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Tuesday, 26 November 1974
Page: 2745

Senator MISSEN (Victoria) - I propose to say a few words on this matter because undoubtedly the creation of the Family Court, whether it be Federal entirely or State and Federal, is of great interest to the members of the Senate Standing Committee on Constitutional and Legal Affairs, lt was, of course, a major part of the recommendations that that Committee put forward- that there certainly should be a family court taking up all the jurisdictions which were otherwise spread in a great mass of courts, in different ways, and which were a constant cause of jumping from jurisdiction to jurisdiction and the cause likewise of cost and of frustration for litigants.

I do not propose to speak at length on this subject. I have mentioned it, of course, at considerable length in my second reading speech. I do not propose to repeat the remarks I made in my second reading speech but I want to make one comment. Senator Greenwood, when speaking on this matter on 2 1 November proceeded to say:

A second aspect which I think is important is that a Commonwealth Family Court would in essence be another name for a Commonwealth Superior Court with all the arguments against a Superior Court being able to be argued against a Family Court.

I reject that argument. I do not think the Commonwealth Family Court means in any way the same thing as a Superior Court. Apart from anything else the proposal for a Superior Court, which I strongly oppose, is a suggestion that we would merely put a certain part of the jurisdiction into one section of the Superior Court which would be called the 'Family Law Division'. It might be given certain powers and certain facilitiesthe sort that we would like to see given to all parts of the Family Court. But there is a great distinction between that and what is proposed now by the Committee report.

Apart from anything else one of the proposals of the Superior Court Bill was that judges could be interchangeable between divisions of the Court and that they could move from one division- Family Law- into another division. That is completely contrary to the concept which the Committee had of a Family Court because what is designed is that the people who will be appointed to a Family Court will be those who have a special touch for that sort of work. They will be people who, both by training and interests, are concerned with this type of work. They would not be interchangeable with judges who might be quite suitable in other areas of law. Consequently, this, to my mind, bears no resemblance to the idea of a Superior Court. True, the language in setting up the court is similar because the language in setting up any sort of court is similar. But the concept which is involved in this matter is quite different. It is well known to the Senate that I and other members of the Committee propose to seek the creation of not only a Commonwealth Family Court but also of State courts that will operate along with the Commonwealth courts. I do not propose to go in detail into the way in which that will work or into the details of our amendments.

Senator Greenwood - But is that not the fundamental question? How can they work together?

Senator MISSEN -They can work all right. I am quite sure of that. I am quite sure that if we do set up 2 lots of courts, one working mainly, of course, in the appeal area and the other mainly in what we might call the footwork area- that is judges who go around the countryside, doing the hard work. They will be limited by age so that, on the whole, they will be younger judges- the system will work well. Whatever system is set up will, of course, require the judges of the system to work in order to make it effective. Therefore, one cannot expect in legislation to find it spelt out word for word. One must rely on the fact that the establishment of courts to which judges are appointed, who are particularly interested and. capable in that area, and judges who want to make it succeed, will mean courts which will work.

The concept of co-operative federalism has been stressed by the Liberal members of the Committee in particular. That requires us to have the uniformity which a Federal Family Court will bring because it will bring together on appeal and in other ways the concepts which are desired to be found in family courts. We will find, I think, that that will be needed. At the same time we will need an involvement of the States in this matter. I do not propose, as I said earlier, to argue at length on this subject. I want to say that I certainly support the concept of a Family Court being created as proposed in this Part. I hope that this Senate will see the wisdom of adding to that the State concept which the Constitutional and Legal Affairs Committee recommended and mentioned in its report. I hope that both these provisions will go through the Senate. So far as the heading is concerned, it would be a shock to the nation because what the nation desires is evident from polls that have been taken and from correspondence. If a family court is not set up as a new concept, as a new court moving into a new field, it will be complete defeat for this Bill. I support this Part of the Bill.

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