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Tuesday, 19 November 1974
Page: 2532


Senator GREENWOOD (Victoria) -I rise towards the end of the debate on this Bill to express an attitude on the issues before the Senate. I do so conscious of the fact that the Senate is engaging in a vote in which the leaders of both parties in this chamber have indicated that ordinary party disciplines do not apply. It will be a free vote. Therefore, the views that I express are not the views of the shadow Attorney-General or of the Opposition spokesman on matters related to this particular area of matrimonial causes, but simply the views of one senator. I say that for the purpose of those who report these proceedings. What I say is not to be regarded as the view of the Opposition Parties. There will be a free vote and individuals will express their own views on this matter. I say this because I think it is relevant in a debate such as this to indicate what the policy of the Liberal Party, as expressed in its platform, states with regard to matrimonial law, family courts and the family. With regard to the family, the Liberal Party, in the platform which has recently been canvassed by all sections of what is a grass roots organisation throughout Australia, states:

The family is a cohesive force in society and the Liberal Party recognises the necessity for strengthening its influence. Liberals acknowledge the vital contribution of the family in the development of the individual and, if the family is having difficulty fulfilling that task, the community must come to its aid. Recognising the effect of adverse or changing economic circumstances on the performance of this role, the Liberal Party advocates by consultation and co-operation between the Commonwealth and States the following means of assisting the family to meet the stresses and challenges of modern society-

Then there are set out 8 items which represent the ways in which the Liberal Party would seek to assist the family. I ask leave to incorporate those 8 items in Hansard.

The DEPUTY PRESIDENT (Senator Webster)- Is leave granted? There being no objection, leave is granted. (The document read as follows)-

1.   Education for marriage; guidance on family planning and the responsibilities of family life to give effective support for the harmony and continuity of marriage.

2.   Encouragement to the family to ensure the full development of each child.

3.   Provision of a suitable environment, the development of community amenities, education and health services, and the opportunity to obtain suitable housing as essential prerequisites of a sound family life.

4.   Assistance to overcome the special difficulties of oneparent families, handicapped parents and parents of handicapped children.

5.   Child care and other suitable facilities to supplement family care when necessary.

6.   Fostering community spirit and activities to enable the family to be part of a living community rather than finding itself isolated in populous urban areas.

7.   Assistance to encourage families to care for their aged and invalid relatives within their own environment.

8.   Recognition of the importance of older citizens in our society, by ensuring their participation in suitable community activities so that they can contribute from experience and enjoy a sense of security and belonging.


Senator GREENWOOD - With regard to the question of matrimonial law and family courts, this is what the Liberal Party platform states:

The Liberal Party recognises the importance of the family and the value of the personal relationships involved in marriage. Where these personal relationships break down, laws become necessary. Such laws must be just and effective and give due consideration to the needs of all members of the family involved. Our policies will reflect these fundamental beliefs and will seek to-

1   . Foster community organisations which assist people to prepare for and understand the complexities of married life, and to resolve marital difficulties with a view to maintaining family life.

2.   Establishing, in co-operation with State Governments, uniform family law throughout Australia.

3.   Implement humane and simplified laws and procedures for the dissolution of marriages where they have irretrievably broken down, and for the resolution of all ancillary matters.

4.   Remove, as far as possible, the apportionment of guilt or blame in establishing grounds for divorce.

And in co-operation with the States, which have major responsibilities in these areas:

5.   Establish and develop well staffed family courts to deal with marital disharmony, divorce and all ancillary matters, with primary emphasis on reconciliation and the welfare of children of the marriage.

6.   Reform the law to provide a just basis for the distribution of matrimonial property where disagreement exists.

7.   Remove disabilities imposed on children born outside marriage and establish just entitlements for parties to longstanding family relationships outside marriage.

8.   Provide for legal representation to be available for children where necessary.

I think anybody who reads those 2 significant sections of the Liberal Party's Federal platform will recognise why, as I recognise, there is a strong case for supporting the second reading of this Bill. I propose to support the second reading of this Bill when that issue is voted on. I emphasise that the philosophy to which the Liberal Party gives expression is a philosophy which can lead to differing modes of implementation and to differing expressions of how those concepts can be realised. What I say may not be what other people would realise and support in the implementation of these measures. But I believe in what I am about to say that there are features of this Bill which I would not like to see brought into the divorce laws of this country.

