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Wednesday, 30 October 1974
Page: 2161


Senator CHANEY (Western Australia) - Mr Acting Deputy President,I would appreciate your guidance on a matter of procedure. I take it that the debate on the second reading proceeds at this stage pending the motion being put.

The ACTING DEPUTY PRESIDENT (Senator Marriott)- I rule that the honourable senator is speaking to the second reading of the Bill and the amendment. The amendment is before the Chair.


Senator CHANEY - 1 had some doubts about whether I should speak in the debate on this Bill because already there has been a large number of contributions. I am sure that we have a lengthy Hansard. Most of the general issues of principle that ought to be debated in a second reading debate have been dealt with by various honourable senators in, I think, a most admirable and competent fashion. But in a sense my doubts about speaking in the second reading debate have been removed by the speeches made by Senator Laucke and Senator Sir Kenneth Anderson. I express my respect for the point of view they have put forward before I go on to explain why I disagree with it. I believe that point of view arises from a deep respect for the institution of marriage, a respect which I share. I hope that they can acknowledge that the difference between us and the difference between them- and other honourable senators who have spoken- is not a difference in attitude to marriage but in the belief as to what this Bill is about and what it achieves.

I think it would be unfortunate if the people of Australia saw this Bill as an attack on marriage. If the people of Australia do see the Bill as an attack on marriage, to some extent the critics of the Bill will have indulged in self-fulfilling prophecy because a good deal of this argument is about the sort of attitude that people in the community have towards marriage. If enough people say- and people such as honourable senators and leaders of churches who are entitled to express their opinion- that this Bill fundamentally breaks down the concept of marriage, that in a way is telling the community that that is the sort of law which is being put before it. I do not believe that it is the sort of law that is being put before the community. Therefore I have an obligation, along with other honourable senators of my mind, to explain that point of view both to the Senate and to the electorate. Many of the people who share the fears that have been expressed here tonight and by Senator Laucke last night are people who have not read the Bill and never will read it. The detailed speeches made on the Bill by many of my colleagues will not be read by them and would mean little to them if they were read. What concerns people is the general tenor of this legislation.

It is said that the Bill will weaken marriage and is an attack on marriage and that society will suffer from what might be described as permissive legislation. I have already made it clear that I do not accept that accusation although perhaps when I started my consideration of the Bill I did. As a member of the Senate Standing Committee on Constitutional and Legal Affairs which considered the Bill, I think it is fair to say to the Senate that when I started my consideration of the Bill I had deep misgivings about what the Bill might achieve. In the course of considering the evidence that was available to the Committee and of the issues that arose- the evidence has already been extensively canvassed by other honourable senators in this debate- I came to the conclusion that I should support the Bill subject to the amendments which are recommended by the Committee and subject to the further recommendations of Senator Durack and myself that 2 years, rather than 12 months, is the appropriate period of separation.

There is a lot of dispute about the Bill which is before us. There is little or no dispute about the value of stable marriages and stable families to the community. In the main the family unit- the combination of husband and wife- is responsible for both the procreation and the rearing of children. It is clear that the pattern of our community, the social attitudes of the individuals comprising the Australian community are the product of family influences- both good influences and bad. There is also little or no dispute that the law ought to provide for divorce. In his speech Senator Sir Kenneth Anderson conceded the fact that divorce did exist and that the law has to provide for it. Even those churches, which generally deny that divorce ought to be available to their adherents, seem to agree that civil divorce should be available for the protection of parties to the marriage which has in fact broken down and for the regulation of the affairs of parties to such a marriage. I think that it is in the light of those facts that this Bill has to be consideredfirstly, the importance of the family to the community and, secondly, the fact that marriages do break down.

When those 2 facts are taken into consideration it is almost impossible to quarrel with the generalised principles which were enunciated by the English Law Commission and which have been quoted several times in this debate. Because they are, in my view, such an adequate summary of what a divorce law should be about I would like to quote them again in the form in which they were quoted by the Attorney-General (Senator Murphy) when he introduced the Bill originally in December 1973. He said of a good divorce law:

That it should buttress, rather than undermine, the stability of marriage and, when a marriage has irretrievably broken down, it should enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.

