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Thursday, 21 November 1974
Page: 2648


Senator GREENWOOD (Victoria) - I move:

In sub-clause (1) leave out definition of 'matrimonial cause', and insert: 'matrimonial cause' means

(a)   proceedings between the parties to a marriage for a decree of-

(i)   dissolution of marriage; or

(ii)   nullity of marriage;

(b)   proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise; or

(c)   proceedings with respect to the maintenance of a party to the proceedings, settlements, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act.

I feel that this amendment ought to be proposed at this stage because it appears to me to concern a question of fundamental importance, on which other clauses must depend. The definition which is contained in the Bill states: matrimonial cause' means-

(a)   proceedings between the parties to a marriage for a decree of-

(i)   dissolution of marriage; or

(ii)   nullity of marriage:

(b)   proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise;

(c)   proceedings with respect to-

(i)   the maintenance of one of the parties;

(ii)   the property of those parties or of either of them: or

(iii)   the custody, guardianship or maintenance of, or access to, children of the marriage.

(d)   proceedings between the parties to a marriage with the approval by a court of a maintenance agreement or for the revocation of such an approval or for the registration of a maintenance agreement;

(e)   proceedings for an order or injunction in circumstances arising out of the marital relationship; or

(f)   any other proceedings ... in relation to concurrence, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (e) . . .

I have stated that at some length from the text of the Bill because it gives some impression of the width of the new definition. It is a new definition because it is infinitely wider than any attempt that has been made in the past to say what is the content of the phrase 'matrimonial causes'. I do not need to elaborate that. If one goes back to the English legislation at the turn of the century when our Constitution came into force, it will be seen that 'matrimonial cause' was given a very narrow interpretation. The words 'matrimonial cause' went into our Constitution at that time and in the 1959 legislation it was given a very limited interpretation. The purpose of my amendment is to suggest that the proper course, albeit the cautious course, is to give an equally limited interpretation to the definition of 'matrimonial cause'. My suggested amendment states: matrimonial cause' means

(a)   proceedings between the parties to a marriage for a decree of-

(i)   dissolution of marriage: or

(ii)   nullity of marriage;

That accords with what is contained in the first sub-paragraph of the present definition in the Bill. My proposed amendment further states:

(b)   proceedings for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise;

That is what is presently suggested. The next part of my proposed amendment is a new provision. It states:

(c)   proceedings with respect to the maintenance of a party to the proceedings, settlements, the custody or guardianship of infant children of the marriage or the maintenance, welfare, advancement or education of children of the marriage, being proceedings -

The following are the words of relevance- in relation to concurrent, pending or completed proceedings of a kind referred to in either of the last two preceding paragraphs, including proceedings of such a kind pending at, or completed before, the commencement of this Act.

That provision would have the effect of ensuring that the matrimonial causes are those matters arising out of proceedings for divorce, for nullity or for a declaration as to validity. That is the core of a matrimonial cause and anything relating to that- relating to property, maintenance or children- represents a matrimonial cause. What is the difference between the 2 concepts. The concept as outlined in the Bill is to open up the whole field of marriage and marriage effects and to make that an area of Commonwealth legislative power. I believe that the power which the Commonwealth Constitution gives to the Commonwealth Parliament to make laws is not as extensive as the Bill assumes that power to be. I say that with full acknowledgement that there has been a limited interpretation, and I think too narrow an interpretation, generally accepted as the interpretation of matrimonial cause.

I feel that the Bill has gone too wide in the width of definition it has given to the words matrimonial cause'. It is assuming a power which, if the Commonwealth does not have it, will cause distress, hardship and misery to people who may obtain orders based upon the width of this power and subsequently find that those orders or awards cannot be sustained by law. I remind the Senate that this situation arose with respect to the earlier Matrimonial Causes Act. Legislation in respect of this Act was introduced in October of 1971 in an endeavour to overcome the effects of 2 High Court decisions. For those who have any familiarity with this section of law or can remember the legislation, the High Court decisions were Knight v. Knight and Kotis v. Kotis. I shall quote from what was said at the time the Bill was introduced. The report at page 1 38 1 of Hansard of 14 October states:

The 2 decisions I have mentioned have made it clear that many other similar orders are or questionable validity, and it is most desirable that the doubts that at present exist in relation to the rights of persons affected by such orders be removed. These rights are of vital importance to the individuals affected. They include, for example, the right of a wife to receive weekly payments of maintenance moneys, the right of a father to visit his children in the custody of their mother and the right of a wife to a portion of the property held by her husband. The enforceability of such important rights as these plainly cannot be left in doubt. The present Bill will remove the doubts that have arisen by providing that the rights of such persons are to be the same as they would have been if the orders had been validly made- that is, made by a judge of the Supreme Court

