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Wednesday, 19 October 1983
Page: 1939

Mr RUDDOCK(4.15) —This is a very important debate on amendments to the Family Law Act. Firstly, I thank those honourable members who have mentioned favourably the report of the Joint Select Committee on the Family Law Act, which was tabled in this House in 1980. It has been mentioned by a number of honourable members and, as Chairman of the Committee reponsible for that report, I appreciate the remarks that have been made. Notwithstanding the applause that the report has received, I cannot disguise some of my disappointment at the way in which this legislation has been treated. The report was tabled in August 1980 . That we are now in 1983 says something about the pace with which important reforms in this area proceed.

Secondly, I am disappointed that, although this legislation was originally introduced on the basis that honourable members would be free to vote on what they saw as conscience matters, on this occasion when those same questions are being addressed the Australian Labor Party has denied its members a conscience vote on aspects of this legislation. I would not be disappointed if I thought that approach might lead in some way to the expeditious passing of amendments which I see as necessary, but I think I have seen the destruction of interest in this important legislation in this Parliament because it is to be treated on a party political basis.

I was Chairman of the Joint Select Committee which reviewed the principal legislation. In that Committee members of all political parties were able to come to views based on their consciences. Many members of the Government supported recommendations which are the subject of amendments that I will move today. I am disappointed that the way in which this matter is to be treated will mean that those honourable members who supported that report will be unable to show that support by voting in favour of amendments to give effect to its recommendations. I am disappointed that, besides myself, the only member of the Committee who will speak on this legislation in this House will be the Deputy Prime Minister (Mr Lionel Bowen). Other members of the Committee included the Minister for Health (Dr Blewett), a distinguished Minister, the Minister for Sport, Recreation and Tourism (Mr John Brown), and the Minister for Aboriginal Affairs (Mr Holding). None of them has been listed to speak during this debate, notwithstanding the wealth of experience they gained while participating in the Committee. Three senators who are still members of the Parliament and who contributed to the report of the Committee-Senator Coleman, Senator Missen and Senator Walters-contributed to the debate in the Senate. There was a considerable wealth of experience amongst members of the Committee but many of them are no longer members of the Parliament.

The delay that has been occasioned means that many of those who will contribute to this debate did not participate in earlier debates or in the development of this report and will not have heard the views expressed in previous debates. Therefore, I want to canvass briefly today some of the philosophical approaches the Joint Select Committee took when it deliberated on the Family Law Act and reported in 1980. Many people believe that the amendments which are proposed by this Bill and some of those which it does not introduce but which were the subject of the Committee's recommendations are in some way less than supportive of the concept of the ideal Australian family. I make it clear that in the Committee's view there was a role for family law in supporting an ideal and stable approach to marriage. Honourable members should know that the Committee saw, and the approach that it favoured was, that more emphasis should be placed upon marriage and the obligations it entails, rather than the deterrent effects of the provisions of divorce law as a factor influencing the stability of marriage. Those people considering matrimony should be apprised of responsibilities involved and the consequences that will result from marriage breakdown.

As a means of highlighting this approach, the Committee recommended that the Marriage Act and the Family Law Act be consolidated into one Act of Parliament. The Committee took the view that it could then be seen more clearly as a complete Act dealing with family law and would indicate more clearly the intention of relying upon the marriage power to support the provisions of the Family Law Act, particularly those dealing with property. On the occasion that I tabled the report I said:

We, the committee, take the view that ill-advised marriages and impetuous divorces would be more effectively deterred if the consequences of property settlement and other rights upon divorce are known in advance of marriage. Those experienceing marital stress and seeking assistance with their problems should have available to them services that can help them at the relevant time.

I set out the recommendations that were designed to support that view. I went on to say:

The Committee does not doubt that the family remains the natural and fundamental group unit of society. What is needed is more objective data to assist those responsible for the formulation of policy in regard to the family so that it can be supported adequately to fulfil the role which society expects of it.

