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Thursday, 21 November 1974
Page: 2650

Senator MISSEN (Victoria) -The amendment which Senator Greenwood has moved goes to the very heart of this Bill and certainly to the very heart of the report of the Senate Standing Committee on Constitutional and Legal Affairs because, if it succeeds and if these amendments are made to the definition of matrimonial cause', we may be sure that practically all that is sought of substance in the Bill will be defeated. For some considerable time it has been thought by some people that 'matrimonial cause ' probably means 'what is encompassed in the existing Matrimonial Causes Act'. But because we chose in 1959 to call an Act the 'Matrimonial Causes Act' it does nothing to define or limit the powers which the Constitution gave to the Commonwealth- namely, the powers over marriage, divorce and matrimonial causes and in relation thereto parental rights and the custody and guardianship of infants. Because of the caution and fears of members in 1959- even Sir Garfield Barwick writing a couple of years later said that they may well have gone further and taken the step of including other matters but they did not and they stopped there- that limitation should not limit this Parliament now in endeavouring to make a law which is comprehensive.

Senator Greenwood - The Constitution should be the limitation and that is all.

Senator MISSEN - The Constitution is, of course, the limitation as defined, as found by the judges, and if that is not satisfactory to the people of Australia, then it can be amended by the people of Australia. I hope that the latter will never be needed. Let me mention the case which has been referred to- the State of Victoria v. the Commonwealth- and the statements made, that all proceedings between spouses could not be necessarily within the powers. I agree with that. A matter of assault between a husband and wife may not be within the terms of this Act nor do we endeavour necessarily to include it.

Senator Greenwood - Why is it excluded?

Senator MISSEN - Senator Greenwoodhas had his opportunity and I will have mine now. The fact is that the definition that has been put into this Bill is a comprehensive one because what is designed is to include not only the things Senator Greenwood has left in his amendment but also other forces. As he admitted, the important words in his definition are:

.   . . being proceedings in relation to concurrent, pending on completed proceedings of a kind referred to in either of the last 2 preceding paragraphs-

In other words it has to be a divorce proceeding, a nullity proceeding or a declaration as to the validity of a marriage before one can institute proceedings under this Act.

Under his definition, what would be excluded from the Bill? He mentioned the injunction provision in the Bill's definition of 'Matrimonial Cause'. That is certainly new in this Bill. It is not contained in a present Act. If that were to go, what would also go would be clause 90 which provides extremely valuable remedies for people to obtain an injunction to protect a party to the marriage or a child, to protect the marital relationship or the property of a party to the marriage. If the amendment of Senator Greenwood is passed then it also removes the words 'or relating to the use or occupancy of the matrimonial home', which the Attorney-General seeks to add. It would remove what is desirable, namely the power for persons to be able to approach the court- let us hope that it is a family courtwithout having to start matrimonial proceedings for divorce. In other words, they should not be forced to go to the court for a divorce before they could go to the court for a remedy to protect themselves, their home or other matters. I think that this is one of the highly desirable innovations of this Bill and, if Senator Greenwood 's definition is accepted, it must go.

In addition, what must also go is the attempt to take over the maintenance jurisdiction which at the moment is dealt with in many courts of summary jurisdiction. Honourable senators have seen what the Committee has written about this and what was said in the second reading debate. Anyone with experience knows that it is a highly tawdry and undesirable practice that we should continue to have the maintenance jurisdiction dealt with in a State separate jurisdiction by magistrates and along with all the criminal and other matters that are dealt with during the day. The attempt to take maintenance out of that jurisdiction and to put it into, I hope, a family court- I hope that there will be both Federal and State involvement- would be lost if this amendment were carried. Also included in that jurisdiction is the power to enforce proceedings, maintenance orders and things of that sort. At least in relation to maintenance orders they would not be covered by this new court.

The whole proposal, which is summed up in the amendments which have been accepted by the Attorney-General and which is in the Billnamely, that these things are better united and dealt with by experienced persons such as judges of standing who have had training, knowledge and interest- must go if Senator Greenwood 's definition is agreed to.

The threat is posed: What if we are wrong? What if the powers which the Attorney-General and his advisers consider the Commonwealth has- I certainly consider it has them- turn out to be wrong? The answer is that there will certainly need to be speedy amendment to the law. I think that the people in this country have indicated at every poll that has been conducted that they want these matters dealt with in the manner which is proposed. I suggest that there is very little reason for thinking that these powers will be denied by application to the High Court, and we should not fear to tread in the directions in which this Bill is pointed and in which common family law should prevail. I therefore suggest that it is absolutely of the essence of this Bill that this amendment be defeated.

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