I indicate at the outset my broad attitude. I support wholeheartedly Senator Sir Kenneth Anderson's proposal that this Bill be postponed to enable a better understanding to develop of what is implied in the Bill and what is comprised in the many amendments which have been proposed by its author and by others.


Senator Murphy - You would put it off for ever if you had the chance.


Senator GREENWOOD - I think the honourable senator is unfair in saying that. I have said many times in his hearing on earlier occasions when I have taken the motion for the resumption of the debate that this legislation provides a constructive basis for development of good and sensible divorce laws in this country. I have said that on numerous occasions in the past. Simply to say that because I support the motion, in which I firmly believe, that this Bill ought to be postponed for a time I would postpone it for ever denies what I have said and I think reflects no credit on Senator Murphy's own understanding. I believe that the Bill should be postponed so that the consideration in the Committee stage will take place when there has been generally a better appreciation and understanding of what is proposed. Secondly, as I have said, whenever the vote on the second reading takes place I shall support it. Thirdly because I believe that this Bill requires amendment in significant places, and I hope that those amendments will be carried, I shall reserve my ultimate decision on whether I will support the Bill at the third reading stage, that is, after the Bill has passed through the Committee debate.

My fundamental attitude is consistent with the statements which are contained in numerous international covenants and declarations. The family is the fundamental group unit of society. Stated starkly in those terms I think the importance of the family is scarcely recognised. The family, throughout mankind's history, has been the focal point and the stimulus for the development of succeeding generations. The family of today, styled in the modern day language as the nuclear family, is not the family of yesteryear. We have, with a complex interdependent society, evolved the concept of a smaller family essentially consisting of a mother and father and 2 children. But that is not the family which comprised the living antecedents and the living decendants of an essential family core whether it be matriarchal or patriarchal family of yesteryear We have today a family which, I believe, is the absolutely essential core of our JudeoChristian tradition and I believe that that family ought to be preserved and that as far as legislation is able to sustain the family, legislation should enable that family to provide for those who are part of it all that our society can provide.

Having accepted that view of the family I believe that marriage in our society is fundamental to the family. It is the cornerstone of the modern day family. Weaken respect for marriage, regard it as easily and opportunistically dissolvable, remove the lawful backing for the mutuality of obligations and promote the independence or separateness of the parties to the marriage and their children and I believe that we are threatening the institution of the family and its stabilising influence in our society. There are provisions in this Bill which I think do each of those things. I believe that the Bill weakens respect for the marriage by enabling it to be dissolved on the unilateral act of one party to the marriage after 12 months. I believe that we are weakening the institution of marriage by permitting it, as one party wishes, to be easily dissolved after 12 months. I believe that we are removing the lawful backing for the mutuality of obligation by saying that there is no obligation on one party to a marriage to support the other party.

I think that by stressing the necessity for a divorced wife to go out and earn her own living without being able to look to any support from her spouse who has deserted her we are emphasising a degree of independence and separateness which is not in the interests of the marriage contract. I personally believe that to give to the children separate representation by counsel in any matrimonial or custody litigation is to deny the right which ought to be the right of the mother and father of those children.

I appreciate that views on this subject can differ and that people who would hold as strongly as I hold to the views which I have just expressed would challenge my conclusion that this Bill has the effect which I have ascribed to it. I regret that those differences exist because for my part I hold strongly to the views that I have expressed and I cannot see how there can be a reasonably objective interpretation of the impact of some of these measures other than along the lines which I have expressed. I do not challenge the sincerity with which other views are to be held. All I say for my part is that we will have a totally different society if we undermine the institution of marriage and if we challenge the fabric of the family and put in its place not a concept which has been developed or which is understood by those who I believe are breaking down what we have at present but simply a society in which there are no stabilising elements and in which there are none of those fundamental characteristics which I have always believed to characterise our present society.