I mentioned that the Committee particularly welcomed the establishment of the Institute of Family Studies to undertake research in that area. Of course, that body was established and commenced its work shortly after I tabled the report in August 1980. I went on to say:

The Committee concluded that the provisions of the divorce law are not a significant factor in influencing family stability and breakdown. Accordingly, the Committee recommends no change to the grounds of divorce . . .

But we did develop a number of themes in our report, themes which have in part been broken up by the way in which those who have deliberated on the Committee's recommendations have considered the document.

I have some complaint about the way in which this report was developed and later reviewed. I do not know whether honourable members involved in parliamentary committees would welcome the way in which this particular matter arose. The Family Law Council, which the Parliament has appointed to advise on matters relating to the Family Law Act, brought down on an annual basis reports on the Family Law Act as it was operating. I think the Government had some doubts as to whether some of the recommendations that the Family Law Council was bringing forward would be acceptable to it. So a committee comprising 15 members of this place and the Senate was appointed to deliberate on the Family Law Act and after a lengthy inquiry the Committee reported. What happened after that? We were asked, as members of parliament, to review views formed by the Family Law Council. But the Government saw fit-and the new Government has not seen fit to act in any different way-to then go to the reviewed group, the Family Law Council, to ask it for its report on what the reviewers had to say. Ultimately, the lowest common denominator is the form taken by the Bill which has been introduced. Whereas I indicated in my tabling speech that there were a number of themes, a philosophical approach, that was worthy of support, we find that the philosophical approach has been largely put to one side, because there are gaping holes in the scheme which we outlined.

I mention that of course we picked up the theme of the Family Court being a helping court; to engage in and, to the fullest extent possible, to conciliate in helping parties to resolve disputes. I think the legislation helps in that regard. We picked up the theme of creating certainty in the law so that married people when they were being divorced would be able to negotiate in a situation of certainty all aspects of their affairs. So there are two aspects of this legislation that are part of that theme that I welcome; that is, the guideposts that have been put down to assist the courts in understanding what the Parliament sees as being important in custody matters. Also, of course, the procedures for the handling of appeals will now ensure that a court will be more likely to have amongst its membership a consistent body of people, rather than all members of the Family Court, as has been the case until now, handing down judgements which were likely to be in conflict with each other. People would not know with certainty what was the law when they sat down to try to work out their family situation.

The Committee had in mind another aspect of this theme because it believed in the area of property, for instance, there was also a need for certainty- guideposts, as I have put it. This has been acknowledged by the Government in relation to the question of custody. We suggested, because we could not develop it ourselves, that there was a need for a matrimonial property regime in Australia; that a set of rules should be developed to outline to people the way in which their affairs might be dealt with in the event that a divorce is sought . We took the view that the Law Reform Commission ought to be asked to examine those matrimonial property regimes that operate overseas and to come back with some recommendations as to how such a scheme might be able to operate in Australia.

But we also took the view that an important first step could be taken immediately in that direction, and that was to develop a presumption of joint ownership of a matrimonial home. The Committee saw no reason why provisions could not be developed to create that presumption in the legislation that was proposed. We went so far as to annex to the Bill the precise form in which amendments might be presented in relation to this legislation. Of course, the Bill was drafted by a gentleman who is now a judge of the Family Court-Mr Gee, QC. He was our adviser. Mr Justice Gee, as he now is, went to a great deal of difficulty to sort out the way in which we could approach this particular problem and the way in which the legislation might be drafted. This Bill does not deal with that problem.

There are other gaps in the legislation. In the time available to me-I propose to move some amendments-I should indicate some matters that were perhaps not part of the theme, but which I regarded as important. But I should also mention those other matters that were part of the theme. I propose to move amendments to implement recommendation 27 of the Joint Select Committee which deals with the question of conduct in relation to certain property and maintenance matters. The Committee was of a view that in a very limited number of cases it may be appropriate that certain conduct be looked at. We came to that view because of a particular case dealing with a lady who ran away with a Swedish sailor and then came back after having left him to claim maintenance from a former husband whom she had left. We were of the view that that sort of conduct was conduct that the court ought to be able to take into account. It concerned us, in regard to that matter, that there was a possibility that the court may not be able to remedy like problems. Recommendation 28 concerns the automatic adjustment of maintenance paid to children. The Committee was concerned that where inflation has been rampant children ought not to be left in a situation in which the amounts paid for their sustenance were not reviewed on a regular basis. The Committee was strongly of the view that that amendment should be made to the Act .

