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Thursday, 5 December 1985
Page: 2979

Senator DURACK(10.13) —by leave-I move:

That the Bill be now read a second time.

I seek leave to incorporate my second reading speech in Hansard.

Leave granted.

The speech read as follows-

The Family Law Act passed in 1975 not only made a revolutionary change to family relationships by abolishing the concept of fault but also introduced major changes in the responsibility for maintaining a former spouse and the children of the marriage. The Act emphasises that the right to maintenance solely depends upon the inability of the claimant to support his or herself whether such inability arose from having the care of children or because of age or incapacity. This obligation is entirely non-sexist. As far as the children of the marriage are concerned the obligation is placed on both parents according to their respective financial abilities to maintain children up to the age of eighteen years.

In giving effect to these principles the Family Court is obliged to take into account a large number of considerations which are set out in section 75. Section 75 (1) (e) provides that the court should take into account `the responsibility of either party to support any other person' and section 75 (2) (m) requires that the court in a situation where `a former spouse is cohabitating with another person to have regard to the financial circumstances relating to the cohabitation'. These considerations have qualified the general responsibility laid down by the previous sections and have in practice led to some confusion where a parent who would otherwise be liable to pay an adequate and perhaps substantial sum for the maintenance of his or her children has successfully reduced that amount where other responsibilities have been assumed following the break-up of a marriage. The overall result has been outlined by the Institute of Family Studies in the report entitled `Cost of Children in Australia' published in August 1984, which established that the level of maintenance being ordered by courts in respect of children is significantly less than the actual cost of their maintenance.

This result has exposed an important social issue which requires to be addressed by the Parliament. In addition to this situation another provision of section 75 of the Family Law Act provides that the court shall take into account `the eligibility of either party for a pension or allowance or benefit under any law of Australia or of a State or Territory . . . or the rate of any such pension, allowance or benefit being paid to either party'.

At the time the Family Law Act was passed the government of the day had recently introduced the supporting parents benefit. Since then there has been an astronomic rise in the cost of that benefit to the Australian taxpayer as the following table demonstrates:



Per cent




Per cent





. .


. .




















































. .


. .

. .

Source: Department of Social Security, Ten Year Statistical Summary; Department of Social Security, Annual Report 1983-84.

There is a great deal of evidence to establish, and wide recognition of the fact, that these two events are related. Although there is justification for a court having regard to a social security benefit available to either party where there may be a low income by one and no income enjoyed by the other there can be no justification for a court taking into account the existence of such a benefit in the case of parents who can afford to pay for the maintenance of their children. Unfortunately that seems to be the case. However the problem is by no means confined to orders by a court being influenced by this statutory signal which the Parliament unfortunately gave to them when it passed the Family Law Act.

Most maintenance obligations do not arise out of court orders but by agreement between the parties or by orders made by the consent of the parties. It does seem that the taxpayer has been ripped off by such agreements in much the same way as he has been by tax avoidance schemes. One might also say that in recent years there has been a growth industry of maintenance avoidance and that the payment of maintenance has virtually become optional.

There is yet another unfortunate aspect of the Family Law Act and its administration. Over the years there have been growing complaints that maintenance orders are simply being ignored and that there is no adequate machinery to enforce their payment. A recent survey in Victoria showed that 75 per cent of such orders were simply being ignored. This may be due to a combination of factors. The availability of a meagre but steady income under the supporting parents benefit is an important factor which gives the supporting parent a reliable income and relieves the recipient of the hassle of chasing a bad payer. It also must have the effect of reducing the source of moral responsibility of the should be payer of maintenance when it is known social security will provide.

There is also dissatisfaction with the access arrangements under the Act which persuades many parents who are deprived of custody of a child, an excuse for not meeting their obligations to maintain that child. There has also no doubt been an erosion of moral and social values whereby many people have decided to repudiate such responsibility. However there can be no doubt that one important factor is the inadequacy of the machinery to enforce the payment of maintenance under the Family Law Act.

Successive governments have examined this problem but have not provided a solution. The present Government is particularly delinquent because although the problem was identified several years ago it has taken no steps to rectify it. Soon after he became Attorney-General, Senator Gareth Evans set up an inquiry into this question and obtained a departmental report but since then nothing has transpired.

It is not possible for a private member to introduce legislation to set up such machinery but it is possible to propose amendments to the Family Law Act which removes an impediment to the enforcement of maintenance orders. One such impediment is section 107 of the Family Law Act which provides that `no person shall be imprisoned . . . by reason of . . . failure to comply with' a maintenance order. Although the following section of the Act provides a power to punish for contempt for wilful disobedience of any decree of the Family Court this more general provision has not proved to be an effective substitute for a direct method of enforcement by arrest.

