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Tuesday, 19 November 1974
Page: 2517


Senator GIETZELT (New South Wales) - I rise to support the motion for the second reading of the Family Law BUI not because I happen to be a member of a political party or a representative of a political party in this place but because of how in my lifetime I have come to understand human relationships and the need for marriage and divorce to be dealt with in such a way as to remove the areas of unhappiness, frustration and indignity which have been a characteristic of such human relationships in time. I do not think any person would disagree with me when I say that the most important decision 2 individuals make in their lifetime is when they decide to get married. But we have only to look at the general experience to find out that many of those marriages are made in such a way and among such personalities as to create difficulties which lead to some disruption and finally separation.

I think that the Family Law BUI is a humane and important piece of legislation. It is a BUI which should receive the endorsement on a nonpartisan basis of the Senate and subsequently, I would hope, the House of Representatives. I think that it represents the first real examination the Senate has made of the subjects of marriage and divorce since the Matrimonial Causes Act was passed in 1959. That means that 15 years have elapsed since the Parliament has had an opportunity to review the very important legislation which was introduced by Sir Garfield Barwick at that time and which established new principles, new guidelines, new objectives and, for the first dme on a national basis, a uniform divorce law based on the principle of no fault when human relationships reach the point of complete and utter break down.

I believe that this Bill is an inevitable development of the BUI which was introduced upon the initiatives of the Opposition parties when in government some 1 5 years ago. I believe that this Bill is an evolutionary development of that BUI and that it had to happen regardless of the personalities and the reasons that the Senate set about to review the whole problem associated with matrimony in this country.

However one would imagine that the Senate, the parliaments generally and the Australian people are faced with a somewhat different and a somewhat rushed situation- a position in which little thought has been given to the very human problems which face so many in our community -and that in point of fact the Attorney-General (Senator Murphy) and those associated with them have been endeavouring to foist upon the Australian people, without adequate discussion and consideration, a new concept in marriage. I put to the Senate that in this respect the Australian Labor Party when it dealt with the matter at a federal conference in 1971, did not set down policy matters for the Party to follow. It determined that a parliamentary committee should be set up to inquire into the growing complaints that the divorce, custody and maintenance laws were operating unjustly and inefficiently. It is interesting to note that in 1971 Senator Murphy was able to persuade the Senate to refer to the Standing Committee on Constitutional and Legal Affairs the following matter: The law and administration of divorce, custody and family matters with particular regard to oppressive delays, costs, indignities and other injustices. One must have regard to the fact that the Party which he leads in this place was a minority Party and that there was a very vocal group, the Australian Democratic Labor Party, in this chamber. Despite these objective conditions of difficulties, Senator Murphy was able to prevail upon the Senate to refer the matter to the Standing Committee.

The Senate decided to refer to the Standing Committee on Constitutional and Legal Affairs this matter. On 18 March 1972, which is 2V4 years ago, advertisements in the Press throughout Australian invited interested persons and bodies to lodge submissions on this reference to the Senate Committee. Individual invitations were extended to bodies and persons thought to be interested in a review of the Matrimonial Causes Act. On 31 October 1972, an interim report of the Standing Committee recommended to the Government that discretion statements be no longer required. It is common knowledge that subsequently, with the change of government, in January 1973 Senator Murphy sought to introduce certain changes to the Matrimonial Causes Act. We know what happened to them. We know that subsequently a Bill was introduced into the Parliament this year. On 1 April 1974 the Attorney-General announced his proposal to introduce new legislation. The dissolution of Parliament changed that. Therefore, it was not until the first session after the double dissolution that the Family Law Bill was presented to this Parliament for its consideration.

It is interesting to note that it was on the initiative of Senator Murphy that this Bill was referred to the Senate Standing Committee on Constitutional and Legal Affairs. Currently, recommendations from that Committee are embodied in the Bill. Therefore, I am amazed that in the numerous letters which we are receiving, particularly from the Anglican church, there is the suggestion that Senator Murphy is in all haste and impatience endeavouring to foist this legislation on the Australian people. That is not borne out by the facts. I think it must be said that Senator Murphy, the Standing Committee and, I hope, the Parliament have given due consideration to these matters. I refer to the official records which are before the Senate to endorse those remarks. I refer to the evidence given by Mr Watson to the Standing Committee. He said:

Senator Murphyhas throughout insisted that our work upon the Family Law Bill and other reforms reflect the well known criteria set down in England in 1966 which I slightly paraphrase to state-

A good family law should buttress, rather than undermine, the stability of marriage; where a marriage has irretrievably broken down, the legal shell should be destroyed with the maximum fairness, and the minimum bitterness, distress and humiliation.

