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Wednesday, 19 October 1983
Page: 1944

Mr MACPHEE(4.49) —I commend the honourable member for Maribyrnong ( Mr Griffiths) for his contribution to this debate. While I do not feel qualified to make strong statements I am in sympathy with his concluding remarks. I think some of the difficulties we are now encountering come from the adversary nature of things, such as the continuation of representatives of the legal profession in the handling of matters, some of the rather more deep seated attitudes which they have, the mystique which is created by their presence and the way in which they often relate to one another to the confusion of their respective clients. That is a common complaint which one hears. I suspect that there is a fair grain of truth in it. It is one thing to find fault and another thing to find a way of representing parties in an area that is still complex and requires some independent and experienced adviser. No doubt that is a matter that the Ruddock committee, the Joint Select Committee on the Family Law Act, will look at next time. I congratulate the honourable member for Dundas (Mr Ruddock) for the work which he did as Chairman of the Joint Select Committee and also those, including the Deputy Prime Minister (Mr Lionel Bowen), who served so ably on it. I congratulate Senator Missen and others in the Senate who worked on the original Bill and, I believe, made a much better Bill out of it. I also congratulate the Attorney-General (Senator Gareth Evans). I am told by honourable senators on both sides that he handled the matter exceptionally well in the Senate.

I think it is a matter for some regret that the Australian Labor Party has not given its members a free vote on the matter, but at the same time I think the real hurdle was passed eight or nine years ago when we put the original Bill- that is, the principal Act we are now amending-through this chamber. From now on there ought to be a number of areas in which it is taken for granted that there is no need for a free vote. I think the honourable member for Dundas made a very important observation when he said that the quality of debate and the continuing interest of members of parliament might best be served by giving them at least a free vote, even if in fact they do not need now to exercise it as much as they did when the principal Act was passed.

I had the privilege on that occasion of supporting each of the controversial clauses. I recall one of them passing by one vote. The matter is now beyond reversing. It was a very emotional debate at times, but it was a constructive and informative one. It made members of parliament accept their obligations in respect of their constituents in the family law area rather better than the somewhat lacklustre contribution, at least in this chamber today. One suspects that if contributions are made in a reasonably low key way from now on fewer members will show the interest that is perhaps needed. It is a two-edged sword: If they all get emotional and all want to speak, the business of the Parliament cannot be dealt with and clarity is not necessarily improved. But I think it is a shame that more honourable members have not contributed to this debate.

Having said that, I suppose many honourable members are in the position I am in . One finds oneself in agreement with the second reading speech of the Deputy Prime Minister in his capacity as Minister representing the Attorney-General and one is tempted, because of one's agreement, not to contribute to the debate. I believe one has an obligation to do so. The first major statement by the Minister for Communications (Mr Duffy) in his second reading speech on behalf of the Deputy Prime Minister was this:

I believe it is overwhelmingly accepted that the Family Law Act was a landmark in social legislation.

I agree entirely with that statement. The areas in which the Act was a landmark will not be reversed. They have indeed shown that the belief of its supporters was well founded and that the fears of its opponents were not. Nevertheless, problems have arisen with regard to administration. Some of those problems may be involved in the practice of still maintaining adversary representation, and some are certainly in the attitudes of judges and counsellors. Some problems are dealt with by the Family Law Amendment Bill but others-the attitudinal ones-are much harder to deal with by this Bill.

I now turn to the principal reforms outlined by the Minister. I express my support for the following points and certainly for those points which relate to the expansion of jurisdiction concerning children. It has been a major fault of the Act so far that we were able to deal only with the natural or adopted children of both parties to a marriage. The amendment contained in clause 4 adopts the Joint Select Committee recommendation that the category be extended to cover step-children and even foster-children. I share entirely the hope of the Minister that we will be able to overcome the constitutional difficulties which currently oblige some children's custody applications to be dealt with by State tribunals. I hope that there will be an adequate referral of power by the States or, failing that, a constitutional amendment which will enable the Family Court of Australia to deal with all matters concerning the custody and maintenance of children in Australia.

