29th Parliament · 1st Session
Mr SPEAKER (Hon. G. G. D. Scholes) took the chair at 9.30 a.m., and read prayers.
Debate resumed from 13 February on motion by Mr Whitlam:
That the Bill be now read a second time.
Upon which Mr Stewart had moved by way of amendment:
That all words after That” be omitted with a view to substituting the following words: “whilst not declining to give the Bill a second reading, the House is of the opinion that the Bill should give expression to the following principles:
that the family is the basic and stable unit of the Australian society;
b) that marriage should be buttressed;
that marriage should be permanent and secure;
that full and proper recognition be given to the status and rights of a woman as wife and mother;
that there should be full and proper protection of the wife and children in the event of the dissolution of a marriage; (!) that there is need for children to be reared and cared for by a present parent; and
that marriage should be dissolved only when a Court is satisfied on objective grounds that the marriage has irretrievably broken down or that the parties have lived separately and apart for not less than two years”.
-First of all, Mr Speaker, I would like to congratulate you on your election as Speaker of this House. This is the first time I have spoken since you were elected.
The Family Law Bill as passed by the Senate contains major changes to the law relating to divorce and I believe would be more appropriately designated as the divorce law bill. It is designed to replace the Matrimonial Causes Act 1959-1966. Might I just say that I believe it would be a good idea if Bills were designated more in line with the purpose they propose to serve. The changes that are proposed in this Bill are far reaching and there has been a good deal of supposition on its effects. This confusion is demonstrated by the very contradictory conclusions that have been reached, even by people who have no strong feelings one way or the other. Some people feel that if the Bill were passed through the second reading stage, then their ideas might be incorporated in the Committee stage. I suggest that no one can be sure of what is going to happen in the Committee stage. One would be taking some sort of risk if one were to depend on getting one’s amendments accepted in the Committee stage. Some 90 amendments went through the Senate and there are a number of amendments to be proposed in this chamber. If an amendment were carried, I think it would be very desirable if time were allowed for further consideration to be given to other proposed amendments because I believe that some of them, which are designed to improve the Bill, would probably conflict with other clauses. I believe they need a careful examination. People who claim to have a wide experience in divorce proceedings, and I know they do have a wide experience, have completely differing views on the effect of this Bill on family life. It is true to say that many people have expressed very grave concern about the consequences of the Bill and its contradictions. Clauses 43 and 48 are but 2 examples of these contradictions.
The honourable member for Wentworth (Mr Ellicott) has suggested what I believe is a very worthwhile amendment to clause 48, but I should like to see this amendment discussed by committees or groups of people from both sides of the House. I believe that all the proposed amendments and all the ramifications of the Bill should be discussed further and perhaps some agreement could be arrived at in order to save the time of this House, rather than having a long debate without full consideration of what the amendments are going to do to the remaining clauses of the Bill. I draw attention to the fact that even the honourable member for Wentworth, a former Solicitor-General, said that he had had some difficulty in this regard. If he has difficulty, then most of us would have difficulty. In a reasoned discussion of this Bill he indicated fairly conclusively, at any rate to me, that there is need for further examination of the Bill. The only way of proving irretrievable breakdown of marriage is to show that the parties have lived separately and apart for one year. Again it has been pointed out that in this Bill the benefits, the advantages and some of the conditions that were contained in the previous Bill have been wiped out. This is a very unusual aspect. I do not know that it has been adequately considered. It has been brought up in this chamber and I hope that it will be adequately considered before the Bill is passed.
In order to simplify the grounds for divorce the Bill provides a more readily available divorce on the grounds of separation. Therefore, it weakens the marriage contract or the marriage agreement. I contend that to preserve family life as the basic unit of society the marriage contract must not be treated as lightly as is proposed in this Bill.
I think it would be conceded that many people who claim to be happily married couples today have had strains and stresses on their marriages during the course of the marriages and if it were not for the fact that those people looked upon the marriage contract, the marriage agreement or the marriage ceremony as a very serious undertaking, many of those marriages would have broken down.
I do not think that we can afford to treat marriage lightly because I believe it is the basic unit in our society. I hope that most people in this House will agree with that view. I believe that the fact that a divorce will be available to either marriage partner, almost without penalty in many instances, simply by leaving the other partner or indeed by claiming that cohabitation has not occurred over a period of 12 months, even if living under the same roof, will encourage marriage to be undertaken with much less concern about the responsibilities of marriage than exists at present. That is one of the great weaknesses of the Bill. Because of this and for other reasons I contend that the one-year period of separation is too short and 2 years separation would be more appropriate to the very serious matter of the civil dissolving of a marriage.
If the Parliament accepts the fact that there is a need to preserve and to protect the institution of marriage as a union of a man and a woman to the exclusion of all others voluntarily entered into for life, as stated in the Bill at clause 43(a), I contend that divorce made too easy is not the medium by which that objective can be attained. Let there be no misunderstanding about it. This Bill does make divorce much easier by allowing only a 12-month separation as a ground for divorce. I am not opposed to reform. I do not think anyone who has spoken in this debate so far has opposed reform. I would be prepared to accept a reduction to 2 years separation in an endeavour to meet the need for reform. If we accept a shorter period as a basis for divorce on the ground of separation, I contend that we are moving towards a situation in which what will be in effect trial marriage will be undertaken. I believe that is something that should be avoided at all costs.
I am very strongly in favour of the marriage counselling organisations being financially assisted by the Parliament as a medium for the preservation of marriage. I hope that every effort will be made through the media to encourage the use of these organisations by partners to a marriage as soon as difficulties arise, as early discussions are the most likely to bring results. Indeed, those who perform marriage services could well be required to draw the attention of the parties to a marriage to the fact that this service is freely available to them. While the parties may not be very receptive at that time it still should be drawn to their attention that when they run into the trouble that so many marriages run into, particularly perhaps in the first few years and again at a later stage of marriage, this service is available if that is done. The best advantage can be taken of what I believe is a very desirable part of the Bill being presented to us- a part that should be retained. I do not think enough has been done to encourage counselling and the results have not been as satisfactory as most of us would have liked them to be. That does not mean that we are entitled to neglect this method of trying to preserve marriage.
A criticism that I have of this Bill is that too much consideration is given to those who want to be absolved from the responsibilities of marriage and too little to those who want to preserve marriage. That is the theme running through this address I am making to the Parliament this morning. Too much consideration is given to those who show no concern for the responsibilities that marriage should impose and too little to those who are prepared to accept the responsibilities of marriage and are willing to endeavour to overcome the difficulties that may arise. Too little consideration is given to the innocent partner of marriage who has been divorced against his or her will.
The fact that irretrievable breakdown of marriage is the only cause acceptable for divorce under this Bill does not remove the fact that there are innocent partners in at least some marriages that have broken down. The fact that fault or conduct is not a factor to be considered in divorce cases under this Bill does not remove that fact because that fact is there. I think the honourable member for Wentworth made that point in the course of an excellent address on this Bill in this House. It is indeed very tragic that marriages do break down. It is accepted, and I fully accept, that every sympathy and consideration should be shown to those who have tried but failed to make marriage a success. We recognise that. I believe that this Parliament should give its very full consideration to endeavouring to meet both sides of the opposing views. The fundamental factor, however, in the consideraton of such a Bill as the Family Law Bill is how to preserve marriage. That should be the dominant factor. In this regard I consider that this Bill fails, even though the marriage counselling section of the Bill is directed to this end, because of the shortness of the time that is allowed or required before a marriage can be dissolved.
There has been a very wrong assumption by some speakers on this Bill that those who are supporting the amendment are opposed to reform of our divorce laws. That is just not true. It is a furphy. It is a red herring that has been drawn across the path in an attempt to gain support for this Bill and have it passed. The very fact that the people who support the amendment are agreeable to a reduction from a period of 5 years separation, as exists at the present time, to 2 years, as is proposed in the amendment, shows that those people who are supporting the amendment are indeed supporting reform of our divorce laws.
Let me point out that the amendment provides for a divorce when a court is satisfied on objective grounds that the marriage has irretrievably broken down or that the parties have lived separately and apart for not less than 2 years. As I have mentioned, a period of 5 years separation is required at present. If one goes a little further and looks at the position in England one will see that a period of 2 years separation is accepted only if both parties are in agreement and that a period of 5 years separation is required if they are not in agreement. So we who are supporting the amendment are not opposed to a reform in the divorce laws. In fact, put in another way, the proposal contained in the amendment reduces by no less than 60 per cent the time required as a ground for divorce through separation. The Bill seeks a reduction of 80 per cent.
So often in the discussion of problems that confront the community of this country we find that whenever there is a move to bring about reform the pendulum swings too far, that the enthusiasm and desire to bring about reform sometimes go to extreme limits. The Attorney-General (Mr Enderby), who is sitting at the table, has already suggested that perhaps a period of 3 months might be an appropriate period under certain conditions. I say that to get down to that period is to lessen the strength of the marriage bonds and that is one thing that I believe the people of Australia just do not want to do. Indeed, who is to say that there is not going to be even a further reduction from the period of 3 months? The Attorney-General might smile, but I ask: Where do we finish on these sort of things? Are we going to do away with marriage altogether? Is that the objective? I say that we have to be a bit careful about what we are doing. I am not saying that with any feeling of animosity, but I appeal to the Attorney-General to give some consideration to that aspect.
The Attorney-General has claimed that he is a happily married man. I am very pleased to hear him say that. There are lots of others who are in the same position. I ask the Attorney-General to give every opportunity to the rest of the people of this country to be happily married people too and not to make it so easy for divorce that they can step out of an unhappy marriage that probably could have been preserved by a consideration of the responsibilities that are attached to marriage. Two years is little enough time for separation. For example, if a person went on long service leave without his wife, under the provisions of this Bill he would have completed half the separation time required by the time he returned. He could come home, live normally for 3 months, then he would have to go away for only 6 months to complete the requirements of this Bill as it stands at present. Surely that is not sufficient to dissolve a marriage which is entered into voluntarily by two people of whom one at least places great confidence on the protection that the marriage ceremony gives.
I know that a separation period of 2 years will not be the ideal time for every case, but will any time be ideal? I believe 2 years is a fair compromise and I hope the Parliament will accept it. Surely we should make the marriage contract require at least a 2 years separation before it is broken and so at least demonstrate that this Parliament does recognise that marriage should not be entered into lightly and that every effort should be made towards reconciliation of the marriage partners. Again I say that this is an aspect at which we should be looking. It is good to try to relieve people of their responsibilities when they have run into trouble. I accept that, but there is also an even greater responsibility to try to preserve marriage. This is particularly important where young children are concerned. In this area the factor of conduct or fault has been accepted in the Bill in regard to the custody of children. This surely must be accepted as reasonable. It is also reasonable to argue that if conduct or fault can be established in regard to the custody of children and in respect of maintenance, it must be possible to establish conduct or fault as a factor in relation to divorce proceedings. Those of us supporting the Bill have not gone so far as to require that. I just mention it to show that we have been fairly reasonable in our approach to the Bill.
