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Wednesday, 19 October 1983
Page: 1904

Mr SPENDER(11.25) —Before the debate on the Family Law Amendment Bill was adjourned last night I had referred to some of the history of the family law legislation and some of the experiences under the 1959 Act which was known at the time as the Matrimonial Causes Act and which, as I said, was then regarded as a fairly radical measure. As I pointed out, under that Act there were a number of grounds for divorce but all of those grounds had as part of them the concept of fault. There were as well a number of defences such as condonation, connivance and collusion. I can recall appearing in cases, either for the petitioner or for the respondent, when the issue was to prove adultery and the defence was that the adultry had been condoned. One had to go through a process which can only be described as elaborate, artificial, uncivilised and undignified for all concerned. Personally I think that the removal of the concept of fault which was achieved by the 1975 legislation was a very great improvement in the law.

I believe that there is general but by no means universal acceptance of the proposition that marriage is now to be regarded as a civil contract-a civil contract of a special kind perhaps but, nevertheless, a civil contract. I know that within our community many will not agree to that proposition, particulary certain church groups. I wholly understand their views. But I think that we must continue to regard marriage as a civil contract. It is a contract which is to be dealt with by the civil courts. This has at least produced a number of benefits; that is, the easier and I think more civilised procedures of the Family Law Act. I can think of two: First, people are not trapped in marriages who would be trapped under the old rules; second, with the acceptance in the community that divorce is a fairly inevitable, or if not inevitable a fairly natural consequence of the breakdown of a marriage, there has grown up an acceptance of the fact of divorce and that no stigma should attach to a person because that person is a divorcee. I think some of us will remember that not too many years ago there was still a stigma attached to somebody who was a divorcee, particularly if that person had been the so-called guilty party. That being the situation, what then is the court's role? In general terms, it has two roles: First of all, to adjudicate on the dissolution and annulment of marriages and on conflicting financial claims; secondly, to exercise what might be described as a supervisory jurisdiction in the interests and welfare of the children of marriages. Those are the two broad functions that the court discharges.

Of the many facets of this Bill there are two to which I should like to refer in a few minutes. Before doing so I should, perhaps, take up some of the criticisms which are made of the Family Law Act and of the amendments which are proposed to that Act. It is said that the family has become a less stable unit. That is probably correct but, of course, the causes for the family becoming a less stable unit are something else again. I do not think it is possible to chart precisely the development of the social map of Australia as revealed through what has happened in the family law courts over the past ten, fifteen or twenty years. But one is left with the impression, I think, that family law reflects the times and that the Family Law Act has not altered our social patterns but merely reflects changes in those patterns. It has been reactive to social change and it is reactive to our times, which are more urgent, more questioning, more mobile and fluid and perhaps more self-centred and more neurotic than they used to be. This is a more complex age and, I think, a more selfish age and that is reflected in our attitudes to marriage and to the family unit. But however one might regret some of the changes, let us deal with society as it stands.

I refer to some facets of the Bill under the heading 'adjudication', that is, the courts' role to adjudicate on marriages and on financial issues. I refer first to the provisions concerning conciliation. These provisions have been outlined in the second reading speech. Without going through them in detail, it is perhaps enough to say that there has been a praiseworthy attempt to enlarge the conciliation processes under the Family Law Act. For example, clause 9 of the Bill requires that the Family Court, any other court exercising jurisdiction under the Act and legal practitioners must direct the attention of the parties or persons considering taking proceedings to the facilities for counselling. Clause 21 of the Bill contains a specific provision to the effect that where in dissolution proceedings the husband and wife have been married for less than two years the application cannot be heard unless before the application is actually filed in the court the parties have considered reconciliation and have done this with a marriage counsellor. There are other specific provisions to be found in clause 9, also on the subject of conciliation.

My own experience is derived under the Matrimonial Causes Act and very little of it under the Family Law Act but human nature has not changed very much. My observation is that the conciliation procedures attempts to reconcile, when people have reached the point of going to court for the purposes of getting a dissolution, are usually perfectly useless. One can introduce the most elaborate and praiseworthy procedures but once people get to the point of seriously contemplating going to court to have a marriage dissolved, the breakdown is usually so great and the bitterness usually so entrenched that it would require the assistance of God himself to bring them together.