I also recognise equally that marriage is subject to the imperfections of human behaviour and human relationships. Whatever be the marriage vows, experience demonstrates that marriage is not indissoluble. When a marriage has irrevocably ended, when neither party is prepared to or capable of recalling the love which established it- in short, when marriage has irretrievably broken down, when marriage is finished so that no one wishes to continue it- then in the interests both of society and of everyone directly concerned, that marriage ought to be able to be terminated. It should be terminated with justice to the parties but with paramount consideration being given to the interests of the children. The children are the persons who derive most benefit from the family unit. The children are the product and the joy of any marriage. They suffer most in the breakdown of a marriage and a family. I believe that those considerations are entirely consistent with what my Party has stressed as its fundamental philosophy in these areas and it is those institutions and concepts which I regard as challenged by significant facets of this Bill.

I have said that I agree with Senator Sir Kenneth Anderson's motion for a postponement of consideration of this Bill. I recognise, having regard to the number of persons who have spoken, that effectively what Senator Sir Kenneth Anderson is asking for is a postponement of consideration of the clauses of the Bill. That, as I understand it, is what he intended when he moved his amendment because he knew it would be voted on immediately prior to the vote on the motion for the second reading of the Bill, and if carried it would simply have the effect of deferring not the second reading debate but the Committee debate. That is entirely proper. There has been quite sufficient time, I believe, for a debate on the broad principles of the measure to have taken place and for the broad considerations to have been assimilated by those who are interested in discussing the principles of the Bill, but I believe that the Bill has not been given the consideration which its many ramifications require and that an attempt is being made to pass it through the Senate with improper haste.

We are in the middle of November and are dealing with a Bill that was introduced on 1 August. I have said that I can agree that no substantial reason ought to be advanced for a delay in the second reading of the Bill. But this Bill has 96 clauses. They affect not only the grounds for divorce but also a host of other facets of the marriage relationship; the court structure in quite fundamental ways; provisions relating to the welfare and custody of children in ways which have not been part of our law in the past; provisions relating to maintenance and property which alter long established concepts, and procedures and so on which introduce many new ideas. Where there are these new concepts, these novel approaches and important changes being introduced, there ought to be ample time for consideration of their ramifications.

On the last occasion a substantial divorce matter was introduced into this Parliament a period of 6 months was announced at the outset as the period for which that Bill would be laid on the table of the Parliament for consideration to be given to its import. I regret that no such indication was given on this occasion and that the author of the Bill and, I believe, those who have given intensive consideration to it, consider that they are equipped to deal with the matter and therefore it ought to be proceeded with as quickly as possible. I do not accept that concept because I believe that not everyone in this chamber is equipped to deal with the matter, and there are many people outside who would like to have their views expressed, who would like to submit their views to the Parliament and to feel that the Parliament is taking those views into account before the legislation is considered. We have speed with regard to the passage of this Bill which I regard as discouraging to those who wish to debate the issues and to develop a public awareness of the Bill's implications. Every honourable senator has been subjected to an intensive letter-writing campaign. Scarcely one senator has not received a considerable number of petitions urging a course one way or the other with regard to this Bill. An increasing number of public statements have been made with regard to the merits of the Bill. I accept what I heard Senator Gietzelt say before the suspension of the sitting for dinner and I have derived from what other honourable senators have said that there is a degree of pressuring in what has taken place. But is pressuring in this context bad? Does it not really reflect the concern which interested groups feel? Are not groups interested in this Bill entitled to press upon members of Parliament their views as to whether it should be passed?

I sought from the Senate office some indication as to the position with regard to the number of petitions received in this sitting of this session of the Parliament since we resumed in September. As I understand it, there have been in support of the Family Law Bill some 99 petitions representing approximately 11,000 signatures, and against the Bill, or seeking a delay of the Bill, there have been 133 petitions with almost 20,000 signatures. The number of petitions and the number of signatures are not significant in that they represent a small proportion of the total population, but they are significant in that they represent an interest in the community which we ought to acknowledge and regard as involved in this measure. It is not just 60 senators, and it is not just 187 members of Parliament who are involved in this measure. Certainly those people are involved but there is a host of people outside the Parliament whose voice ought to be heard and whose voice ought to be encouraged to be heard with regard to this measure. Simply because there are within this chamber some people who feel that they are equipped and ready to deal with this measure they ought not to shut out the views of others who would like to have their voices heard and who believe that their representations are considered in debate.

