustain this ideal.

Our society must provide legal processes to protect the material and moral rights which flow from that ideal. I think also our society must provide legal processes to enforce the moral duties which flow from this ideal and from this union. But the network of responsibilities and disciplines to which I have referred affect also other persons in our community mainly, of course, the children of such a union and marriage. But there are other persons who are affected by this network of responsibility. If our discussion is about the institution and preservation of marriage, in the second place the other basic area of debate is the need for legal processes that will take care of a situation if this institution in a given case breaks down. The legal processes require the application of justice, certainty and practicability or, as the Attorney-General (Senator Murphy) has said, they should be designed to buttress rather than undermine the stability of marriage, and when the breakdown occurs the processes should take place with the maximum fairness, the minimum bitterness and the minimum distress and humiliation.

While there are of necessity legal processes relating to marriage, other processes and interdependent factors are also involved. In general terms they may be called the personal, moral and spiritual factors. Those factors must be involved in any discussion of marriage in a House of this kind and in a community of this nation. Institutions which are concerned with marriage, whether in the establishment of marriage, in the maintenance of good relations of marriage or in the ceremonial relating to marriage, must also be involved. The Christian Church is an institution which has had a long connection with, a long concern for and a long involvement in all aspects relating to the marriage of one person to another. Anyone making any study of this Family Law Bill and its related areas turns naturally to what any one or any group of Christian churches might say on this matter. For a good description of the factors to which I have been referring I turn to a document of the church which I know best- the Presbyterian Church of Australia- and refer to what is called its subordinate standard. I look at part of chapter XXIV of the Subordinate Standard of the Presbyterian Church of Australia which relates to marriage and divorce, and I quote but a selection of clauses to illustrate my point in this debate. That chapter, which is headed 'Of Marriage and Divorce', states:

Marriage is a covenant into which, under the creative will of God, a man and a woman enter for full, life-long and exclusive fellowship.

In the fourth section it states:

It is essential to the relation between husband and wife that both parties enter upon marriage freely and willingly. Men and women may marry when and whom they will, provided that they are sufficiently mature to undertake the commitment ... It falls within the responsibility of the civil authorities to order the procedures for the solemnisation of marriage and to place limitation upon the marriage of minors and of persons within certain degrees. . . Before entering upon marriage, a couple should discuss its nature and implications carefully with each other and with those best able to advise them.

Section VI states:

The relation which God gives in marriage may, contrary to His will, be strained or broken. The Church hears and proclaims the Gospel as a call to repentance and reconciliation and a promise of renewal for strained or broken marriages. When there are children in the family, their welfare in all its aspects becomes the prime consideration in any decision regarding the marriage. If strained marriage leads to a husband and wife's living apart, they may nevertheless in separation continue to recognise and witness to the life-long relation of marriage. During the separation, each should consider how he or she has contributed to the disruption of the relation and, both seeking and offering forgiveness, should try to open the way for a reconcilation ... if a person decides that the relation in the marriage has been finally destroyed and that no possibility exists of renewing it, he or she may seek to have the marriage dissolved. A decision of this kind should be made in a spirit of repentance and forgiveness. It is the responsibility of civil authorities to provide an ordered procedure for the dissolution in law of a broken marriage and to ensure that such a dissolution will be effected only after all possibility of reconciliation has been exhausted and after satisfactory arrangements have been made for the welfare of any children in the family.

Finally section X states:

Those who have experienced the breakdown and dissolution of a marriage are free to marry again, but before deciding to do so they should give careful thought as to their fitness to enter upon and sustain another marriage. The church has a special responsibility to speak the Gospel to them with the full force of its judgment, pardon, direction and promise.

This document is being revised at present, but I set out this selection, which is only a selection, because I believe that in looking at this Family Law Bill we should promote the qualities of judgment, pardon, direction and promise, as well as encouraging the spirit of repentance and the virtue of forgiveness. So the Bill before us demands the very closest scrutiny because nothing affects the nation's life and happiness so much as laws governing marriage and family. Any Bill which brings about changes at this level must be examined carefully.

The areas of the Bill relating to reconciliation, as well as those relating to the dissolution of marriage and maintenance, also need to be further examined. As has been said during this very special and studied debate, there is much agreement that reform of the existing law on divorce is needed. But the measure before us at present has drawn some specific criticisms, mainly in the area of the no fault concept of 12 months separation being the only proof needed of the irretrievable breakdown of marriage which, in turn, becomes the only ground for divorce. There has been some criticism of the custody and maintenance provisions and some criticism of the reconciliation provisions. I think the single ground for divorce being the irretrievable breakdown of marriage must be accepted as a desirable and much needed reform. This is a matter on which there is much discussion, much argument, much exchange of opinion. But the fault grounds as we understand them- of adultery, cruelty, drunkenness and other matters- lead very much to bitterness, humiliation and dishonesty.