In addition I agree with the amendments regarding subclause 3 (1) to enable a third party such as an uncle or a grandparent to bring proceedings against one or both parties to a marriage in relation to a child of the marriage. As the Minister observed, that is currently a matter that can be dealt with only under the State law. It is important that this amendment goes through so that the Act will enable matters of this kind to be dealt with by the family court system and minimise the present resort to two different legal systems. It is also important that the Bill concentrates on the welfare of the child to the extent necessary in the family law without affecting the States' obligations under child welfare laws.

The property amendments are also to be welcomed. I think it is particularly important that the amendment to clause 3 (1) be accepted by the House to enable proceedings to be brought by the parties to a marriage in relation to the property of the parties at any time where the proceedings arise out of the marital relationship. In other words, it will pick up the Joint Select Committee 's recommendation so that persons faced with a marital breakdown who wish to secure a settlement of property rights before the 12-month period of separation required for divorce proceedings has expired may proceed to do so. It has been an injustice that a spouse who contributed to the acquisition of marital property in either an indirect or non-financial way, but nevertheless in a significant way, was unable to claim a share of the property without actually having to institute and wait for what could be protracted divorce proceedings. That matter is important, and the changes to the procedures of the Court are also important.

I was one who originally supported the idea of the closed court. I accept the findings of the Committee and the Senate to the effect that experience dictates that the practical modifications proposed here and also the anonymity which will be preserved for the parties probably amount to a step forward in the public interest and in the interest of the parties. Certainly that seems to be the view of the judges. It will avoid the spectacle of the tabloid sensationalism that we used to be subjected to before the Act was passed in 1975. It should also protect the public interest with a degree of openness. Certainly, clause 72 imposes severe penalties for the publication of any account of proceedings which identifies a party to the proceedings, persons related to them or even witnesses at the proceedings.

I also commend to the House the Bill for its efforts to preserve marriages, especially with regard to the counselling requirements and the directions regarding conciliation so that the parties are obliged to consider and take part in counselling and conciliation prior to adversary proceedings beginning. But I have to point out to the House that one of the most frequent complaints that I receive in my electorate office concerns the quality of counselling. I am not aware of any effective way of training counsellors, but one hears complaints all too often about their lack of sensitivity and experience. I suppose they become case hardened and many people feel even more disenchanted with the counselling conciliation procedures than they do with the adversary proceedings that subsequently ensue. Again I do not know whether the Parliament can do much about that matter but perhaps it is something to which the Institute of Family Studies as well as the advisory council to be set up under the Act will direct more attention.

I also indicate my support for the amendments to clause 53, which were carried by the Senate. In fact they were proposed ultimately by the Attorney-General after lengthy debate, and they enable undefended divorce applications to be dealt with without the necessity of either party or their legal representatives attending before the Court where there are no children of the marriage under the age of 18 years. I think that is an important step forward in terms of removing some of the backlog of cases and, at the same time, minimising to the parties the sad reminders of the breakdown of the marriage without harm to any children. There are also a number of amendments of a procedural and structural nature which I will not dwell on now but which were recommended by the Joint Select Committee. Senator Missen, who has been for most of his adult life a practitioner in the area of family law, said in the Senate:

This Bill is loaded with provisions designed to improve the operation of the Family Court and to operate the family law system more successfully.

That statement was made in debate on the second reading. I can only hope that that is so although, looking at the proposed measures, I am not as confident as the honourable senator that they will rectify the complaints which one hears most often. The substance certainly has not let the public down; the procedures appear to have done so. I am afraid that some of the dominant attitudes of counsellors, judges, and counsel barristers for the parties, will probably mean that no matter how many principles, procedures and criteria are laid down by the Parliament we will continue to have some difficulties in the implementation of the law. It is important that we do our best in this Parliament to give the signposts that the honourable member for Dundas (Mr Ruddock) referred to so that we remove the barriers to harmonious post-divorce relationships. The most important post-divorce relationship is that of custody of children and access to them.

