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Thursday, 28 August 1980
Page: 876

Mr RUDDOCK (Dundas) - On behalf of the Joint Select Committee on the Family Law Act I present the report of the Committee together with the transcript of evidence and minutes of proceedings.

Ordered that the report be printed.

Mr RUDDOCK(Dundas)- by leave- The report I have just tabled concludes an inquiry which has involved 1 5 members of parliament - 10 from the House of Representatives and five from the Senate - in an extensive study of family law in Australia. It is one of the larger committees of the Parliament. The matter has not been other than of a controversial nature, as honourable members would be aware. In view of the special nature of the material it may surprise observers to learn of the substantial agreement that has been achieved in this report. Although one member of the Committee has added a dissent repudiating the findings of the majority and other members have expressed dissent on particular aspects there is, nevertheless, strong support within the Committee for the general approach adopted in the report and for the Committee's major findings. In particular there are certain themes which run through the report and which are generally supported. Paramount amongst these is the importance attached by all members of the Committee to the institution of marriage and the importance of family life within marriage. The Committee shares a concern that marriage be supported and that steps be taken to ensure the stability of marriage. In our view there is a role for family law in supporting an ideal and stable view of marriage. It will be seen that the approach favoured by the Committee is that more emphasis be placed on marriage and the obligations that it entails, rather than the deterrent effects of the provisions of the divorce law as a factor influencing the stability of marriage.

Those people considering matrimony should be appraised of the responsibilities involved and the consequences that will result from marriage breakdown. As a means of highlighting this approach, the Committee recommends that the Marriage Act and the present Family Law Act be consolidated into one Act. It could then be more clearly a complete Act dealing with family law and would indicate more clearly the intention of relying upon the marriage power to support the provisions of the Family Law Act. We, the Committee, take the view that ill-advised marriages and impetuous divorces would be more effectively deterred if the consequences of property settlement and other rights upon divorce are known in advance of marriage. Those experiencing marital stress and seeking assistance with their problems should have available to them services that can help them at the relevant time. In chapter 1 0 we make recommendations regarding these services.

The Committee does not doubt that the family remains the natural and fundamental group unit of society. What is needed is more objective data to assist those responsible for the formulation of policy in regard to the family so that it can be supported adequately to fulfil the role which society expects of it. This understanding of the family is important in many areas of government policy.

The Committee particularly welcomes the establishment of the Institute of Family Studies with its capacity to undertake research. It is considered that the Institute should be provided with every possible assistance to implement a research program which will provide answers to many outstanding questions about the state of families in Australia.

The Committee concluded that the provisions of the divorce law are not a significant factor in influencing family stability and breakdown. Accordingly, the Committee recommends no change to the grounds of divorce and suggests that any change of that sort is not warranted at the present time. In reaching this decision, some members of the Committee believed that it is still too early to assess the impact of the 1975 reform and that further experience of the operation of the Act is required before a final pronouncement can be made. These members are not fully convinced of the virtues of the single ground of irretrievable breakdown of marriage. However, other members, of the majority, believe that experience in the Act so far has vindicated the belief of its original sponsors and that the single ground of irretrievable breakdown provides a rational, practical and compassionate means of terminating marriages that have irretrievably broken down. Other members have added dissent to the Committee's conclusion on grounds.

The focus of attention should now shift to measures intended to prevent marital breakdown which can provide support to couples experiencing difficulties in their relationship. It should be the objective of society to prevent marital breakdown by the provision of appropriate support to families rather than by enacting laws which lock individuals into relationships which have become intolerable.

This report has been carefully structured. There are two other themes contained in it. Firstly, the report is very supportive of the concept of the Family Court as a helping court which engages to the fullest extent possible in conciliation enabling parties to resolve disputes so as to avoid solutions being imposed on them by the order of the Court. In this connection we emphasise the importance of bargaining and negotiation between separating couples in regard to all aspects of their affairs. It is stressed that this process does not involve compartmentalising matters in dispute into custody, property and maintenance.

