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Wednesday, 19 October 1983
Page: 1947

Mr LIONEL BOWEN (Minister for Trade)(5.10) —I thank honourable members for their participation in this debate and particularly for their attitude to and their support, as demonstrated, for the Family Law Amendment Bill. It is very difficult to debate this issue and come to unanimous conclusions as to how we can provide a set of guidelines or laws for people who were married and have decided that they can no longer live together. It is not an easy concept and societies would hold all sorts of views as to how best it should happen. This legislation has always been a genuine attempt to take away from the inevitable bitterness the added burden of adversary combat in a court of law. I think it has achieved something towards that goal.

I say to those honourable members who have participated in the debate that the difficulty in getting the original Bill through was enormous. Some of the honourable members were not in the Parliament then but they would know that the Bill was before the Senate for an enormous amount of time. I am always astounded at the luxury of time enjoyed by our colleagues in the Senate. When the Bill got to the House of Representatives it took an inordinate amount of time for everybody to put their point of view. Eventually we reached what was deemed to be the best result we could obtain at that time. It was acknowledged that as the legislation was new, there ought to be a review of it. That is what we are now looking at-a review of the original legislation. I pay credit to the former honourable member for Lilley, Mr Kevin Cairns, who was instrumental in raising the question of review. I think the Minister for Aboriginal Affairs (Mr Holding) was also interested in the matter. We do not have the difficulties of the earlier debate because we are now debating a Bill to amend an Act. I think that helps the debate.

I reassure members of the Opposition that the Government has no problems about a conscience vote. There seems to be some misunderstanding. We are all free to vote as we like on this measure. As we often find, people are concerned that we might have some sort of unorganised debate. It is suggested that we agree on certain machinery issues. Matters that are subject to the Opposition's amendments may be debated and discussed in any way honourable members like; I assure honourable members of that. That has always been the case. It will never be any different. But as honourable members can imagine, if 125 different views were put on each clause we might not make a lot of progress. We have eventually to get to some consensus as to the approach to this Bill. I want to disabuse any suggestion that honourable members will be unable to express their views. I note that not everybody is able to spare the time to discuss all the relevant matters today but, as Leader of the House, I will not object to the possibility of our passing this Bill today. Again, it is a tribute to this House that we can deal with legislation efficiently. I pass no criticism on our colleagues in the Senate, but I again draw the attention of the House to the fact that the Bill has been before the Senate since June last. As I said, honourable senators have the luxury of discussing these matters at length.

I pay particular tribute to the honourable member for Dundas (Mr Ruddock), who was Chairman of the Joint Committee on the Family Law Act. He is a most diligent member and there is no doubt that the work was done in the most competent way. As a member of the Committee I enjoyed attending the hearings. I was not always able to be there for the reason that, as Deputy Leader of the Opposition, I always seemed to be trying to bring down the then Government. That does take a little time now and again. On analysis of the evidence submitted, it was very significant to find a few interesting things, which I will advert to later. The Government notes the remarks of honourable members which I will deal with, if not adequately, to the best of my ability.

I shall deal firstly with the remarks of my colleague the honourable member for North Sydney (Mr Spender) who, in welcoming the Bill, raised two concerns-the new provision concerning the wishes of children and the increasing impact of broken marriages on social security expenditure, with which I agree. At present the Family Law Act does not as a general rule permit an order to be made which conflicts with a child's wishes where the child has reached 14 years of age. I remember that members of the Committee asked: 'Why 14? There could be children who have the ability to express a view even at the age of eight'. Eventually it was suggested that the reference to age be removed, and that is provided for in the Bill. It was thought, as the honourable member for Moore (Mr Blanchard) has pointed out, that the Family Court would give weight to any child's views, using its capacity and ability to assess whether there was any undue influence. As the honourable member for North Sydney has pointed out, we will be able to look at the new provision to see whether it is workable. I think it will be. I can say that we will closely monitor that situation.

I refer to the question of the maintenance payments as it affects social security. Let us face it; many members of society who pay tax are married and have dependent children. They make a contribution not only to the support of their families but also to the general well being of the nation. It goes to the point that the Committee was concerned about, and I welcome the fact that the honourable member for North Sydney raised this matter. Some 75 per cent of widow pensioners would be divorcees or deserted wives. In terms of social security payments to that group in 1982 the taxpayer had to find about three-quarters of $717m, which is a very substantial sum. When we add to that the supporting parent's benefit payments we see that a large proportion of social security payments would be related to matrimonial associations or the like. An enormous increase in expenditure has meant that the outlay in that category has escalated to $605m. It is not necessary to talk about the need for people to get social security; that they must have, but at times an unfair burden appears to be placed on those who are trying to make their contributions while others are perhaps not making theirs.