I want to refer to the chronological sequence of this legislation. The Bill was introduced on 1 August this year. Without debate it was referred on 16 August to a committee. The membership of that committee at that date was not constituted and later that same day the Senate adjourned. I understand that, in accordance with

Senate procedures, at some stage after 16 August the names of the members of that committee were communicated to the President and the Committee- the Senate Standing Committee on Constitutional and Legal Affairs- was formally constituted. That Committee met in the recess when Parliament was not sitting, and after the Senate had resumed on 17 September an interim report was delivered on 24 September. A final report was delivered on 15 October. Fourteen days later, on 29 October, debate in this chamber commenced. It resumed the following day on 30 October and now some 20 days afterwards the debate has resumed on 19 November. It is not unreasonable, I believe, for a parliamentary debate having regard to that timetable. Indeed, if we could have that sort of timetable with most legislation introduced, parliamentarians would not know how well off they really were.

I would have thought that if Parliament were the only area in which consideration had to be given that was a pretty fair timetable. But this is a Bill which involves an issue upon which I suppose every member of this community would have something to contribute. Divorce and family law are a matter upon which everybody has some experience and an issue upon which everybody feels more or less capable of expressing a view which ought to be listened to. If ever Parliament ought to give time for consideration of measures it is on a family law Bill or a divorce Bill such as this. I do not believe that we are giving this time. This is a Bill in which public opinion is interested and is stirred. I do not recall in recent times any Bill which has stimulated 30,000 or more petitions and small though that might be in view of the size of the total electorate I think it is a reflection of the interest which has been generated.

The Bill requires an examination. After it was introduced I understand that many weeks running into months elapsed before adequate supplies of the Bill were available, and that was conceded to me in reply to a question which I asked Senator Douglas McClelland as the Minister in charge of the Australian Government Publishing Service. So far as the public is concerned it was after- well after, as I recall an interview which I held- the end of August before copies of the Bill were available in the government bookshops around the country. The reports of the Senate Standing Committee on Constitutional and Legal Affairs ought to be considered and the views ought to be able to be taken into account by those who are interested in the ultimate form which this legislation will take. But those reports were not available generally to the public until the very day that the debate started in this Parliament. In response to a question asked of Senator James McClelland in this place on 24 October he stated that he believed that the final report of the Committee of which he was Chairman would be available in the government bookshops on 29 October and that the interim report would be available some days thereafter, and that, of course, was the day upon which the Senate started the debate on this Bill. As I understand that many of the amendments which Senator Murphy has projected for this Bill derive from a consideration of the Senate Committee's reports it has not given time to the interested public, which I contend ought to have its voice heard in this matter, to be able to contemplate what might be the substance of what the Committee proposed. I have since confirmed within the last week that both reports, the final report and the interim report, and the Bill are available at least in the government bookshop in Melbourne and I assume that they must now be available in the bookshops throughout the country.

Rightly or wrongly the Committee did not call for submissions or otherwise advertise its work after its reappointment in August. I have adverted to this aspect on an earlier occasion and I do not desire to advert to it again except simply to acknowledge the bald fact that there was no advertising or request for general submissions. I believe that the Committee felt it was doing the proper thing and it was not dealing inadequately with what were its terms of reference when it made the decision not to call for further submissions or to seek by way of advertisement responses from people who might be interested, but I do know- and this is fundamental to my approach- from the interviews I have received that interested people who were concerned to put forward points of view to this Committee were unaware of the Committee's composition, were unaware that the Committee was meeting and were therefore unaware of its operations generally and the rights which they had to put matters before it with regard to the clauses of this Bill. People may say that those persons were not astute enough to make inquiries, but as far as I personally am concerned I believe them when they say quite genuinely that they were unaware of their rights and of the opportunities which the Committee's composition afforded to them. Whether or not there was a proper opportunity accorded to people they or a number of them anyway do not believe they were given that proper opportunity.

The report of the Committee is a most valuable document and it represents the only considered examination of the clauses of the original Bill. I think it is virtually compulsory reading for anyone who wants to engage in a considered debate on this matter. I do not accept all of the report but I regard most of it as being tremendously valuable and a constructive commentary on what the original Bill contained. But it is helpful as I see it in most of the areas in respect of which it reports. I think on that view maybe there is an added view as to why other people, if they were given the opportunity to digest it properly, might likewise find that it was of value and in those circumstances a consideration of it would crystallise the areas or the points of objection to the present Bill and avoid many of the broad criticisms which on a number of occasions I felt have been quite unwarranted. But I think that until people have taken the time to examine the Bill and to examine the commentaries upon it they would not realise that many of the apprehensions they feel about the Bill are not sustained by its actual clauses. I feel that our speed in dealing with this is likely to sustain rather than to remove that apprehension.