Generalised as those criteria might be, in my view they adequately summarise the principles to be applied by this legislature. We must ensure that the Family Law Bill when it is passed- if it is passed by us- meets those criteria.

I think it is appropriate that on a measure of this importance we are dealing with it as a nonparty matter. Each of us is forced to examine the Bill and make judgments on what it proposed and on the amendments that have been foreshadowed by the Committee, Senator Durack, myself and others. As a member of that Committee I believe that in the main the amendments proposed will bring the law into compliance with those criteria.

Let me examine the criteria for a moment. The first question that is clearly raised is how a law providing for divorce can buttress marriage. The question can be put in the alternative as: How can a law which provides for the dissolution of marriages undermine the stability of marriage? I think that most people would find a ready answer to the latter question. It seems a matter of common sense that to allow immediate divorce by consent or after a very short period of time, or to permit divorce for less than serious reasons, would have 2 negative effects on the institution of marriage. Firstly, it would mean that parties to a marriage undergoing the normal stresses and strains to which every marriage is subject, might be tempted to take the easy way out. There can be no doubt that a successful marriage is based on a degree of mutual effort by the parties. I adopt the description of what makes a successful marriage which was put forward a few minutes ago by Senator Sir Kenneth Anderson. In all but the most fortunate marriages periods of happiness are punctuated by periods of strain. If divorce is too easily available there could be a temptation to take the easy way out over relatively minor difficulties.

The second way in which an easy divorce law could undermine the stability of marriage is that it could affect the community attitude to marriage and hence the attitude of the parties who are entering into marriage. At present, notwithstanding that divorce is presently available, most people enter marriage in the hopeful belief that the marriage will succeed and that a lifelong relationship is being formed. To provide a legislative framework for marriage which suggestes anything less, which suggests that marriage could be lightly dissolved, would be to encourage the idea that marriage should be lightly entered into, as a matter of no great importance. I appreciate that honourable senators preceding me in this debate have quoted words from the marriage service which make clear the nature of Christian marriage, which I think is broadly the concept of marriage accepted by our community. I assure Senator Sir Kenneth Anderson that I am not one of those who would regard the words he used as corny. I have a great deal of sympathy for both the propositions which I have put forward as being reasons for not having a divorce law which is too easy.

I accept that the pattern of marriage which is established by the legislature is a factor in establishing community attitudes towards marriage. It is therefore a factor in determining the attitudes of people who are entering into marriage. In the long term the success of individual marriages will be affected by it. So I accept that it is our obligation to ensure that divorce is available only in these circumstances where it is clear that there has been a complete and irretrievable breakdown of the marriage. Divorce, like marriage, is something which ought not be undertaken lightly. Also I think it is important that the law must be seen to have marriage preserving provisions. But I think that the marriage preserving provisions which have been incorporated in the Bill and the further marriage preserving provisions which the Committee has recommended should also be incorporated, provide the sort of framework of respect for marriage that I require of the law.

I say to the Senate that this Bill does not make divorce easier, and that surely is what the argument is about. If divorce were made uniformly easier by this Bill there would be some great validity in what has been said by both Senator Laucke and Senator Sir Kenneth Anderson in putting forward a view which is held by others outside this chamber and obviously clearly held by them. The fact of the matter is that in many cases divorce will take longer to achieve than under the present system. In all cases of adultery, for example, which comprise a substantial number of divorce cases brought before the courts, the immediate remedy will no longer be available. In other cases where a spouse has had an extended period of cruelty inflicted on him or her, an immediate divorce will not be available because the party leaves and decides to take some action. In those cases divorce will be harder to obtain. So it is a misrepresentation to say of this Bill that it is aimed at making divorce easier. It is a pity that that misrepresentation should be noised abroad, for the reasons that I hope I have already made plain.