From my discussions with him, I believe that Senator Murphy would wish to add 3 other criteria- The future of the children of a broken marriage needs consideration by the best possible tribunal assisted by the skills of welfare officers and other counselling staff wherever needed; the financial disputes between the spouses should be resolved as quickly and finally as possible; the whole process should be performed with dignity, relative privacy and with as little expense as possible.

He also said:

This Bill is about family conflicts- not divorce; it therefore deals with the welfare of children, maintenance, property, protection of the marriage and the people involved therein (by injunction if necessary), marriage counselling, on going help in custody and access problems. Hence its true title, a Family Law Bill.

I wonder whether those senators who have spoken in the debate, particularly those who have spoken today, have read the report so ably placed before the Parliament by the Constitutional and Legal Affairs Committee. Have they taken into consideration the views of that Committee? I do not suggest that every member of that Committee has agreed to underwrite all recommendations that the Committee has made or that they will necessarily support all amendments which will be placed before the Committee of the Whole. I am assured by members of the Standing Committee that Senator Murphy has acceded substantially to the overwhelming majority of recommendations of the Constitutional and Legal Affairs Committee. What did the Committee state? It stated:

The Committee welcomes the Bill . . .

This is not a majority decision, this is the Committee's findings. I continue:

The Committee welcomes the Bill as a whole and whilst not commenting on the sociological policy background of the Bill, does commend the expressed intention of simplifying and humanising the present law relating to matrimonial causes.

I believe that the purpose of the Bill is to create more equality for married persons, more equality in human relationships and to put man and wife on an equal basis. Surely no member of the Senate or no member of the community believes that in the horrific situation of a breakdown of marriage both partners have equal resources, equal rights and equal opportunities to resolve their differences, leading ultimately if not to a marriage counsellor at least to the courts for a dissolution of the marriage. I believe that the purpose of this Bill is to create a more equal position.

Many groups in the community are prepared to give support to the proposals embodied in the Bill. If one were to believe what has been said by some honourable senators today or if one were to believe the petitions and the letter writing campaign, one would believe that the overwhelming majority of the Australian people was opposed to the tenets of this Bill. Every public opinion poll that has been taken has shown an overwhelming majority of support for the basic principles of the Bill. In one particular case- and I think it was

Senator Missenwho referred to this several weeks ago when the matter was being discussed -people were asked precisely whether they supported the Murphy Bill. The figures Senator Missen gave on that occasion confirm the figures I received from the Library- that something like three out of four Australian people support the general principles embodied in this Bill.

In supporting the second reading speech I am not suggesting that I will necessarily vote consistently in support of or against all of the amendments. Clearly, because this is a private member's Bill, honourable senators will take different attitudes at different stages of the debate, but I think it is important that the Senate should endorse the second reading and enable us to go on to determine the fate of the Bill. Opponents of this Bill have many avenues open to them. Obviously there was a meeting of those who oppose the Bill and the general tactic which was accepted by a wide variety of those people was to suggest that there should be a 6-months delay. That tactic suddenly changed. I do not know whether I have been specially selected, but I have received letters, a number of which I have not even opened, telegrams and petitions suggesting that there should be a delay of 3 months. The letters are available for perusal by honourable senators. They have all been typed on the one typewriter, they have all got the same sort of stamp on them, they were all posted at the same time and over half a dozen of them were written on the same type of paper. I think one therefore has to draw the conclusion that it is a pretty well organised effort.

As I have said, the opponents of the Bill sought a delay of 6 months and then changed their tactic to a delay of 3 months. The Senate finds itself in the absurd position where it is regaled from both sides of the chamber on the same day by a senator presenting a petition supporting the Bill and the same senator presenting a petition opposing the Bill. All honourable senators know that the Senate Standing Committee on Standing Orders has been requested to review the presentation of petitions as a result of the absurd position that has developed in relation to this matter.

