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Wednesday, 19 October 1983
Page: 1972

Mr LIONEL BOWEN (Minister for Trade)(7.59) —I am very sympathetic to what the honourable member for Dundas (Mr Ruddock) said. I was a member of the Joint Select Committee on the Family Law Act and I know the circumstances of the case he referred to. It created the impression that it was outrageous that the court felt it was obliged to make an order in the terms of section 75 (2). I am assured that that was an aberration which the courts have at times. There is provision under the existing clause 35 (2) (o) to take into account any fact or circumstance which in the opinion of the court the justice of the case requires. The Committee quite rightly felt that that ought to take in conduct not on the question of fault but on the question of maintenance. Of course, section 75 is merely subservient to section 74. Section 74 is to be applied by using the criteria in section 75. Section 74 relates to maintenance. I am assured that since then the courts have no longer taken into account that conduct. I was given that assurance by the Attorney-General (Senator Evans). We are saying that the Family Court of Australia can have regard to section 75 (2) (o) which relates to the economic circumstances. That can be taken into account. The position that was given to the Committee, which the honourable member for Dundas refers to, is no longer regarded as relevant. We do not want to be talking about conduct. We were talking about financial conduct in those terms.

Mr Ruddock —Think of it in terms of the Swedish sailor case. I am not sure that that was financial conduct.

Mr LIONEL BOWEN —It was in the sense that the lady in turn was being supported by somebody else. The honourable member might recall that.

Mr Ruddock —Yes, I do.

Mr LIONEL BOWEN —That was the financial aspect of that support. So it is the view of the Government that this is the limit of the extent to which conduct should be relevant; that is, the economic circumstances. We all agree on that. I am assured that if we were to go into the interpretation of what they feel would be the question of the conduct of the parties they say it would be opening the flood gates. We all know that it is not. We know the intention. I am assured that the courts are interpreting the matter to mean economic circumstances. They would not be following the rationale of that decision to which the honourable member refers.

Mr Ruddock —Would you look at it again if there were other difficulties to which your attention could be drawn?

Mr LIONEL BOWEN —Yes, I give the honourable member that assurance.

Amendment negatived.

Clause agreed to.

Clause 36 agreed to.

Clause 37 (Setting aside of orders altering property interests).