In trying to put this Bill into some sort of context it should be remembered that ultimately the decision of whether or not a marriage has irretrievably broken down is something that has to be decided by somebody other than the parties themselves. If it is left to the parties- if ones goes along with the system which says that the parties merely declare the fact that the marriage is finished and permits immediate divorce by consentthat would mean that the community is washing its hands of its interest in marriage. So we have to introduce a third party to make a decision on whether or not a marriage is to be dissolved. But if a third party is to adjudicate on that question, the problem that this Senate has to face is whether it is fair to impose on the adjudicating person the job of deciding on a subjective basis whether a marriage has irretrievably broken down. I adopt the argument which was put forward by Senator Durack tonight, that to impose that job on a judge or indeed on anybody else would be to impose an impossible burden. We can not leave it to a matter of subjective judgment in each case.

Just as the present law sets a series of objective facts which have to be proven if a divorce is to be granted, we have to accept that the real decision before us is whether we accept a single ground or multiple objective grounds in determining whether a divorce should be granted.

It is clear, both from what has been said here today and from the evidence that was put before the Committee, that almost everyone who is involved in divorce, either personally or professionally, finds the present fault grounds unsatisfactory. In many cases those fault grounds are a sham because the parties are able to manufacture the ground that they require to obtain a divorce. In others where the parties contest the existence or otherwise of the ground they are the cause of bitterness, distress and humiliation, and in that they breach the second of the criteria to which I have already referred. I believe and I say to the Senate that the law and the community would be better off if inquiry into the subjective personal lives of the parties to an unhappy marriage could be reduced to a minimum.

I draw the attention of the Senate to the fact that there has been a no-fault ground of separation for S years since 1959 throughout Australia and for many years prior to that in Western Australia. So I say it is not true that this Bill represents a wholly new legislative attitude to marriage. The law of this country for many years has been that unilaterally a party can bring a marriage to an end. While on personal moral grounds that might be regarded as offensive, I do not believe that the present Bill which is before us now represents a complete change of direction. I suggest to the Senate that proof of fault which has been defended by many people is of no value in itself. I do not regard it as a function of the divorce court to brand one of the parties to the marriage as being the party at fault. Again, anyone with experience in this field seems to find it impossible to lay fault at the door of one party.

The real question is whether the position between the parties can be sorted out fairly without reference to the concept of fault. Clearly, on the evidence which was before the Senate Standing Committee on Constitutional and Legal Affairs, it can be insofar as dissolution of marriage is concerned. The real problem seems to arise with the question of ancillary proceedings, that is, questions of custody and maintenance. I refer to the speech which was made by Senator Laucke yesterday. As one of the objections to the Bill he stated:

But maintenance and custody decisions issued by the court cannot take into account irresponsible parental behaviour on the pan t.i'a husband or wife because the Bill itself eliminates the present concept of matrimonial fault which is very often the cause of irresponsible parental behaviour.

Again, that statement is based on a misapprehension of what the Bill actually does. In fact, under this Bill the concept of fault is preserved with respect to proceedings relating to the custody of children. The conduct of the parties remains a factor to be considered when maintenance is being decided. So, in these areas where I think there is common ground between all people interested in this Bill the concept of fault needs to be retained, in fact it is retained. I do not deny that there is a change of emphasis but it is simply not true to say that fault has become irrelevant in these areas.

In relation to the basic question whether a marriage ought to be dissolved the position is quite different. I submit to the Senate that there can surely be no better proof of the actual breakdown of a marriage than the fact that parties, for an extended period, have ceased to live together, have ceased to share their together in any sense. I find it hard to imagine that any other ground could be put forward as more legitimate proof of the fact that a marriage has broken down. I think it is clear that I support the abolition of the fault concept as far as it is possible, and it is possible with respect to proceedings for dissolution.