Senator Carrickhas today suggested that the Bill be referred to a select committee of the Senate. This is another delaying tactic. We know that Senator Sir Kenneth Anderson wants to delay the Bill for 6 months. Obviously he has not caught up with the change in tactics seeking a 3 months delay to which I referred a moment ago. We could even have the Senate adopting the principle of filibustering at the second reading stage or, if that does not succeed, filibustering in the Committee stages. All those subterfuges are within the province of those who want to resort to them in order to defeat the purpose of the Bill and to delay a proper consideration of it. In other words, those who seek to oppose the Bill or to delay it have many avenues available to them.

I do not know whether time will permit me to go into any great detail on the Bill itself but I do want to make some further reference to the opposition to the Bill. The Bill has been subjected to a massive letter writing campaign. As I have said, honourable senators have been bombarded with letters containing the same phraseology and the same point of view. I do not want to create the impression here or anywhere else that I would take away the democratic right of people to lobby their elected representatives. I think it is very good that interest in the Bill should be expressed, but I am sure that most of us would agree that the sort of campaign I am referring to does not move us at all. In fact, it probably goes the other way and hardens one's attitude because of the infantile tactics that are adopted by some groups of people.

It is interesting that those tactics seem to have been developed largely in the Sydney metropolitan area and in the Anglican Synod area. Most of the letters that I have received in recent weeks have come from ministers of the Church of England, a church that grew out of bigamy but which has been pretty conservative over the years in these matters. Let me say that I have no animosity towards the Church of England because I was an Anglican myself until marriage and I have a close relative who has been a bishop of that church for many years. But I do find it somewhat difficult to understand the inability of ministers of that church to examine the Bill and to draw the conclusions which any right thinking persons can draw if they consider the Bill in an atmosphere which is free of prejudice and bigotry.

It seems to me that when one reads the correspondence one is entitled to draw the conclusion that this has become a politically oriented campaign. I do not take away the right of the churches and associated groups to influence the processes of government. In fact, I welcome this influence, but I think it is regrettable that some groups, particularly those to which I have referred and the inappropriately named Festival of Light, choose to use deception and distortion of the facts to panic well meaning Christians into ink. Their tactic is usually the same. It starts with an over dramatisation of the facts. This is followed by an innuendo that the Bill has some sinister or hidden concepts for the Christian or for the Christian way of life. This hand-up message is then passed from the pulpit by more politically aware persons.

These are the people who told the community that abortion was murder. It is interesting to note that they have done nothing to prevent the fairly reliably estimated 100,000 abortions which are known to take place in Australia every year, but when the Parliament was considering that particular social question, again on a non-party basis, it was bombarded with arguments about the protection of life. Yet nothing is done about it once the Parliament has had an opportunity to dispose of that particular resolution. It seems to me that the same group is behind the intensive campaign to have this Bill deferred.

Without in any way suggesting that honourable senators who have taken that point of view are a party to this campaign, I want them to appreciate that there are people outside the Parliament who seem to have some different motivation to that of honourable senators. The message that is being told from the pulpit and amongst groups of Christians, particularly in the Sydney region, is that the Family Law Bill will basically alter the whole concept of marriage in our society. We know this is not so, and the abundant evidence which was placed before the Senate Standing Committee on Constitutional and Legal Affairs by reputable people, people engaged in this jurisdiction, people who have spent a great portion of their working lives in this area, shows clearly and concisely that this Bill simply changes the concept of divorce. It is as simple as that.

I am appreciative of those honourable senators who have been able to understand the motivation of those who drew up the Bill, of those who have been involved in the public discussion on this Bill, and who therefore understand what the Bill seeks to achieve. There can be no hidden or sinister motives behind the Bill. It will affect only those marriages that fail or are failing. There is sufficient evidence in the Bill- in fact, Senator Murphy has agreed to the great majority of the suggestions that have come from the Senate Committee- to substantiate the fact that its basic objective is to buttress and to save marriage. But where a marriage is finished, the sooner the legal shell is wiped away the better it is for the partners to the marriage and for the community. It will take the shabbiness out of divorce. It will take the great costs out of divorce. It will take the lies, the deceit and the blackmail out of divorce. Surely every member of this Parliament- every member who has had anything to do with public life- will know the tragic circumstances that have faced so many failed marriages and the tactics to which the parties to those marriages have had to resort- the lies, the false advice, the deceitful advice and the blackmail which one partner to the marriage seeks to place upon the other partner in an endeavour to find a way to break the marriage legally.

