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Tuesday, 19 November 1974
Page: 2525


Senator YOUNG (South Australia) -This Bill is without doubt one of the most important pieces of legislation that have come before this Parliament because it deals with the basic structure of our society, that is, the institution of marriage and the family. I have heard it said on many occasions and repeated in this Senate that marriage according to law in Australia is the union of man and woman to the exclusion of all others, voluntarily entered into for life and not to be entered into lightly or inadvisedly. On that basis we can accept that marriage is a very serious step for anyone to take. For that reason, as a community or society we cannot take marriage lightly or in any way do anything that will affect the institution of marriage or its stability in our society.

In the first place I must say that I support certain aspects of this Bill which was introduced by Senator Murphy. I do so because there is a need for some change in our divorce laws. But I want to make it perfectly clear as a layman, but one who has been associated with the problems of our community, one who is aware of the tragedy of divorce for many people who have approached me with their problems since I have been in this chamber, that one thing that I want to be sure of is that whilst we make the procedures of divorce perhaps easier in some ways, we do not in any way give the appearance of trying to make it easier for people to marry. That is one thing that we must avoid at all costs. In no way must we give an indication that we are weakening the institution of marriage or discouraging respect for marriage. Nor should we discourage the acceptance of permanency of the institution of marriage.


Senator Wheeldon - How do you make to make marriage easier? It could not be much easier than it is now.


Senator YOUNG -I shall come to that in a moment. I have said that we must accept divorce in our community. Many people in this world have entered into a marriage contract, firmly convinced and genuinely believing that the marriage would have permanency and happiness, but things have not worked out that way and finally they believe that they have reached the situation in which they are completely incompatible and that the only solution for them ultimately is divorce. So we must accept divorce within our community. Senator Wheeldon interjected a few moments ago so I inform him that I do riot ever want to see marriage accepted in our community as something that could be a short term expediency, something from which one can easily opt out. There should be no situation in which divorce proceedings are regarded as an opt-out clause of the marriage contract. That is something that I do not want to see and I think most people would support me in that.


Senator Wheeldon - You were complaining about marriage being made easier. I was asking how it could be made easier than it is now.


Senator YOUNG - I would like to see it made more difficult for people to marry. If we were able to make it more difficult for people to marry, if people entering the marriage contract could have a better understanding of the problems associated with marriage and realised that it was not all easy street, it would be of great help to them. It may appear to them when they are in the first flush of marriage that marriage is all easy street, but eventually they reach the rough spots and trials, as probably ail married couples have done on occasions. The main thing is that people should have the opportunity to receive counselling prior to the marriage. That would be of great help to them and probably would prevent many of the divorces that now take place.

I do not propose to deal in detail with many aspects of the Bill because, frankly, I believe that this is a measure to be dealt with in Committee rather than during a second reading debate. Many honourable senators have spoken to the Bill and dealt in depth with so many areas. Tonight I propose to speak about marriage counselling because I feel that this is an area that is not fully covered in the law proposed by Senator Murphy. I make the suggestion because people then would have a greater understanding and realisation of what marriage is all about, instead of entering into it lightly as some people might. I say that not in condemnation of anybody but because so many people have not had the opportunity and advantage of marriage counselling prior to marriage. I have discussed this aspect with many clerics and people associated with family counselling in my State of South Australia. These people agreed with me that this is one area to which greater emphasis could be given. I am very much aware that many clerics of various religions made the point wherever possible of having discussions with people before they marry. They consider there should be discussions and counselling on what they consider could be the problems of marriage or the pitfalls into which other people have fallen during their marriage. I think this is excellent.

I only hope that the Government will make greater opportunity available for people and will give greater encouragement to people to take advantage of marriage counselling before entering into the contract of marriage. In speaking of counselling I am referring to the opportunity which should be available for persons with experience and expertise in this field to give effective marriage counselling to people before they marry. I am certain that if this were done it would be of great assistance in many marriages which otherwise, tragically, would finish on the rocks. Another important period and one which is overlooked in the Bill is the opportunity for any married couple to receive sound marriage counselling at any period of their marriage.

No doubt all honourable senators have seen or experienced the situation where the small problems of married life build up until they become big issues, where abrasions become greater until finally they are so magnified that couples feel the only way out is divorce. During this period deep scars have been inflicted by one married partner on the other. On many occasions that situation could have been avoided if only they could have gone somewhere for sound advice and had pointed out to them various aspects which possibly would overcome in the early stages a situation that tragically finishes up as divorce or separation. One of the tragedies in divorce is the fact that children are often involved. It is bad enough for couples who have no children to become completely incompatible and finally to be divorced, but it is an absolute tragedy when children are involved. These are the ones who suffer throughout. This is one area where I think something could be done by this Bill. Perhaps there could be an amendment to provide for greater opportunity for family counselling by experts. This could well be brought within the concept of the Family Law Bill. I commend the Standing Committee on Constitutional and Legal Affairs for its report and for many of the recommendations and comments by the Committee on the proposed legislation.