I indicate my support for some remarks made earlier today by the honourable member for Wentworth (Mr Coleman), who referred to the need to have more joint custody awards. This procedure is open to the Court. It has been reluctant to use it. I agree with the criticisms of the honourable member in regard to sole custody where one parent, usually the mother-although increasingly, I am pleased to observe, the father-is given custody and the other parent is given access and very often expected to pay maintenance. I think the honourable member for Wentworth was correct in saying, and I will quote from his earlier remarks today :

. . . there has been a growing and widespread realisation of how badly a sole custody regime, with access by the non-custodial parent, works. Too often parents slander each other or the non-custodial parent attempts to undermine the custodial parent by lavishing gifts and meals on the child. Many non-custodial parents stop seeing their children because it becomes too painful. The custodial parent places difficulties in the way of access. The non-custodial parent has inferior status and eventually gives up. Many non-custodial parents who do not see their children still love them.

I endorse those remarks from complaints made to me by constituents about the operations of the Family Law Act. I hope that the Family Court will direct more of its attention to the prospect of joint custody as a means of maintaining mature relationships between the divorced parents in the better interests of the child rather than haggling over custody every few years and certainly haggling over access. Often some of that haggling has been over access on the days when the parent with custody was at work and had left the child to a child care centre or grandparents. Really access should have been quite readily granted to the other parent who was prepared to adjust his working hours to fit in with those arrangements. Again, as a member of parliament one does not know the other side of the story, but one does get the feeling that certain rigidities, certain traditional assumptions of the roles of men and women regarding parental responsibilities, have prevailed rather too long to make this legislation less flexible and less just than it was meant to be in practice.

I particularly commend to the House the changes to clause 29, which are the criteria, the signposts, the check list if you like, which the Court must take into account in determining guardianship and custody matters. I believe they should provide a greater certainty and predictability in the exercise of the Family Court's jurisdiction. I believe as a result of that that we will find less dissatisfaction with the decisions than before. We hear only of the dissatisfaction and one therefore ought not to distort the impression that otherwise would be gained from the operations of the Court. If one looks quickly at clause 29, I believe it is most commendable because it especially considers the expressed wishes of the child and obviously gives weight according to age and maturity of the child. It certainly will make an order which will minimise the number of future applications for custody or access and will take into account the relationship which the child has with other persons such as grandparents and other relatives in determining where custody should lie. I hope that each of these guidelines, when the Court addresses itself to them, will be taken into account as the Parliament wishes and that it will produce a better, more harmonious and just result.

I also commend to the House the changes in clause 44 of the Bill. It will widen the circumstances in which the approval of a maintenance agreement may be revoked by the Court. It does invest in the Family Court the common law and equity powers of the High Court of Australia in proceedings in relation to such agreements. There is, therefore, an exclusive jurisdiction, as there ought to be . The changes to clauses 55 and 61 regarding the recognition of divorces and legal separations in other countries under the Hague Convention are also of great significance. Many people in Australia, not only migrants, but also a number of Australians who were resident overseas when their marriages were dissolved and who have returned to Australia, now seek to enforce certain rights they were given under the decree and find, in many cases that there are not reciprocal arrangements for them to do so in Australian courts. I believe that this Bill is a very important step forward. I share the view that it is later than it ought to have been, but I do think it is a very important measure and I hope it has the full support of the House.

Mr DEPUTY SPEAKER (Hon. Les Johnson) —Does the honourable member for Dundas seek to make a personal explanation?

Mr RUDDOCK —Yes, Mr Deputy Speaker.

Mr DEPUTY SPEAKER —Does the honourable member claim to have been misrepresented?

Mr RUDDOCK —Yes. The honourable member for Maribyrnong (Mr Griffiths) suggested that I had reflected on Ministers who were former members of the Joint Select Committee on the Family Law Act. I want to make it clear that I in no way wanted to reflect upon the Ministers. They are very busy people, and I appreciate very much the reasons that they are not participating in this debate. The point I wanted to make, and I will make it again for the honourable member, is that when a matter is one in which there is not a free vote, when members are not free to participate fully in the debate in reaching decisions because of the way in which party discipline is imposed, there is not the same desire, I suspect in some cases, or willingness or ability to participate in the debate. I wanted to make that point clear. It was not intended to reflect upon the Ministers themselves.