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Thursday, 28 August 1980
Page: 881


Mr LIONEL BOWEN (Kingsford) (Smith) - I assure the Leader of the House (Mr Sinclair) that I will be very brief. I appreciate the position. I say on behalf of members of the Joint Select Committee on the Family Law Act, particularly those Opposition members, that this was a non-party matter - it was dealt with accordingly. We place on record our acknowledgement of the work done by the honourable member for Dundas (Mr Ruddock), the Chairman of the Committee, and also officers of the Committee.

As honourable members can appreciate from the statement made by the Chairman of the Committee, a fair amount of law is involved in this matter and to some extent that makes it a rather dry subject for discussion. But I suggest we must consider it in relation to the social problems that are involved. The Committee is well aware of the number of people who gave evidence to it and who asked whether the law could be improved to alleviate the difficulty of the situations in which they found themselves. We took evidence from judges; we took evidence from social workers; and took evidence from the people most affected. It is significant to note that the quantity of evidence we received was voluminous. It was quite obvious from the evidence that people had many problems in respect of family law. This is not surprising because we are dealing with an area of family breakdown.

It is worth placing on record the fact that a great many people make a success of their marriage. They do not need the law. They are people who can manage by themselves and we must give them some credit for that. Consequently, not many of these people came before us because they are able to make a situation work. Those of us in political life know that the average person in our street is well able to look after a family. Fortunately, that person does not have the problems and pressures that are placed on many other people. - Marital problems cost the taxpayer about $400m in terms of support for deserted wives and children. That is a fairly substantial sum of money which, of course, is a burden on a number of people who as well as having to maintain their own families have to pay for this assistance by way of tax. We understand that but it is important, as the Chairman has indicated, that we make the family concept clearly understood and, if possible, marriage more successful. But this objective requires a number of other actions that we cannot bring into law.

I make the point that laws cannot compel people to separate and they cannot compel people to reunite. In this area we are dealing with personalities or the problems of the family unit which are many and very serious. Society understands them. The problems of housing, unemployment and social conditions create tremendous pressures and are understandable causes of breakdown. Society also suffers a penalty when the breakdown occurs. But we have to look at the people who are involved in that breakdown. We have to make sure that these people are not injured mentally and physically and/or financially if possible. So we have to look at the interests of the spouses and particularly the interests of the children. The law has to grapple with how it has to divide property, how it has to try to divide incomes and how it has to provide custody of children between two areas of parental control. Everybody can understand that it is not possible to find easy solutions. So, the judges have a very difficult task.

The Opposition would like to place on record the great tragedy of the murder of Mr Justice Opas who obviously was killed in the line of duty. Honourable members have to understand the great problems that people face in this area and they have to understand the bitterness and hate that is engendered in such cases. As I said earlier, laws have to try to grapple with the problems. Society needs some sort of concept whereby it can guarantee at the outset of marriage that the parties understand the obligations of marriage and understand that facilities are available to them if problems should arise. If there are pressures on a marriage I think it is important that people should be able to turn to community centres to seek guidance and assistance when problems first arise.

I am aware of the time restraint on this debate but I want to make the point that this report contains 72 recommendations to alter the Act. I agree with most of them. I want to make some comments about two of those recommendations. I think recommendation 45 will be a significant improvement. It recommends that when there is a contest on any matter- it does not matter whether it is related to maintenance, custody or property - there should be compulsory pre-trial conferences. I think it is important to get the parties together quickly rather than have them in an adversary situation. If we can achieve that I think we will cut down much of the litigation. As members of the Committee are aware 70 per cent of legal aid is now absorbed in family law cases.


Mr Ruddock - It is 80 per cent.


Mr LIONEL BOWEN - It is 80 per cent. I am reminded also that the number of cases that are in adversary combat are a small percentage. So a small percentage of cases is taking a fair amount of time. I think it is important that when the Government examines this matter it should give top priority to recommendation 45. The other matter to which I wish to refer is a matter of law and I should like to put my view. There were a few problems in respect of recommendation 27 which related to a suggestion that the provisions of sub-section (2) (o) of section 75 should take into consideration conduct. That has caused some problems. I wrote to the Chairman of the Committee about this matter. He was good enough to reply to me. I should like to place on record the fact that I do not think we need to worry too much about altering that provision now because of decisions that have been made.

I should like to put on record some comments which relate to this type of matter. In the case of the marriage of Ferguson it was held that the principles laid down in the marriage of Soblusky case could apply. Justices Watson and Wood held that the conduct of a party was relevant under section 79 only if the conduct had produced consequences which had diminished the value of the property.