One of the questions which should be answered by honourable members when considering this Bill is whether it will lead to an increase in the number of divorces. If the answer to that question is yes, as I believe it will be, I contend that the amendment asking for 2 years separation should be accepted by the Parliament with the object of maintaining the maximum number of marriages. Figures from other countries show that petitions for divorce have increased following the easing of divorce laws. I draw to the attention of honourable members the situation in Hollywood where marriage is not considered seriously. The number of divorces there show how lightly marriage is entered into. In the few minutes left to me to speak, I would like to refer to the changed conditions upon which maintenance is determined. Clause 72 limits maintenance for the other party only if that other party is able to support himself or herself adequately. For example, if a wife is to obtain maintenance, she would have to prove that such maintenance was necessary in accordance with clause 75, sub-clause (2 ) (b), which states:
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
No less than 12 other factors are listed for consideration by the court when maintenance is being determined. I think it can be logically claimed that under this Bill, maintenance for wives is made more difficult and, I believe, made too difficult. There is also the other case where a wife might walk out on her husband without any real reason- she may have got a little too tired or been in some difficulties. Afterwards, as a result of that break, she goes to live with some nohoper, yet her husband would have to provide maintenance under those circumstances. I say again that this is another fault in the Bill, which should be given further consideration.
I support the amendment which sets out the position which marriage should have in Australia. I think it could be claimed that most people would not object to the earlier parts of that amendment- a condition that marriage should be dissolved only when it has irretrievably broken down and when the parties have lived separately and apart for not less than 2 years. I contend that this is a very broadminded approach to the reform of our divorce laws. It should be readily acceptable to the honourable members of this Parliament, especially those who want divorce law reform combined with better protection for the institution of marriage than is provided by this Bill. I support the amendment moved by the Minister for Tourism and Recreation (Mr Stewart).
– I rise to support the Family Law Bill. Very few Bills can have come before this Parliament in relation to which the issues have been so well understood by the ordinary man in the street, but we are dealing here with the subject of marriage and the pressures which arise within it. The vast majority of Australians have had personal experience of the marriage relationship. I venture to say that almost all of those who have not been through the mill of the divorce courts are acquainted with somebody who has and thus are aware of all of the problems, the humiliations and the legal excesses which attend the present legislation.
My main concern in rising is to speak against the amendment proposed by the Minister for Tourism and Recreation (Mr Stewart). The Minister calls this legislation the most discriminatory, ill considered and badly drafted legislation ever to be introduced into the Parliament. No doubt the examples of bad drafting to which the Minister refers can be examined during the Committee stage, but I can hardly accept his proposition that the Bill is ill considered. On 18 March 1972- almost 3 years ago, before this Government came to office- advertisements appeared in the Australian Press asking interested persons and bodies to lodge submissions with the Senate Standing Committee on Constitutional and Legal Affairs. The recommendations of that Committee and the recommendations of other bodies have all been debated in another place. Three separate Bills have been introduced, and in its final form the Bill contains approximately 138 amendments resulting from representations made by interested parties. It is now the suggestionthis is really the purpose of the Minister’s amendment- that further delay should take place to enable, it is said, further consideraton to be given to the legislation.
My view is completely opposite to that of the Minister in relation to his allegations of discrimination in the legislation. I shall deal with that point when dealing with the Minister’s proposed amendment. Let me say, first of all, that the amendment as drafted displays some considerable skill in the game of tacking because it tries to force its opponents to vote against the first six principles it contains in order to vote against the seventh. One would have thought that tacking had long gone from parliamentary practice in this country and indeed that its worst excesses would have vanished with the operation of section 55 of our Constitution. No one in this House wants to vote against motherhood or to vote in favour of sin, but that is almost the position into which we are being put if we vote against the first six principles outlined in the Minister’s amendment.
I suppose that the restatement of those principles is quite unnecessary. They are already included in the Bill or in other legislation. The first principle which the Minister wants the Bill to include is that the family is the basic and stable unit of Australian society. I would remind the Minister that Article 23(1) of the United Nations Comvention on Civil and Political Rights, to which Australia is a signatory, reads:
The family is a natural and fundamental group unit of society and is entitled to protection by society and by the State.
The Convention goes on further to state:
Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
The Human Rights Bill, which is to be considered by the Parliament as government legislation, explicitly recognises the right io many and found a family, and protects the family against unlawful or arbitrary interference. The Minister has not been heard to raise his voice against that legislation. I sincerely hope that he does not do so in the future. The Family Law Bill now before us, does no more than seek to carry out our obligations under the United Nations Covenant.
The next three principles with which I wish to deal are those which the Minister apparently believes are necessary to avoid discrimination. They are, firstly, that full and proper recognition be given to the status and rights of a woman as wife and mother; secondly, that there should be full and proper protection of the wife and children in the event of the dissolution of a marriage; and, thirdly and lastly, but not least, that there is need for children to be reared and cared for by a present parent. I must confess that the last of these baffles me. I have not found in the Bill, nor have I heard from any honourable member, any suggestion that children will be forcibly taken away from their parents, although I accept that there may be now, and no doubt will be in the future, those rare and terrible circumstances in which a child must be separated from its parents for its own safety.
Let me return to the question of discrimination. I refer opponents of the Bill to the extensive provisions for custody, maintenance and the disposal of property. I find in this Bill a code which will be common to all States of Australia and which takes pains to protect the rights of wives. If there are defects in individual clauses, those clauses may well be varied in the Committee stage. I suggest that the Minister’s claim of discrimination against wives cannot be supported. At least one eloquent body on women’s rights, the Women’s Electoral Lobby- an organisation whose members are never slow to find themselves discriminated against- has now stated emphatically that discrimination does not exist in the Bill. That organisation certainly prefers this proposed legislation to that which now exists.
I turn now to the 3 proposals in the amendment which are at the heart of the opposition to this Bill. They are that marriage should be buttressed; that marriage should be permanent and secure; and that marriage should be dissolved only when a court is satisfied on objective grounds that the marriage has irretrievably broken down or that the parties have lived separately and apart for not less than 2 years. It seems to me that speakers in support of this amendment are trying to say, firstly, that marriage must be buttressed to the extent that it is permanent and, secondly, that, failing that, its dissolution should be a matter of the utmost difficulty, almost enforcing by law that the parties remain married.
I accept the description of a good divorce law which was enunciated by the English Law Commission in the publication entitled ‘ Reform of the Grounds of Divorce: The Field of Choice’, which states:
A good divorce law should seek to achieve the following objectives:
To buttress, rather than to undermine, the stability of marriage; and
When, regrettably, a marriage has irretrievably broken down, to enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress and humiliation.
The second objective has 2 facets. First the law should make it possible to dissolve the legal tie once that has become irretrievably broken in fact. If the marriage is dead, the object of the law should be to afford it a decent burial. Secondly, it should achieve this in a way that is just to all concerned, including the children as well as the spouses, and which causes them the minimum of embarrassment and humiliation. Above all it should seek to take the heat out of disputes between husband and wife and certainly not further embitter the relationships between them or between them and their children. It should not merely bury the marriage, but do so with decency and dignity and in a way which will encourage harmonious relationships between the parties and their children in the future.
It may be regrettable in the eyes of some sincere persons that our society has moved from the position where marriage is indissoluble and binding for life whatever the misery that may arise, but we are no longer concerned with the question of ‘divorce or no divorce’. Rather are we concerned with the question of what is the best way of handling divorce. To buttress marriage by keeping divorce fault orientated does no more than turn the clock back to the 19th century, a situation which is simply not acceptable to the great mass of the Australian people. Let me make it clear that, in saying that, I recognise that the institution of marriage is fundamental to our society. I am informed that statistics have been quoted in another place to show that marriage is becoming even more popular; that, although divorce rates are rising, approximately 75 per cent of those who are divorced marry again and settle down to a long married life. I believe that this Bill helps that situation and meets all the requirements of a good divorce law as expressed by the English Law Commission.
I want to turn now to the question of an objective test for breakdown of marriage. If I understand the difference between an objective and a subjective test correctly, the objective test measures facts as they exist in a particular case against some rigid set of rules, without regard to the special circumstances surrounding the particular case, whilst the subjective test takes into account the particular circumstances and, more particularly, the impossibility of some people to meet absolute standards. This Bill in some measure prescribes an objective test. It states that a marriage has broken down if the parties have lived apart for 12 months, without regard to any circumstances. The discretion that exists is not to find irretrievable breakdown if there is a possibility of a reconciliation. We all know of cases where marriages have broken down even if they have not involved committing one of the socalled matrimonial offences in section 28 of the present Matrimonial Causes Act.
Desertion and cruelty are the esoteric area of lawyers. I am informed by lawyers that not all sexual relations constitute adultry and that even more complicated law follows allegations of sodomy. To prove matrimonial offences brings bitterness and humiliation, it leaves a guilty party, when the matrimonial offences are usually only a symptom that the marriage has broken downthe effect rather than the cause. Opponents of the Bill also claim that the whole basis of the legislation has been changed in that a divorce may be obtained by one party without the consent or even against the will of the other. I remind those speakers who claim that the introduction of ‘nofault’ is a fundamental change, that even under the present law that situation obtains in 3 cases: firstly, if one of the parties is of unsound mind; secondly, if one of the parties has been absent for such time and in such circumstances as to provide reasonable grounds for presuming death; and, thirdly, the well known and used no fault ground of separation for 5 years. That is the magical period of time.
The question really becomes a matter of one or two years, if it is examined minutely. If a marriage has broken down, any extension of the period can only prolong the agony. I recognise that there is room for argument that 2 years is more appropriate than one, but the one-year period is favoured by the majority of the Senate Standing Committee on Constitutional and Legal Affairs. It is the period favoured by the special committee of the Law Council of Australia, it is the period favoured by the Australian Council of Marriage Guidance Associations. This is known publicly. The former AttorneyGeneral gave the information to the Senate which is recorded at page 2846 of Hansard of 27 November. I have yet to hear a single valid argument in favour of the 2-year period- only vague fears that are no more than another delaying tactic.
The allegation frequently heard in this chamber, that after this Bill passes women will lose their rights to maintenance and will be forced to support themselves, is arrant nonsense and a total misrepresentation of the facts. At present if a husband is able to prove that his wife has committed a matrimonial offence she may be disentitled from obtaining a maintenance order in respect of herself whether or not she is employed solely in the care of the children of the marriage and has no private income of her own. Thirty-two per cent of women who are divorced presently fall within that category. She does, of course, obtain maintenance orders in respect of the children in her care, but on their attaining the age of 1 6 years or a further order of the court that maintenance may then cease and she may be left at an advanced age with no income save pension entitlements or income from her own personal exertions. On the other hand, this Bill provides that husband or wife may be liable to support the other, and the criteria used are need and capacity to pay rather than the fault which in the majority of cases is artificial. In fact both parties in the main contribute, sometimes unconsciously, to the breakdown of the marriage and then, but only then, does one spouse commit a matrimonial offence such as to entitle the other to sue for divorce.