This Bill seeks only to replace the" outdated divorce laws with more contemporary legislation. After all, is not the role of the Parliament to be constantly updating the laws of the land? It was only in 1857 that the first divorce legislation was considered by the English Parliament which had been functioning for 200 years. Of course, the hysteria at that time played some part in preventing a proper examination being made of the divorce legislation. The same sort of hysteria was synonymous with the Australian legislation which was introduced in 1959 to which honourable senators have already referred in this debate. At that time supporters of the Government of the day were subjected to the same sort of pressure, opposition and disgraceful conduct to which this Government is being subjected at the present time. It even affected the role of the President of the day.

I have already referred to the fact that there can be no suggestion that the Bill is being rushed through the Parliament. In point of fact, the record shows for anyone who is prepared to look at it objectively and fairly that the Senate has had before it for some 3 years an opportunity to make up its mind about contemporary divorce legislation. This Bill has the support of" the vast majority of lawyers, social workers, marriage counsellors, psychiatrists and other groups within the community. I well recall in the various activities in which I was involved as the president of the Sutherland Shire Council for 9 years, calling together local community groups for the purpose of setting up community organisations and counselling organisations, and establishing a social worker within the Council. The experience of every one of those people from all the community groups who came together in the Council of Social Services within the area pf the Sutherland Shire Council was that at some stage they had suggested that there was a need for more updated and modern type legislation to deal with this problem of human relations between 2 human beings.

I am concerned that the Festival of Light organisation, which seems to be the principal core of the opposition to this legislation, is developing into an ultra-conservative political group, using the cloak of the Church and of morality to attract community support. I am sure that there are people at all levels of that movement who do not want that to happen and who do not realise that they are being used by the people in the leadership of the organisation. I will give but one example for honourable senators opposite. At a recent Festival of Light meeting at Miranda in Sydney, which is the area in which I live, one of the group leaders, the Reverend Nile, took great delight in deriving the most positive responses from the audience to his cry: 'Do you want this man as Premier?' The man whom he had on the platform was the Deputy Leader of the Liberal Party in New South Wales, Mr Willis. If that is not a political overt act, I do not know what is. After all, that denies to Mr Maddison, Mr Lewis and any other member of the Liberal Party in that State equal rights in the ballot for the leadership of the Liberal Party in New South Wales which is to take place in Sydney tomorrow. Mr Willis happened to be present at that meeting and he adopted a certain attitude. That indicates the politicisation that took place at a meeting that we called for the purpose of discussing the Family Law Bill.

Sitting suspended from 6 to 8 p.m.


Senator GIETZELT - Before the suspension of the sitting for dinner I may have misrepresented the position of Senator Sir Kenneth Anderson. It is true that his amendment takes into account the changed position of those who had previously suggested there should be a 6 months delay. I understand his amendment seeks to delay the Bill until the autumn session in February or March of 1975. 1 had been referring to the degree of opposition that has been whipped up to this Bill. I believe the opposition has become irrational and irresponsible. It does no good to the community or to those who have a reasonable and logical position to express in respect of the far-reaching consequences of the Family Law Bill. It is many years since we have seen the fanatics using the pulpit to bring the Church into politics. It is something which I think the community will regret unless it understands what is happening in respect of these social questions. I sincerely hope that people become aware of the aims of the leaders of this group and ultimately appreciate the undesirability of bringing the Church back into the political arena. I think there is a difference between having a stance on this and other social questions and the endeavours to bring the Church into the direct political arena.

I have said that this Bill does not change the concept of marriage. It simply makes for an easy arrangement in difficult circumstances. The last figures that I have been able to examine show that about 18,000 divorces take place each year. It is interesting to note that under the existing law it is possible for 33 per cent of the people desiring to have a divorce to take action for a divorce at any time. This applies also to those who want to use the grounds of drunkenness and crueltyanother 11 per cent of the people involved. So, 44 per cent of the people are able to get a divorce even within the period of 1 year. Yet we are being led to believe by the campaign that has been waged that we are making divorce easier and that in fact we are about to destroy the family unit and the sanctity of the marriage contract. It is interesting also to note, for those who are endeavouring to bring to the forefront of the debate the problems of young children, that some 33 per cent of all the divorces which take place in this country involve no children at all.