The Committee was of the view that there ought to be-this was part of the theme I am talking about-in the area of property settlements where parties had come to an agreement, provision for review where agreements had been approved by the courts but it ought not to be undertaken lightly. The Committee formed the view that leave ought to be sought if people were to apply under section 79A of the Act for the setting aside of an order made in relation to property interests, but we were of the view that it should be done only very sparingly because of the need for certainty on the part of parties when their affairs have been dealt with. The Committee saw this certainty as being very important.

In recommendation 41 the Committee was of the view that judges of the Western Australian Family Court ought to be able to be involved in the family law processes throughout Australia, that they ought to be able to sit in appeals situations from decisions of their own Court and that they ought to play a role in the development of law and have the experience that can come from sitting in other courts. For that reason we were of the view that they ought to be given Federal commissions. That amendment was not acceptable to the former Government, nor is it acceptable to this Government. I very much regret that that is the case. That was clearly one of the signpost areas where we saw greater certainty of result as being of the utmost importance. Finally, we saw the view of members of parliament in relation to family law as being important and the view of magistrates, who implement a lot of the family law in Australia, as also being important. Previously, a select committee of the Senate recommended that the Family Law Council be a body with parliamentary or magistracy representation amongst its membership. I intend to move an amendment to give effect to that view.

I have already mentioned the importance that I attach to a number of other amendments that have not been adopted and for which I have not been able to have drafted amendments because of their complexity. The first is the consolidation of the Marriage Act with the Family Law Act. I think that is very important. The Committee viewed it as being very important. Whilst it is a matter which, I appreciate, might take time I am concerned that, with the way in which family law matters are dealt with, it will be a very long time before we are likely to see any consolidating Bill. I suspect that many members in this chamber now will not see it in their parliamentary lifetimes. I offer that as a prediction.

The Committee proposed a very important amendment in the area of the joint ownership of the matrimonial home, joint ownership being a presumption that can be rebutted in certain circumstances. I believe there is a need for urgent action before the report of the Law Reform Commission. In recommendation 23 we suggested on the basis of United Kingdom experience and the Finer Committee report in the United Kingdom certain measures to limit the social security costs of the Government. The Government is bleeding because of the way in which people are able to organise their affairs in such a way as to ensure that the supporting parent benefit is paid in many cases where a spouse would be in a position, after a divorce, to make a contribution. The Committee was of the view that there ought to be in the Department of Social Security the capacity to obtain from a spouse who has the capacity to pay the money being paid out in the form of a pension. We did not want to deny a pension because many people have been able to resist paying maintenance and have casused hardship, but we want the Government to be able to recoup those moneys. We suggested a mechanism whereby that could be done. I emphasise the urgency of this matter. I know that the Deputy Prime Minister appreciates its urgency as a member of the Committee, but I want his Government to ensure that this matter is pursued as expeditiously as possible. We offer to the Government a possible solution.

I also want the Government to look very carefully at the Watson Committee recommendations in terms of resolving the conflicts that arise in relation to the naming of children. I also foreshadow that I will pick up one other matter which was the subject of an amendment moved by Senator Missen in the Senate relating to the payment of Family Court judges. I am of the view personally that we need the best qualified people, not only in terms of handling the social problems involved in the family law area but also in terms of handling the very complex and difficult legal questions that have to be dealt with in relation to trusts and companies when property disputes are involved. We must ensure that such people are appointed as judges of our courts and we can do that only by paying them properly.

Mr DEPUTY SPEAKER (Mr Drummond) —Order! The honourable member's time has expired .