The Committee spent some time trying to work out a method of enforcing some automatic family law order of maintenance and support rather than having the difficulty of garnishees and other methods which seem to be too cumbersome. As people say, the wife starver is able to escape. The Committee had views about this matter. I think it is a question of balancing the support for people in dire need against those who are not fulfilling the duties of court orders. There is no doubt that we all agree that those who need support have to be assisted by Parliament. Unfortunately, at present there is no effective maintenance system in Australia, although there are some good concepts in Western Australian and South Australia. It is for that reason that one of the high priorities of the present Government has been the establishment of a national maintenance collection system. That has to be worked out. I am advised that a departmental inquiry has been established by the Attorney-General (Senator Gareth Evans). The inquiry is to report to the Attorney-General early in December. Until maintenance enforcement operates effectively throughout Australia, we will just have to put up with the present situation. The people receiving social security benefits are the most vulnerable of all. The Government is endeavouring to address that problem.

The honourable member for Wentworth (Mr Coleman) has suggested that at some future time we should consider amending the Act to provide for a presumption of joint custody. I understand that such a provision would require the courts, wherever possible, to maintain the right of both parents to continue to share custody following the breakdown of a marriage. For the benefit of honourable members I explain that the Family Law Act at present provides that until the Court otherwise orders each party is a guardian of any child of the marriage and both parties have joint custody. Whilst the Act goes on to provide that the Court may award sole custody to one parent, it also evisages that the joint custody rights of both parents can be maintained. I understand that in certain cases the courts maintain joint custody following a marriage breakdown.

The Bill before the House does not alter the situation, although the provisions dealing with the severance or preservation of the right to joint custody have been redrafted. The honourable member for Wentworth is suggesting that in every case the Court should maintain the joint custody right of both parents unless this is impossible. He suggested that this proposal be examined. I will refer that to the Attorney-General and the matter will be examined by a body such as the Law Reform Commission or perhaps the Family Law Council. Speaking personally -we have all had experience of this either in the law or as a member of a family -it is not always easy to say that joint custody is the best result. I think the child often feels that the problem is that the parents are separated. That is a problem. Children going from one home to another is not necessarily going to work out for the child. Often parents who fight very hard over children-one may have some personal knowledge of this-have a great deal of interest in the child even though they have a great deal of conflict with each other. Unfortunately, in society a number of children are abandoned altogether. Some parents continue to live together but leave their child in a state institution. That is a real tragedy. No law can really cope with that.

The honourable member for Wentworth and the honourable member for Fisher (Mr Adermann) were concerned that the present system does not encourage conciliation as an approach to solving issues. I draw attention to the amendments proposed by clauses 9, 29 and 36. Clause 9 proposes the insertion in the Family Law Act of proposed new section 16A, requiring the courts and the legal practitioners to have regard to the need to direct the attention of parties to the proceedings to the counselling and other conciliatory facilities available. Clause 29, amongst other things, proposes the insertion of proposed new sub-section 64 (1B), having the effect that the Court will not be able to make a final custody order except in special circumstances unless the parties to the proceedings have attended counselling. One amendment proposed by clause 36 is to create proposed new sub- section 79 (9). This provision will prevent the Court from making a final order in contested property proceedings unless the parties have attended a conciliation conference.

The honourable member for Dundas referred to a number of recommendations of the Joint Select Committee that were the subject of amendments moved unsuccessfully in the other place. These amendments were not acceptable to the Government for the reasons given there by the Attorney. The honourable member indicated that there were two important recommendations of the Joint Select Committee in respect of which he has not been able to secure amendments. These are the consolidation of the Marriage Act and the Family Law Act and a joint presumption of ownership of the matrimonial home. He is concerned, rightly so, that the delay might mean that these proposals will never be implemented. I want to assure him that I will be mentioning this matter and his concern specifically to the Attorney-General. I would anticipate that the Attorney-General wishes to await the recommendation of the Law Reform Commission's inquiry into matrimonial property before acting on the Joint Select Committee's recommendations. I hope that there will not be any undue delay in that.