The Bill which I have introduced today addresses these three deficiencies in the Family Law Act. Clause 3 adds two further sub-sections to section 75. The first prevents the court taking into account the eligibility of a party of a marriage who is claiming maintenance for any benefit under the Social Security Act or the Repatriation Act. It is necessary to go further than simply deleting the present requirement that the court `shall' take into account such eligibility because the court may well decide to do so of its own volition in the absence of a clear signal from the Parliament in terms of this amendment. This should not result in any injustice to a person who is on a low income and being sued for maintenance by a former spouse who is in fact receiving a social security benefit because other provisions in sections 72 and 75 make it clear that the court must have regard to the relative financial circumstances of the parties.

The second new sub-section makes it clear that the court in determining the amount of maintenance to be paid shall give priority to the needs of the party or children for which provision is claimed in accordance with the sequence of time when those responsibilities were attained. This is based upon the view that the acquisition of responsibilities for children during a marriage should take precedence over the acquisition of subsequent responsibilities acquired by either a subsequent marriage or a subsequent defacto relationship. That does not mean that maintenance should not be paid for such subsequent obligations but simply provides a means by which the court can determine the priority. Any injustice which in the particular circumstances of a case may seem to arise from these new sub-sections can be rectified by the general directive to the court to take into account any fact or circumstance which the justice of the case requires.

Clause 4 of the Bill deals with the problem of maintenance avoidance. Sections 86 and 87 of the Family Law Act deal with agreements between the parties. Section 86 provides for agreements being registered with the court but these agreements do not prevent either party seeking to modify an agreement by a subsequent claim for maintenance.

To prevent parties entering into agreements under this section the Government should observe the requirement of section 83AAD of the Social Security Act that it is a condition of the payment of a benefit that steps are taken to enforce the right of maintenance. It is unreasonable to require courts to examine all such agreements before allowing them to be registered. The changes which have been proposed to section 75 will no doubt encourage claimants and their legal advisers to seek to maximise the payment of maintenance.

Agreements under section 87 require the approval of the court because these prevent either party, except in certain extreme circumstances, from coming back to the court to seek any variation of maintenance. These are the ones favoured by the better-off sections of the community for maintenance avoidance purposes.

The Bill provides a simple amendment to exclude the maintenance for a child of the marriage from the effect of section 87. That should greatly discourage parties entering into agreements which limit the right to obtain proper maintenance for a child by a responsible parent. Clause 5 of the Bill simply repeals section 107 and clause 6 requires that rules of court shall make provision for enforcement of maintenance by commitment to prison. Clearly these provisions are better made by rules of court than inserting a lengthy new code in the Act itself.

In my opinion these amendments proposed to the Family Law Act go somewhat towards redressing the problem which I have identified earlier in this speech. Unfortunately these amendments on their own will not be entirely effective. The Government itself must also give urgent consideration to its own policies. The prime example is the decision of this Government soon after coming into office to abandon the policy of its predecessor which required a recipient of supporting parents benefit to take reasonable steps to enforce their rights to maintenance under the Family Law Act. The Government should also be giving urgent consideration to the adequacy of the machinery for enforcing maintenance against those growing number of people who are simply refusing to pay. It may well be that the cheapest way of doing this would be to provide legal aid for those entitled to maintenance to assist them to enforce their rights.

Another but not necessarily alternative method would be an additional assessment through the taxation system which appears to have been recognised by an as yet unpublished report by the Family Law Council. None of these matters can be properly addressed by a private member's Bill but it is my earnest hope that the passage of this Bill by the Parliament would prove a catalyst towards solving a problem of growing magnitude towards which the present Government has adopted a thoroughly cavalier attitude. It should be remembered that when I introduced an amendment to remove from the Family Law Act the requirement to take into account the eligibility for a pension, during the extensive amendments made in 1983, the Government and all Labor senators opposed my amendment which in consequence was defeated. Noises are now emerging from the Government-I refer to the speech by the Minister for Social Security (Mr Howe) to the annual general meeting of the Australian Council of Social Service on 12 September 1985-and even some Labor senators which suggests a change of attitude since 1983. This Bill will give those senators an opportunity to repair the damage which they did in 1983. It needs to be made clear that this Bill does not remove existing social security entitlements. What it does is to ensure that where private resources are available they are called upon before the general body of taxpayers. I believe most Australians would regard that as the right priority. I commend the Bill to the Senate.

Debate (on motion by Senator Robertson) adjourned.