Mr JusticeStrauss held that fault or guilty conduct which brings about the termination of a marriage relationship, even though gross and obvious or wilful, is not relevant to questions of maintenance of a spouse or children or alteration of property rights unless in particular circumstances it has economic or financial consequences. Mr Justice Strauss in his statement said that subsection (2) (o) of section 75 was to be construed as referring to matters ejusdem generis with or germane to the matters mentioned in section 75 (2) (a) to (n). In the case of Groutsch in 1978 Mr Justice Murray held that the economic consequences of a spouses's conduct whether or not fault be adjudged must be taken into consideration. He said that he saw the assessment of conduct as requiring a value judgment, although not necessarily requiring allocation of guilt. I make that point because I think it has to be read into the situation. If we leave it as it is it could be thought that we were erroneous in law. In other words, there has been a development of interpretation of that section the inclusion of which I do not think the Committee has been able to readily agree to. I want to thank my colleagues for their assistance in the course of the deliberations of the Committee. It is a matter in which many honourable members would have liked to participate. We await with interest the action the Government will take to quickly bring to fruition the recommendations made in this report.


Mr Ruddock - Are you prepared to table and incorporate in Hansard the correspondence that passed between us in this matter?


Mr LIONEL BOWEN - Yes. I seek leave to table and to incorporate the correspondence in Hansard.

Leave granted.

The documents read as follows -

DEPUTY LEADER OF THE OPPOSITION

23 July 1980

Mr P.M. Ruddock, MP

Chairman Family Law Committee Suite 301 Eastwood Centre 1 60 Rowe Street Eastwood, N.S.W. 2122

Dear Phil:

As you would know, Recommendation 24 of the Report (para. 5.45 at p. 148) has caused considerable comment from members of the Committee and quite a number of members will be dissenting from the recommendation.

I would like to draw your attention to the fact that the Report appears to be defective in that it does not refer to relevant cases decided in 1978.

While these cases concern s. 79 of the Act, the considerations applicable are also relevant to s. 75. Indeed s. 79 (4) (d) specifically applies the matters referred to in sub-section 75 (2) to s. 79. Our comments in the report apply to both s. 75 and s. 79 (para. 5.44 at p.1 58).

The expressions in the cases also specifically include considerations relating to maintenance. I would suggest that the following paragraphs be added after para. 5.43:

Two cases decided in 1978 under s. 79 of the Family Law Act are relevant in this context. In the first case In Marriage of Ferguson FLR 342; (1978) FLC 77,604, the Full Court of the Family Court held that similar principles to those laid down inin Marriage of Soblusky applied to s. 79 of the Family Law Act. Justices Watson and Wood held that the conduct of a party was relevant under s. 79 only if the conduct had produced consequences which had diminished the value of the property. Justice Strauss held that fault or guilty conduct which brings about the termination of a marriage relationship, even though gross and obvious or wilful, is not relevant to questions of maintenance of a spouse or children or alteration of property rights unless in particular circumstances it has economic or financial consequences, other than those which merely flow from the breakdown of the marriage and, in that case, it may be taken into account.

Justice Strauss further stated that s. 75 (2) (o) was to be construed as referring to matters ejusdem generis with or germane to the matters mentioned in s. 75 (2) (a) to (n).'

In the second case, In Marriage of Groutsch (1978) FLC 77,356 31 FLR 507 (note), Justice Murray held that the economic consequences of a spouse's conduct whether or not fault be ajudged, must be taken into consideration. He stated that he saw the assessment of conduct as requiring a value judgment although not necesarily requiring allocation of guilt, if conduct is to be taken into account when weighing up whether it is just and equitable to come to a certain decision concerning the alteration of property rights of parties.'

It follows, therefore, I think, that our para. 5.44 is based on a misapprehension of the relevant case law and that Recommendation 4, which is causing so much concern to members of the Committee, is unnecessary.

While I appreciate the difficulties involved in altering the text and/or the recommendations at this stage, I do not think that we ought to put out a report which is erroneous in law.

I think that the Committee ought to meet again to consider this matter because I think that were these cases to be drawn to the attention of the members of the Committee, that we would be able to reach a consensus.

I would be grateful if you could convey my views to other members of the Committee.

Yours sincerely, LIONEL BOWEN

DEPUTY LEADER OF THE OPPOSITION

4 August 1980

Mr P.M. Ruddock MP

Suite 301 , Eastwood Centre 160 Rowe Street Eastwood, N.S.W.2122

Dear Phil:

Thank you for your letter of 23 July concerning recommendation number 24 in the Family Law Act Committee's Report.

In view of the difficulties that would be experienced in relation to the printingand tabling of the Report,I will not press the matter which I raised. I would merely point out that Ferguson's case was a decision of the Full Court, and the Sublusky decision considered and applied in Ferguson, must be read in the light of the later decision .