Again dealing with the Family Court's role as an adjudicator, I refer to the proposal contained in clause 52 of the Bill to open up the courts. This was referred to specifically in the second reading speech. The effect of what is proposed is that proceedings would, it seems to me, ordinarily be held in open court, although the Court is empowered to exclude persons from the courtroom. I would generally support this practice because I think it is essential that the courts be open to the public and to the critics of the court system. Court systems have never been perfect. We always need to monitor them to see how we can improve them and unless we see how courts behave it is very difficult to make a judgment. So, perhaps with some caution, I welcome this proposal. I simply add the caveat of caution to ensure that the proposal, together with the proposal that limited publicity be permitted, will not be abused. The unpleasantness of having one's personal life, particularly one's family life, exposed in court, is sufficiently bad that I think one has to be very careful to make sure that the experience is not worse than it unavoidably is and to make sure that in the future we do not see the kind of perfectly disgusting reports that used to appear in the newspapers many years ago when a good way to sell newspapers was to find a good juicy divorce, regardless of the effect that the publicity may have had on the persons concerned, their families, friends or relatives.

Next, and still on the subject of adjudication, there has been an attempt to reduce the number of situations requiring resort to different court systems. I welcome this. It is one of the curses of the Federal system that one can be uncertain of which court to go to. Does one go to a Federal court or to a State court? I find perfectly lamentable the cause of problems concerning jurisdictions, problems which the governments concerned are sometimes unable to resolve because of competing views about sovereignty. It is quite lamentable that in those circumstances a person may be put at risk and be told after some days 'I am very sorry you have come to the wrong court', or that in respect of the same subject matter-perhaps on a question of guardianship tied up or allied with some matrimonial claim-there could ever be any doubt that one court, and only one court, was competent to give a decision and one which, subject to appeal, was binding.

I turn to the subject of divorce by post, as it is somewhat inaccurately called . Taken into consideration with the provision for joint applications for a divorce, I suppose nothing could be more eloquent of the changes in our society. It brings to mind a judge sitting quietly by himself, going through the papers and ponderously arriving at the decision that a divorce should be granted. I throw my mind back to 1961 when I had come to the Bar and when the occasional undefended divorce was a means of earning five guineas or so. One had a great horror in those days of actually losing an undefended divorce, which one of my colleagues, a very able person, managed to do on one occasion, as one can imagine, to the mortification and anger of his client. However, one would go to court; one would go through the solemn procedure of reading the evidence, sweating because one was not sure that everything had been covered. One would get to the end of the case, the judge would say yes, and the divorce would be granted. Sometimes that would take 15 minutes, sometimes it would take more. Some judges were very much quicker, of course. On balance, I think we can welcome this provision, confined as it is to certain cases which do not involve problems concerning the custody or guardianship of young children.

Lastly, under the heading of adjudication, I want to say something about the proposal in clause 35 of the Bill that overseas pensions are to be taken into account as well as pensions from within the Commonwealth or a State or Territory of the Commonwealth. The Leader of the House (Mr Lionel Bowen) was kind enough to refer me to some figures on widow's pensions as well as supporting parent's benefits, and those figures are really perfectly astonishing. One sees that in 1963 the amount paid for widow's pensions was about $31m, and in 1982 the amount paid was $770m. An analysis of selected characteristics of widow's pensions for 1982 shows that divorcees received some $46m and deserted wives $44m. If one looks at the figures on supporting parent's benefits one sees that in 1974 the figure was $40.5m in round terms and in 1982 it had grown to around $606m. So long as the courts are required to pay regard to pensions when dealing with the maintenance question then there is a very strong inducement to abuse and to use the system for purposes for which I do not think it was intended. I think we should look at that very closely indeed because the costs are getting out of control. It seems to me that there is no reason why, as a general rule, a person should be entitled to call in aid payments made by the state for the purposes of reducing what he should otherwise have to pay by way of maintenance.