One criticism of not retaining the fault ground has come from those people who have expressed a concern about the effect that the fault ground has on the remarriage of divorced persons. There are exceptions to the matter of the remarriage of divorced persons in the case of what is described as the innocent party. I put to the Senate that acceptance of a secular court 's finding on who may be the guilty party in a divorce is a subject for argument. Perhaps it is too simple an answer to the complex question of who after all is the main contributor to the breakdown of the marriage.

The 12 months separation as the only proof needed of an irretrievable breakdown is criticised as being much too short a period. In my view it is too short a period. Concern has been expressed that the attitude of society to marriage may change if divorce is made too easy and that the stability of marriage and thus of the family may be seriously undermined. Clause 26 of the

Bill states that the divorce is to be granted if, and only if, the court is satisfied that the parties have separated and thereafter have 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. It seems to me that there is an area of argument as to how the court may be completely and totally satisfied on this issue. If this clause is followed through it means that the application for divorce could be instituted immediately after the marriage, although the hearing of the divorce does not commence until 12 months later.

The Senate Committee and others have expressed what would seem to be a legitimate concern that once the application is made, attitudes become set and reconciliation becomes more difficult. I wonder whether there is any argument to be made out for a cooling off period in a domestic dispute. The amendment suggested by the Senate Committee, that 'date of the commencement of the hearing of the application' be changed to 'date of the institution of the proceedings', if it is carried through would seem to provide the necessary period without unduly prolonging a marriage that has completely broken down. I am of the view that the separation period of 12 months is not long enough. I think it should be extended to 2 years so that no divorce is possible until a marriage has lasted that length of time. In the areas of the Bill relating to custody and maintenance provisions the acceptance of a no-fault concept has considerable impact. As I understand it, guilt or innocence is no longer to be taken into account when determining which party to the divorce is most suited to have custody of the child or children under 18 years of age. Honourable senators will be familiar with the procedure that the wishes of the child are to be taken into account, and provision is made for representation under appropriate circumstances. But the maintenance provisions need to be examined carefully. The unwilling party to a divorce- for example, a husband or wife who has simply been deserted by a spouse- seems to me to have no right to maintenance unless he or she has the custody of children under 1 8 years of age or can prove a need. I point out that in our community are some older women who never expected to enter the work force or who have never been trained to enter the work force and who may not reasonably be expected to do so. So the criteria of need in clause 54 are not wide enough to enable the court to exercise fully a direction of this kind.

The reconciliation processes, which have also been the subject of some criticism, seem to me deserving of very close scrutiny because they really ought to be more effective. Reconciliation provisions should be an integral part of a good family law Bill. The Bill does recognise the importance of skilled marriage guidance counselling. I would like the Bill its its first form to go further in ensuring that counselling is available at the very beginning of matrimonial problems, whether or not proceedings have been initiated. I am greatly attracted by the reference in the Standing Committee's report in relation to the Family Law Bill to the evidence given by Mr Justice Burnett of Adelaide. In his submission he referred to the establishment of a family court. He spoke about the first 12 months of a family court in South Australia. I have taken the opportunity of visiting the family court in South Australia. Some of the judges there are well known to me. I do not suggest that the family court as it exists in South Australia is the kind of court envisaged in the reference of the Standing Committee but on the other hand, in the first 12 months of its operation it has provided a very good pattern of how family courts may proceed.

The surroundings of the family court in Adelaide are particularly attractive and they provide for informality. They provide for reassurance, they provide for comfort and they provide particularly for welfare officers. They provide modern surroundings. A whole range of sympathetic considerations and facilities is provided for the people involved. Every effort is made to get to the bottom of the problem and to display a strong and continuing interest in the cases that come before the court. If the amendment which has been referred to in the Senate Committee 's report is passed it will provide a great addition in the form of an appropriate and suitable court.

The Family Law Bill is one of very great importance. In a day when we are entering strongly into discussions upon economics, social welfare, foreign affairs and things of this kind, time spent on discussion of marriage, divorce and family welfare may seem a little out of context for this Parliament. Yet nothing could be more important than for the Senate to reach good conclusions on a matter which has been placed before it and to reach good conclusions relating to the very cornerstone of our society, which is the stability of the home unit. The home may refer to a family, large or small. It may refer to a couple- man and wife- or it may even refer to a unit of life represented by only one person. But in the matter of the Bill the stability of the home unit, represented either by a couple or by a family, is essential. It is to be safeguarded and preserved, for the measure of stability that a home unit enjoys, ensures the stability of the rest of the community. Strangely enough and interestingly enough, that shows up through every phase of our community and national life, whether it be public affairs, social consciousness and responsibility or even in the areas of commerce and business.

