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Wednesday, 19 October 1983
Page: 1912

Mr BLANCHARD(12.17) —I congratulate the honourable member for North Sydney (Mr Spender), the honourable member for Chisholm (Ms Mayer) and the honourable member for Wentworth (Mr Coleman) for their fair and humane comments on the Family Law Amendment Bill. It is a pleasure to be able to participate in this debate and not feel obliged to engage in petty party political point- scoring as part of one's speech. My interest in this area dates back to 1962 when I was appointed as a welfare officer under the old Matrimonial Causes Act. I was involved quite a bit in the counselling role of the courts in those early days.

In supporting the Family Law Amendment Bill 1983 I briefly refer to its background. The Family Law Act came into operation on 5 January 1976. It was a milestone in the development of family law in Australia and received general support on both sides of this House. However, it was found in practice to be deficient in many ways; it created procedural and jurisdictional problems. The former Government introduced the Family Law Amendment Bill 1981 to rectify some of these problems following the report of the Joint Select Committee on the Family Law Act which reviewed the operation of the original Act. However, it soon became clear that to make the Bill workable and to overcome the problems encountered in the original Act, further amendments were required.

In March 1982 the then Attorney-General, Senator Durack, foreshadowed further amendments to the Bill. However, when the Thirty-second Parliament was prorogued the Bill had not passed the second reading stage in the Senate. This Bill is intended to implement wholly or in part a number of the recommendations of the Joint Select Committee, including all the amendments proposed in the 1981 Bill. The Attorney-General (Senator Gareth Evans) has already referred in his second reading speech to the fact that a number of other recommendations have been implemented administratively. He also made the point that the Family Law Council , the Law Council of Australia, judges of the Family Court and others had made suggestions for the reform of the Act and many of these suggestions had been taken up in this Bill.

There can be no doubt that family law affects more Australians, both adults and children, than any other single area of civil law. This Bill is of considerable social importance in that it highlights and attempts to deal with serious social problems that affect thousands of Australian families. We have already heard the statistics from previous speakers in the debate. The number of divorces in 1970 was 12,247. Last year it was 44,082. Those figures really underline the extent of the tragedy to a parent or a child affected by marital stress which leads in turn to separation and divorce.

One point must be made. It is claimed by some critics that the Family Law Act of 1975 has contributed to family breakdown and the subsequent high divorce rate . This is a nonsense. There are many reasons for the rise in the divorce rate over the past 10 years. Not least are the stresses caused by unemployment and poverty in Australia. What the Act has done is allow divorce with less trauma, less complication and at a lower cost than was previously possible. Is it wrong that today every married couple who wish to divorce can do so? One hundred years ago this was the prerogative of the rich. It is against this background that the present amendments must be assessed.

Certainly the national Press has not been unsympathetic to these proposals. The Sydney Morning Herald dated 14 June 1983 headed its editorial 'Overdue Reforms of Family Law'. It stated:

The upshot-of these reforms-should be a marked improvement in the system, but the Attorney-General, Senator Evans, is right to note that legislation of this kind must be kept constantly under review to ensure that it reflects changing social conditions and continues to achieve maximum public benefit.

I am sure the House would agree that family law, as well as the law in general, should be kept constantly under review so that it reflects changing social conditions and seeks to achieve maximum public benefit. The Advertiser in its editorial dated 6 June 1983, under the more conservative heading 'Family Law Changes', stated:

The Family Law amendments announced last week by the Attorney-General, Senator Evans, are long overdue and mostly to be welcomed. They also reflect the impatience of the Government to act decisively to amend an Act which affects the lives of more adults and children than any other, but which has desperately needed reform for some time.

I concur with those comments. Let me now look at some of the amendments contained in the Bill. The Attorney-General stated in his second reading speech that these fall into three broad categories: Firstly, those which expand the jurisdiction of the Family Court; secondly, those which relate to the structure and procedures of the Family Court; and thirdly, those which affect the substantive law applied to courts exercising jurisdiction under the Act. Clause 4 of the Bill adopts the Joint Select Committee's recommendation that the category be extended to cover step-children and even foster children. This clause also proposes a broader definition of child of the marriage to include children conceived by artificial insemination whether by the use of donated genetic material or in-vitro fertilisation.

