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Wednesday, 30 October 1974
Page: 2153

Senator DURACK (Western Australia) - The principal object of this Bill is to change the basis of divorce. Under our present law and historically under divorce laws the basis of divorce has been the fault of one of the parties and the so-called innocence of the other party. However, that statement is not strictly true because in Western Australia since 1944, and throughout Australia since 1959, there has been the well known non-fault ground of 5 years separation. But I should also like to point out to the Senate that there are a couple of well known grounds of divorce of long standing which cannot be said to be fault grounds. One is based on the unsoundness of mind of one of the parties, and another ground arises if one of the parties has been absent for such time and in such circumstances as to provide reasonable grounds for presuming that he or she is dead. There are at least 3 clearly non-fault grounds of divorce as features of our present law.

However, there is no doubt that the present Bill changes the whole emphasis of grounds for divorce from a fault basis to a non-fault basis. I fully agree with that provision, and I do so for 2 principal reasons. The first is the weight of the evidence which was received by the Senate Committee and to which I have referred generally. There is no doubt that the overwhelming evidence from a great number of persons and organisations indicated that the changing and changed attitudes of our community today are opposed to the old fault concept and favour the non-fault basis for divorce. In particular the submissions which weighed heavily with me were the one from the National Council of Women and the one from the Family Life Movement of Australia. The representatives of both of these organisations gave evidence at length to the Committee and were examined by the Committee. I was most impressed with the arguments that were presented by the representatives of these 2 bodies.

But the change from a fault to a non-fault basis also accords with my own experience as a practising solicitor for some years. I did not do a great deal of work in the divorce or matrimonial jurisdiction, but I certainly did an amount of work in that jurisdiction. I also accept the criticisms that have been made of the system, of the indignities that are associated with the system and in particular of the provisions relating to discretion statements by a petitioner, in which a petitioner has to set out all the details of his or her adultery and so on, which all seems to be part and parcel of this fault approach or guilt approach to matrimonial relief.

In regard to this aspect I should also like to refer to some comments that were made to the Senate Committee by Archbishop Woods, the Primate of the Church of England in Australia and the Anglican Archbishop of Melbourne. In a letter to the Committee on 29 August last year he said:

I judge that the majority of Australian Anglicans would agree that marriages which have been undertaken mistakenly or which by an acceptable definition can be said to have irretrievably broken down after all reasonable efforts at counselling and reunion have been attempted, may find remedy in divorce.

Further on he said:

Again, I think nearly all Anglicans would agree that the tenor of the English report called 'Putting Asunder', which believes that State courts should be no more than formal inquiries as to whether a marriage has irretrievably broken down or not. In this connection I find that many Anglicans have difficulty in accepting that 12 months is an adequate period of separation other than in cases of total abandonment.

It seems to me that the case for change to the non-fault basis and to an acceptance of the sole ground for divorce as irretrievable breakdown of the marriage is overwhelming. The only problem is how best to prove the irretrievable breakdown. I have said that the law in this and in any other respect seeks to achieve the principles of justice, certainty and practicability. Although the attempt to prove irretrievable breakdown itself is no doubt the just basis, it is deficient in the requirements of* certainty and practicability, because I could well envisage that an inquiry as to whether a marriage had broken down or not may well involve investigations that are just as unsatisfactory, as lengthy and as expensive as are investigations in relation to many of the present grounds for divorce. Therefore, I believe that the right approach is to endeavour to select a period of separation as the best way, the most certain way and the most practical way, as well as the just way of establishing that a marriage has broken down.

It is a matter of argument as to how long the . period of separation should be. As we all know, this Bill provides for a 12-months period. I, along with Senator Chaney, have already indicated that I will move that the period of separation should be 2 years, and I will give reasons for that at the Committee stage because my time is somewhat limited now. Broadly speaking, I am concerned that a period of 12 months may not be a sufficiently long period 'firstly to establish that a marriage has clearly broken down but also in regard to those matters of which I spoke earlier, that we should not have a divorce law which may be such as to encourage people to enter into the marriage state lightly and unadvisedly, or which may not encourage them to work at their marriages if something is going wrong. I also think it is very important that a divorce law should not be in any way ahead of community standards and concerns. I have found a very widespread concern in the community that the period of one year's separation is too short. I note a passage from the letter of Archbishop Woods that I have just quoted that he, speaking on behalf of himself and, he believes, the Anglican community generally, also feels that the period of one year is too short.

