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Tuesday, 26 November 1974
Page: 2774


Senator DURACK (Western Australia) - 1 support the amendment moved by Senator Missen. I would like to deal with some of the arguments that have been advanced against it by Senator Everett and Senator Button. The position is that unfortunately State parliaments and governments have, as I think Senator Everett has said, been rather slow in introducing reforms in this field of family law and family law administration. However, there are 2 examples, of which I know, of family law and family law administration which are already in existence. There may be others but the prime example is the Family Court of South Australia.

Members of the Senate Standing Committee on Constitutional and Legal Affairs will recollect that it was a judge of that court- Judge Burnettwho I think probably persuaded the Committee more than any other witness, of the value and importance of a Family Court exercising jurisdiction under this type of legislation. It seems clear that the Family Court of South Australia is a well conceived, well staffed and well run institution.

In Western Australia moves were made many years ago- not to the same extent as in South Australia- to establish a court at magistrates' level which deals in the metropolitan area of Perth exclusively with family matters under a State law. Admittedly, in other parts of the State, this jurisdiction is exercised by magistrates amongst their ordinary general jurisdiction. In Perth there is specialised jurisdiction and although the courts are not as well staffed and assisted as is proposed in this Bill there have been the rudiments of a family court. It seems to me that if in the States family courts existed as they do in South Australia then we in this Parliament would be investing those courts with jurisdiction under this Act. I do not think the proposals would then be contained in this Bill- proposals which are so strongly supported by Senator Everett and Senator Button- to set up a purely Federal Family Court. The reason I believe that a move has been made to include in this Bill the provision for a purely Federal Family Court is that there are not existing courts in other States. As I have said, the only proper Family Court exists in South Australia. The amendment moved by Senator Missen enjoins the Australian Government to make arrangements with State governments to set up these courts. All we are trying to achieve is an exercise in co-operation between the Federal Government and the State governments whereby the model of the South Australian Family Court can be adopted- with perhaps some modifications, if necessary- by negotiation and agreement in all the Australian States. By such process of negotiation we would achieve an ideal arrangement and, as I have said, if such an arrangement existed at the moment we would not be speaking about setting up a purely federal Family Court. We would be investing those courts with jurisdiction under this Bill.

The major purpose of this amendment is to endeavour to set up such courts in the States, by negotiation and agreement. I see no reason why this ideal cannot be achieved. Senator Everett spent most of his time saying how difficult it is to achieve agreement. But the South Australian model is so obviously successful that I would be very surprised indeed if the States AttorneysGeneral were so intransigent that they would not agree to follow it up. That is what I believe should be done. The purpose of this amendment is to see whether steps can be taken in order to come to some agreement whereby such courts could be set up.

We have not had Family Courts in Australia as yet, apart from those in South Australia and the smaller model in Western Australia. Surely a delay of a few more months, perhaps, or even a year in order to see whether this can be achieved is not unreasonable. Nobody would lose anything during that period. The existing courts that are exercising jurisdiction in this field- the Supreme Court and the Magistrates' Courts in the States- will continue to exercise that jurisdiction. The Federal court, I would imagine, will be mostly spending its time on appeal work.

I thought that Senator Everett introduced a red herring into this debate by claiming that there would be some sort of superior and inferior courts and jurisdictions. Is he suggesting that State justice is inferior to Federal justice? This is a very strange and, I think, rather offensive proposition. I think the State Supreme Courts have had a very fine record in this country in the administration of justice. I believe that many people I know would prefer to receive appointments to State Supreme Courts than to some new Federal court which has not yet proved its record in the administration of justice. I believe the idea that there will be some superior and inferior jurisdictions is a total red herring.

Senator Everettthen tried to bring in another red herring- that when a breakdown occurred one could start part of a matrimonial cause in a Federal Court and part of it in a State court. That is an academic possibility. In theory it would be possible but it is a very strange argument to come from a proponent of the Bill as printed. Clause 1 8 of the Bill, which we have already supported, states that a person may institute a matrimonial cause under this Bill in the Family Court or in the Supreme Court of a State. The Bill, as it is being set up, provides for a choice until proclamations are made as to whether one starts a case in one court or the other.


Senator Everett - There is no alternative.


Senator DURACK - It may be. But these are purely administrative matters that can be dealt with under these negotiations and arrangements and by the rules and regulations that are adopted. There is no reason in the world why sensible arrangements cannot be made to overcome such a purely administrative problem as that would be. When all is said and done, under the present Matrimonial Causes Act one could start a matrimonial cause in every Supreme Court of Australia and in every State. There are provisions in the rules for these matters to be resolved so that the one court does deal with the whole of the litigation. Surely the same sensible arrangements can be made both by agreement and then by rules to enable the whole of the litigation to be dealt with by the one court.

What is the alternative to this proposal? The alternative to Senator Missen 's amendment is that we have in Australia a purely Federal court which will be an entirely new concept. The court will have to have at least 40 or 50 judges appointed to it throughout Australia. Perhaps some of them will be existing judges. I do not know. The fact of the matter is that we are having to set up as a new Federal court this fairly large establishment. As has already been said by some honourable senators the judges appointed to this court- whether they be Federal senior judges or Federal junior judges- will be appointed for life. I am not prepared to accept the notion that any appointment can be made to a Family Court and the judge may be there until he is in his eighties, lt is all very well to say that we can overcome that matter easily, that all we have to do is amend the Constitution. I find it extraordinary, in view of the record of constitutional amendments- defeat after defeat- that anybody in this chamber would believe it is a simple solution to have the Constitution amended. I think it was Senator Missen who interjected and asked about the nexus proposal which all parties supported and which was defeated. lt was defeated because people did not understand the situation, and they probably would not understand what would be sought in this instance. I think it is ridiculous to believe that this problem can be easily overcome by that method.

Apart from that, the fact is that 40 or 50 judges will be appointed and will receive their commissions from the Queen for life. What is to happen? Are we then to cut back judicial commissions on the basis of some power acquired after they have been appointed? My understanding is that in every State where legislation was passed to limit the period of judicial service to 70 years of age or whatever it is, the j judges who had already been appointed and who had their commissions for life were not touched by the legislation. 1 think it would be a total affront to judicial status in this country if it were ever suggusted that Parliament should then cut back a commission given to a judge.


Senator Greenwood - That applies at the present time to the Territory judges who were appointed as they believed for life. A subsequent High Court decision said that the appointments were not for life. They have the commitment that they are there for life.


Senator DURACK - That is an even stronger case. 1 am not prepared to countenance that commissions given to judges for life should be cut back not only to 70 years of age but for the purposes of this court to 65 or even 60 years of age. I do not think one can write off this problem as being easily overcome, as Senator Everett and Senator Button have attempted to do. I believe it is a fundamental objection to the establishment of a Federal Family Court, indeed, of many Federal courts, that the judges have to be appointed for life. That is why I have been a party, as a member of this Committee, and now in support of Senator Missen 's amendment, to the idea of establishing these family courts primarily at State level. I support entirely the idea of having a few Federal judges because I believe there ought to be a Federal court of appeal to keep the administration of family law throughout the States on the same basis. I do not think the High Court is suitable in any way to do this and I do not think that these matters should be dealt with by Full Courts comprised only within each State of Family Court judges within that State. I believe there is a very good reason for having a new Federal court of appeal in these matters. Apart from that, it seems to me not only to be a necessity as a result of the Constitution but that it makes good sense and makes for good co- operative federalism. It is all very well to say that this is come doctrinaire notion but in fact it is the way in which we operate government in this country and it is a pity that there are not more attempts at operating this country by means of co-operation between Federal and State governments.







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