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Tuesday, 26 November 1974
Page: 2749

Senator MISSEN (Victoria) - I was proposing not to refer to Professor Finlay 's article at this stage on the substance of this matter because we are now dealing merely with the title of this new part of the Bill. As to this excellent article titled 'Family Law, Family Courts and Federalism', Senator Greenwood has read many excellent parts of that article but he neglected the conclusion. The Constitutional and Legal Affairs Committee is entirely in agreement with the idea that you cannot reform the summary courts and get them sufficiently into the position where they can deal properly with these matters. What Professor Finlay has said is correct. One might conclude from what has been said that Professor Finlay 's conclusion was that there should be only one court- the State courts- whereas that is entirely wrong. On page 587 of his article he deals with a proposal which was in the Bill at that time, namely for a superior court, and he goes on to say:

The appropriate solution may lie in the creation of a specialised court at intermediate county or district court level. Such courts could be established as state family courts and invested with all matters of family law within both federal and state power.

The Superior Court of Australia could be entrusted with appellate jurisdiction in family matters within federal power, leaving only appeals in state family matters to be dealt with by State Supreme Courts.

I must say that I cannot agree with him that we should have 2 different streams of appeal. He contemplated at that stage that there would be a superior court to deal with appeals and also State courts. He then goes on to say in words with which 1 entirely agree:

The establishment of a system of state family courts administering predominantly federal law would have a twofold effect. It would firstly be a practical way of achieving a unified structure within the federal system, bringing the jurisdictions together by a community of interest inherent in a common subject matter, lt would also be a way in which the States could bc given a feeling of playing a meaningful part in the federal system, acting together under a Commonwealth law in a spirit of 'co-operative federalism'.

Senator Greenwood - That is not what this amendment proposes. It is precisely the opposite.

Senator MISSEN -What the Committee is proposing is entirely consistent with that. Professor Finlay also says on the same page that there is a need for co-ordinating the two. But Senator Greenwood ignores the fact that Professor Finlay insists that there must be 2 different sets of courts. One was a Federal superior court but since then we have got rid, I hope, of the suggestion of a Federal superior court in this context. We have a federal family court proposed under this new Part and State courts proposed along the lines that Professor Finlay has advocated for some considerable time.

Three members of the Constitutional and Legal Affairs Committee advocate State courts and this is contained in the report as a suggestion. It is the only suggestion in the report but, of course, it does not bind the 3 Labor senators who are perfectly free to take a different view. However, the suggestions made are consistent. Professor Finlay obviously recognises the need for a Federal court and I think that should be made clear.

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