One of the very odd features about the debate which has raged around this Bill and about the submissions which have been sent to me and, I am sure, to all other honourable senators is that some of the opponents of the Bill have strenuously objected to the fact that immediate grounds for divorce, such as adultery, have been abolished. They say that this is something which is unjust or potentially unjust to the parties. But I find it very hard to understand that argument in the context of a concern which is expressed at the same time that divorce should not be made easier.

I am not offended by the loss of the right on the part of a spouse to obtain an immediate divorce because of a single act of adultery. I believe that the principle which we ought to be considering here is trying to avoid hasty decisions being made by parties to a marriage about bringing a marriage to an end. That is the principle which I think pays respect to the need in the community to preserve marriage. I favour the fact that this Bill will make it harder under certain circumstances to get a quick divorce. I welcome the fact that in every case now both the affronted party and the affronting party are forced to take time to consider the position. If, at times, that leads to periods of hardship for individuals then I think it is to be regretted but it is something which we have to tolerate in the interests of stable marriage.

I think a practical problem is raised by opponents of the Bill in this area. They say: Well, look at the position of a wife whose husband illtreats her, behaves badly, perhaps enters into an adulterous liaison with another woman, who physically illtreats her and so on. Why should that woman be denied the right to immediate relief?' Of course she is not denied the right to immediate relief. The only denial is that she cannot obtain an immediate divorce. Under clause 90 of the Bill she has the power to obtain the protection of the court against bad behaviour, just as a husband has power to obtain the protection of the court against his wife's bad behaviour. She, or the spouse to adopt a neutral term, has the right to apply for maintenance and for custody. The only relief which is postponed is that divorce will not be available until the period of separation has expired.

I will not weary the Senate with an account of the improvements to the Bill which have been proposed by the Committee. I think the proposals have been admirably outlined by various members of the Committee who have already spoken, including Senator Missen and Senator Durack. But I take the time of the Senate to remind honourable senators of the proposals for a family court; the proposal that proceedings for dissolution should not be commenced until the ground for dissolution has arisen and the proposal that counselling should be brought in before dissolution proceedings, if possible. All these are positive suggestions which go to the family strengthening aspects of the Bill. I advert to Senator Baume 's suggestion that there is a fault in the Bill that counselling is being tied up with the court. I point out to the Senate that, in fact, all that is being done is to improve the counselling procedures which are available to the court without inteference to those counselling procedures which are available independently of any court, such as the various marriage guidance organisations.

I have already referred to the maintenance problems which have concerned many critics of the Bill. Again, I commend the Committee recommendations which I believe meet the problem of the wife of mature years who is left in circumstances of need after a lifetime of service to her husband. There has been so much difficulty in getting across accurately just what this Bill does. For example, it has been said on several occasions that it is a revolutionary thing that a wife might have to maintain her husband. I assure honourable senators that that is nothing new in the law. For many years in Australia it has been possible for a husband, in particular circumstances, to obtain a property settlement or even maintenance, in some circumstances, from a wife. I believe that honourable senators have to take account of the fact that provided reasonable protection is given to any party to a marriage which has broken down, we have to acknowledge the fact that social mores are changing and that more and more women in fact are undertaking lives which are independent of the home, of their family and so on.

I think it reasonable that the law should be taking into account the changing standards in this area. The obligation which is on us as senators is to ensure that no person is left in an unfair position. I will be very interested to hear contributions during the Committee stage on where the amendments which we have proposed will leave gaps which could give rise to injustice.

I refer briefly to the notice which has already been given by Senator Durack that he and I propose to seek an amendment to clause 26 of the Bill when it is being dealt with in Committee. We wish to amend the Bill to provide that the period of separation required under clause 26 should be 2 years. Clearly, the judgment as to what is an appropriate period of separation is subjective and no more than a matter of judgment. I ask the Senate to consider a couple of points which I think bear out the fact that one year is not an adequate period. We have already heard the opinions of various churchmen cited by Senator Sir Kenneth Anderson and others about a concern that one year is not enough. We had a quotation from the Rev. Alan Walker who apparently wrote to a newspaper this morning. I, in common with other honourable senators, received a circular containing an extract of a speech by the Rev. Alan Walker within the last week. I was fortified by the fact that he chose the period of 2 years as being the appropriate term of separation which should be provided in the Bill.