It is quite inaccurate to say, as did the Minister for Education (Mr Beazley), that a man earning $500 a week could force his divorced wife to live on maintenance from the husband of $5 a week plus a government pension. The Bill quite specifically provides in clause 75, and in particular clauses (c), (d), (e), (j), (b) and (n), that inter alia all aspects of the parties’ financial resources are considered and standards of living of all parties are taken into account, so that if the husband’s earnings and resources are far superior to those of the wife she will be supported adequately by way of maintenance payments at a standard appropriate to a divorced wife of a man earning $500 each week, assuming he can show that he is not capable of earning more.
Some women have been manipulating the present system by refusing to remarry, although living in a de facto situation, because if the women did remarry they would lose their entitlement to maintenance payments from their former spouses. Clause 75(1) provides that if a spouse is cohabiting with a person other than the former marriage partner the financial situation of the cohabitation is taken into account, and although the spouse may still be ordered to pay maintenance to the former partner while he or she cohabits with another person, the burden of the payment will be reduced. Surely it is in the community’s best interests that parties to a marriage which has been dissolved conduct themselves honourably and that one is. not forever burdened with a substantial maintenance order in favour of the other who has formed a permanent relationship with some other person but who refuses to remarry on the ground that it may be less economically advantageous to do so or, what is worse, out of spite. That situation is not uncommon at present and causes blatant injustice of such a magnitude that we ought not to allow it to continue further.
There is no provision anywhere in this Bill, however it is construed, which would force a working class wife, with children under 18 years of age, to work in order to support herself or to live solely on the pension, provided her spouse is employed and earns sufficient income to enable him to contribute to the family’s support. It must be clearly understood that many women prefer the security of a pension to the tremendous uncertainty of maintenance payments from a spouse. At present in a great number of cases where maintenance orders are made the other spouse cannot be found, he is in arrears with maintenance payments or absolutely refuses to obtain employment. In those cases the maintenance orders are just an expensive academic experience on the wife’s part. Working class women will receive greater protection than those with education and training as they are less able to assist themselves, because work in unskilled employment for a small remuneration may not permit them to obtain adequate paid childminding facilities. By the same token, a female doctor, for example, would not be forced to work if she chose to remain within the house to care for the children, but she would be expected to work when the youngest child attained 18 years of age, provided that the woman’s age and state of health enabled her to do so.
Women on the whole are more protected than they have ever been, and the emotive mouthings to the contrary are deliberate falsehoods to arouse uninformed public opinion to further the ends of those who seek to impose their views on the community by the use of all possible means, legitimate and illegitimate. My main concern in speaking against the amendment is, as I indicated, that in the first instance we should take into account that this Bill will be in the best interests of the majority. This Bill is a humane and important piece of legislation. It is the first real examination that this House has made of divorce since the passage of the Matrimonial Causes Act of 1959. I appeal to honourable members to look at this legislation and ask themselves whether it will improve the lot of society. In my view it will contribute to the dignity and security of life in Australia and give needed assurance to the children of the participants of the marriage that has failed.
-Mr Speaker, this being the first opportunity that I have had in a debate to congratulate you on your assumption of the office of Speaker, I do so. I also wish to pay a short tribute to your predecessor, Mr Speaker Cope. When I was a new member in this House, notwithstanding that I was a Liberal member, he gave me a great deal of help and cooperation and certainly made my task considerably easier as I assumed the responsibilities that I undertake for my electorate. In offering my congratulations to you, Sir, I express the hope that you will accept this responsibility to offer to new members of this House the same degree of cooperation as I received from your predecessor.
The honourable member for Melbourne (Mr Innes), who preceded me in the debate, made certain analogies with sailing. I have had some experience of sailing, and I was interested in his reference to tacking. He seems to have assumed that there was perhaps one boat tacking, whereas my experience of tacking duels is that they usually involve 2 boats. In this case we have seen changes of direction by the duellers on both sides. I refer particularly to the Attorney-General (Mr Enderby), because I think that in the tacking duel which it is alleged we have seen indulged in by the Minister for Tourism and Recreation (Mr
Stewart) we have also seen a corresponding tacking action on the other side. This involves the amendments which have been foreshadowed by the Attorney-General. It clearly seems to be a tacking exercise designed to say to members of this House: ‘If you think the view that the opponents of this Bill are putting is extreme, then there is an equally extreme view on the other side and perhaps you ought to come back to some middle point, that is, the Bill as originally proposed’. Supposing that one looks at these things as a tacking exercise, it is a legitimate way to undertake this task, but I have found considerable difficulty in deciding on which side of the House I should sit in considering the amendment I know perfectly well where I would sit concerning the Bill itself.
I am persuaded to support the amendment simply because I believe that a better Bill will emerge if the Minister takes away with him the points that are made in this Debate and brings foward a Bill that takes them all into account. I am terribly fearful that if amendments that might be part of a scheme of amendments to improve the Bill are adopted in part we will end up with a hotch-potch of a Bill that will be quite unsatisfactory for the purposes for which we require a family law Bill to operate. It seems to me that the points that are being made- I believe the balance of probabilities is that this Bill will be amended- demand that the Bill be redrafted in the Attorney-General’s office to give effect to the views that are expressed. In the tacking exercise we witnessed before, the Minister put forward a certain view on the effect of the amendment. He said th at the Bill would be lost. If he accepts that view, I am ashamed of him because I believe that this Bill has in it many very desirable objectives. If the Minister were to treat the carriage of the amendment as the defeat of the Bill and would not bring the Bill foward in an amended form, I would be most distressed. What I believe should happen is that cognisance ought to be taken of the arguments put and an improved Bill that is drafted in totality to give effect to all the matters that are necessary ought to come forward. It is for that reason that I support the amendment. As I shall show when I refer to these matters a little more fully later on, the amendment does not in its entirety meet with my approval either. I have the same difficulty with it as I have with the Bill. This is what makes my position so difficult.
Most of the speeches in this debate have been well thought out. The one with which I find I share the most is the contribution of a member who spoke on the other side, and that was the contribution from the honourable member for
Wentworth (Mr Ellicott) We differ in terms of the desirability of whether the amendment ought to be carried I have expressed the reasons why I think it “ ought to be carried. Most honourable members come into this House with prejudices of one form or another. They are biased by their own values ‘ and experience. Many perhaps are persuaded by the multitude of representations they have received. I am not persuaded by the representations I have received. I appreciate that there are. arguments validly put on both sides. Unfortunately .a lot of the representations one receives adopt a black and white point of view and when you, get down to discussing the Bill from a black and white point of view you adopt arm’s length approaches which I find are quite unsuitable. I am a lawyer. I am not experienced in this particular area of law but at least I am sufficiently familiar with it to know the anguish and heartbreak that many people experience when they., go through our present judicial system. .
– What about the money?
-It has nothing to do with the money. I am not convinced that this Bill will remove all that heartbreak. I am not convinced that there is any method that can be achieved to remove by legal action the sort of heartbreak that emerges- when a marriage, entered into voluntarily by 2 parties with the view that it will last them for life, is being put aside. I do not believe that the law or the legal profession can be blamed for that and my own experience has been that most lawyers- I use the word ‘ most’ because I think perhaps there is a small number of lawyers who do not- certainly do not try to push parties into a divorce if they can avoid that possibility. I am concerned, however, and I will come to the matter in a little while, about the figures I received from the Marriage Guidance Council which indicate that very few referrals are made to it by legal practitioners of people who are in trouble; but I suppose that is a reflection of the fact that most people go into a legal practitioner’s office only when they believe that the breakdown of the marriage has reached the point of no return.
My own philosophy is a personal one. I profess that I am a Christian. I have values about marriage that I hold very strongly. I believe marriage should be for life. Notwithstanding my personal views I acknowledge that there are differences, that there are people who do not have the same religious values that I have and the law has to operate in a sectarian society, and that it has to operate in a way different from the way I would like it to operate in absolute terms. I acknowledge that the Bill must take public -interest into account. I very much support clause 43 although I do not propose to read it now. It is a very good clause in terms of what it expresses but I am not convinced that the Bill in its form before the House gives effect to it. I express my doubts as to the way in which clause 48 ought to be worded.
The amendment moved and now before the House’ is one that most honourable members have indicated they support. The honourable member for Melbourne, who preceded me in this debate, indicated that he wholeheartedly supported the first 6 points. My qualification, unfortunately, relates to point (f) of the amendment. I believe that it is an extreme and that it ought to have been more thoughtfully worded by the proposers. I caution that it is not my view that there is a need for children to be reared and cared for by a present parent in all cases, although I believe it is most desirable. There are many proper cases where a parent- sometimes both parents perhaps- is not able to participate in the rearing and it is probably better that he or she does not do so. It may be a case similar to my own. My wife and I have both undertaken professional obligations and we believe that it is in the interests of the upbringing of our child that both parents be allowed to pursue their careers notwithstanding the fact that it may not be the best for the child. The fact is that that child would be worse off if the mother or father were required to be at home, certainly distressed and I believe taking out that distress upon the child. That is the sort of qualification I see in respect of that clause of the amendment. As honourable members will hear from the amendments I personally prefer to see proposed to clause 48, 1 do not see objective grounds as being the resurrection of all the grounds that exist in the present Matrimonial Causes Act and I make this point clear.
I support very strongly the view that the basis upon which a marriage ought to be dissolved is when the marriage has irretrievably broken down. I do not accept that 2 years in all cases is the most satisfactory period upon which to assess when a marriage has broken down, nor do I believe that in all cases one year is the most satisfactory. These tests are very difficult because one’s understanding of the nature of a family varies with each family situation. I believe that, unfortunately, a single law without the widest possible discretions, is one which will not enable that law as it operates to take into account the varying situations. That is why I will propose a view different from that which has been proposed to date.
The law at the moment provides for the majority of situations in which people want to be divorced. When I talk about ‘people’ I mean both parties to the marriage. In the multitude of cases, no demands are made for change. The call for change results from a minority of cases in which considerable hardship is caused to the parties involved. I believe that the Bill as proposed will perpetrate similar hardship for a minority of parties to marriages. It is for this reason that I believe the Bill as proposed is as unacceptable as the present law. But I do not want it to be taken that I in any way lack an appreciation of the advantages of this Bill as proposed.
A lot of the emotive words that we have heard disguise the fact that the BUI has considerable advantage. It is only clause 48 to which i have real objection. I cannot agree with those people who suggest that the courts will not be able to make adequate provision for the parties to the marriage and, in that respect, I include wives who are described in all the various circumstances, and that the change of emphasis will in any way bring about a really different effect to that which takes place in our courts today. I believe that the Bill has been satisfactorily amended by the Senate to provide that the courts do have that discretion to be able to deal with all situations.