A further reason why I believe this Bill should be postponed is the situation in which we now find ouselves with the mass of literature which has been placed before us on this measure. I have taken out the material with a view to illustrating the difficulties of anybody who wants to consider what is currently before us. We have, of course, the original Family Law Bill introduced on 1 August. We have with that Family Law Bill a useful explanatory memorandum. We then have, delivered on 24 September, an interim report which represents the first viewpoint of this Committee. We then have on 15 October a second or final report of the Committee. All this represents relevant material. We then have at some later stage- I think it was the end of October or the beginning of Novermber- a document entitled Family Law Bill 1974, Consolidation of Amendments and New Clauses (To be moved by the Attorney-General).' As other speakers have said, it is a document which contains 92 amendments to the Family Law Bill. Obviously it is an extraordinary document requiring some consideration together with -


Senator Poyser - You can do that in the Committee stage, can you not?


Senator GREENWOOD - I thought it might have been useful to look at it before we get to the Committee stage so as to know what is likely to come up. I have not finished the account of what we have to look at. With the 92 amendments which were foreshadowed there is a short statement. I understand the statement was circulated and not incorporated in Hansard. I have not checked it in Hansard; I did not see it there. It is entitled 'Family Law Bill 1974, Statement by the Attorney-General, Senator the Honourable Lionel Murphy, Q.C., on amendments to be moved by him '. It represents a general statement of the amendments. Then we have a further document- I think it is the sixth documentheaded 'Notes on amendments and new clauses to be moved by the Attorney-General'. That was circulated by the Attorney-General and we have some 9 pages of that document which gives some additional but not very complete information as to what these amendments are purporting to achieve. To really understand that you have to go to the report of the Standing Committee on Constitutional and Legal Affairs, which is a time consuming task as I can assure anyone who wants to undertake it.

Then we had a tremendously useful document headed 'Showing differences between the Family Law Bill 1 974 as introduced in the Senate on 1 August 1974 and that Bill as it would appear if the amendments to be moved by the AttorneyGeneral were incorporated in it. ' Then with asterisks and black type we have the Bill as it would appear if the amendments were moved. I thank the Attorney-General for that document particularly because that is the most constructive of all that he has brought in. Following that we have a document which was circulated last week and which unfortunately is headed 'Alteration to amendments circulated by the AttorneyGeneral'. Then we have alterations, some 15 in number, to the 92 amendments which already have been circulated to the 96 clauses of the Bill. If it was not a serious matter it would be laughable, but it is not a laughing matter because within the week we are expected to give consideration to the 96 clauses with the 92 amendments with the 15 alterations. Then we are given for our edification- but it is not particularly helpful if one started to go through the earlier documents- a document headed 'Consolidation of amendments and new clauses' which brings together the amendments and the alterations and puts them in a comprehensive form which is useful for the debate but renders an awful lot of the work one has done beforehand not terribly constructive.

Then finally we have a useful document headed 'Revised memorandum showing the differences between the Family Law Bill 1 974 as introduced in the Senate on 1 August 1974 and that Bill as it would appear if the amendments to be moved by the Attorney-General were incorporated in it'. I can only suggest to the AttorneyGeneral that it will not be useful Committee debate when we have that mass of documents before us and no time to digest the information. It will not be useful or helpful for people outside this chamber if they are interested in considering the Bill and want to look through the amendments in the various forms in which they have been put forward to have to go through this mass of documents until finally they find what are the amendments proposed. I do not take account of what seems to be the increasing number of amendments moved by Senators Baume, Laucke, Missen, Chaney, Durack, Sir Kenneth Anderson or members of the Committee, all of which have been appearing on our tables throughout the day.