I wish to move on from the question of grounds for divorce to another major provision of the Bill, and that is the establishment of the Family Court. The Bill itself does not provide for the Family Court, and that is, I think, perhaps its major deficiency. Of course, the Senate Committee has recommended the establishment of the Family Court, and I am pleased to find now that the Attorney-General (Senator Murphy) has accepted that recommendation and has already submitted to us a detailed amendment which is designed to set up the Family Court in the way in which he envisages it. The amendment to the Bill which the Attorney-General will move in due course sets up a purely Federal court; in other words, a court set up by this Parliament with its members appointed by the Federal Government. One can argue whether it ought to be a Federal court, a State court and so on, and I do not want to get into that argument now, and I think it would be unfortunate if that argument took over one's consideration in relation to the Family Court.

But one absolutely fatal deficiency in the proposal to set up a purely Federal Family Court is the requirement in the Constitution that all judges appointed by the Federal Government under the Constitution have to be appointed for life. I just cannot conceive that we ought to have a Family Court system where the judges could be in their 80s. This has been our experience in Australia. Some judges in Australia are getting to that age. I think it would be ridiculous to have a family court composed of people of this age who will have to deal with these very sensitive personal issues, changes in social attitudes and so on. In this field we must have men who have their feet very much on the ground, who are part and parcel of the community and who understand the changes that are taking place in the community. The only way in which that can be done is the way which was suggested in the Senate Committee's report, namely, that the Family Court should be set up under a co-operative arrangement between the Federal Government and the State governments so that a majority of the judges of the court will be appointed by the State governments and will be subject, as State judges can be, to retirement at a suitable age. I suppose that would be at 65 years or even 70 years of age. The only way that that can be achieved is to have an arrangement for a court whereby the appointment of the majority of the judges is by the State governments. I believe that that should be overseen by a federal court of appeal. We have to accept that there the judges are being appointed for life, but they would be judges who would be dealing more with legal problems. The only way to get around it would be to amend the Constitution.

Senator Everett - What about a referendum by consent?

Senator DURACK -I must really laugh at the thought of having a referendum on a subject like that. I just do not see it as practicable. I think our experience shows that you can never have a referendum by consent. I believe that this important responsibility should be accepted by the Federal Government. It should start talking immediately with the State governments to set up by a process of co-operation the type of family court which we all envisage as desirable. That family court according to the amendment prepared by the Attorney-General is envisaged as a court which will be well serviced by experts in behavioural science and counselling activities. This must be available at the very beginning of the signs that a marriage is breaking up. When all is said and done those of us who have practised in this field will know that when a marriage starts to break up one of the parties acts first in many cases by consulting a solicitor or a marriage guidance service. The parties to the marriage at that stage are not thinking about divorce. By and large they are concerned about their marriage. Many wives are concerned about getting maintenance and custody of the children. At that early stage there is always some hope that the marriage can be repaired and that is where the marriage guidance services should be available. People should be encouraged at that early stage to seek the services of people who are expert in this field.

The Bill provides for marriage guidance services but under the present matrimonial causes law that sort of advice is available at the stage when people are talking of petitioning for divorce. It is then far too late and therefore a major change is contemplated by the Bill in that regard. I fully support it. I hope the Government will meet its promises with adequate finance to provide these most important services. I would have liked to refer to the maintenance provisions but they have been well canvassed. I am fully in agreement with the concern expressed by the Senate Committee about that area. I will be supporting amendments which will improve greatly the position of wives, particularly wives of mature years who have given their lives to marriage and to raising families and then find that the marriage has broken down. I think women in that position must be very much more adequately protected than this Bill would provide.

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