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Wednesday, 19 October 1983
Page: 1935


Mr ADERMANN(3.49) —I continue the remarks I was making earlier on the Family Law Amendment Bill. I will recap some of the points I made that I felt were important. A number of the amendments in this Bill deal with functions of registrars, deputy registrars and the pool of judges. Indeed, some of the amendments proposed by the honourable member for Dundas (Mr Ruddock) touch on this area also. I am not academically qualified to comment seriously on those sorts of functions and procedures and I do not intend to take the House's time when others more skilled in and conversant with legal procedures can present their observations and opinions and give us guidance on such internal court matters.

But with regard to the expansion of jurisdiction concerning children I do make some observations. This matter should be considered most carefully by all of us because it is the children of the marriage who are the real sufferers, the real casualties of broken and bitter homes. Divorce so often not only scars their childhood and childhood security and happiness but also diminishes their prospects of marital happiness and security in the future. They are pulled this way and that. Loyalties are confused and divided and their legacy is so often unhappiness, nervous breakdown and health disorders. The Family Law Act is allegedly designed to apply the best solution, unfortunately, to the problem of people who enter marriage lightly and wantonly, produce children with irresponsible abandon, and with little compassion cast them adrift to struggle with the consequences and the bitterness of a shattered home and a shattered environment. It must be our earnest endeavour to solve that situation.

Whatever the merits of the amendments in this sphere we are still doomed to disappointment and failure unless we go back to taws and unless in our wisdom and compassion we can reinforce the whole structure of marriage. We must get right down to the fact that in the contemplation of and entrance into marriage there must be responsibility, sincerity and a real determination to make the marriage permanent, harmonious and rich. I agree that we are never going to achieve that by legislation. It is not practical or possible to legislate in all of these matters. But it does not hurt to propound that concept and principle all the time. I say again-I say this without any self-righteous intent-that those ideals are best enshrined in and attained by adherence to the Christian teachings and to the principles and values of marriage that are there contained.

As we depart from those principles and precepts, focus our attention and consideration on the making of divorce easier and less complicated, protect more and more the anonimity of the process and abrogate completely any consideration of behaviour or fault, we sadly, even if not deliberately, erode marriage and the family. No matter what our intent, no matter how concerned we are to avoid the ugliness and rancour of the proceedings in court, every step we take along that road is another assault on the bastion of marriage. Because we have attempted to facilitate divorce and settlement procedures as marriage and family have been weakened in our society, we face the necessity, as these amendments recognise, to consider the children of the marriage. I sincerely believe that if counselling and conciliation become important and more effective we have some chance of reducing the child casualties. That is why I stressed that point earlier.

In these matters of custody, however, we cannot ignore the fact that so much relies on other than pure matters of law. The judge has the unenviable task of making judgments and giving opinions on what is best for the children. That we sometimes receive criticism of decisions in individual cases is, I suppose, indicative of the formidable task and the tangle confronting the judge. If these amendments are aimed-with my legal expertise they seem to be-at enabling the judge and the Family Court of Australia greater capacity to consider the happiness and future of children, without being bound hand and foot by legal statute, I would not oppose them. It would be wrong to consider that invariably the mother or, for that matter, the father should have some superior right to custody. The amendments encompass step-children and foster children and extend the capacity of third parties, such as uncle or grandparent, to bring proceedings under the Act. If that proposal increases the capacity of the Court to have better jurisdiction to decide on the real best interests of the children , regardless of whether it goes far enough, it would not engender my opposition.

In another place Senator Harradine put forward a number of amendments which seem to reflect a philosophy similar to that which I have expressed. Those amendments were not passed. It may appear to be only politicking for me to re- debate them in this House so I will not be doing that. But I appeal to the Government to not discard the points made by the Senator just because they were not Government proposals. The figures for divorce, children affected and the social cost which were spelt out should make us take pause and very seriously consider the situation. Whether it is while this Bill is before the House or subsequently, I ask the Government to ponder well the thrust of Senator Harradine's remarks. It may be that the precise wording of the Senator's amendments was not acceptable to the Government but I would be dismayed if the principles espoused in them and the values they represent were just summarily dismissed as being of no account. As it can be predicted that 40 per cent of new marriages will be dissolved and as the children from divorced partners have numbered hundreds of thousands since this Act became law, we are in a sorry situation which augurs a very sad and dismal future for our nation and our way of life.

It is a situation which legislation, no matter how often we amend it, designed to facilitate quick, clean, no fault divorce and to set down rules for disposition of property and children, will never solve and will only marginally arrest. In this sort of legislation sadly we are just picking up the casualties after the tragedy. Unfortunately, we have to do those things. I cannot support fully all of the amendments contained in this Bill. I can support some of the intentions. Some of the thrusts of the legislation do not go far enough. I cannot comprehend or support some of the proposals for divorce in absentia. But I commend the Government and the Joint Select Committee on the Family Law Act, chaired by my colleague the honourable member for Dundas, for addressing one of the greatest problems civilisation and this nation face today.