All these matters are important in themselves but are inextricably linked together with the past lives of the parties as marriage partners and their future lives as individuals. Neat solutions are not always possible in the tangled circumstances that result from the trauma attendant upon the breakdown of a significant relationship. The best hope of the parties and their children for future happiness and stability lies in the parties resolving these issues between themselves. They can be helped to do this by court counsellors who can deal with unresolved, emotional issues freeing the parties to make adult decisions about their differences. They can be helped by court registrars conducting pre-trial conferences, preferably in the presence of a legal adviser, so that the possibilities for compromise and agreements can be explored. They can be helped by legal practitioners who discharge their duty to the court in the spirit of the Family Law Act by discouraging confrontation and polarisation. For such a system to operate there is a clear need for the conciliation functions of the courts to be strengthened and we make appropriate recommendations on this matter in this report.

Another theme that has governed our thinking is related to what I have just said concerning bargaining. This is an absolute necessity to ensure that the provisions of the Family Law Act are precise regarding rights. In respect of custody we propose criteria that the Act should contain which we hope will provide courts and parties with clearer guidelines and will facilitate the bargaining process by providing an appropriate legislative backdrop. In relation to appeals, we consider that certainty will be aided by our recommendation that the Full Court of the Family Court should be composed differently. We recommend that there should be a panel of 1 0 justices comprising six justices of the Family Court and of the Western Australian Family Court as permanent members, with four positions rotating between other justices of the court on the basis of seniority. Full Court benches would be selected from this panel by the Chief Justice.

But it is in regard to property that 1 consider our recommendations will be most helpful. The provision of the Family Law Act regarding the distribution of property on divorce gave the court extensive powers to redistribute property. The contribution of a spouse as a homemaker and parent was clearly acknowledged for the purpose of participation in property distribution. The adjustment of rights upon dissolution of marriage gives rise to resentment where a party loses an interest which, according to the general principles of property law, might have been regarded as his or hers. It is the thinking of the Committee that if it is clear that one of the consequences of marriage is that property rights are reconstituted then the bitterness and resentment occasioned by what seems to be an arbitrary interference with recognised rights by the Family Court at dissolution of marriage will be reduced.

We have, therefore, recommended that the Government look closely at the possibility of developing a matrimonial property regime, that is to say, a set of rules which would operate during and after marriage and which would predetermine the share in various assets that each party should take from the marriage upon its dissolution. We consider that the details of implementing such arrangements should be examined by the Law Reform Commission. Superannuation rights - a matter of some controversy in the Australian Capital Territory in particular - should be embraced in such an inquiry. The sharing of these is a matter of great complexity which will have to be carefully examined.

The implementation of a full matrimonial property regime ought not to be attempted in the absence of a careful examination, from the legal stand point, of the implication for various State legal systems and its effect on property rights generally. We are confident, however, that the marriage power of the Constitution would support the development of a concept of a matrimonial property regime here in Australia. We consider that a step should be taken in this direction immediately with what is, for most people, the principal matrimonial asset, that is to say, the family home. This is a very important recommendation from the Committee. We see no reason why the Family Law Act should not include a provision creating a presumption of joint ownership for the marriage partners in the property identified as the matrimonial home and right of ownership which could be protected by caveat and dealt with as each marriage partners' property during marriage and upon dissolution.

We accordingly recommend that this be provided for in the Act subject to the right of either of the parties to take formal steps to exclude separate property from the operation of the provisions. That matter has been very closely looked at in the United Kingdom as a result of the work of its Law Reform Commission and has been the law in Victoria, under a Victorian marriage Act, for some time.

Turning to the broader social context in which the Family Law Act operates, great importance is attached by the Committee to the eventual creation of a unified jurisdiction in family law. In 1975, with the enactment of the Family Law Act, the Commonwealth moved for the first time to assert fully its constitutional power in regard to marriage and in relation to divorce and matrimonial causes. A departure of some significance from previous practice was the establishment of a federal court - the Family Court - to administer the Federal Family Law Act. Early hopes that a unified jurisdiction in family law would be achieved were shattered by the decision of the High Court of Australia in the cases of Russell v. Russell and Farrelly v. Farrelly which, while affirming the constitutional power of the Commonwealth to enact the Family Law Act, qualified the power in two significant respects. It ruled that jurisdiction in relation to property of the parties to a marriage did not arise until proceedings had been commenced by the filing of an application for dissolution. This meant that the Family Court was inhibited in its power to deal with property disputes between parties who were separated but who had not commenced dissolution proceedings. Even more significantly for the administration of the Act was the ruling of the High Court that the Family Court had no jurisdiction over children who were not 'children of the marriage'. In other words, if one of the children in the family of the separating couple was the child of only one of them, either by a former marriage or adopted or the illegitimate child of one but not both of them, then the Family Court had no jurisdiction to make an order respecting the custody of that child. If contested proceedings were to take place, they would need to occur in another forum, such as a State Supreme Court. I believe the inherent injustice of that- dealing with children from different family situations in different courts- would be acknowledged by all honourable members. In extreme cases the possibility existed that parties in dispute over children might be involved in proceedings in the Family Court, in respect of children of both of them, and in a State court in respect of a child not capable of characterisation as a child of the marriage.

