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Constitutional and Legal Affairs - Senate Standing Committee - Report - Law and Administration of Divorce and Related Matters, October 1972


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1972-Parliamentary Paper N o. 255

Senate Standing Committee on

Constitutional and Legal Affairs

Interim Report on

the Law and Administration of Divorce and related matters OCTOBER 1972

Broupht up and

ordered to be pri nted 31 October 1972

COMMONWEALTH GOVERN MENT PRINTING OFFJCE CANBERRA: 1973

MEMBERS OF THE COMMITTEE

Senator P. D. Durack (Western Australia) Chairman Senator R. G. Withers (Western Australia) Deputy-Chairman Senator C. B. Byrne (Queensland) Senator G. C. Hannan (Victoria) Senator J. R. McClelland (New South Wales) Senator L. K. Murphy, Q.C. (New South Wales)

Secretary

Mr R. J. White, The Senate, Parliament House, Canberra, A.C.T. 2600

Printed by Authority by the Government Printer of the Commonwealth of Australia

THE SENATE STANDING COMMITTEE ON CONSTITUTIONAL AND LEGAL AFFAIRS

1. On 7 December 1971 the Senate referred to the Standing Committee on Constitutional and Legal Affairs for inquiry and report the following matter: The law and administration of divorce, custody and family matters with particular regard to oppressive costs, delays, indignities and other injustices.

2. The Committee has interpreted this Reference to include the grounds for divorce and the nature of the tribunal which should deal with matrimonial and family matters.

3. By a public notice appearing in the press throughout the Commonwealth on 18 March 1972 interested persons and organizations were invited to lodge written submissions in relation to the Reference with the Committee Secretary by 20 May 1972.

4. In addition to the public advertisement, the Chief Justice of the High Court, the Chief Justice of the Supreme Court of each of the States, the Senior Resident Judge of the Australian Capital Territory, and the Judge of the Supreme Court of the Northern Territory were invited to express their views

on the Terms of Reference. Other persons and organizations believed to have a particular interest in the inquiry were specifically invited to submit their views.

5. From a total of one hundred and thirty-three sources expressing interest, the Committee has received eighty-one formal written submissions. It has taken oral evidence to date upon three major written submissions, and has had the benefit of a discussion with two senior officers of the Attorney­

General's Department, which administers the Matrimonial Causes Act 1959-1966.

6. In view of the wide-ranging issues raised by the Reference, the large number of submissions to be heard and the technical complications of the subj ect the Committee expects that its inquiry will necessarily take a con­ siderable time.

7. The Committee is especially conscious of the profound human and philosophical issues embedded in its Terms of Reference, and of the vital manner in which these issues impinge upon the fundamental well-being of society. For this reason it considers that its inquiry should proceed further

before it attempts to formulate any conclusions in an Interim Report that may inhibit it in the preparation of its Final Report.

8. However, in the submissions presented to it, the Committee has found at least one aspect of procedure in the law and administration of divorce

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to be the subject of concerted attack. This is the requirement relating to discretion statements.

9. The attack has been mounted both by senior members of the Judiciary sitting in the Divorce jurisdiction, and by those members of the legal profession who work either exclusively or extensively in that jurisdiction.

10. The Committee considers that the discretion statement serves no useful purpose and causes unnecessary embarrassment and hardship. Its recom­ mendation is that the discretion statement should no longer be required. Accordingly the Committee RECOMMENDS that the Government should take appropriate legal steps to implement this recommendation.

11. In the meantime the Committee reports to the Senate that its inquiry is proceeding.

The Senate, Canberra. October 1972

[233 17/ 72 ] (R 72!1570)

PETER DURACK

Chairman

Code: PP 255/ 72 Recommended retail prke 12c