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Thursday, 21 November 1974
Page: 2652

Senator GREENWOOD (Victoria) - I am not persuaded at all by what has been said and I become the more concerned because, with respect to all who have spoken, I think there is an inadequacy in the explanation which has been given. I accept what Senator Missen says- that the Constitution is the ambit of the power. I think Sir Garfield Barwick and the Parliament in 1959 looked at the constitutional power and they sought, consistently with earlier definitions, to limit the operation of the Act to that constitutional power. I know that there is a view to which a lot of credence has been given by writers and other people with experience in this field, that there ought to be a wider interpretation and a wider field of operation for matrimonial causes law than is contained in the present Act. I think implicit in all that Senator Missen said is the same acknowledgement. But if the acknowledgement is made, that is not to say that because something ought to be or it would be desirable if it were so, therefore the power is there- and that is what I thought Senator Missen was saying.

Senator Missen - Not at all.

Senator GREENWOOD -He says 'Not at all '. I wish he would explain what it is he is saying is. the limit of the power because he said, I think, by way of dismissing one aspect of the argument I had raised that an assault between a husband and a wife was excluded. I would have thought it would be very difficult to sustain that proposition. A matrimonial cause is a proceeding ibr an order or injunction in circumstances arising out of the marital relationship. If a wife takes her husband to court in regard to an assault which occurs in the matrimonial home I find it very hard to say that is not a matrimonial cause in the way in which this Bill contemplates it.

Senator Button - Come off it.

Senator GREENWOOD -Senator Button says 'Come off it'. I would be grateful if he would say where the argument is wrong and why an assault in those circumstances is not within the definition of a matrimonial cause. Ingenuity before practical cases can devise many instances which might or might not fall within this concept of matrimonial cause. But I would have thought that if an order were sought in the way in which occasionally orders are sought in our courts to determine who is the owner of property as between husband and wife, which is instituted by a third party, or where you have a question arising as to whether an agency relationship has been established at the suit of some creditor who is suing, then the issue as between the husband and wife is an issue arising out of the marital relationship. It is all very well for this Parliament to have views as to how far this concept of a matrimonial cause will extend and it is all very well for people to believe that it is limited in a certain way. When you have legislation and it is the operative legislation then the ingenuity of parties who want to take advantage of statutory provisions knows no bounds and a resourceful counsel or a solicitor who is able and desirous of doing the best he or she can for a client will take advantage of any power which is available. If it is felt that under a family court set-up there can be greater benefit for the party for whom the solicitor or counsel is appearing, undoubtedly these provisions will be availed of. One might say: What harm is there in that?

I suspect that there is in both what Senator Murphy and Senator Everett have said that attitude but I say- and this has not been adverted to; I do not think sufficient weight is given to it- that if subsequently the power is found not to be existing, how is redress to be effected? Senator Murphy said that if it ever arises consideration can be given to legislation to correct the position. But I invite him to consider that if in this area constitutional power is lacking legislation will not rectify the position because there is no Commonwealth power to rectify it. That was not the situation, of course, in those earlier decisions in Kotsis v. Kotsis and Knight v. Knight to which I referred where the defect was in the constitution of the members of the State court and whether or not there had been Federal jurisdiction vested in the registrars or commissioners who had made the decisions which were subsequently declared to be invalid. These are problems which I think have to be considered. I would welcome some further explanation by Senator Murphy as to how this matter is to be looked at. I do not know how the Standing Committee on Constitutional and Legal Affairs adverted to these matters. I made inquiries and the view was expressed that the members of the Committee amongst themselves believed that the Commonwealth had the power. But I do not know what legal opinions they had, how they overcame the problems which are quite apparent in the decisions of the High Court and on what assumptions they proceeded.

Senator Missen,I remember, said in his reply to me that to accept my amendment would remove from the scope of the Bill the power to grant injunctions. I am a little surprised that he put it that way because reflection would recall to his mind that the power to issue injunctions has always been contained in the Matrimonial Causes Act. My amendment is not directed to that aspect at all. As far as State courts are concerned, it has still to be decided how a family court set up by the Commonwealth can live with State family courts. I rather think the concept is inconsistent. I know that Senator Missen has an amendment to the effect that there shall be State family courts. If there are to be State family courts, surely they would be able to handle matters which arise out of the marital relationship, whether they are matrimonial causes or not. That is the advantage of having State family courts instead of a Commonwealth family court. The problem of division of power would not arise in those circumstances. There is a lot that may be said.

Senator Murphyreferred to the paper by Professor Sackville and Professor Howard in the Federal Law Review. I do not think it is an adequate treatment of what Mr Justice Menzies said simply to dismiss it as lacking any real substance. I do not think it does credit to the authors to dismiss it in those terms, without giving a more considered recognition of the views he held. Mr Justice Kitto expressed the view this aspect was adverted to by the authors- that many of the powers which were given under the 1959 Act could well be regarded as powers with regard to property, not with regard to marriage. Far more extensive powers are being given under this legislation, and they could be categorised in the same way. I believe that once that categorisation is made the legislation could well be beyond power.

I have not referred in detail to the judgments of Sir Owen Dixon and others in the case the State of Victoria v. the Commonwealth about the extent of a marriage power because it seems it is rather the matrimonial causes power and not the marriage power with which we are vitally concerned now. Those judgments also indicated a limit to what is now popularly and easily regarded as the width of the marriage power. There is a difference between a power to make laws with respect to marriage and a power to make laws with respect to the effects or consequences of marriage. If there is an error in the assumption of power by the Commonwealth, I can only say in advance there is not much consolation if one is proved right in the long run for the problems will be immense.

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