I was very encouraged to see that in one area of the report the Committee referred to marriage counselling. In paragraph 28 on page 14 of the report the Committee said:

A disadvantage of Part III of the existing Matrimonial Causes Act is that the provisions operate only when the parties have actually instituted proceedings, which in the professional experience of members of the Committee is at a time when the attitudes of the parties to the marriage are most hardened against reconciliation.

On page 15 the report continued:

The Committee emphasises that provisions must be drawn in such a way as to encourage parties whose marriages or family lives are in difficulty to come and take advantage of the marriage counselling facilities of the Family Court at any time -

I emphasise the words ' at any time '- regardless of whether or not proceedings under the Bill are contemplated or have been initiated.

I think this is one of the most important areas because, whilst this Bill sets out to do many things to streamline the procedures of divorce, not enough emphasis has been placed upon the prevention of divorce.

I hope that amendments will be moved accordingly. If not, I will move an amendment myself because I feel this is an important part of the proposed legislation. I think it is far better to prevent a divorce if at all possible than to come in with a cure at the finish. I appreciate the fact that the legislation contains proposals whereby, right until the last stage, if there is any opportunity to repair the marriage that opportunity must be taken. But I repeat that at this stage it is becoming very late. The parties have suffered the bitterness, the abrasions, the deep scarring and the unhappiness, particularly where children are involved. That is one of the most unfortunate aspects of any unhappy marriage. It is bad enough that the mature couple- the parents- are involved in such a situation but it is a tragedy when children are involved in such an environment when they could have so much more out of their early lives if they had had the benefit of a happy home.

I think many aspects of this Bill are very good. There are many aspects which I question at the present moment and there are many aspects that I am not prepared to support at this stage. I will probably vote against them or, alternatively, support them with some amendment. I will not go into detail now because I will have an opportunity to do so in the Committee stage. One thing that concerns me greatly- I relate this again to the no-fault aspects and the concept of irretrievable breakdown of marriage- is the period of time before proceedings commence. At present I have a reasonably open mind on this because I appreciate that if the time is made too short- I refer to the comment Senator Wheeldon made to me when I first started speaking- we will not be encouraging permanency in marriage if people can see an easy way out in a short space of time. On the other hand, if we do extend the period of time for too long we will perhaps create unnecessary unhappiness. So I want to hear more in debate before I finally make up my mind regarding the period of time. At this stage I am not committed. The one qualification I make is that I will do all I can to make sure that the institution of marriage remains as one of the pillars of our society.

I support the no-fault aspect of the legislation because I feel that the present Act contains too many aspects involving fault that create much bitterness, hatred, the airing of dirty linen and domestic problems which are dragged through the courts and become public. This is what happens, maybe not in the proceedings but at later stages as a result of those proceedings. More importantly, I support the no-fault aspect because the dragging out publicly of the mire and dirty linen affects young children who are going to school where everybody knows everybody's business. Unfortunately these children can be badly hurt and embarrassed by the exposure of the traumas and the tragedies of their family life over which they have no control. They are the sufferers.

So I support the aspect of irretrievable breakdown. I am pleased to say that, even though it is an area of controversy, it appears- from what I have gathered from the people who have corresponded with me, from people to whom I have spoken, from welfare workers and so many other people- that the great majority of people support the aspect of irretrievable breakdown. I back this up with a statement by a man whom I consider a very important cleric in Australia. He said:

The concept of 'the irretrievable breakdown of marriage' (section 26) was recommended to the British Parliament by the Church of England some years ago. This does away with much of the deviousness and the dishonesty of current divorce proceedings. Who is able- other than God- to determine the measure of guilt in the failure of a marriage? Invariably both parties are to blame. It is the rare case when one party is so irresponsible that they can be clearly labelled as THE guilty party. In the same way many divorces on the grounds of adultery are the result of exceedingly doubtful practices of proof and obtaining evidence. It would be good to have these out of our system.

As I said earlier, I do not intend at this stage to deal with many of the aspects or the mechanics of the Bill. I have risen tonight to point out one area which I feel has not been covered fully in this debate, and that is the area of counselling. Again I refer to the importance of counselling in the pre-marital situation and in the post-marital situation. It should be available from the moment people are married to give them such assistance and guidance as can be given. Counsellors who are experts in their field should be freely available to give guidance. I feel that it is far better to put emphasis on this area, to make sure we do all we can to prevent divorce, than to lay the emphasis mainly upon making the procedures of divorce procedurally easier. Those are the reasons why I have spoken tonight. That is all I wish to say at this stage, but I assure the Senate that I will be having much more to say on certain aspects of the Bill in the Committee stage of the debate.







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