Moving now to what I call the supervisory jurisdiction, I should like to make two comments. Firstly, I think the proposal to enlarge the category of children falling within the Family Law Act to include foster and stepchildren is a very sensible and humane proposal. Secondly, however, there is the subject of children's views in divorce cases. Clause 29 of the Family Law Amendment Bill provides:

the court shall consider any wishes expressed by the child in relation to the custody or guardianship of, or access to, the child . . . and shall give those wishes such weight as the court considers appropriate in the circumstances of the case;

It also provides that the Court shall take into account the attitude of the child. One problem about taking into account the views of a child, regardless of age, and even allowing for the qualification that it is up to the Court to determine what weight should be given to the views of that child, is that the opportunity is provided for a parent who has custody of a child to inculcate and entrench an attitude to the other parent which, on its face, is one of deep animosity. All of us know how this can be done, how a mother or father who has custody or guardianship of a child pending the resolution of proceedings can teach that child to think that the other partner-the husband or wife-has behaved in a perfectly dreadful manner and is somebody who should be treated with contempt and hatred. Human nature being such, this does happen, and it happens all too often.

I am somewhat uneasy about a provision which requires that the Court shall have regard to the wishes of a child regardless of that child's age and shall take account of the attitudes of that child. As I have said, that attitude can become entrenched. The other partner has very little opportunity to break the circuit because in order to break the circuit he or she has to get sufficient access. Until that access can be provided there is no opportunity to break the circuit. If one has regard to the attitude of the child and to the child's wishes, all of which may be instilled into the child by the other parent, the Court will say: ' No, we cannot let you have the child now'. When the next occasion arises the Court will also say: 'Look, I can only say that over the last six months the child's views have not changed'. I think we should regard this provision with the greatest of care. If there is some way to monitor its application I should like that to be done.

I should like to conclude with some general remarks. There is no doubt that our society has changed very greatly. Some figures provided by Senator Walters in the other place show just how greatly it has changed, and I seek leave to incorporate these figures in Hansard.

Leave granted.

The table read as follows-

Number of Percent- Percent-

Children age of age of Ratio of

Number Involved Number B/grooms Brides Divorce

of in of Previously Previously to Year

Divorces Divorces Marriages Divorced Divorced Marriage

1970 12,249 16,895 116,066 6.36 6.10 1:9.5 1971 13,002 18,451 117,637 6.62 6. 35 1:9.0 1972 15,707 22,061 114,029 7.29 7.06 1:7.3 1973 16,266 23,078 112, 700 8.29 7.85 1:6.9 1974 17,744 25,505 110,673 8.53 8.02 1:6.2 1975 24,307 34 ,992 103,973 10.3 9.9 1:4.3 1976 63,267 73,645 109,973 17.6 16.5 1:1.7 1977 45,175 57,878 104,918 19.4 18.3 1:2.3 1978 40,633 51,599 102,958 19.5 18.5 1:2.5 1979 37,873 46,130 104,396 20.0 18.7 1:2.8 1980 39,258 46,836 109,240 20.2 18.8 1:2.8 1981 41,412 49,616 113,905 20.4 19.2 1:2.75 1982 44,088 53,010 117,275 20.8 19.5 1:2.66

Mr SPENDER —One sees that in 1970 there were 12,249 divorces and in 1982 there were 44,088 divorces. There was a huge blowout in 1976, when there were 63,267 divorces. In 1970 the ratio of divorce to marriage was 1:9.5 and in 1982 it was 1:2.66. One might ask the question: What next? Are we going to have a contract renewable on a yearly basis, rather like a lease of a home unit? One does not know. Looking at those figures, one can say only that it is a source of continuing amazement that people, after becoming divorced, should once again embrace the institution from which they had to spend so much time, trouble and usually a fair amount of money extricating themselves. I see that in 1982 the percentage of bridegrooms previously divorced was 20.8 per cent, closely followed by the wives, who I am sorry to say were lagging. They achieved a figure of only 19.5 per cent. One can say only that those persons illustrate the optimism of human nature since those who leave a marriage and can then shortly afterwards enter another marriage illustrate not only the strength and durability of the human spirit but also its optimism. As somebody once observed, it must be a triumph of optimism over experience to remarry once one has been through the courts.

We can really do nothing to make things very much easier in divorces. We have no Solomons on our benches and we have no Solomons in this House. My observation is that in the courts the struggle is over money and children, and quite frequently with money coming first. There is also an accumulation of bitterness which the parties are at pains and are almost joyful to vent whenever they get the opportunity. But allowing for all the shortcomings of the system, it is our task, so far as possible, to make proceedings in the courts for the dissolution of marriage and all its attendant procedures as easy as possible. The pain can never be removed, but it can perhaps be alleviated.