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Tuesday, 26 November 1974
Page: 2769


Senator MISSEN (Victoria) -I move:

Insert the following new clause:

20.   ( I ) As soon as practicable after the commencement of this Act. the Australian Government shall take steps with a view to the making of agreements with the governments of the Stales providing for the creation of State courts to be known as Family Courts, being agreements under which the Australian Government will provide the necessary funds for the establishment and administration of those courts.

(2)   Where, whether before or after the commencement of this Act. a State has created a court known as a Family Court, the Governor-General may, by Proclamation, declare thai, on and after a date specified in the Proclamation, this section applies to that court.

(3)   Where, by virtue of a Proclamation under sub-section ( I ), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation, and in relation to proceedings so instituted, as if references in sections 1 8, 24, 7 1 and 73 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly.

(4)   The Governor-General shall not make a Proclamation under this section in respect of a court unless he is satisfied that-

(a)   arrangements have been made under which Judges will not be appointed to that court except with the approval ofthe Attorney-General of Australia;

(b)   Judges appointed to that court are by reason of training, experience and personality, suitable persons to deal with matters of family law and cannot hold office beyond the age of 65 years; and

(c)   arrangements have been made under which full use will be made by that court of the counselling and welfare facilities that are available to the Family Court of Australia.

(5)   References in this Act to a court of summary jurisdiction shall not be read as including references to a court to which this section applies.

This is an amendment which the Liberal members of the Senate Standing Committee on Constitutional and Legal Affairs at least, consider of great importance to the operation of this Bill. The amendment inserts the provision forecast in debate today and before, of the opportunity for State Family Courts to be created to operate and to have Federal jurisdiction conferred on them. Perhaps I should first go through the amendment to explain the significance of the parts which we want to have adopted by this Committee. Subclause ( 1 ) of clause 20 reads, in part:

.   . the Australian Government shall take steps with a view to the making of agreements with the governments of the States providing for the creation of State courts to be known as Family Courts, being agreements under which the Australian Government will provide the necessary funds for the establishment and administration of those courts.

It is recognised that the power over matrimonial matters is a very substantial Commonwealth power and I think it is right that the Commonwealth should exercise the financial responsibility in respect of the administration. The procedure has been rather incongruous in past years, with the States having to maintain certain courts. Often maintenance matters have to be pursued in those courts because the Commonwealth authorities require women who are deserted to take proceedings and the State incurs the expense. It is suggested that whatever we do, it ought to be a continuing Commonwealth financial responsibility. It is suggested therefore that agreement should be entered into by the Commonwealth with the States to enable the setting up of courts which will then get Federal jurisdiction conferred on them under this clause.

The other sections of this amendment bring into operation the other parts of the proposed new clause which confer jurisdiction, which is Federal jurisdiction, on the State courts when they then operate. Sub-clause (4) provides conditions under which it is proposed that only the Commonwealth should grant this recognition, that only it should accept the foundation of such courts, because it is desirable that there be retained a considerable uniformity in the way in which the principles of this legislation are to be carried out. The 3 conditions set down are that the Attorney-General should have the right to approve of the appointment of State judges to this Court--


Senator Greenwood - That is without any precedent, is it not?


Senator MISSEN - I am sure it is without precedent. I am sure that a lot of new things are without precedent, and that never frightens me. I do not take that as any argument against what is proposed. In fact, I see great merit in this proposal, quite apart from other reasons. We will probably see appointments that are going to be pretty free of any political touch about them. It is not going to be suggested that they have not been well thought out, when we take into account the fact that both the State and Federal governments have to consider the qualifications of the person appointed and both have to be in agreement about the appointment. I do not imagine that this would cause a great deal of trouble.

It is also suggested that one of the conditions should be that judges who are appointed should by reason of training, experience and personality be suitable persons to deal with family law. Of course, that is something that is already to be laid down in the Bill itself with respect to the Federal Family Court. Perhaps the most vital matter in regard to the creation of State courts is that the judges appointed to them will not serve beyond the age of 65 years, because I think it has generally been agreed in debate that in this field of the law it is highly desirable that judges should be limited in age. The last condition which we suggest is that there should be seen to be full use being . made of counselling and welfare facilities, so that it is not just the Family Court of Australia; the State courts should have equal access to those facilities. Thus, while there is cooperative action between the Federal and State courts, they are using the same type of facilities that are available.

Some of the arguments in this regard have been already canvassed. I do not have to stress further the desirability that most of the judges, particularly those who are doing the hard work of the Court, should not be too old. I suggest also that there are other advantages of considerable importance in this amendment. Firstly, in regard to the Federal Court domains, it would mean that the Federal judges, I would think, would be doing matters of appeal and major matters and they would be sitting in the same buildings as the State courts. I would have thought that it was obviously desirable that the courts should be operating in the same environment and working together. Applications of importance could be made to Federal judges, but I would imagine that most of the applications- maintenance matters, custody matters and divorce matterswould be dealt with by State judges.

What is the advantage of this from the point of view of the State? I have suggested that the appointment of the judges would probably be non-political. I also put to the Committee that it would involve a constant interest by the State in the family law area and that this is desirable. We have already mentioned the ex-nuptial situation and have said it is desirable that those cases should be dealt with along with legitimate children in the one court. Obviously a State would be highly inclined to transfer the right to deal with such matters to a court which was a State court. In addition, there are the constant areas of flux- the questions of juvenile delinquency and adoption. It may well be- and some research workers have suggested that it should be- that these matters might be transferred to such a court. It would therefore be open for the States to transfer such rights. We must face the fact that social welfare matters will continue to be an extremely important State function and that therefore their interest should be maintained in the State courts which are dealing with family matters.

In debate at the Committee stage much mention has been made of the Federal Constitution. It has been suggested that there are some doubts about the powers of the Family Court. I think it would be agreed that if the States, by creating the State Family Courts, confer the right to deal with these matters on the State courts, this will remove a great deal of the fear, and I think that it would be preferable to do that. The opinion throughout is that one could always say: 'You have a Federal court. There might be a clash, there might be an overlap with the State court'. I do not think that in practice this will happen. If you appoint judges who have the same general interest in and general experience of these problems, you will find that they will work together in the 2 courts and thus will carry out the intentions which this legislation has in mind.

Federal responsibility will not be impaired by the creation of State courts because the Federal Government is here given the opportunity to arrange agreements with the States. Of course, it can insist on early deadlines so far as those arrangements are concerned. If the States are not prepared to co-operate, then no doubt Federal judges will have to be appointed in those States - a regrettable necessity but an inducement for the States to enter into reasonable arrangements with the Commonwealth. I do not feel that Parliament will have other than the power to supervise the arrangements because of the amendments that we carried earlier today which require the number of courts to be a matter of the regulation supervising power of this Parliament. I feel that this can be brought into operation. If both the Commonwealth and the States operate sensibly in this area, we will have, I think, the best of co-operative federalism and the best of convenient arrangements between the Commonwealth and the States. I urge the Committee to support the amendment.







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