The present period provided in the Bill, one year, is subject to the provisions of clause 29. 1 think honourable senators should examine that clause when they are trying to decide whether one year is adequate, because it provides that in assessing the period of 12 months separation the Court is entitled to ignore a period of up to 3 months cohabitation which takes place during that 12 months separation period. I have not put that quite clearly because a full period of 12 months separation is required. If the parties can show that over a 15-month period, they have been separated for 12 months but together for three of those months, there is still a ground for dissolution available to them. I am in agreement with the objectives of clause 29 which is there to ensure that parties who are already separated are not discouraged from attempting reconciliation.

I think that is obviously desirable. If we are trying to promote reconciliation we should be prepared to allow people to come together without their being held apart by the thought that perhaps they are destroying the ground for divorce if the coming together does not succeed. So the principle in clause 29 is good but it means that parties might commence divorce proceedings after perhaps only a few months apart, since they have been together for a period of up to 3 months. I think that when we consider the situations which could arise, they give us cause to reconsider the period of 12 months.

The most important fact which we must consider in this regard is that many marriages go through periods of strain and tension. Reasons for strain and tension in a marriage may be psychological, physiological or economic. A lot of married couples have periods of separation which do not culminate in a final marital breakdown. Many young married people face difficult periods of adjustment which may involve periods of separation. My judgment is that I cannot be sure that a period of one year, particularly when it is subject to clause 29, is adequateadequate in terms of final proof that a marriage has irretrievably broken down. I believe that if other honourable senators share my doubt they should support the amendments which we will be moving.

I think that the period of 2 years has the added advantage that it is almost hallowed by precedent because at the moment we have a ground which is desertion for a period of 2 years. In many cases the ground of desertion runs very close to consensual separation. I think that in the interests of approaching what is a very useful and necessary reform we ought to do so with caution. We ought to do so because marriage is important to the community, for the reasons which have been emphasised by Senator Laucke and Senator Sir Kenneth Anderson. I think that those reasons are shared by every senator who has spoken in the debate. I commend to the Senate the principle of no fault, proven, by a period of separation of 2 years rather than one year.

I refer those people who believe that the Bill is inadequate because it does not deal with the whole range of family law to page 35 of the report of the Senate Committee. It deals with the proposals for the Family Law Council. I believe that it is in this area that we get the final rounding off of the legislative provision of family law at this moment. The Committee has recommended that the Family Law Council be strengthened and given extensive powers to advise the Parliament on the improvements which are required in the law in this area. The first proposal of the Committee is that the body which is established in the Bill, as it stands at present, should not be merely an advisory agency but should have a broad and continuing role in reviewing the operation of the Act and directing attention, in a formal way, to all matters which are relevant to a sound family law system. I emphasise the words 'to all matters which are relevant to a sound family law system'. There is another proposal which is not particularly relevant. The third provision is that the Council should have the express right to advise and make recommendations not only at the request of the Attorney-General, but also of its own motion. The fourth is that there should be provision for representatives of churches to be appointed to the Council. The fifth is that the Council should meet frequently. The final provision is that it should present an annual report for tabling in Parliament.

I think that in putting forward those proposals the Committee was clearly actuated by the same motives which I contend have moved all senators who have taken part in the consideration of this Bill. I do not think that in any case there is any disrespect or lack of feeling for the family or for marriage- quite the reverse. Those people who deal with the unfortunate end of marriage, the people who deal with the dissolution of marriage, believe that the present system causes injustice, ill feeling and hardship and that it should be changed. I commend the Bill in the form I trust it will be in when it is amended. I support the motion for the second reading of the Bill. I trust that it will be the first of further measures which will look to the strengthening of the family in Australia.







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