In a short time when I finish presumably we move into the Committee stage of the Bill and proceed to deal with it. I believe that this is not a fair way to deal with a matter of this import and that it imposes a burden on the Senate. It denies to honourable senators rights which we ought to be prepared to concede that they have. I simply hope, therefore, that we allow time to elapse so that these matters can be considered properly. I stress this point: The more that we allow time to elapse on complicated Bills the more likelihood there is that when the debate actually occurs the areas of difference will have been narrowed and points of contention will have been crystallised. I am quite sure that this will happen in this Bil. It has happened in the three or four months that have elapsed since the Bill was first introduced. Most people who have taken an interest in it can now see areas in which their attention is being focused. I think, given a little more time, those areas in which the attention is being focused would narrow. I do not want to deal with the substantive merits of the Bill and I have not attempted to range over those matters which a host of other senators have discussed.


Senator Poyser - You have spoken for long enough but have said nothing.


Senator GREENWOOD - I hear Senator Poyser 's constant plea that one talks a lot. I thought this was to be a free vote and that he might have allowed the opportunity to people who disagreed with him to express their view on a basis other than Government against Opposition. But I think it is an ingrained view on Senator Poyser's part that he does not like a point of view different from that to which he adheres being expressed. The only point I make is with regard to one concept which is embodied not in the Bill but in the reports and which I regret that the Attorney-General has taken note of. In the Bill the jurisdiction under this new divorce legislation was to be vested either in the State courts or in a superior court.


Senator Murphy - Is that not a Committee stage matter? Do you really have to engage in this kind of waste of time?


Senator GREENWOOD - I regret that the Attorney-General says that it is a waste of time. I am expressing a point of view which I think ought to be aired because when we get into the Committee stage at least people will know something of what are the broad issues of difference between various senators. There are a number of views expressed here which I think ought to be looked at. The Bill says that the jurisdiction is to be vested in the State courts, as it always has been in this country, or is to be vested in the superior court. We have not a superior court and until the Parliament establishes a superior court we will not have one. On that basis, under the legislation as it was introduced by Senator Murphy, the supreme courts of the States and the Territories would be the courts in which the jurisdiction would be vested. That, of course, is a view which the Opposition parties have consistently contended for as the appropriate way in which to operate the judicial structure of this country. The Committee recommended in its interim report when talking about amendments which it thought were worth while:

It is not appropriate at this stage to canvass these amendments except one, which it considers should be communicated to the Senate at this stage. The amendment relates to the incorporation in the Bill of provisions to establish a Family Court which, freed of the rigidity and formality of conventional courts, would be able to exercise jurisdiction over the whole range of 'family' matters with dignity, informality, expedition and comparative lack of expense. The Committee is of the opinion that the establishment of such a Court is an essential supplement to the change from a concept of 'fault' in divorce grounds to one of irretrievable breakdown evidenced by separation and that the ultimate well-being of all involved in 'family ' differences, including children, will be fostered by such a judicial institution.

It is regretted that the Committee did not explain why this sort of court was necessary and, in particular, why it was an essential supplement to the change from a concept of fault in divorce grounds. I say that because I would welcome the concept of family courts- not a family court in the Commonwealth sense but family courts in the State sense in which to the one body one could go with problems and questions prior to marriage, problems which arose during a marriage and any one of the many problems which arise in regard to the dissolution of marriage. But why such a court is an essential supplement to the change from a concept of fault I find difficult to understand. The concept was elaborated in the final report of the Committee when at pages 16 and following reference was made to a family court of Australia. At paragraph 33 the Committee states:

The Committee is firmly of the opinion that this Part requires substantial redrafting to incorporate the creation under the Bill of the Family Court of Australia, a family court of record, being invested with the full jurisdiction of the Commonwealth under section 51 of the Constitution (viz. marriage, divorce and matrimonial causes) and dealing exclusively with family law matters. It is proposed that the new Court exercise not only the remedies in relation to matrimonial causes now exercised in State Supreme Courts and Territory Courts but maintenance, custody and family property jurisdictions presently exercised in a variety of State courts.

I stop there in my reading simply to say that I would have thought that there is considerable doubt as to whether, in regard to that proposed jurisdiction, there is constitutional authority for such a court to be established. I do not know how this problem can be resolved if the Senate is of the opinion that such a court should be established, but I urge the Attorney-General (Senator Murphy) to consider the problems with which the Commonwealth Government was faced after the High Court decisions of Knight v. Knight and Kotzis v. Kotzis in 1970, because the result of those High Court decisions was that awards of maintenance and awards of custody made by commissioners of Supreme Courts who had been unconstitutionally invested with a jurisdiction which the High Court declared they did not have, were orders and awards without any valid operation.