I wish to deal with a number of the clauses of this Bill. Clause 14, which provides for the strengthening of counselling requirements, is I believe a good clause. I would propose one small amendment to it. I will come to that shortly. One has to look at the matter of counselling. In its report, the Marriage Guidance Council of New South Wales has made it clear that of the 2269 cases referred to it 1553 were self-employed and 75 were referred by legal organisations. I am somewhat surprised, as I mentioned earlier, at the small number of legal referrals to that organisation. There were more from medical practitioners, numbering 147. 1 believe that this clause will strengthen the prospects of lawyers making reference to marriage guidance organisations or to organisations established under the Act for proper counselling to take place.
In relation to that clause, I mention that I have received, as a number of other honourable members may have received, a note from the Rev. Alan Walker, the Superintendent of the Central Methodist Mission. Making reference to clause 14 (3), he states:
After the adjournment has taken place for counselling and either of the parties requests that the hearing be resumed, the judge is obliged to refer people for counselling. Unless this clause is strengthened to require a report to come to the judge, showing that counselling has actually occurred, it is of little practical significance.
I agree with that submission. I believe that the court ought to know, in respect of parties who ask for a referral or are directed by the Court to be referred to such a service, what the result of that referral is and that the parties have submitted to the court’s direction in such a way as to have at least brought about a reasonable attempt at achieving a reconciliation.
I support the clause dealing with maintenance. I support clause 1 14 which provides for injunctions to be able to be granted in certain circumstances without the necessity of an earlier application. I support the principle of the abolition of damages for adultery and enticement. I support the financial obligation of each party to maintain the other with the court having the discretion to make the judgment between each of those parties. I support strongly the formation of the family law council to advise on amendments to the law and to operate on a continuing basis. I think this is essential. I support strongly the establishment of an Institute of Family Studies, provided that it operates in a way which promotes a real study of how the family unit may be strengthened. That ought to be its principal objective. In regard to that Institute, I particularly note the views of the Family Life Movement of Australia which wrote to me and indicated very strongly the need for pre-marital education at various levels. I hope that the Institute of Family Studies will closely examine this matter. In its submission to the Senate Standing Committee the Family Life Movement made detailed recommendations on the importance of pre-marital education at various levels. It regards such education as vitally significant and undoubtly a major contribution towards ensuring as far as possible that couples contemplating marriage understand what is involved, and that the marriage relationships into which they enter are likely to be of a stable and enduring nature. I strongly support that view.
I could go on and deal with other clauses, but in view of the fact that time is limited I will move on to some of my reservations about the Bill. My reservations relate primarily to clause 48. 1 have mentioned why I have reservations about clause 48. It does not provide for a minority of situations. My view- this was contained in an amendment proposed originally by Senator Baume- is that the clause ought to be amended to provide for 3 grounds of divorce: Firstly, that the parties have separated and thereafter lived separately and apart for a continuous period of not less than 2 years immediately preceding the date of the filing of an application for dissolution of the marriage; secondly, that the parties have separated and lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of an application for dissolution of the marriage and neither party opposes the dissolution of the marriage, and thirdly, the misconduct of the respondent to the application is sufficiently grave and weighty to justify the other party terminating the matrimonial relationship.
– That is the same as was stated in the speech of the honourable member for Wentworth.
-That is so and, as I have said previously, his speech very much persuaded me. I believe that clause 3 would not ressurect the grounds that we have at the moment, and I certainly would not wish it to do that. This is my strong view. Such organisations as the Methodist Church in Canberra made it clear in its letter to honourable members that its commission agreed with the Senate amendment that at least 12 months separation should elapse before an application for divorce proceedings is made. It is amazing how reference is made to the churches being divided on these sorts of questions, but generally speaking when it comes to clause 48 it is my view that there has been a great deal of doubt as to whether the period should be 12 months, 2 years or some other period.
The reason I support the varying tests that I have proposed is that I believe there are situations which will not be covered when there is only the simple ground for divorce of 12 months separation. I will cite some examples. There is the situation where a marriage is not consummated. Let us say that one party married a homosexual or a lesbian and there was no consummation of the marriage. I believe that under the law as proposed there is no basis on which that party could seek some immediate relief, yet such a person gets that relief now under the existing law. I believe it would be a hardship to make those parties continue in the marriage. The other example refers to a drunken spouse who beats the other party every day and every night but the other party maintains the marriage until the last of the children of the marriage is married. I believe that that party should not be required to wait a further period of 12 months before some remedy is available, although the remedy of injunction might be available if that party wanted to walk out. These things worry me, but there are a number of other clauses about which I am concerned.
I refer particularly to the comments of the Law Society of Victoria on clause 22. 1 refer that matter to the Attorney-General because I believe that those comments were validly made. I do not have time to go into them in any detail. I have referred to the comments of the Reverend Alan Walker on clause 14 (3). I wish to refer to clause 90 which abolishes a State tax. I particularly wish to put the view that it is not and should not be the province of the Government in a Bill of this type to abolish a State duty without making some other arrangements for funding it. I understand from the Minister for Revenue and Assistant Treasurer in New South Wales- in fact, he is my father- that no advice has been received by that Government that this money will be made up. The view he puts is that if the Commonwealth believes that the collection of this revenue is wrong in principle it should arrange for .payment on behalf of the person liable. I put that point very strongly to the Minister.
– On behalf of the Government?
-Not on behalf ‘ of the Government, but I think the Minister might like to inquire as to what the State Government’s view is. I refer to clause 6 which worries me greatly. It was questioned by the Minister for Tourism and Recreation (Mr Stewart), and the doubts that he expressed about it are very valid indeed. I have the report which was circulated of the comments of Senator Missen. I am not persuaded by the comments he has made on page 1 , referring to the comments made by the Minister for Tourism and Recreation as reported at page 159 of Hansard, that that view is in fact correct. I believe that the view put on page 2 -
– Order! The honourable gentleman ‘s time has expired.
-Mr Speaker, I should like to take this opportunity to congratulate you on being elected to your high office and to wish you well in your new post. At the same time, I should like to express some regard and feeling for former Mr Speaker Cope, whom I have known in this Parliament for many years.
To my mind, there is no doubt that the present divorce law is inadequate. That is not to say that I am satisfied with the provisions of the proposed legislation. In contrast to the Family Law Bill’s single ground for dissolution- the irretrievable breakdown of marriage- the present Act lists 14 grounds for the dissolution of marriage, of which eleven are based upon fault or some element of fault. In practice, the grounds of desertion for 2 years, separation for 5 years, adultery and cruelty which are available almost immediately, accounted for 95 per cent of all dissolutions granted in Australia in 1972. It is interesting to note that in 1968 the single ground of desertion accounted for 45.3 per cent of dissolutions, but in 1972 this single ground accounted for only 37.3 per cent of dissolutions. In 1968 the single ground of separation for 5 years accounted for 18.3 per cent of dissolutions, but in 1972 this single ground accounted for only 15.7 per cent. On the other hand, the ‘quickie ‘ grounds of adultery arid cruelty showed a quite different pattern over the same period. In 1968 the single ground of adultery accounted for 24.3 per cent of dissolutions of marriage, but in 1972 the figure had risen to 32.6 per cent. In 1968 the single ground of cruelty accounted for only 6.2 per cent of dis- solutions Kilt in 1 Q70 th/> figure VivA risen tn 51 8.8 —— - ,— - ‘ - “0”~ per cent. So we see clearly that there has been a considerable rise in the percentage of dissolutions granted on ‘quickie ‘ grounds.
I understand that it is generally accepted by divorce practitioners that in most cases of marriage failure both parties are at fault or neither is at fault. Instances of one-sided fault are extremely rare. Yet in 1972, in firm opposition to common experience, over 80 per cent of all marriage dissolutions granted assigned unilateral blame to one partner. In evidence before the Senate Standing Committee on Constitutional and Legal Affairs in September last year Mr Ray Watson, Q.C., stated:
I see no value in a divorce law whereby the community seeks to assign blame and enter judgement of culpability when a marriage has failed. Such a code offends my sense of justice and compassion . . . The stability of marriage is not buttressed by assigning blame for breakdown. Rather it is buttressed by proper preparation for and understanding of marriage, the values and standards of the community, and the capacity for commitment and selflessness in the individuals in that community. Whereas the incidence of divorce may be related to the nature of the divorce laws, there is no proof that the incidence of marriage breakdown bears any relation to those laws.
In his recent publication ‘No Fault Divorce’, Michael Wheeler has written that wrongdoing is not the only thing that can kill marriages. Time changes people, people can grow apart, and marriage can die a natural death. At its occasional best, fault divorce deals only with manifestations of marital breakdown, but it never goes to its roots. Incompatibility, whether of temperament, goals or values, is probably the basic cause of many divorces. In most divorces, both partners usually wish the marriage to end. The fault system requires one of the marriage partners- it usually is the wife- to initiate proceedings. Such uncontested divorces, where there are often no actual facts which constitute grounds to the satisfaction of the courts, lead to situations being trumped up, and as a result the courts may determine very little of the truth behind the breakdown of the marriage.
Alternatively, where the husband and wife have become deeply estranged, they may use the courts to inflict suffering upon one another. The accompanying bitterness, embarrassment and distress, including the insistence on guilt and innocence, can be psychologically destructive, not only to the marriage partners but to their children as well. In 1972 about 80 per cent of all divorces granted relied on grounds which involved waiting periods of 2 years or less from the commision of the offence- cruelty, desertion and adultery. Adultery, in theory, requires virtually no delay prior to the initiation of proceedings.
Under the proposed new legislation, an application for divorce cannot be made until the end of 12 months continuous separation. It has been claimed that it is a rare case where the facts cannot be manipulated to establish desertion. The number of divorces granted by Australian courts increased by 45 per cent between 1 968 and 1 972 but, as I mentioned earlier, the percentage of dissolutions allowed on the grounds of desertion fell from 45.3 per cent to 37.3 per cent while those allowed on the grounds of adultery rose from 24.3 per cent to 32.6 per cent. These figures would suggest a greater degree of adulterous relationships within the general community, or on the other hand they could be seen to reflect a need to perjure oneself or engage in collusion in order to gain a ground for quick divorce.
The increase in adultery cases, along with the large recent rises in total divorces, might also indicate that divorce has become more socially acceptable, and that greater numbers of people are now willing to allow the fact of an extra-marital affair to be publicly displayed. The current Act, in my view, does not possess adequate and effective reconciliation provisions. It does not make counselling available prior to the institution of divorce proceedings, in order to allow marriage partners who may otherwise act hastily to reflect more coolly upon their situation with the meditation of professional counsellors. Adversary fault procedures also make reconciliation more difficult when the parties must appear to be estranged for legal purposes.
Welfare and counselling services are attached to the family court created by the legislation under debate. As well as providing pre-divorce application reconciliation facilities, this arm of the court would act as a clearing house for information on the consequences of divorce, financial and custodial proceedings, particularly concerning the effect on children of the marriage. Counselling opportunities would be published as appropriate.