The Commonwealth amended the Family Law Act in 1976 in the light of the Russell decision to ensure that the Family Law Act complied with the limits of the Commonwealth's powers as enunciated by the High Court. This has meant that the issue of jurisdiction referred to above cannot be re-considered by the High Court. In the Committee's view the Commonwealth and indeed the State governments have a duty to ensure as far as is reasonably possible that the ordinary citizen is not inconvenienced when his or her domestic problems reach the point of litigation, by the technicalities of Australian constitutional law and Federal-State relations. What the Committee wishes to emphasise is that the results of the decisions in Russell v. Russell and Farrelly v. Farrelly have had grave consequences in this area of the law. In the Committee's view it is imperative that a solution to the problems that have arisen in this area of the law be found so that the difficulties and hardships that have been experienced as a result of the incomplete jurisdiction under the Act, in the areas of custody and matrimonial property, can be prevented.

This Committee attached great importance to co-operation between the States and the Commonwealth. It would therefore prefer to see a solution or solutions to the difficulties of the fragmented jurisdiction in Australian family law that are agreed to by both Federal and State governments and that are adopted in the spirit of mutual co-operation. The Committee therefore recommends that the proposed reference of powers from the States to the Commonwealth in the outstanding areas of children and property be proceeded with as a matter of urgency. This matter has been under consideration for a long period and that urgency ought therefore to be quite apparent to all those involved. If the agreement of all States proves impossible to procure the Commonwealth should proceed to enact legislation in this regard on the recommendation of a majority of States.

In the report alternative approaches which the Commonwealth and States might take to achieve a united jurisdiction in family law are canvassed. It would be possible, for instance, to institute a dual court system with exchange of judicial commissions between State and Federal judges. The Committee considers that the possibility of joint commissions for Federal judges or of a dual court system should also receive thorough examination by both the Federal and State governments. Even if the proposed reference of powers is achieved there will remain certain family law matters within State jurisdiction. It seems desirable to the Committee that even though it may not be possible constitutionally for all family law matters to be subject to Federal legislation the situation should be achieved whereby the same judges hear and determine both State and Federal family law matters. Whilst State family courts may be a means of establishing such a single forum, the Family Court of Australia is in existence. In the Committee's opinion it would require very grave reasons to recommend the dismantling of the existing Federal court system.

Whatever results from the reference of power, it is recommended by the Committee that the Commonwealth move to amend the Family Law Act to exploit to the fullest extent its legislative powers with respect to children, the rights of third parties and the re-introduction of the original definition of 'child of the marriage'. It is considered that the Commonwealth should particularly seek to assert fully its power in relation to matrimonial property. This Committee considers that the Commonwealth will certainly have no other choice but to so legislate if, in addition to refusing the reference of powers, the State will not co-operate in a scheme of dual commissions or dual courts systems.

The foregoing leads me to that part of the report concerned with the jurisdiction of State courts of summary jurisdiction- the magistrates' courts. It was submitted strongly to the Committee by the legal profession and the Family Law Council that the existing concurrent jurisdiction of State courts of summary jurisdiction should be phased out. Other witnesses, however, drew attention to the delays being experienced in certain registries of the court and argued that these delays could be overcome by extending the jurisdiction of magistrates' courts. At the present time, counselling services are available to courts of summary jurisdiction on an extremely limited basis. Courts of summary jurisdiction are not structured or equipped at this time to conduct pre-trial procedures under regulations 96 and 99 of the Family Law Act. Magistrates have complained that they are not receiving support in the way of the provision of legal resources, such as the reporting services supplied by reporting companies such as CCH Australia Ltd and Butterworths Pty Ltd.