If one is to create the sort of risk situation in which at some stage in the future orders and awards which are obtained have no legal force or effect, one is creating hardship and distress in enormous degree. This was the problem with which the Commonwealth was faced 2 or 3 years ago. If in some way this issue as to whether there is constitutional power can be raised for consideration before it is acted upon- supposing that the clauses go through- I think that a lot of the problems in the future can be resolved, because it would be absolutely disastrous to have a family court established as a Commonwealth court of record in which the decisions made by that court were not sustained by the High Court. People who relied upon the decision they had received in that family court would find that they could not rely upon it. It seems to me that if family courts were created by the States that problem would not arise.

I would have thought from a host of considerations that the concept of State family courts is a much better concept than that of a Commonwealth family court. If the concept of a family court is derived from American experience we ought to look at what America has done and in particular, because I see him as an adviser in this chamber at the moment, at that admirable report made some years ago by an officer of the Attorney-General's Department, Mr Yuill, in which the various family courts and the differences in concept from State to State in the United States were elaborated. We do not have the same constitutional framework as America has but we ought to recognise that there are different types of family court structures. We ought to have one in Australia which is consonant with our constitutional obligations and divisions of power as determined by the High Court.

I refer again to what is contained in paragraph 34 of the final report of the Committee. It is there stated:

The concept of a 'family court' is well established in the United States of America, Canada and Japan though there are variations in the proceedings and powers. 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 ongoing post-divorce problems.

Then the Committee refers to a paper by Mr R. S. Watson Q.C. which I have obtained, and looked at, from the office of the Senate. It seems to me that this concept has not been elaborated in the detail which I would have thought a recommendation of the character which the Committee is making required. I simply say, in final reference to the report, that in paragraph 36 the Committee said:

The Committee is concerned with the effect on the creation of the family court and the appointment of judges of Section 72 of the Commonwealth Constitution, which in general requires judges of the Family Court created by Parliament to be appointed for life.

If, as I read elsewhere in this report, the family court is to be a superior court of record, there is no question of in general judges being appointed for life; it is a matter of law and constitutional requirement that every judge of a Federal Court should be appointed for life. What we would then be faced with would be a family court with I do not know how many extra judges. It could be some 20, 30 or 50 extra judges of the Commonwealth arena all appointed for life, and if ultimately they should be given some powers which are not judicial powers- this is an aesthetic problem which the High Court has dealt with over the years- then we are creating enormous problems in this country.

The report continues:

The Committee does not believe that it is desirable that judges on this Court should adjudicate when of advanced years.

I notice that the report contains various suggestions as to how this might be able to be overcome. For it to be overcome requires some co-operation with State governments. I have adverted to this aspect of the family court structure because the Attorney-General has by and large, as I read his amendments, accepted the recommendations of the Committee. In place of his own initial views he now believes that there should be a Commonwealth family court. I hope that the Senate will not in due course accept that proposal. It is fraught with constitutional problems. Embarrassments upon embarrassments will be caused if constitutionally the situation cannot be sustained and in terms of appointments, structures, staff and court buildings it will add an enormous expense in an area where there is no occasion for those enormous problems to be encountered. I have had it assessed to me that approximately one-quarter or more of the existing work of the supreme courts of the States would have to be vested in this family court under the provisions which are contemplated by Senator Murphy, which would mean that there would be an excess of judges in the State courts with not sufficient work to occupy them full time. Then a new Federal Court structure would have to be created, with all the costs of buildings and staff which it necessarily would involve, which would raise real questions of economy particularly at this stage of the nation 's development.

I raise these matters because I hope that they will be given proper consideration in the Committee stage of this debate. As I indicated when I rose, I simply state my attitude. I believe that this Bill provides a constructive base upon which a committee debate can occur, out of which I hope we will obtain better divorce laws for this country. We ought to have a longer time for consideration in the Committee stage of the various matters which have now been raised by the many amendments which have been produced. I shall vote for the amendment, but irrespective of the outcome of that amendment, I will vote for the motion for the second reading.







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