A very strong argument for counselling facilities attached to a court hinges upon the court’s ability to reach people in difficulties, and thus its good position to offer help if required. In California, many of the county courts have a voluntary conciliation process which is open to people irrespective of whether they have filed for divorce. In particular the Los Angeles program, which has been in existence since 1939, has been considered to be most effective. In some years, more than half the couples seen have agreed to stay married. This success is attributed to the voluntary nature of well-established procedures, in which counsellors can concentrate on people who have the best chance of reconciling; on counselling availability prior to filing for divorce; on the high professional quality of the conciliation staff; and on the use of formal conciliation agreements. Marriage counselling is no cure-all, especially when it comes after one of the partners has asked for a divorce. Voluntary court conciliation services may not actually change the minds of many people but they can in many cases provide a face-saving device to allow people to back away from a hasty decision. They can help people to do what they really want to do but are afraid to do on their own.
It could be said that, relative to the current Act, there may be some expedition of divorce proceedings under the proposed enactments, but in practice that quickening would be marginal for the vast majority of divorce cases. There are those who would argue that the marginal quickening might well be more than counterbalanced by the substantially enhanced dignity and cleanness of the marriage break and the resulting lack of hypocrisy and dishonesty in proceedings previously based on fictitious adultery and desertion.
I have pointed out some of the weaknesses in the present Act and the sharp increases in the number of ‘quickie’ divorces, but I cannot altogether go along with the proposed legislation, which will allow one of the partners in marriage to be able to choose his or her own ball game. For that reason I support an amendment which was moved in the Senate and which I feel was an excellent amendment. It was moved there by Senator Baume of New South Wales and was in the following terms:
I would support that kind of amendment. I believe that that is where the weakness of the proposed legislation really manifests itself.
Mr DEPUTY SPEAKER (Mr Berinson)Order! Before calling the honourable member for Darling I would like to make a request to the House. 1 appreciate that the honourable member for Ballaarat, who has just resumed his seat, restrained his speaking time to about 12 minutes. It is, of course, completely within the rights of all honourable members to take the full 20 minutes which they are allowed to make a speech, but a continuation of the pattern established earlier this morning along those lines would lead to very great difficulty in pursuing the second reading stage of the debate as far as we would like to on this special sitting day. I simply put that as a request to honourable members and hope that they will co-operate with it.
Mr FitzPATRICK (Darling) (10.43)- I will do my best to comply with your request, Mr Deputy Speaker. I support the amendment moved by the Minister for Tourism and Recreation (Mr Stewart). I wanted to point out at the outset that I am not opposed to divorce as such. I believe that it is often the only humane solution to a tragic situation. I felt some necessity to make that statement because some honourable members who have spoken in support of the Bill have suggested that some honourable members are opposed to the Bill on religious grounds and are trying to impose their religious beliefs upon the rest of society. I do not think anyone should oppose the Bill on those grounds. As a matter of fact, I have taken some guidance from the comments of the Attorney-General (Mr Enderby) when he informed the House that the Bill was not a government measure but that it had been presented to the House for the purpose of sounding out the House on what amendments are required or what reform is required in relation to the divorce laws.
I do not think any honourable member has the right to say that another honourable member is opposing the Bill on religious grounds and is trying to impose those beliefs on the rest of society. If this were so, it would be just as legitimate to say that those who support the Bill are doing so on anti-Christian grounds and are trying to force their pagan beliefs on society. I do not hold with either of these arguments. There have been plenty of examples both inside and outside this Parliament to support my beliefs. We have seen some of our friends divorced and happily remarried. What the supporters of this Bill have often failed to point out is that most of these happy remarriages have occurred under the provisions of the Matrimonial Causes Act, which this Family Law Bill is not trying to amend but is trying to slash to pieces.
The supporters of the amendment do not claim that there should not be divorce law reforms, but we point out that this Bill goes a lot further. It deals with the family- the duties of a husband and wife to each other, their children and also their property rights. It alters the meaning of marriage and the family- a meaning that has been formulated by the vast majority of Australians out of a long line of family associations, family example and family instruction. I believe that it has been formulated to such an extent that it is loved and cherished. The main desire of most Australian mothers and fathers would be to see a son or daughter happily married and enjoying the gratification of a married life such as they have enjoyed. I believe that the Senate proved it was well aware of this universal love and respect for marriage and the family, because it inserted a clause defining marriage and the family that endorses and supports the statements I have made. T refer to clause 43 which states:
The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to-
the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
I believe this interpretation is consistent with convention and public opinion. The AttorneyGeneral (Mr Enderby) has given us his opinion on the part that convention and public opinion should play in the laws of Australia. He said Australian laws rest to a large degree on convention and public opinion. Clause 43 indicates that this meaning of marriage and the family is the foundation of our way of life. In my opinion, it is the only foundation on which a decent society can survive. It is the only foundation on which society has any moral right to survive. The tragedy is that clause 43, which was an amendment to the Bill, was only an afterthought. The Bill does not gather any strength or support from this noble interpretation. As I say, the clause was put in only as an afterthought.
As a matter of fact, many parts of the Bill regard that cherished desire of both past and present generations of Australians. The Bill disregards it in many clauses but it does so in no uncertain manner in clauses 48 and 49. It is in those clauses that the Bill changes the meaning of marriage and the family from a position where marriage can be dissolved only after valid, objective tests of irretrievable breakdown are applied by the court to a position in which it is mandatory on the court to dissolve a marriage if one of the marriage partners who is an applicant for divorce and who has been of sound mind says in evidence that neither of the parties wishes the marriage to continue. That means that the male partner to the marriage can live for 12 months with his fancy girl friend and during that time he can even have his washing done by his wife, because the Bill states that there are certain domestic services which the parties can provide one to the other or to each other.
The 12 months no fault abandonment clause will allow a guilty party to cohabit with another person, with the possibility of further offspring. I am told by social workers that that sort of situation often puts the innocent party in such a position that she could easily fall into the same trap out of lonliness, out of the need for company, and certain other things. I believe that no member of this Parliament should condone or encourage such a situation. I believe it is our duty to stand up and condemn it. But the Bill does the very opposite. It gives legislative support to such a situation. It leans to the notion that marriage can be entered into and, if it is not all that is desired, can be quickly and easily terminated.
Another presumption of the Bill to which I am opposed and which I believe is unacceptable to the majority of Australians is that once the marriage is dissolved the husband and wife can begin a new life on equal terms. This may be the case in some professional families, but in the majority of working families where the wife has no professional qualifications it would impose severe hardship upon her and, if there are some children- in most cases they wish to remain with their mother-it would also impose severe harship on these children.
Clause 72 removes from the husband his present legal duty to maintain his wife. But it goes even further. It imposes on the wife a positive legal duty to maintain herself. I believe that the question of a married woman working is althogether different from the question of a duty being imposed on a married woman to work. In my view, that clause should be deleted entirely from the Bill. I believe that we should change those parts of the divorce laws which are unjust. I have sincere sympathy for a man who is put in gaol because of the actions of a vicious woman who may not .be morally entitled to receive maintenance. We all know that there are plenty of people in those circumstances. While that may be so, I do not think it should give anyone the mandate to tear up the traditional meaning and importance of marriage and the family. In the family a child learns at an early age to relate to other people. If we take away the stability of family life in early childhood I believe that we reduce the opportunities for a child to enjoy a wholesome and gratifying childhood.
I am not a legal man but I would like to have touched on some of the legal points in the Bill. However, I will take your guidance, Mr Deputy Speaker, and wind up my remarks by saying that I hope the House will support the amendment because I think that it does try to remove many of the undesirable features of the Bill. I think the amendment returns marriage to its traditional position, as envisaged by the clause that was inserted as an amendment by the Senate, as the basic and fundamental group unit of our society.
-Although I hold quite firm views, I had not originally intended to speak to the second reading of this Bill. There has been much debate upon it both in this House and in the Senate and I am sure that every honourable member will be familiar with the arguments that I will use. As a general rule I see little point in repetition. However, such is the public interest in this matter that I have decided that it is proper for me to stand and have my views as well as my vote counted. I support the Bill. I see it, in its present form, as a great improvement on the current situation. I have some reservations but I believe that the Committee stage will provide opportunity to make those changes that are desirable. The amendment to the motion ‘That the Bill be now read a second time’ which was moved by the Minister for Tourism and Recreation (Mr Stewart) calls for the re-drafting of the Bill to give expression to principles with which I could not quarrel. However, every one of those principles, with the exception of a test of 2 years separation in lieu of one year as the evidence of irretrievable breakdown or marriage is, as I see it, embodied in the Bill at present. I support the 2 year period, but I am convinced that if it is the will of the House, the change can quite easily be made in due course. If the Bill is withdrawn for redrafting my belief is that in the present political climate it will not be seen again. I will therefore vote against the amendment to the second reading in spite of my complete sympathy with its sentiments.
There are 2 distinct aspects of this debate- the debate in Parliament and the debate expressed in letters, petitions and conversation that we have all had with various people. Firstly, there is argument about what is the most desirable legal position. Secondly, there is argument as to whether this Bill does in fact achieve that desired legal position. Much of the acrimony stems from differences of opinion as to just what the immediate effect of the Bill will be upon people in various situations. I am convinced that there is a great deal of needless fear that is the result of misapprehension. The older woman will not be left in a position where she will be told just to get out and fend for herself. Separation where 2 parties live under one roof is recognised by the present law. The Bill does not always make the obtaining of a divorce easier and quicker but actually delays the process in some situations.
The family is the basic group of our society. I can think of no society of mankind that has endured that does not contain this unit. The family provides essential support for its members, particularly, but not only, the young members. It provides the only proven way of progressing from generation to generation. Nobody has denied this fact and I do not see how anyone could, but its assertion has been used as an argument by opponents of the Bill and by implication I am sure that many people believe that proponents of this legislation have denied this argument. By reasserting the fact of the essential worth of the family I hope to dispose of that red herring.
Legislation should do what it can to positively support the family and it should, in seeking to be compassionate and just to those leaving the marriage, be very careful of the needs of all families and of other members of that family. The 2 purposes of this legislation are to assist marriage to succeed and to provide a more humane and dignified dissolution of those marriages that are clearly incapable of success. Positive assistance to a successful marriage will be afforded by the Family Court which will endeavour to provide an institution that has specialist knowledge of reconciliation procedures and opportunities. It will have ready access to marriage guidance assistance. It will be informal and is charged under clause 43(d) to have regard to: . . . .the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage.
Every attempt will be made to effect reconciliation with the aid of counselling and no divorce will be granted without consideration of the possibilities of reconciliation. Any married person may seek the assistance of the court’s counselling service. In short, it will do what it can to preserve the marriage as a loving entity.
The formation of an Institute of Family Studies will promote the identification and understanding of the factors affecting marital and family stability. These are positive measures aimed at preserving marriage not just as a legal entity but as a functional unit of society. When this social unit which depends so heavily on affection and respect has broken down and there is no prospect of its repair, I see no value in what has then become the legal pretence of marriage. Most divorcees remarry and very few redivorceIn that the legal marriage prevents the parties making new homes with new partners, the legal shell of an unsuccessful marriage becomes a positive bar to successful marriage. It encourages de facto relationships that do not have the full protection of the law and which must yet run the gauntlet of a social stigma that can be very hard on children in particular. Someone once tritely but wisely remarked that where there is marriage without love there will surely be love without marriage.