The Committee considers it essential that parties who by reason of their residence in remote locations or who, for other reasons must have their matters dealt with in a court of summary jurisdiction rather than the Family Court should not be disadvantaged in regard to the quality of service they might expect to obtain. Some of these discrepancies could be overcome by ensuring access to counselling and conciliation services. It is considered that this is a matter of urgency and should be dealt with immediately. All proceedings under the Family Law Act should be dealt with by specialist tribunals as envisaged originally in the concept of the Family Law Act. The opportunity should also be taken wherever possible to establish courts which can exercise a comprehensive jurisdiction in family law, comprehensive in the sense that the jurisdiction includes State as well as Federal family law matters. State governments may be prepared to confer State commissions on federal judges and vice versa or to create State family courts like that in Western Australia.

However, it is considered that another option is available. This is for the States to create special courts of summary jurisdiction with the attributes of a Family Court. Such special courts would exercise the jurisdiction in specified classes of proceedings under the Family Law Act and would also deal with a wide range of family law matters under State law. It is considered that such courts could, in addition to dealing with matters arising under the Family Law Act, deal with such matters as juvenile offenders, adoption and affiliation and the domestic disputes of those in de facto relationships. In putting forward the proposal the Committee wishes to make the point that family law problems are likely to surface elsewhere than in the divorce court alone. Proceedings in court involving juvenile offenders may often indicate, for instance, a family in trouble. It should be possible for the services of counsellors to become available in such situations. This may lead to later proceedings in the Family Court being averted.

It is not sufficient, in the Committee's view, for the therapeutic services provided by the Government to be simply placed in a Federal box marked divorce'. If the aim of preventing marital problems and averting family breakdown is to be achieved, services should be available and able to operate on a wide front. In certain provinces of Canada this has been observed and services mounted accordingly so that they are available over a range of crisis situations affecting families which may not involve, but which may be a prelude to, divorce. I was able to observe such a system in operation in the city of Edmonton in the Canadian province of Alberta during a study tour made last year on behalf of the Committee.

Clearly, it would not be open to the Commonwealth alone to implement such a system, nor in our view would it be appropriate. There are constraints on the power of the Commonwealth to legislate for the activities of State courts exercising Federal jurisdiction. One approach considered by the Committee involves the provisions of section 39 (2) of the Judiciary Act, which invests State courts with Federal jurisdiction. The Committee has therefore recommended that the Federal jurisdiction of courts of summary jurisdiction be exercised in each State by magistrates, specifically named, and specially authorised by the Governor-General to exercise such jurisdiction. It is envisaged that the Governor-General would authorise the exercise of jurisdiction only by magistrates considered by his advisers to be appropriately qualified to exercise the jurisdiction. The Act should be amended to empower the Governor-General by proclamation to confer jurisdiction on identified State courts and in respect of identified elements of the jurisdiction in family law matters.

These courts would have available to them the services of court counsellors. Given the existence of the substantial resources available to the States in the welfare area it is not considered that the counselling service should be provided by the Commonwealth, although some court counsellors from the Family Court would be assigned to these courts on an exchange basis. The bulk of workers would be experienced officers within the State public services. The Commonwealth would fund the States to provide the services that are provided in matters arising from a Federal law. It is recognised that the Commonwealth currently provides funds to the States in respect of services provided by courts of summary jurisdiction under the Act. It is envisaged that the Commonwealth and the States would co-operate to ensure a uniform and consistent level of legal services in domestic relations. This would be done in a similar fashion to the manner in which legal aid services are currently funded. Each State would establish a statutory authority called the Domestic Relations Commission, to provide the services required. It would employ and deploy staff to the courts and would be responsible for constructing appropriate courts and facilities. It is anticipated that the services would be provided on a regional basis to ensure ready access by citizens. It would also play a co-ordinating role in regard to the services provided by agencies providing services in the field of marriage counselling. It would be the responsible funding agency, rather than the Commonwealth, for approving the voluntary marriage guidance agencies. Federal funds for this purpose would be channelled through these agencies. It would be responsible for promoting the services available and providing educative material for media relay so that the range and level of services would be adequately known in the community.

In this report we make numerous recommendations to improve the Family Law Act itself. 1 will not detain the House by dwelling overly on these. I might mention that we have produced a comprehensive media release which I have had copied and which I intend to make available to all honourable members.

Mr Martyr - Thank God for that.

