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Wednesday, 19 October 1983
Page: 1914

Mr ADERMANN(12.34) —In speaking to the amendments to the Family Law Act , I want to be constructive but I am bound to put forward some general, if unpopular, observations as a starting point. It gives me no great pleasure to do that. This should not be interpreted as any criticism of the work of the Ruddock Joint Select Committee on the Family Law Act and the very excellent report it produced, nor should it be interpreted as any criticism of this Government or governments in general. Probably it is a judgment on all of us and most certainly on the society in which we live.

I recognise very clearly why the original Family Law Act was placed on the statute books and why it replaced the Matrimonial Causes Act. I was a member of this House when it was passed. I recognise the concern which faced the Parliament at that time. For instance, there were long, almost impossible delays in cases of desertion before an aggrieved marriage partner could gain a divorce. The cost and complication of divorce, even in uncontested cases, was a big problem. The no- fault grounds were probably motivated by the seedy private investigation procedures of trying to catch out an errant partner with photographs and evidence. The less reputable weekly newspapers filled their pages with lurid details of these bedroom escapades. So we enacted the family law legislation. Despite the motives, despite the problems it was intended to rectify, this Act has created a situation worse in some ways than existed before it appeared. I believe that we tackled these problems from the wrong direction. We sought largely to remove the impediments to divorce rather than to attend to the causes of divorce and the importance of the marriage contract. Hence we set out rules to dissolve marriages and to divide the spoils and the children. Now we are seeking to amend the legislation without really altering that philosophy.

If I am to be constructive I must first clearly state what we are facing. I stress that the observations I make are my own and are not the voice of any political party room. My views have been reinforced, not dissipated, by the procession of people coming to my office with a multitude of heartbreaking situations if not directly attributable to, at least associated with, this Act. First, despite the impressive title 'Family Law Act', no single piece of legislation on the statute books has done more than this Act to weaken, if not destroy, the family and the institution of marriage. I freely and unashamedly admit that I speak from the Christian standpoint. My perception of the family and marriage is moulded by those Christian beliefs. If others do not accept those values that is their right and their business, but I surely have an equal right to have an opportunity to state my views.

Divorce has become so easy that the whole concept of marriage has been changed. Whereas marriage was regarded as something to be contemplated very seriously and soberly and as a contract which was envisaged for a lifetime, that no longer applies. None of us would pretend that it does. Marriage is so frequently regarded as imposing no responsibility and no obligation. It is lightly and experimentally entered into and at the first disagreement it is dissolved-I say that with sadness. It may sound trite but it is my experience at least that a solid, successful and happy marriage is strengthened and reinforced by the overcoming of problems and the solution of difficulties by the partners to the marriage. Instead of problems bringing greater solidarity and happiness to marriage we see increasingly that the first step is dissolution and not, as previously, an earnest endeavour first to consolidate the marriage.

For all its attractions and recommendations, the facility of no-fault, expeditious and cheap divorce has changed society and perceptions in a manner which to me at least is very sad. I am not saying that for that reason we should go back to the enforced perpetuation of a marriage because it is impossible to dissolve it, nor am I putting in a commercial for the seedy investigators with the shingles they use to put out saying 'Divorce Evidence Obtained'. I am saying that perhaps we have cured one disaster by introducing other forms of disaster. Thus I cannot accept that to go further along the path by amendment to provide what we call divorce by post is anything but an intensification of that process.

The Act is unfortunately titled. It is not a family law Act; it is an Act to provide for the dissolution of marriage and a division of property and children. It does not provide for harmonious settlement of custody and property matters. It creates acrimony, bitterness and tragedy. I would be surprised if other members did not find, as I do, that its effect is a constant stream of tearful, often heartbroken constituents narrating situations of real tragedy; parents unhappy with custody decisions and effectively being debarred from any meaningful access to, and time with, their children; pleas to try to get decisions changed, which of course a mere member of Parliament cannot and should not do. Properties or businesses which have been built up for years, perhaps after a lifetime of sacrifice and toil, have to be demolished to meet settlement terms. Even the home is the centre of argument and must often be sold, no matter what other circumstances exist.