I do not have a great deal more to say beyond pointing out that an increasing number of people are not resorting to church marriages but are being married by civil marriage celebrants or in registry offices. Of course, an increasing number of people are not even resorting at all to the institution of marriage. I do not believe that it is the responsibility of the law to impose upon an ever increasing number of people any responsibilities about maintaining that sort of marriage situation. Surely it is wrong for the law to intrude to any major extent in this sort of relationship. After all, the law is not involved in the formative period of the marriage. There are no guidelines established. People are able to make up their own minds about living together whether legally or illegally. People are able to decide whom they want to marry. The law does not involve itself in that experience at all. There is no apprenticeship and no guidelines for people who decide they want to join themselves together in some relationship. It seems wrong, therefore, that the law should play a particularly heavy role, as it has done hitherto, for those who want to cast aside that legal contract. I do not understand the reasoning of some honourable senators who have spoken in the debate today. I refer in particular to Senator Carrick who said that the Government should be about making laws to make marriage work. Marriage is a human relationship and I do not think any laws, procedures, policies or principles can make a marriage work. The only thing which can make a marriage work is the ability of 2 people to live together.


Senator Missen - Just imagine what the honourable senator would say if it did interfere.


Senator GIETZELT - That is right. If a marriage does break down surely the cleaner and sooner it can be broken the better it is for the community and for those persons concerned. After all it is a personal matter involving the lives of 2 people. I have spoken a great deal about opposition. Having regard to the comments that I made about the Anglican people in Sydney I think I ought to say that the Secretary of the Synod in the diocese of Melbourne has been good enough to forward a resolution of the attitude of the Anglican Church in that big city. I also have a copy of a letter which was sent to all of the newspapers by the Social Responsibility Committee of the Congregational Union of New South Wales. It likewise indicates its support of the general principles of the Bill. I have seen the public statements of a Catholic priest in Adelaide who has been involved in marriage guidance work and who seeks to give support to the principles of the Bill. '

I am struck by the words and the views of people like Judge Butnett of South Australia who drew the attention of the Senate Standing Committee on Constitutional and Legal Affairs to facts which I had not considered previously. Judge Burnett said:

One of the things that horrified me about the matrimonial causes jurisdiction was the way that people were forced to resort to courts. Many of them who had never been to court before in their lives had no idea what it was about, were taken to some frightening Supreme Court building where they sat in grim old corridors without even private rooms to discuss their problems with counsel.

He went on to mention the innovative methods with which the South Australian Government has been associated. There were many witnesses to the Constitutional and Legal Affairs Committee from a wide variety of organisations including the Law Council of Australia and groups from Western Australia associated with the legal fraternity. In fact, the whole weight of the evidence of members of the legal fraternity who have been involved in this whole area of human relationships has indicated the need for the legislative processes to catch up with community attitudes.

I commend the Committee. I think it has done a tremendous job to bring to public gaze and public debate the crux of the problem which was first brought to public debate in 1959. Now in 1974 we have a responsibility as a Parliament to update the legislation. I think we must pay tribute to those persons, from Senator Murphy right down to all the members of the Committee, who applied themselves assiduously to this task and who withstood the criticism that has clearly had political motivation, although I do not think party political motivation, because I recall having read that the Liberal Party as well as the Labor Party has adopted a pretty good contemporary attitude towards this whole question of reform of divorce legislation. I commend those who have been involved. I am hopeful that the Senate will, in its judgment, support the second reading of this Bill and in the Committee stage will do nothing that will materially alter the basic structure of the Bill. I am concerned that adoption of the amendment that has been projected by Senator Durack to make the ground for divorce a 2-year irretrievable breakdown of marriage would militate against the success of the whole of the Bill and the purposes and motivation of the Bill itself. The no-fault clause of irretrievable breakdown after 12 months separation ought to be the lynch pin of the legislation. If we alter that time to 2 years we are in a worse position than we were in with the 1959 legislation. I trust that the Senate in its wisdom will reject the amendment which seeks to defer consideration of this matter until next year and will reject the amendment which would change the whole framework of the Bill. I trust that it will adopt the recommendations of the Senate Standing Committee on Constitutional and Legal Affairs.







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