However, there are many aspects of home stability, and one of these may be laid at the door of personal and family relationships. If family relationships are sound and known to be sound, the influence they extend will also be sound and beneficial. But too often this is a cliche and we do not know what we mean by what we call a sound relationship. It can imply respect, honour and even admiration. A sound family relationship certainly starts with love and affection but, as the years develop, the situation can change and alter. Two people may develop respect and admiration and yet reach such a situation, even with those characteristics, in which they find living together quite impossible.That, to me, highlights the urgency of the need for a successful marriage.

If we are to talk a great deal about what the community and the State plan to do for people after marriage, someone must do something for people before marriage. That means not just 10 days or 30 days before but years before, even in the school years. Indeed, I sometimes wonder whether, as people get older, we should not make it much harder for marriage to take place. The children of today are magnificently trained for every vocation, every career and every recreation. I think that there must be an accelerated and intensified program of education in studies of marriage, studies of successful home and family life and studies of human relations. All of those should be geared to meet the new and changing needs of our society. They should be devised flexibly so that they can be changed as time and circumstances demand. If that were done it would form a useful and most effective background to the marriage counselling services, which must be extended and which must be constantly and continually researched.

I think that we have then to find a way of communicating to people before marriage that in addition to being husband and wife they also must be friends for, as the years mature and success or disappointment occur or the interests of the family extend, changes in relationship can occur and, as adulthood influences behaviour, this characteristic of friendship between one person and another, in addition to their being husband and wife, will undoubtedly preserve the marriage. If one wants to have a friend, one must learn to be a friend and if one wants to be a friend one has to work hard at it. People who want to make a success of a marriage must work hard at it and must understand that they have to work hard at it. Other factors are involved, of course- for example, the uncertainty of human nature, the effects of ill-health and the unforeseen circumstances. But it is true that, in spite of romance and good intentions, too many of the people who come to the marriage altar can only be described as marriage illiterates. When one considers that we leave the highly difficult adjustment of marriage very largely to chance the marvel is that our divorce rate is so low. So many couples are not really married but simply undivorced and therefore living in a state of purgatory. A happy marriage should not be a product of chance. It should receive the benefit of deliberate, intelligent and constant personal effort and, as I said earlier, hard work.

I come finally in my contribution to this discussion on the Family Law Bill to Senator Sir Kenneth Anderson's amendment. It is not without its problems in the elements of personal dilemma. I am anxious that steps be taken to strengthen the institution of marriage and to help with the problems that arise with break downs. But, as I have said and as others have said, I am equally anxious that the community should go into this matter, as far as possible, step by step with the Parliament. While many sections of the community are anxious that the Bill proceed they seem to me to stem from those of our community which, mainly for professional reasons, have had the opportunity of making a detailed and professional study of it. I would like what I call the lay community to examine and discuss the Bill more. It is true that the Bill has been presented before. It is true that a Senate committee has worked on it. It is also true that churches and community organisations have worked on it. But I submit that it has only now come into the public debate area of the Parliament. Evidence of that is the response that has been shown in the Press, in the references that have been made on public platforms, in the letters to newspapers, in the response that has been expressed by way of the increase in the number of letters and telegrams to honourable senators and in the number of petitions which have been presented to the Senate. All of those indicate a variety of views on the Family Law Bill. They also indicate that the community at large is only just beginning to study the measure and the amendments and to take cognisance of the effects that will flow from them. The Bill is supported in principle. I believe that as further examination takes place and as the influence of the amendments is considered there will be a wider public acceptance of the fact that we live in a world of change and that we need measures of change. I submit that if the Family Law BUI is to go onto the statute book it should go on with as wide an acceptance as possible. If it has wide acceptance the measures encompassed within it will be more effective. So, after examining my own feelings and my own position, I believe that we should provide for a postponement of further consideration of the BUI, as Senator Sir Kenneth Anderson's amendment suggests, to the first sitting day in 1975. Having said that, I would like to say that if there is to be such a postponement I hope that it will be for no longer than that. Certainly there should not be a further postponement. I realise that there are people who wil be affected by such a delay. Some of them are known to me. But I believe that the price of some delay in any change affecting our society is worth paying. I believe that this debate on the Family Law BUI has been one of the most important exercises undertaken by this chamber. As I said at the beginning, it has not been without its problems and its difficulties. But the Senate has been wise to grapple with the many complex and difficult issues that the BUI presents and, indeed, that the institutions referred to in the BUI present. Therefore, so that the community may have further time to give the BUI some consideration and so that it may be discussed with the Parliament, particularly with the Senate, I support Senator Sir Kenneth Anderson's amendment.







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