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Tuesday, 26 November 1974
Page: 2747


Senator GREENWOOD (Victoria) - I would like to add to what Senator Baume has said. I think that by a happy example he has hit on the kernel of this problem. I visualise the development within Australia of what I choose to call family courts but they would have a wide range and adjudicate not only on matters arising out of the family relationship; they also would have the function of providing advice and counselling in regard to family matters. It also would be a centre somewhat along the lines of a citizens advice bureau to which people would be able to go and seek advice on a host of matters. Perhaps I could put the matter in a different way. Years ago, possibly centuries ago, in rural and smaller localities the church fulfilled a role for people who saw in the church the centre of their civilisation and advice of all descriptions was given to people who were prepared to accept the advice of their priest or clergyman. That is no longer possible because it is the pattern of a departed age. But I feel that we have not put anything in its place. I think a family court is really a useful centre pin upon which a lot of advice facilities for the community at large will develop. That is a concept with which I cannot imagine the Attorney-General (Senator Murphy) disagreeing. But the real problem arises as to whether the Commonwealth has the power constitutionally to set up such a family court with or without those additional facilities. I feel quite certain in my mind that the Commonwealth does not have power for the vast range of activities which are contemplated by this Bill.

I stress what I have said before, that there is no consolation in being able to say some years hence that these points were adverted to in the course of the Senate debate1 on the Family Law Bill and those who were cautious find that they were right, if that should happen to be the case. There will be enormous problems in the intervening period. I have read and re-read what the Senate Standing Committee on Constitutional and Legal Affairs said about this matter of a family court. I find, with all respect to members of that Committee, that the argument and the logic are confused because it seems to me that the concept of a family court is well expressed. It is to be a Commonwealth Family Court. Then there is a recognition that because of the constitutional limitation that judges must be appointed for life, there are problems which the Committee wants to overcome.

Then it appears to me that there is the development of a concept of State family courts. How the two are to live together is not explained in the report of the Committee. This has not been explained by the Attorney-General. I say with respect to the Attorney-General that in the Bill he does not attempt to rationalise both these concepts. He accepts only the concept of a family court. I do not think it is good enough for Senator Missen to say that he is quite certain that a Commonwealth Family Court and the State family courts will work together and to assert that proposition without explaining how they will work together. True it is that a lot of things are not to be spelt out in legislation. But certainly, as far as court structures and functions are concerned, it is obligatory upon Parliament to lay down the functions of a Commonwealth Family Court and the functions of a State Family Court.

Anticipating some of the amendments which have been proposed, it appears that there is an enormous overlapping. I think that that matter has to be considered. I do not know whether the Attorney-General has had his attention drawn to the latest edition of the 'Melbourne University Law Review', volume 9, of September this year. In that journal there is an article by Professor Finlay on the family court concept in the light of the absence in the original provisions of the legislation of such a family court. I think it is fair to say that the tenor of Professor Finlay 's article was one of criticism of the omission of a family court from the original legislation. Whether he would be happy with what is now proposed is a matter upon which I do not know his views. It would be interesting to hear. But he said, appropos some of the problems which he anticipated -


Senator Murphy - I am told that he wrote to one of my advisers and said that he was ecstatic.


Senator GREENWOOD -That may be so, but I think that possibly it was initial enthusiasm without reflection on what he had earlier written. I propose to quote some of the things which he wrote. I refer to page 583 of the Review where Professor Finlay stated:

The tentative picture of a new 'Family Court' which emerges, however, is somewhat confused.

He is talking here about the family law division of the Superior Court which was the original concept proposed.


Senator Missen - That was under the previous Bill.


Senator GREENWOOD - Yes. He wrote this before the current Bill was introduced. He stated:

Apparently the Superior Court whose work at first instance is to be the routine task of granting decrees of dissolution in undefended divorce proceedings will have attached to it the sophisticated apparatus that a Family Court should have.

I interpolate that from my recollection that is what the Attorney-General said was a fair substitute for a family court and that was why he did not, in his first Bill, establish a family court. Professor Finlay's article continues:

On the other hand the courts dealing with the really contentious aspects of family conflict seem likely to remain the state courts of summary jurisdiction. These courts, while they continue to operate in often overcrowded conditions, in antiquated buildings and in an environment not always conducive to the careful consideration of important decisions affecting the intimate lives of citizens must remain as the Commonwealth finds them. The Bill does nothing to ameliorate their conditions. It is not suggested that it could. The Commonwealth has no constitutional power to appoint officers to State courts. But it could appoint officers of its own who could bc available to these courts. This has not been done. Neither can the Commonwealth restructure state courts and of course the Bill docs not attempt to do so. But the Commonwealth could make financial grants to the States, and it could make them subject to conditions. In this way the Commonwealth could encourage the setting up of family courts on a co-ordinated basis at State level. It is pleasing to note that an opening exists in the Bill which could lead to such a development.

I think it is fair to say that as a result of the amendments that opening has now been closed. But the professor goes on to state:

Anyone looking for a 'Family Court' will therefore be disappointed. Not only will the probable division of labour between the Superior Court and courts of summary jurisdiction be in inverse relationship to the intricacy of the respective subject matters with which they will be dealing, but important areas of family law will, for constitutional reasons remain outside the scheme.

Drawing support from what Professor Finlay has said I emphasise that he recognised this constitutional limitation upon this concept of family law which the Bill is not prepared to recognise. He goes on to state:

Thus adoption remains a matter for State laws and State Supreme Courts. while affiliation orders and maintenance of illegitimate children, as well as their custody and the payment of incidental expenses to their mothers continue to be matters for State summary courts, with appeals to State Supreme Courts.

I know that the Bill asserts a jurisdiction for this Family Court in matters of adoption and the guardianship, custody or maintenance of children. There must be grave doubts as to how far the Commonwealth has power, particularly in the light of what Professor Finlay says. He talks about the problems relating to testator family maintenance. He uses the same example which Senator Baume used of juvenile courts and the fact that they cannot be within the area of the Family Court. I believe that all of these factors are indications of some limitation upon the efficacy of a Commonwealth Family Court on a constitutional basis and in the area of jurisdiction.

Quite apart from that I think that the point made by Senator Wood is so transparently obvious that it ought to have weight in terms of what is to be preferred. To set up a Commonwealth Family Court and to visualise that as the court in which all these problems will be resolved must surely mean that people in country areas will be given the same facilities as people in city areas. To set up alongside existing State courts and State administrative offices a host of Commonwealth buildings with Commonwealth officers, Commonwealth judges all appointed for life and a host of other persons is, I think, to embark upon an enormously costly experiment in which the Commonwealth cannot hope to provide the type of service which the State courts and the State system will provide. In that respect the argument is relevant to the argument against the Superior Court. Why a Commonwealth Family Court with lesser jurisdiction than the Superior

Court was supposed to have is preferable or is in some way justifiable where a Superior Court was not, as some people are urging, is to me incomprehensible.

Surely the concept is to provide that access to the courts whether for family matters or for other matters is reasonable and easy for the citizens. This proposed amendment will not make it easy and reasonable for the citizens.







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