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Thursday, 26 March 1987
Page: 1416

Senator COONEY(5.38) —I understand that the Family Law Amendment Bill 1985 before the Senate was originally brought into the Senate in December 1975 by Senator Durack. I must confess that I am not quite sure how the proposed new sub-section (3) of section 75 is going to dovetail with section 75 (f). We have there a requirement in the Family Law Act for the Court to take into account:

the eligibility of either party for a pension, allowance or benefit under-

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia,

and the rate of any such pension, allowance or benefit being paid to either party;

In the Bill put forward by Senator Durack I see no attempt to repeal that particular paragraph. If that paragraph is not repealed I do not see how it can fit easily with his proposed sub-section (3), which reads:

The Court shall not take into account . . . the eligibility of a party to a marriage claiming maintenance . . . for a pension, allowance or benefit under the Social Security Act 1947 or the Repatriation Act 1920 . . .

If a person gets, say, a totally and permanently incapacitated pension or an entitlement under repatriation legislation for disabilities as a result of war service, why should it not be taken into account in assessment? If there is an eligibility, who should it not be taken into account? I can understand an Act which would read that the courts should not so arrange things as to attract pensions. As this is written, it seems to me to a certain extent that it misses the point. If the amending legislation read that, `The Court shall not so arrange the maintenance of a spouse or of the children of that marriage so as to attract social security or pensions under the Repatriation Act' I could understand it.

Senator Gietzelt —There is no spouse clause in the Repatriation Act.

Senator COONEY —Yes, a spouse is not mentioned in the Repatriation Act, as the Minister for Repatriation so properly says. But why the eligibility of the pension, which as that reads means an eligibility apart from any separation and arrangements that have been made, should not be taken into account, I cannot quite understand. Perhaps Senator Durack will answer that at a later date. The next thing the Bill says is:

. . . the Court shall give such priority to the needs of a party to the marriage or of a child of the marriage over responsibilities or commitments assumed since the marriage as is just and reasonable in all the circumstances.

Again, I am not sure exactly what is meant by that. Does it mean that a person who marries again and has children must provide for those children at a lesser level, at a lower quality, than would be provided for the children of his first marriage, given the proposition that in either case it is the children who are in contention? It is not the responsibility for the break-up of the marriage that is in contention, although that might be a question that people could look at in terms of maintenance of the spouse. Indeed, that used to be the sort of thing that was looked at before the 1975 Act was brought in. But in my view, at any event, that should not be looked at when considering the children.

The great difficulty that one finds with this matter is that it again seems to confuse-and I say this with great respect-the position of the spouses with that of the children. Perhaps Senator Durack could clear this up at a later stage. If he means, by the proposed sub-section (4)-

Senator Durack —If you do not vote for it, I will not be able to.

The ACTING DEPUTY PRESIDENT (Senator Giles) —Order! The time allotted under sessional order for the consideration of General Business has expired.