Unfortunately, there are limitations to this proposal. I feel that these should be pointed out to the House. The Family Court will have jurisdiction over a child conceived by artificial insemination only if the child's mother was married at the time of the child's conception or birth and the medical procedures were carried out at the consent of the husband or, alternatively, if the child is deemed to be a child of the husband under any Act or law. Thus, the child conceived by artificial insemination where the mother is either single or living in a de facto relationship will still be excluded from the jurisdiction of the Family Court. One can imagine the case of a woman undergoing artificial insemination with her husband's consent yet who is living apart from the husband . In this case the Family Court would have jurisdiction over the child yet in the case of a de facto relationship the Court would lack jurisdiction. The exclusion of the ex-nuptial child is discriminatory. I share the wish of the Minister who said in his second reading speech that perhaps the Commonwealth will one day be able to legislate for the guardianship, custody and maintenance of all children in Australia. To do this will require either an appropriate referral of powers by the States or a constitutional amendment.

The Family Law Act contained provisions enabling State family courts to be created. As you will know, Mr Deputy Speaker, Western Australia, under its then Attorney-General, Mr Ian Medcalf, took advantage of those provisions in the Act to set up the State Family Court at a very early stage. That Court has all jurisdiction, both State and Commonwealth, in family law matters. It has been in operation for a number of years. We have the benefit of that experience and the opportunity to assess its performance. I feel it is fair to say that no major jurisdictional problems have been encountered since that Court came into being. As the present State Attorney-General, Mr Joe Berinson, at the Australian Constitutional Convention held in April this year, said:

Because of that framework, there has been a total absence of jurisdictional disputes or confusion. The court works remarkably well and . . . it has worked without difficulty.

Under existing law only the parties to the marriage can institute custody, guardianship or access proceedings in the Family Court. This has meant that the Family Court has been powerless and unable to offer protection in cases where the welfare of the child of the marriage is in jeopardy by insufficient care and control by the parents. The only redress at the moment is when one of the parties to the marriage initiates proceedings in the Family Court. The amended Act will allow, under clause 3 (h), a third party, such as a concerned relative, to initiate custody and related proceedings in the Family Court against one or both parties to the marriage. In addition, the child of the marriage will be able to initiate such proceedings against one or both parties to the marriage. This I feel is a new clause which is to be supported by everyone.

Another weakness of the present Act is that in custody proceedings pressure may be exerted by either party upon the child to express preference for a particular party when that may not be the genuine wish of the child. We have already heard from the honourable member for North Sydney and the honourable member for Wentworth that they view the current proposal with a degree of uncertainty although they support it in general terms. Clause 29 of the Bill requires the Family Court to take into consideration any wishes of the child, no matter what age, and to give such wishes the weight it considers appropriate. I believe that the word 'weight' becomes important here. Obviously the Court would take into consideration some of the concerns expressed by the honourable member for Wentworth. An important related reform enables a child of the marriage as well as parties to the marriage, to obtain the assistance of counselling facilities in the Family Court. I should like to discuss the counselling aspects of the Court. However, as time is short I will only go so far as to say that I welcome the new procedures in this area

I turn now to the question which has generated perhaps more heat than reason- the so-called divorce by post. The Bill, as introduced in the Senate, would have enabled all undefended divorce actions in certain circumstances to be dealt with without the necessity of either the parties or their legal representatives to attend before the Court. This apparently attracted a great deal of opposition in recent years. In response to the critics, the Government decided to move another amendment, now included in clause 53, that will still allow undefended divorce applications to be dealt with in this way but only where there are no children of the marriage under 18 years of age. The effect of this amendment is to answer most of the objections to the original proposal while preserving much of the benefit of the simplified procedure.

I have spoken on only a few of the amendments which are being introduced in this Bill. The Bill has received a fair degree of support from both sides of the House. I consider that these amendments are a big step forward in improving family law in Australia. Yet, as I stated earlier, there is a need to continually review and, where necessary, improve the law. I support the amendments contained in this Bill.