The majority of the clauses of this Bill deal with the procedures by which marriage may be dissolved and with the procedures that will protect the parties’ and the children’s respective interests. This has led opponents of the Bill to dub it the ‘Divorce Bill’ and say that it should be so named, in spite of the fact that it deals with matrimonial causes other than divorce. It does not matter very much what title people choose to ascribe to the Bill. It does indeed deal at length with divorce but surely that is because it is very careful to protect the legitimate interests of the people in the greatest variety of circumstances.
In 1966 the Church of England in England published the paper ‘Putting Asunder’ in which the Church recommended that irretrievable breakdown should be the only ground for divorce. This simple concept preserves every marriage that is of value or likely to become of value to the parties and the children. At the same time it allows dissolution of those marriages that have become empty shells. The concept does away with the notion of fault as ground for divorce and with the need for further pointless ill-will and deserved or undeserved shame. It is true that the question of fault may rear its ugly head if the custody of children should be disputed or if the present or future division of income or property is disputed. However, most couples manage to agree upon these matters without a court hearing under present laws and I see no reason they should not continue to do so. So for most separating couples all argument involving fault will be unnecessary.
Whilst the concept of irretrievable breakdown is simple and I have no hesitation in accepting it as the logical ground upon which to grant divorce, the difficulty remains of knowing beyond all reasonable doubt that the parties to a marriage are in fact beyond reconciliation. It is clearly desirable, if at all possible, that breakdown is certainly and simply evidenced. A period of separation is a simple criterion, and the longer the period of separation the more certain it will be. It can only be a matter of judgment as to what length of time will evidence breakdown beyond reasonable doubt. The present law provides a period of 5 years separation as a no-fault ground for divorce. The Bill before the House reduces this period to one year. I favour a 2-year period. I can envisage a situation, albeit uncommon, in which the attitude of one of the partners could change radically a long time after the decision to separate, particularly if the decision was in part the result of an emotional stress such as post-natal depression that has passed.
I am influenced more, however, by the argument that society should not attempt to make radical changes too quickly. Any change involves the risk of unforeseen difficulty. Any change must be acceptable to the vast majority of the public. I do not mean that it is necessary that nearly all the public favour a particular law, but I do believe that, if at all possible, Parliament should avoid foisting upon any substantial group a situation which the group feels it cannot accept. To do so is to add to social tensions and to weaken respect for all laws. In several years time, when people have found, as I believe they will find, that the Family Law Bill is not only acceptable but also a positive aid to the family, I might favour a shorter period of separation; but in the meantime my approach is gradual and cautious.
The clearly intended two-fold thrust of this Bill is to support the family and to allow the humane and dignified dissolution of those marriages that have become a burden to the couple, to the children and, I suggest, to society. Many very sincere people are obviously very fearful of the effect of the Bill. They foresee difficulties that will prejudice the family and prejudice an injured party. It has been argued that the tenor of the Bill is such that people will be encouraged to enter marriage lightly in the knowledge that the union can be dissolved. People considering marriage do not, I am sure, give much thought to divorce, whatever the state of the law. If they did, they would note that at present the ground of adultery can be used, and is used by some people, to obtain a prompt dissolution. It no longer will be possible to connive at providing grounds for a dissolution of marriage.
It has been argued that a woman who has raised a family and in the process has lost her ability to earn a respectable income can be told to get out and fend for herself. This would be a very serious criticism if that were the effect of the Bill. However, this matter was the subject of an amendment by the Senate and the effect of clause 72, when read in conjunction with clause 75, is to protect the older woman. The obligation of one party to support the other is clearly recognised. It has been argued that the absence of an arena in which to establish fault is in some way unjust to a party offended against and that it is wrong for a person who has behaved badly then to be able to petition for a divorce. What is the value of preserving the marriage if it has clearly broken down? What is the value of labelling the offender, unless it be revenge?
I support this Bill, although I will seek an amendment to clause 48 and some less important amendments. The legislation is humane and it will support the marriage at least at that stage at which it is running into difficulty but no irrevocable decisions have been taken. I believe that it is practical and it is just.
– I think every member of this House has accepted this Bill basically as an improvement on the existing laws. In some instances and some areas many marked improvements will be achieved. As members of Parliament we have been subjected to many legal propositions and arguments by experts in the field of law, including the law of divorce. I believe that the experts have been quite successful in confusing members of Parliament and the public generally and have served only to cloud the issue. In their very clever legal manner and ability they have presented arguments for and against this Bill. But this Bill is not just a matter of law. This is an emotional issue. It affects the people of this country to the very core of their being and existence. This Bill could bring about a total change in the whole aspect of marriage.
The area of divorce, of course, has grown to be a great concern to many people. There are members of Parliament, such as myself, who have met many people suffering under the traumas of long drawn out cases. I cannot quite see, looking at the overall context of the Bill, how it will relieve a great deal of the suffering. Certainly in some parts it does profess to be a quick and easy divorce Bill. To me clauses 43 and 48 appear to be contradictory. Paragraphs (a) and (b) of clause 43 mention the need to preserve and protect the institution of marriage and the need to give the widest possible protection and assistance to the family. Clause 48 states quite simply that after 12 months the marriage may be totally broken up. To me that is a contradiction which I cannot see as something about which people should be totally delighted. Clause 48 ( 1 ) states:
An application under this Act by a party to a marriage for a decree of dissolution of the marriage shall be based on the ground that the marriage has broken down irretrievably.
I accept that, but clause 48 (2) states that the total ground for establishing irretrievable breakdown is 12 months separation. I do not accept that. Because of the tenor of the discussion in this House I believe that generally honourable members do not accept 12 months separation as the sole real proof of irretrievable breakdown. Why 12 months? Why not immediately? The Attorney-General (Mr Enderby), who is to speak for the Bill, is to bring forward an amendment so that a marriage may be dissolved after 3 months by mutual consent. Divorce by mutual consent should be speeded up, but I would prefer to see it on a 12 months basis and the period in the no fault clause, as it is called, reduced from 5 years to 2 years.
The no fault clause has been propounded as the virtue of the Bill and the means of providing a very simple and quick divorce, but it should be considered in conjunction with the other clauses relating to other areas which go to the very heart of the divorce. I am talking about custody, maintenance and property. Most marriages, even after a term of 12 months or so, have some chance of having a maintenance consideration, a property involvement and a custody problem. It is quite obvious that fault will be clearly exhibited in trying to prove a successful claim in either of those 3 areas. This has not been denied by the supporters of the Bill. What it ultimately means is that the claim that the no fault cause will quickly resolve the problem is in fact not true.
There has been a comment that 95 per cent of divorces are uncontested. I do not know the truth of those figures, but let us assume that they are correct. Surely the decision about divorce is a decision reached after, say, no fault or 5 years in the case of separation, when it must be clear that the marriage is hopeless. In the case of adultery or other causes a divorce may be granted immediately, but again circumstances will prove that the marriage is possibly hopeless. In the case of desertion the waiting period is 2 years. Apart from the just causes section of the current law, the current law provides a minimum of 2 years in the case of desertion and a maximum of 5 years in the case of separation or no fault. In these cases it has really been proved that the marriages cannot work.
I believe that the 5-year period is far too long. The 2-year term is quite acceptable. People would know after 2 years that there is no hope of reconciliation. The term ‘quick, cheap divorce’ is an anomaly. Many people have been sold this idea, but it is not really true, even in the case of mutual consent. I again bring forward the point that property, custody and maintenance settlement will make the divorce an expensive and long drawn out affair- possibly more expensive and even more drawn out than under the existing system.
Under the current law all matters arising from the divorce are generally settled at the one hearing. Under the new Bill a divorce after 12 months may take place in a family court by simply establishing separation. After that the couple involved will have to settle down to the big fight on custody, maintenance or property, or the whole three. This obviously could not and will not be resolved at the one hearing. It may be, but it is unlikely. If it were to be decided at the one hearing there would be a sudden backlag of divorce hearings. A person might have to undergo a separation period of only one year before filing for divorce, but it would take him 5 years to get his case on the list for hearing. What in fact would happen is that there would be 2 court cases to hear this divorce situation. I believe that that will add to the costs of the divorce in the overall context and create many problems. Relating to custody, clause 63 ( 1 ) states:
A decree nisi of dissolution of marriage does not become absolute unless the court, by order, has declared that it is satisfied-
that there are no children of the marriage who have not attained the age of 1 8 years; or
that the only children of the marriage who have not attained the age of 1 8 years are the children specified in the order and that-
proper arrangements in all the circumstances nave been made for the welfare of those children . . .
In other words the decree will not become absolute until that custody claim has been settled, so honourable members can see that there would be problems. Where there are no children areas of maintenance and property can be involved and it takes time to resolve those issues also.
We have heard much in this debate about the vocal minority. We have heard it in the main from those supporting the Bill and from those supporting the amendment. There is a vocal minority on both sides and I would like to say something about these vocal minorities. In my electorate many people are vocally propounding that the Bill should be thrown out, and that I should speak very strongly against it and vote against it. Then I have members of Australian Labor Party branches who have made it known publicly in the newspaper that they are in favour of the Bill and that I should support it. Unfortunately the silent minority has not had the opportunity to express its views and opinions about this matter. I think it would have been proper during the parliamentary recess for the Government to have circulated to every person in Australia, as it did in the case of the recent referendums, a paper setting out the pros and cons of this Bill. Such arguments could readily have been prepared by those who support and those who are against the Bill. However, this was hot done. I had intended, if possible, during the second reading debate to put forward an amendment that the Bill be deferred for a period of 3 months while this action was taken. Unfortunately, by the very rules of Parliament, only one amendment can be dealt with during the second reading debate so I have no opportunity to propose that amendment. Perhaps that was not the answer anyway because basically I am in favour of the Bill. I just want amendments in one or two areas.
Now that the Bill has reached the House of Representatives the public is becoming more aware of it. It is strange that honourable members speaking for the Bill have said that there has been plenty of time for it to be aired because it has been before the Senate for 2 years. I am not going to comment other than to say that many people in my electorate, and no doubt many people in the electorates of other honourable members have not taken the slightest interest. There was no publicity of any great magnitude given to the Bill while it was in the Senate. Of course, the Bill was changed so many times in the Senate that now it almost looks like ‘Blue Poles’ and is about as clear. I would have preferred, if it had been possible under the rules of the Parliament, that the Bill be subject to a referendum because then there would have been the opportunity for the silent majority to air its views and to cast a vote. Unfortunately, again, that was not possible so we have to settle with the means available to us for dealing with the Bill.
