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Tuesday, 26 November 1974
Page: 2773

Senator BUTTON (Victoria) - I will be very brief because I could not express what I have to say with the eloquence of my colleague Senator Everett. As a member of the Senate Standing Committee on Constitutional and Legal Affairs, it seems to me that this section departs from the whole notion of a family court as that Committee saw it. It was expressed very well in paragraph 38 of the Committee's report.

Senator Missen - You missed 37 where it is set out in full.

Senator BUTTON -I understand what appears earlier. Paragraph 38, which I suspect was drafted by Senator Missen with great enthusiasm for the concept, says:

There is a need Tor a new start in matrimonial law and administration in creating a new entity not interchangeable with existing courts. The Court will require new standards and methods, both in its physical environment, its procedural methods and in its approach to marital problems. Court premises should bc separated from existing courts, and business be conducted in modern surroundings with small well provided court rooms -

The point about that passage is simply this: In approaching this whole question of the Family Law Bill the Committee was seeking to bring a new concept into the resolution of matrimonial problems in Australia. It seems to me that by Senator Missen 's amendment that concept is now being confused by what really amounts to nothing more than a romantic hankering after the notion of- I think it is called- co-operative federalism. If one elevates the notion of cooperative federalism into an article of faith, as distinct from being an instrument of viable and sensible government, we get into very real difficulties.

Senator Durack - But you do not have any faith in federalism at all, do you?

Senator BUTTON -As a matter of fact I do, but not quite the same faith as our founding fathers had in 1900. The point I am trying to make is that if the notion of co-operative federalism is taken too seriously we can confuse a lot of legislation of this Parliament. As I understand it, that notion is basically concerned with a division of powers in an economic and strictly political sense. But in this piece of legislation- subject to the argument which has gone on before in which Senator Greenwood and Senator Everett have perhaps been the main protagonists- we have to see this matter at this stage of the Committee debate as a proper exercise of the constitutional power of the Commonwealth. It is not the sort of exercise of the constitutional power of the Commonwealth which detracts in any way from the powers of the States. We are not taking away from the States things which they seek in any significant way to preserve vis-a-vis the Commonwealth. We are exercising a federal power which relates to individual citizens in this community and their rights in relation to problems arising with matrimonial dissolutions and the like. That is a very different thing from what I would have apprehended the notion of co-operative federalism to be where there is a clash between the vested interests of the States and the Federal

Government and a clash in an economic sense or in a strictly political sense. There this notion of co-operative federalism is an area of legitimate debate but it seems to me that in this area where individual rights are concerned it is not an area of legitimate debate.

What we are concerned with here are the very important personal problems of many thousands of individual Australians. It is in that context that we want to avoid confusion for them. We want to avoid confusion over jurisdictional matters- the sort of practical confusion which would arise, using Senator Missen 's own example, in entering a building in which the finger post points in one direction to the Federal Family Court and in the other direction to the State Family Court. I think that the amendment is in a romantic sort of way hankering after a notion which is not applicable to this particular piece of legislation. The amendment is dressed up in the guise of providing a limitation on the age of judges who will deal with family court problems. I thought that the Committee was unanimous in the view that judges as geriatrics- that expression has now been adopted -

Senator Missen - lt is your inimitable term, Senator.

Senator BUTTON - Thank you, Senator Missen. 1 thought that the Committee was unanimous in the view that judges as geriatrics should not deal with family law problems. Surely we are abdicating our responsibilities as a Parliament if we are not prepared to tackle this matter in another way. Senator Missen said, with the gravest of conservative forebodings, that a referendum on this issue could not be carried. I am perfectly confident, as is Senator Everett, that a constitutional amendment on this issue could be carried, it there was the will to do so, as a way of resolving this problem.

Senator Greenwood - Even the Prime Minister might get that one through.

Senator BUTTON -Yes, with your help, I am confident that he would. The other thing that concerns me particularly about this proposal is that it involves the whole concept of a Family Court, for which people in this community have been waiting anxiously, with a whole hassle of delays and a whole hassle of different situations which would arise from State to State, as my colleague Senator Everett said. These things are all very confusing for individuals in this community who are concerned about one thinghaving their matrimonial problems resolved with the maximum of speed, the maximum of dignity and the maximum of justice particularly to children involved in matrimonial disputation. If that sort of thing is to go on for a long time, as I believe it would if this amendment were carried, the result would be purely one of confusion for individuals in the community who are concerned.

What we would have would be a situation in which the money for the Family Court was provided by the national Government, the whole concept of the Family Court was provided by the national Government- indeed, by the Senateeverything was provided by the national Government except the sop to this motion of cooperative federalism- misguided as it is in this context- that we should say that there should still be State family courts. I appeal to the Senate not to let this legislation be confused in that way, to step forward in the concept which was set out in the Committee's report, for a new start in matrimonial law and administration in creating a new entity not interchangeable with existing courts.

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