I am not critical of the judges of the Family Court of Australia, even if I cannot always understand the rationale of particular decisions. The fault is not with the Court, it is with our grappling with the legislation under which the courts must operate. Under that legislation the family is not regarded as a solid, valuable unit. It can be destroyed by litigation and sadly, as has been pointed out, the children are the pawns in the game. As solicitors for the various parties go all out to gain the most advantage in the interests of their clients we have acrimony, argument and bitterness, and the unfortunate children witnessing this arena of conflict are tragically mentally scarred for the whole of their lives. That is not a conservative old philosophy; that is observation, often reinforced by what is happening in our society and what we see in our offices. Conciliation, guidance and counselling are not working. One partner can refuse to co-operate, and all the words and provisions of the Act do not mean a thing in that circumstance. So we are faced again, as we inevitably will continue to be faced, with amendments to the Family Law Act. I wish, with the benefit of hindsight, that we could start all over again, but we have an Act and we have circumstances which have demonstrated areas of deficiency. We are trying to amend the Act, to patch it up and to make it better.

I listened carefully to the comments of the Minister for Communications (Mr Duffy). I have carefully reread his second reading speech in Hansard. I accept the sincerity with which he proclaimed the Family Law Act as a great landmark in social legislation and a great achievement. He was sincere. It is without malice or political antagonism that I say that I cannot agree with that judgment. That will already be clear from what I have said. Let me comment on some of the particular amendments proposed to the Act. I refer again to the amendment, even though modified in the Senate, that enables-granted under restricted circumstances-some undefended divorce applications to be dealt with without the necessity of either of the parties or their representatives attending before the court.

What such expedition does to impress upon society the seriousness with which marriage should be contemplated before being undertaken and the fact that divorce should be the very last step contemplated to resolve difficulties, completely escapes me. It is not only for that reason that I have no enthusiasm for the amendment. Let me raise another problem which on a couple of occasions has been brought to my attention. Constituents have told me that divorce proceedings have been undertaken and concluded and that the marriage in which they are a partner was dissolved and decisions on custody or property matters handed down without their even being aware of them until the matter was over. Then of course it was too late to bring matters forward for consideration. I know it is claimed that divorce by post will reduce some of the acrimony which personal appearance may engender, but that is not the real consideration, surely . Surely if the marriage was undertaken with responsiblity and contemplation there should be no less contemplation of the implications and the repercussions of divorce. This is in no way engendered by abrogating the whole matter in absentia to a court to sort out.

This leads me to certain other observations made by the Minister in support of other amendments. These deal with proposals to reinforce the principle of counselling with a view to conciliation. Of course I accept that principle and hope that the Minister's expectations are not subject to disenchantment. I believe that counselling and conciliation have not been as seriously and determinedly carried out as I hoped they would be when the Family Law Act first became law. I do not know the percentage of marriages, if any, saved by the counselling and conciliation procedures which are carried out pursuant to the Act. Pessimistically perhaps, from my own observations, the process appears to be largely a non-event-at least not effectively sustained. Countless occasions have been brought to my attention in which partners, desperately anxious to save their marriage, have complained that they found it impossible to get their spouse to attend counselling sessions with them. Apparently the court could not do anything at all in the matter. It is of little use having trained and wise counsellors unless it is mandatory for estranged married partners to attend such counselling. Surely every bona fide marriage is worth the most serious endeavours to preserve it.

I accept that the Government is sincere in endeavouring to strengthen and reinforce the counselling and conciliation processes by these amendments. I am not at all sure that they go nearly far enough along the road. I am not at all sure that they will effectively deal with the problems that I have briefly tried to outline, but at least they have an intent and a purpose designed to preserve the marriage. I cannot criticise that sort of intent or that purpose. But again I observe that one amendment-the divorce in absentia-must weaken the process of preservation, sitting as it does very uncomfortably beside these other amendments which allegedly are designed to strengthen the process of counselling and conciliation. I hope very sincerely that the Minister's hope will be realised. In his second reading speech he said:

. . . every effort must be made to resolve disputes by processes of conciliation and counselling and that recourse to the court and the adversary process must be a last resort.

One amendment seems somewhat to hamstring this effort. It limits to marriages of two years or less the requirement that an application cannot be heard by the court unless reconciliation with the assistance of a marriage counsellor has been considered. This is an inordinately short marriage duration and I would have hoped that it applied to all applications for divorce-or at least most applications for divorce-whatever the length of marriage. To limit it to two short years simply means that the process can be evaded by waiting for a short lapse of time-perhaps weeks or perhaps a month or two-so that that procedure does not then become enforceable. True, the amendment is slightly better than the original sub-section 14 (6) of the Act but it still falls short of what is at least my perception of what should be required in the field of counselling and conciliation.

My DEPUTY SPEAKER (Mr Drummond)-Order! It being 12.45 p.m., the debate is interrupted. In accordance with sessional order 101A the debate may be resumed at a later hour. The honourable member will have leave to continue his speech when the debate is resumed.

Sitting suspended from 12.45 to 2 p.m.