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Tuesday, 18 October 1983
Page: 1879


Mr SPENDER(10.25) —The Family Law Amendment Bill 1983 is for most Australians one of the most important Bills to come before this House. This is because of the great importance of family law to Australians. I suppose that there is no area of law of such general concern to Australians; certainly there is no area of law which demonstrates so convincingly how greatly our society has changed over the last few decades. The Bill, amongst its other aims, gives effect to a large number of recommendations of the Joint Select Committee on the Family Law Act, which was very ably chaired by my colleague the honourable member for Dundas (Mr Ruddock), as well as the recommendation of the Family Law Council. The amendments concern both machinery provisions and the substance of the Act as it will be when amended.

Because of the nature of the issues raised, the Opposition will have a free vote on this Bill. That illustrates some of the major differences between the Opposition and the Government. I understand that the Government has put the Bill to the House as a Government measure which must be supported by all members of the Government Party. Notwithstanding that, we are dealing with something which is purely non-political. We are dealing with matters which are delicate, sensitive and of great importance to anyone who may be affected by what takes place in the family law courts. In our society, more and more people are affected by what takes place in those courts. However, the Government has taken its position. The Opposition's position is that it will allow its members a free vote because the various provisions which appear in this Bill are quintessentially matters of conscience.

Before going to some of the specific provisions of the Bill I should like to say something about the history of family law as it demonstrates how very greatly our society has changed. It was not until 1857 or so that one was even able to obtain a divorce in civil courts. If my recollection is correct, before then those kinds of matters were dealt with on a very limited basis by the old ecclesiastical courts. Although adultery from 1857 onwards for very many years was the sole grounds for a wife seeking divorce, as well as proving that adultery had taken place, it had to be coupled with incest, bigamy, cruelty or two years of desertion or alternatively rape or an unnatural offence. It was a slow and tortuous process to change the views of society in regard to the granting of divorce. I suppose the major move in this country came in 1959, before the 1975 Act. The 1959 Act which was known at the time as the Matrimonial Causes Act, was regarded as a very radical piece of legislation. That Act provided 14 grounds of divorce. However, of course, in that Act and in all previous Acts, the concept of fault was intrinsic to obtaining a divorce. Therefore, all the grounds pre-supposed fault on the part of one of the parties. There was still to be found antique defence such as condonation or connivance. For example, if one could prove after an act of adultery that the innocent party had sexual relations with the party committing the act of adultery, this was sufficient in most cases to establish condonation and the basis for divorce had gone. Anyone who had any experience of the operation of the Matrimonial Causes Act, as I did, would understand how unpleasaant it was to find oneself in a court as a husband or wife petitioning for divorce, how unpleasant it was to have one's most intimate affairs examined miscroscopically-not just what one had done on a particular occasion but all of one's actions relating, for example, to an occasion of adultery.

Debate interrupted.