Mr RUDDOCK - The honourable member has his copy already. But it will be made available to all honourable members so that it may assist them in finding their way through this very voluminous and comprehensive report. It may be appropriate- I have mentioned this to the Deputy Leader of the Opposition (Mr Lionel Bowen) - if I formally table this document for the information of honourable members.

In summary, we recommend amendments that would enhance the powers of the Family Court in its custody jurisdiction by giving it jurisdiction to declare children wards of the court, to clarify certain terms such as custody, guardianship, care and control which are employed indiscriminately in legislation relating to children, and a number of recommendations which if adopted should strengthen the enforcement powers of the Family Court where children are abducted or court orders respecting children are disregarded. Similarly, in relation to maintenance, we make recommendations which will clarify and improve the provisions of Part VIII of the Act together with some very important recommendations relating to the manner in which benefits received by social security clients should be taken into account in determining the liability of their estranged spouses to contribute to their support.

It is the Committee's view that the obligations to support a dependant should not be transferred to the taxpayer. At the same time it is undesirable that spouses in need of support should be required to pursue often futile maintenance action. We propose that the Department of Social Security should take the responsibility for recovering from liable relatives such part of the obligation as they can afford. We also propose administrative reforms that would provide a better framework for the recovery of maintenance. In relation to injunctions we recommend that the Act be amended to empower the court to attach a power of arrest to injunctions, which will assist the police in the protection of women threatened with assault by their husbands.

We have considered the questions whether the Family Court should be more open than it is and whether a more extensive right to public proceedings of the Court should be given to the media. The view of the majority of the members was that the Court should be more open and we accordingly recommend that the present situation be reversed - that is to say, there should be a presumption that the Court should be open with a power in the Court to close the proceedings in appropriate circumstances. It is strongly felt that open justice is such an important element of the administration of our courts that the power to close them should be exercisable only in very grave circumstances. The Committee recognises the right of parties in matrimonial causes to privacy. Accordingly it is recommended that where proceedings are reported the media should be prohibited from using names or identifying the parties to the proceedings. This will enable a better coverage of the work of the Court by the Press so that the public will be better informed about this very important area of the law.

I would like at this point to acknowledge briefly the work of Mr Don Nairn, our Committee Clerk, and the support that he has been given by his staff, particularly Ruth Windsor who has been with us most of the time in a stenographic role. I would particularly like to include in my thanks Mary Finn and Margaret Lawrence who acted on a part time basis to assist the Committee. They are both very able lawyers who have contributed significantly to the production of this document. Kathleen Jupp, who is referred to in the bibliographical notes, produced a very comprehensive report on the effect of the Family Law Act upon the institution of marriage and the family. I believe that work, which is part of this report, will be very valuable to those who are examining this report in the future and to pay attention to future directions in this area. I wish particularly to direct attention to our specialist adviser, Richard Gee, of the Sydney Bar. He was very helpful to our Committee. He is a very competent counsel in Sydney. I think that has been demonstrated by the fact that since we have concluded our writing of this report he has been appointed a member of the Family Court and is now Mr Justice Gee of the Family Court in Parramatta.

The inquiry attracted considerable public interest and the Committee was flooded with submissions concerning the Act and its operations. It would have been possible to have dealt with the matter in a more superficial way and met the original reporting deadline of 31 December 1979. As the inquiry proceeded, however, it became apparent to members that the issues involved were complex and warranted careful attention. Consequently, our report considers the provisions and operation of the Act in considerable detail. This course was largely dictated by the number and quality of submissions we received and the community concern reflected in them. If we were to do justice to the material placed before us and to weigh the merits of submissions made to us in the course of the inquiry, it became apparent that we would need to look at both the detail of the legislation and its administration and the wide social context in which it operates.

The Committee is aware that many people with an interest in the outcome of the inquiry have been eagerly awaiting the Committee's report. We are also conscious of the anxiety of the AttorneyGeneral (Senator Durack) to have the report tabled. We very much regret that the circumstances and the need for a thorough examination have necessitated the two extensions of time which have been granted to the Committee by the Parliament. We can only agree with the Attorney in his recent speech in Launceston when he said:

The Committee has an extremely difficult task. In this area of Family Law there are no easy solutions. No new laws can be made to disguise much less eradicate the human anguish associated with the breakdown of a marriage and the financial and emotional consequences that go with it.

I commend this very valuable report to the House.

Motion (by Mr Sinclair) - by leave - proposed:

That the House take note of the paper.

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