I think thatfacts or circumstances of a broadly financial nature' that you refer to are, in the light of Ferguson's case, considerably wider than may have been initially thought.

However, I appreciate the difficulties that would be occasioned by pressing the matter at this stage.

Yours sincerely, LIONEL BOWEN

JOINT SELECT COMMITTEE ON THE FAMILY LAW ACT

Parliament House Canberra, ACT 2600 Telephone 72 1211 28 July 1980

The Hon. L. Bowen, M.P.,

Deputy Leader of the Opposition, Parliament House, Canberra, ACT 2600

Dear Lionel,

Thank you for your letter of 23 July 1980 concerning recommendation number 24 in the Family Law Act Committee's Report. I have given some thought to your observations on the interpretation of s. 75 (2) (o) of the Family Law Act and that dicta from the two recent cases: In the Marriage of Ferguson (1978) FLC 77,604; and In the Marriage of Groutsch (1978) FLC 77,356. As I recall the discussion when it occurred during our deliberations the desirability of extending the scope of s. 75 (2) (o) was a proposition discussed at the final Committee seminar on Children and Maintenance on 29 November 1979. The relevant pages of discussion are attached at Attachment 1 . Members of the Committee were impressed with the support the proposition that some elements of conduct should be relevant to maintenance, received from the two practising lawyers present at the seminar: Mr Broun and Mr Buckley.

You might also recall that Senator Missen informed the Committee that the original insertion of s. 75 (2) (o) in the Family Law Act occurred at the request of the Senate Standing Committee on Legal and Constitutional Affairs during its consideration of the Clauses of the Family Law Bill. Mr Watson, Q.C. (as he then was) undertook to draft a provision in sufficiently broad terms to permit the court to consider conduct or behaviour when relevant without using the word 'conduct'. This he did in respect of s. 75 (2) (o). Senator Missen's point was that a Full Court of the Family Court had interpreted the provision very narrowly and that the situation could only be overcome if the provision were redrafted to make the legislative intention very clear. This is fully supported by the attached extracts from the Hansard transcripts of the Senate Committee hearings which is attached at 2.

Although the extracts quoted from your letter seem to give support to the proposition that the courts will adopt a more flexible and broader interpretation of s. 75 (2) (o) than the exposition in our report might suggest, I do not consider, however, that these extracts support your contention that paragraph 5.44 is based on a misapprehension of the relevant case law or that recommendation 4 is unnecessary. In particular the Groutsch case, I would suggest, is merely the dicta of a judge at first instance and would not override the Full Court decision in Sublusky's case which is generally interpreted as the leading case on the matter. Nor can I see that the decision in Ferguson's case adds or detracts anything from the SuBlusky decision. The headnote of the Sublusky decision reads:

The Full Court allowed his appeal on the basis of the relative financial circumstances of the spouses. It rejected the argument that the wife had disqualified herself by her conduct. The Court examined both Australian cases under the Family Law Act and English cases, notably Wachtel v.

Wachtel (1973) 2 W.L.R. 336 concerning the relevance of conduct in maintenance cases. It also considered the history of the current legislation and concluded the paragraph should be interpreted as follows:

1   . The Wachtel test does not apply to s. 75 (2) (o) .

2.   The paragraph is couched widely and should main tain its flexibility of interpretation. However, facts or circumstances within s. 75 (2) (o) do not include those relating to the marital history of the parties as such. They relate only to facts or circumstances of a broadly financial nature.

3.   Cases where the conduct of the applicant rendered an order 'an outrage to justice' et cetera will usually be covered by the other provisions in s. 72, 75 without giving paragraph (o) a wider interpretation.

4.   In rare and exceptional cases a matter falling within the ambit of s. 43 may be a 'fact or circumstance' within the meaning of s. 75 (2) (o). Otherwise in proceedings for maintenance evidence relating to marital conduct of the parties is irrelevant and inadmissible.

The Court noted that even if the Wachtel test or some equivalent test were appropriate the facts in this case would have fallen short of 'obvious and gross'. They indicated no more than a fairly strong case of constructive desertion and as such had no relevance in maintenance proceedings under Part VIII of the Family Law Act.

I have been aided in the preparation of this advice by our Committee Secretariat and advisers. I am extremely reluctant to convene further meetings of the Committee at this late stage as it would almost certainly mean that the printed version of the Report would be delayed and our whole program to table the report before the expiry of our extended reporting date of 30 August jeopardised. I would only give consideration to doing so should you wish to press the point after reading the attachments to this letter.

I would be happy to discuss the matter further with you at your convenience. If you wish to pursue your suggestion I would propose to circulate our correspondence to all members of the Committee and consult them as to whether they desire a special meeting.

Kind regards,

Yours sincerely,

P.   M. RUDDOCK, M P. Chairman







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