The essential core of the difficulty in the 2 decisions of Knight v. Knight and Kotsis v. Kotsis was that decisions had been made by a commissioner of the court or a registrar of the court and the High Court had held that those 2 officers did not have the power to make the decrees. I recall that for a period of some months there was great uncertainty because a number of the orders and the awards made by commissioners and registrars could have been disregarded with impunity by persons who were bound by them. The legislation which was passed was designed to overcome that problem. I think the general legal advice available to the Commonwealth was that the procedure was satisfactory. I mention those decisions and that problem because they illustrate the anxiety and the hardships which can arise if power or jurisdiction is assumed where validly it ought not to be assumed.

I simply say that in this area there is a grave risk. I suppose in the Senate chamber where we are not concerned fundamentally with where constitutional power ultimately lies one cannot speak in terms other than the risk of what is being done. I do not believe that the Commonwealth has the power to say that orders can be made with regard to any matters arising out of marriage. I shall illustrate very shortly one or two matters that could arise. 'Matrimonial cause' is defined as including proceedings for an order or injunction in circumstances arising out of the marital relationship. It seems to me that we could have, for example, what is called a testator's family maintenance application- the question of whether or not a proper will has been made under which the surviving spouse or a child has an appropriate order. A situation could arise under which parties to a will could be contesting even though they are husband and wife. The fact is that it is a marital relationship which gives rise to the question which has to be determined between them. There could be property applications which call for determinations of what are restrictive covenant applications and a whole range of matters which ingenuity could explore and delve into. They have nothing to do with a matrimonial cause. Where are those matters really to be argued? Under the Federal law of this Bill they are subject to the provisions of this legislation. Maybe all will go well until at some late stage a person will rely upon a constitutional point and the edifice will come tumbling down. Indeed the longer the issue is left with an air of uncertainty the more danger might arise from it.

I would say that the Constitutional provision is quite clear. It has been adverted to by the High Court. What the High Court has said in these areas ought not to be ignored. I referred in an earlier discussion to section 51 of the Constitution sub-clause (xxi.) and sub-clause (xxii.) which state that the power of the Commonwealth is to make laws with respect to marriage, divorce and matrimonial causes and in relation thereto, parental right, and the custody and guardianship of infants. The High Court, within the last 15 years, has had occasion- I think this was the only occasion the High Court has looked at these powers- to decide, to determine or to say something as to what is the ambit of those powers.

I think it ought to be recalled that in one of those cases, the State of Victoria v. the Commonwealth, as to the meaning of the Commonwealth's power to make laws with respect to marriage, the High Court divided four to three on, I think, two or three of the fundamental questions. Those questions were resolved in favour of the Commonwealth. They were resolved in favour of the Commonwealth on the relatively narrow issue of whether or not provisions for legitimation in the Marriage Act on marriage could be regarded as laws with respect to marriage. I only ask the Senate to bear in mind that if 7 judges of the High Court would divide in that proportion on that issue we have some idea of the niceties of interpretation which are involved and the limit which must be imposed upon the Commonwealth power as to marriage. In the other case with regard to divorce and matrimonial causes the only judge of the Court still remaining with it, Mr Justice Menzies, made it quite clear that the matrimonial causes jurisdiction does not have the width of meaning and interpretation given to it by this legislation. One does not know what the remaining 6 judges will say, but if lawyers are to approach this matter in terms of what the power might contain they obviously would look to what Mr Justice Menzies said. I hope honourable senators will bear with me, if they consider themselves judicial, and listen to what Mr Justice Menzies said in the case of Lansell v. Lansell. He said:

A proceeding by a wife against a husband for a settlement of his property upon herself and the children of the marriage might be regarded as a matrimonial cause in a wide sense but in s. 51 (xxii.) the words ' matrimonial causes 'are used in conjunction with the word 'divorce' and can hardly cover all proceedings between spouses. Still less could proceedings by a child against a parent seeking a settlement be regarded as a matrimonial cause.

These words are words of caution and if we are to embark, as this legislation proposes, upon giving to the Commonwealth a wide power and to give to all the instrumentalities to be established by this Bill power to make decrees and orders on applications of that character and subsequently they should be found to be invalid as beyond constitutional power, it is fair to say that people will be denied what they believed they had received and were entitled to. There will be distress and hardship in a lot of places. It is cautious legislation in a federation such as ours not to assume- particularly in the matter of family relationshipstoo much power where there is doubt as to whether that power exists.







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