On the question of maintenance, I would like to mention that I cannot agree with some of the arguments put forward by honourable members supporting the amendment. It has been said by them that a wife with no children under 18 years will be left to fend for herself. That is not true. If honourable members really study the full text of the series of clauses dealing with maintenanceparticularly clause 75- they will find that adequate provision exists to protect either party in a maintenance case. I refer particularly to clause 75(1)(n) which covers any stray area. However, my total concern about this Bill centres on clause 48 which deals with the simple system of 12 months separation. Some honourable members who support the Bill have commented that entry into a contract of marriage should be made more difficult. They say that the real issue at stake is the need for the Government to try to do something to make marriage more difficult. I find that a most interesting assessment coming from those who, on the other hand, are trying to make marriage a lot easier to quit. That line of reasoning is most difficult to follow. I hope that this Bill will be amended because it is not designed, as it appears to be, to encourage family dissolution.
In his speech, the honourable member for Moore (Mr Hyde) mentioned that the Church of England in England advocated that the sole basis for divorce should be the irretrievable breakdown of marriage. That is true; it did. The English Divorce Reform Act 1959 provides that ‘irretrievable breakdown’ shall be the sole ground for divorce. But, very importantly, that Act then proceeds to define what shall be required to prove that irretrievable breakdown. It requires: . . . proof that
I would not like to see all of those requirements with respect to irretrievable breakdown of marriage introduced in full. I would prefer to support the amendment which quite clearly proposes a period of 2 years on a no-fault basis. I believe that such a period will give every opportunity for a reconciliation to take place, if there is any hope of that being achieved.
I refer to my earlier comment that 95 per cent of divorce cases are uncontested. I believe that the 2-year term would be an adequate period in which to determine whether a marriage was possible of reconciliation. I accept that just cause provisions should be included. But I point out to the Parliament that paragraph (g), which is the main pan of the amendment, provides:
That paragraph does not say that there must be proof. As long as separation for 2 years has occurred, the requirement for divorce is fulfilled. Just cause provisions would provide, as they do now, for cases of severe problems including adultery and the many other aspects which come within this area on which the immediate termination of a marriage may be sought. That, I would hope most people would say, is proper.
A 2-year requirement of separation would provide a reasonable period, as I said, in which to assess whether the no-fault provision should have effect or whether the parties to the marriage can be reunited and reconciled. But I would like to see a further clause added. Perhaps this could be considered by the Attorney-General (Mr Enderby) if the amendment is carried and the Bill is redrafted. I propose that a clause be added to provide a one-year term of separation in the case of mutual consent. I know that the Minister has proposed a period of 3 months. Perhaps he was being a bit ambitious in that respect. I believe that 12 months is a reasonable period if there is mutual consent. The way time seems to slip by, 12 months would quickly be over. I prefer that to a period of 3 months as 3 months seems almost like tomorrow. A party could decide that he or she will get a divorce and, by mutual consent, it would be done tomorrow. I think that the provision of a period of 12 months separation would be a far more reasonable approach. I believe that the provision of a period of 2 years for a no fault divorce would be a realistic and proper one. I believe that the provisions relating to just cause should be included in the legislation because there are many instances where they are needed. I know that this provision is not in the amendment, but if possible I believe that a divorce should be granted, with the mutual consent of the parties, after a separation of one year. I support the amendment.
– I do not intend to speak at any great length as this Bill has been debated over many hours and by both Houses of the Parliament. The tenor of the debate indicates that honourable members on both sides of the House are desirous of ensuring that the best possible family law legislation is enacted, and enacted as soon as possible. But many people from within my electorate, and indeed from without, have written expressing their attitude both for and against the Bill and exhorting me to vote in a particular manner. Therefore, I desire to express generally my attitude towards the Bill. Although I have no intention to canvass all the clauses in the Bill which have been well considered and looked after by our legal colleagues and by the Senate Standing Committee on Constitutional and Legal Affairs which worked so hard, and received and considered so many written and oral submissions and evidence from so many individuals and organisations, I should like to give the reasons why I support the Bill.
Probably the most important and provocative change in the minds of many opponents of the Bill is the replacement of the concept of fault in the present law with the one ground of irretrievable breakdown of marriage after 12 months separation. It has been pointed out by several speakers in the debate that this is an extension of the changes brought about when the existing matrimonial causes law was introduced in 1959. It introduced the concept of no fault divorce after 5 years separation. So the notion of divorce without fault is not new to Australia. At that time the change was predicted to bring about the opening of the divorce flood gates and the destruction of the existing society. We all know that that did not happen. The reason why I consider the period of one year separation is acceptable is that the Bill provides for the establishment of a Family Court. The provision of the Family Court will make a tremendous difference to all areas covered by the legislation, and the operation of this Family Court will mean that throughout the year of separation there will be a helping, ongoing court to which people can appeal and which can actually be involved in the problems surrounding the question of whether a reconciliation is possible. That is not the situation now.
By the time the court now comes upon a divorce, most likely a period of 2 years of desertion has elapsed, and possibly another year has elapsed in bringing the proceedings to the court. By that time the attitudes of the parties to the marriage have hardened against reconciliation, and the marriage is dead. But what a different situation could be created by an active, sympathetic family court operating during the 12 months period of separation. This provision for more counselling service and the establishment of a Family Court will be a vast improvement and will give much greater support to family unity than the concept of blame and retribution inherent in the existing legislation. This Bill, which contains these very important provisions for counselling and attemps at reconciliation, can in no way be considered a Bill for the production of quickie or Reno type divorces, which seems to be the concern of many people.
It appears that a basic and serious misconception is held by these opponents of change in the law. The misconception seems to be that the divorce rate in the community is a direct measure of happiness in marriage or a measure of morality or immorality within the community. These people assume that unhappy marriages end in divorce and that the remainder are all happy marriages. This is an absurd situationconsidering the expense, legal barriers and the personal denigration and public disapproval which has hampered divorce proceedings in the past. The logical assumption from the argument of these people is that the Victorian era, with its low divorce rate, was a period of unsurpassed marital bliss. But who would wish to return to those days when a wife was frequently just one of her husband’s chattels? Athough this Bill does away with the concept of fault in the situation of divorce, it does not do away with the concept of fault or responsibility where the maintenance and custody of children are concerned, and those clauses which particularly aim to protect wives and children I certainly support.
One of the most distressing side effects arising out of the legal and psychological warfare associated with prolonged divorce proceedings is the bitterness and personal hatred which can split family and friends. If this Bill can partly reduce this distress I am happy to support it, and I believe that it will considerably reduce it. We probably all know or have seen the misery of the unhappy marriage in which one or other of the partners, and usually the woman, is unable to escape from this disastrous partnership for social, economic or psychological reasons. How many of us know of the decent, home-loving wife with three or more children who is nothing more than an economic slave? This Bill may help some of these people, but probably not enough of them, because, as other honourable members have pointed out, marital breakdown is a social and psychological problem, not a legal problem. The change from the extended biological family we had in the past to the more fragile nuclear family, the increase in the breadth of education for women in our society and the changing rate of opportunities for women have all made marriage a more stressful situation. But I cannot agree that harsh, inequitable divorce laws, and a situation of warfare in law courts where personal recriminations are the norm, will do anything to strengthen the marriage bond.
I mentioned earlier that this Bill contains provisions which aim particularly at protection of wives in the matter of maintenance. There has been considerable criticism of clause 72, claiming that this provision would remove from the husband a present duty to maintain his wife and impose upon a wife a positive, primary legal duty to maintain herself. I understand that in fact under sections 4, 8 and 9 of the Victorian Maintenance Act of 1965 women are liable already to maintain themselves, their children and their husbands under certain conditions. Clause 72 of this Bill merely states:
A party to a marriage is liable to maintain the other party to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to in sub-section 75(2).
The matters referred to in clause 75(2) include any fact which the court thinks should be taken into account, including age and state of health of the parties, the care and control of children, the extent to which the party claiming maintenance has contributed to the income, earning capacity, property and financial resources of the other party, the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration, and the property arrangements. What could be fairer than that? I certainly support this provision. Many lawyers with whom I have discussed the Family Law Bill are of the opinion that it is completely fair to women and amply protects their interests and those of the children
It is said that the Bill will weaken marriage and that the community will suffer from what might be described as permissiveness in our society as a result. I do not accept that proposition. The problems of marital breakdowm are enormous and they will not be solved completely by this Bill. I have not heard anyone associated with this Bill claim that all problems will be solved by it, but the Bill does deal with the legal problems associated with divorce in a more humane manner than has ever been legislated for previously. Further, I believe that the provisions in the Bill in relation to counselling and guidance will help greatly to show the way for the future. There has been a lot of dispute about the Bill before us, both by honourable members and by certain groups of well-meaning but misinformed people. While I disagree with their views, I believe that they are derived from a deep respect for the institution of marriage, a respect which I share. But I hope that these people can acknowledge that the difference between us is not a difference in attitude to marriage but a difference in belief as to what this Bill is about and what it can achieve.
It has become apparent to me after many discussions with people who deal with the unfortunate end of marriage, the people who deal with the dissolution of marriage, that the present system causes injustice, ill-feeling and hardship and that it should be changed. I hold out no real expectation that we will have a sudden change in human behaviour so that most of those marriages under threat of dissolution will now be repaired. Nobody expects that. Most marriages which have broken down will remain broken, but surely we must provide the necessary courts and facilities so that the break up occurs with the least bitterness and humiliation. It is because I believe strongly in the institution of marriage, in seeing it preserved and in making it workable that I consider the principles of this Bill a giant step forward in our social history. I support the Bill.
– I begin my observations by making an appeal directed to the proposer and to the seconder of the amendment before the House. I want to say 2 things about the amendment. There is not one sentiment in it that I do not support. I know that is the case with many other, indeed all, honourable gentlemen in this House except for the last expression of view. The position is that to vote against the amendment a person would put himself at risk of having his vote widely misunderstood. People would say: ‘Here he is. He is opposed to these splendid expressions of virtue and of principle’. What an intolerable situation in which to be put. The second observation I make about the amendment is this: If the amendment is carried it puts at risk the Bill itself. I am open to argument on the point, but I suspect that the dichotomy is not a false one. I hope that the proposer and the seconder would see that that is the course. Pressed, I would be disposed to vote against the amendment with massive reluctance and a very great sense of personal distress.
At the same time, to support the amendment would mean that the Parliament would be denied an opportunity of dealing with a measure of promptness, and I trust with realism, in a very difficult field of human relations.
We are not dealing with a new heaven; we are dealing with a very old world in which the cold admonitions of the cloisters will not protect human nature. We are also dealing with a society that still asserts, albeit in a hesitant fashion, that it is a Christian society. It is quite fundamental to the whole of the Christian doctrine and ethic to accept the doctrine of the indissolubility of marriage. To observe that is not to invite honourable members to go back to the last century or to the century before that when the great distress which was suffered by many people waited a long time for the legislature to intervene. There has been a change on the part of the Christian Church itself, beginning many years ago with the acceptance of what was described as the Matthean exception and the development in ecclesiastical authority of the Pauline privilege. But I respect, I trust immaculately, the doctrine of the Christian Church regarding the indissolubility of marriage. But the fact is that our society, wrestling with its inherent imperfection, has been brought to the stage where it must legislate in this field. The great question that we are asked here today is this: In what manner do we seek to legislate?