There have been a number of cases in relation to a change of children's names. It is well settled by judicial decision that the change of name is an aspect of custody. As a change in a child's name may cause him or her confusion because the issue usually arises between the parents, the Court will exercise a supervisory role in the matter when called so to do. The guiding principle is the welfare of the child. That is the paramount consideration. It must stand above the proprietary wishes of the parents. The Joint Select Committee did not examine the matter of the change of a child's name. However, a sub-committee of the Family Law Council, the Watson committee, is examining and reporting on wardship, guardianship, custody and access. That committee considered the matter of the change of the surname of the child of the marriage. It recommended that the Family Law Act be amended to ensure that the name of the child of a marriage is not changed unless the consent of both parents or the approval of the Family Law Court has been obtained.

This is a similar provision to that which exists in the United Kingdom except that the United Kingdom provision requires the consent of the parents to be in writing. The Family Law Council examined the matter of change of name and decided that, in effect, a register of consents should be maintained. There was also some reference to the wishes of the child. There were difficulties with respect to sanctions in the event of a contravention of any legislation. The Attorney-General concluded that in view of these difficulties the law, as settled, should continue to operate for the time being and that those specific statutory provisions should be made. There are, as mentioned, well settled guidelines enabling the Court to supervise the child's name when approached so to do.

The honourable member for Balaclava (Mr Macphee) suggested certain matters and particularly complaints concerning the quality of counselling. He expressed the view that it was difficult to find an answer. I think the solution may lie with the Family Law Council. I will refer that matter to the Attorney-General. The honourable member also spoke about the attitude of counsellors, judges and practitioners. He said that they will continue to cause difficulties. One cannot disagree with that but, hopefully, we will be able to improve with time. But there is always the difficulty of human nature. Generally he supported the remarks of the honourable member for Wentworth regarding joint custody and I have already referred to that. I thank my colleagues on the Government side for their support.

I will conclude my remarks on this note. There has been a lot of unnecessary suggestion that divorce by post is a breakdown of the situation. Those of us who practised always knew that undefended divorces were not very difficult. I well remember the late Judge Rainbow who dealt with 53 undefended divorces in 56 minutes. Most of the counsel had not appeared. He used to greet them by saying: 'There is no need to worry, your case has been dealt with'. In other words, that was the situation under the old law. I think the point practitioners understand is: If we can get the parties to agree and the matter solved, why do we have to put everybody through the rather traumatic situation of having to appear in court and go through the ordeal or formality of the ritual?

I think the real issue-I am appreciative of the remarks made by many honourable members-is that we have to look at how people will look at marriage. In fact, some small select sets who did not approve of divorce appeared before the Committee. That view is fair enough. If one asked for the evidence of those people one would find that they had very few matrimonial breakdowns. The concept they held before they started was that they did not accept the view. This matter relates to looking at the real necessity for support being given to people contemplating marriage. I think the real issue is that advice has to be given before the marriage takes place. That is when the advice and support has to be given. That is when it perhaps should be said that it would not be wise to get married. In other words, advice should be given.

In fact, those of us who have practised in the past well know that marriage often had to eventuate because of another set of circumstances which were not necessarily related to continual love and affection. People had to be deemed to have conformed to society's requirements. We found that those marriages always broke down because they never had the right support in the first instance. In the Committee we were always anxious to get that message over too. I know that the honourable member for Dundas has been emphasising these issues. If we can get all the rights and responsibilities clearly spelled out before the marriage takes place there is a much better chance of the marriage working than there is if it is a case of thinking that the marriage will not work from the outset. The parents might think that it will be successful for other reasons, but one knows very well that it will not and, in fact, it never does.

I again thank honourable members for their contributions. This legislation will always be under review. We will always need to look at the claims of society. We will always need to look perhaps at the law which it is so difficult to make uniform in Australia because of the Federal-State structure in which the States certainly have responsibilities in respect of children's rights. We do have difficulties in trying to enforce those. I just say that I think the family law is working as well as can be expected. The problems have been in legal aid and other areas. It is quite wrong that 80 per cent of legal aid is going to family law matters in adversary causes which affect only about 10 per cent of the matters before the courts. So one can see that that is a problem we are trying to avoid. I thank the House.

Question resolved in the affirmative.

Bill read a second time.

Mr Adermann —Mr Deputy Speaker, could it be recorded that I would not call a division but that I could not vote for the second reading of the Bill?

Mr DEPUTY SPEAKER (Hon. Les Johnson) —That has been recorded at least in Hansard .