As was observed, from the place where the present Attorney-General (Mr Enderby) sits at the table, by one of his most distinguished predecessors, the now Chief Justice of the High Court of Australia, Sir Garfield Barwick, a very great Australian and a very great judge, when he introduced the Matrimonial Causes Bill, now the Act 1959-1 can recall him standing at that dispatch box and saying: ‘It is not of the nature of human nature to have the saintliness of Hosea’. And it is not. The distinguished gentleman went on to observe the need for divorce legislation.
The advocates of this Bill have asserted, above all other things, one argument; that is, in the first place the necessity and in the second place the virtue of accepting what one may, for the purposes of ready argument, describe as the no fault doctrine. I say for myself that, no matter how tenacious human imagination may be, one cannot always get away from the fact that there is some fault to be found. By the same token, no person can get away from the fact that there is massive temptation to apportion blame. But the great weakness of human nature is in doing it accurately and doing it justly.
This Bill, as it stands now, is not a no fault Bill. In many respects the authors of the Bill and those who have amended it have put themselves in a position in which, with respect to issues, they depend upon the adjudication of tribunals. That will be dealt with, I trust in a reasoned manner, in the Committee stage of the debate. On the other hand, those who take up approximately my position would assert that the no fault doctrine, if it is accepted, is unrealistic and should not be relied upon. A fact of life is that there is something of the no fault doctrine- I put ‘no fault’ in quotation marks- in the existing Act. I instance section 28M-the 5-year separation groundwhereby one party to a marriage may by a petition after 5 years of separation secure a divorce and the fact that a person may secure a divorce on the ground of presumption of death in circumstances in which there is a belief that the respondent, if that be the case, has disappeared and can be presumed to have died.
I come now to the central feature of my argument, and it is this: I accept the view that a marriage should be broken up judicially if there is an irretrievable breakdown in the marriage. But the teasing question is: How does one determine whether there has been an irretrievable breakdown in the marriage? Surely that is the fundamental question with which we are faced today. I hope I am not doing an injustice to those who support the Bill in its present state when I say to them that their contention, if I apprehend it aright, is that there is an irretrievable breakdown of a marriage if, after 12 months of separation, one person makes the assertion that that is so. On the other hand, can one accept objective criteria? I believe that objective criteria should be resorted to. I must tell the House in all candour that I cannot accept the no fault doctrine as has been proposed to the House.
Let me give an illustration of the hardship which the Bill in its present form could visit upon people. Take the case of a woman who has been married to a man for 12 to 15 years and during a very considerable part of that time has been subjected to immense cruelty and great distress. She may be one of the heroic band of women and men who are prepared to put up with it, to bear it with cheerfulness to the outside world, but with inner deep, personal distress, Something may happen and she says: ‘I can stand this no longer’.
Under this Bill she would have to wait a further 12 months. Under the existing law she could get her relief immediately. It is not in point to say: ‘Well, she may be protected and can be protected by the injunctive processes of the court’. She may find her patience- her charityat a complete and utter end. Why should she, in such a circumstance, be obliged to say: ‘I must wait yet another 12 months’. Taking all these matters into consideration and speaking as one who has changed his mind over the years that I have been in this Parliament since the first Matrimonial Causes Bill was introduced and as one who has seen something of the misery and suffering that this world regrettably asks many of its inhabitants to bear, the legislature must bend to these people in our community. What way do we do this? I have tried to put to the House one simple fact and it is this: Divorce should proceed where there is irretrievable breakdown. Our difficulty is to determine whether there has been a breakdown. I indicate to the House that, taking the assumption that this Bill goes to the Committee stage, I will, with respect to the principle ground of relief- the main part of the Bill- move an amendment to clause 48 ( 1) in the following terms:
Subject to sub-section 3, an application under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on the ground that the marriage has broken down irretrievably. In a proceeding instituted by such an application, the court shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court that:
The respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; or
The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; or
The respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the date of filing the application for dissolution of marriage; or
The parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to a decree being granted; or
The parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.
Sub-clause 3 to which I referred earlier states:
A decree of dissolution of marriage shall not be made if the court is sastisfied that there is a reasonable likelihood of cohabitation being resumed.
I have spoken long enough, and I do not wish to impose upon the patience or the indulgence of the House, but what I have sought to do in the 1 5 minutes that I have spoken is to show to the House that for my part I accept the concept of irretrievable breakdown of marriage. However, I have a deep conviction that what is proposed by the supporters of the Bill would visit further suffering and further injustice upon many of our people. I believe that our community today, being of the character that it is, must acknowledge that there is a reasonableness to be observed in all manner of things, not least of all in this human field- a field with all its imperfections. It turns today to this Parliament for understanding and for assistance.
– It is always a pleasure to follow such an impassioned and reasonable speaker as the honourable member for Moreton (Mr Killen). But it is fortunate having to follow such a speaker because my contribution can be considered to be more dispassionate than some of the other contributions to this debate if I had followed them. There has been a strong and sometimes vitriolic public attack on the Family Law Bill and there has been an emotional attack on it in this House itself. The Bill has been denounced as unchristian, a marriage breaker, a nation destroyer, one which neglects the rights and obligations of women and men and the rights and welfare of children. Such claims misrepresent the Bill totally and unashamedly. The public campaign by, if I may say so, a highly organised and obsessed minority has gone well beyond the bounds of reason and credibility. It has reached the point where those who are genuinely concerned with the Family Law Bill question the motives of its opponents.
I had occasion to debate this Bill publicly in my own electorate with Senator Alan Missen and was subjected at that public meeting to a rather great amount of organised abuse- organised from well outside my own electorate. The arguments put up against us were hard to follow. Although these people wished to hold the debate, strangely enough they denied us the opportunity to put clearly and without interruption our reasons for publicly supporting the Bill. Part of their scare tactics was to link the moves of 2 years ago for reform in the abortion laws with the moves to reform the marriage laws. Incidentally, I recognised at that meeting the same people opposing reform in the divorce laws as those who opposed that abortion law reform. I say that those people who opposed abortion law reform 2 years ago and who now support the Family Law Bill have a right to be shocked at how their former colleagues in that earlier fight have debased this public debate. The debate in this House has had similar overtones, although one would have hoped that this chamber would have produced calm, reasoned, dispassioned argument on both sides.
Once again I compliment those people on both sides who have contributed rationally and reasonably to the debate. The greatest weapon wielded in this debate by the opponents to the
Bill has been misrepresentation. They have presented written speeches which must have been stored for years because they ignored the changes which have been made to the original Bill introduced into the other House several years ago. They have ignored the part that churches, social groups, the Senate Standing Committee on Constitutional and Legal Affairs, and marriage guidance counsellors and social workers have played in producing this Bill. Their attack is misplaced because they have ignored the widely accepted amendments. They have invented hypothetical situations to prove their points. They have ignored the majority of situations that occur in real life. For example, one suggestion was that a woman would allow, under the new Family Law Bill, her husband to flaunt his intimacy with his mistress - 1 suppose the same goes for a woman flaunting u. intimacy with her lover- for 12 months in the same house in front of her and the children and that still she would have no comeback. That suggestion is not only fantasy and improbable but also reduces a woman or a man to an idiot. It ignores the fact that the woman- or the man- and her family would be better off without the scoundrel or that she could apply for an injunction pending divorce proceedings.
They have completely ignored clause 114 which allows an appeal to a court before proceedings commence so that she may bring about an injunction for physical protection, mental protection or welfare protection for herself or the family. The opponents of this Bill have attempted deliberately to mask the fact that all their created situations would have been treated similarly under the present law. They want us to believe that this Bill would put the couple in a worse situation. Nothing could be further from the truth. Their backers in the public forum, through their letters to newspaper editors, their letters to the public and their pressure firstly on senators and now on members of this House, have carried on that misrepresentation. The opponents of this Bill say that the Bill is unchristian. The role of the state is to concern itself with the secular side to marriage and not to impose the beliefs, values or doctrines of religion- any particular religion- on to the public. Clause 43 of the Bill outlines the approach of a secular nature that shall be taken towards marriage. The first principle to be applied by the courts will be:
I submit that if people are to enter marriage voluntarily for a lifetime, as they hopefully do, they should not then be refused a voluntary exit from that voluntary contract. Further principles to be considered by the courts are:
Those are, quite rightly, secular responsibilities and secular principles.
The consequences of forcing a religious approach on the people should also be contemplated. I submit that it would deny the freedom of religion by refusing opposing views to religion and within religion- that is, differing views on marriage even within denominations. We all know of the differing attitudes that now exist in different denominations to the remarriage of divorced persons. There are splits in many of the denominations and between denominations those who wish to remarry are considered differently. Therefore we can say that there is not a united attitude to marriage amongst the Christian denominations. Those who hold a particular, strong Christian viewpoint are not threatened by this Bill. They will not be forced or even encouraged to break their beliefs to gain divorces. Those who uphold this belief must have an extremely low moral threshhold if they require external discipline by way of law to uphold what they have taken in in spirit. On the other hand, if people hold that view and later find that it is not realistic, it is wrong to impose that former view on them by law. To do so, to prevent the dissolution of marriage, to overrestrict the period of qualification to establish irretrievable breakdown of marriage, is to impose, in a phrase, ‘conscription within marriage ‘, with its undesirable anti-social effects.
I ask those who oppose a simple approach to granting a dissolution of marriage following a proven irretrievable breakdown situation why they wish to force unwilling partners to live together. Do they really uphold conscription within marriage? Those who hold or share the Christian ideals of love, compassion and understanding should share the view expressed by the Church of England Social Questions Committee which wrote to members of Parliament on 6 February 1975 under the signature of Mr Patrick, the Chairman. That letter stated, in part: …. that the Family Law Bill, as amended by the Senate, is soundly based on that principle. . . . While there would be a few marriages saved from divorce by providing for the longer period, other consequences would also follow:
Being conscious that two years is a very long time to wail, people will be prone to separate without making a genuine effort of reconciliation;
Having once made the break, people will be resistant to their own feelings in favour of reconciliation, and to the good offices of people trying to achieve a reconciliation;
There will be, for many, a strong temptation to give false evidence as to the commencement of the period of separation.
It concluded by saying:
Factors of these kinds, in the judgment of the Committee, would greatly outweigh the benefits of requiring a period of separation significantly longer than 12 months.
It is not my judgment. I cannot make a value judgment as to whether 12 months, 14 months, 2 years or 5 years is the correct period. I can only rely on those who are intimately concerned with the values, the construction and the strength of marriage as it contributes to the individuals in that family and to the nation as a whole.
What I am advocating is opposition to the attitude of holy deadlock, not holy wedlock. Marriage for most Australians is a relationship between 2 people and it goes far beyond a simple contract. For most people a marriage is not the legal shell but the relationship between the spouses and the children. Likewise, the welfare of the family depends on that relationship and not simply on the law. It is generally accepted that a good family law should buttress, rather than undermine, the stability of marriage and that where a marriage has irretrievably broken down the legal shell should be destroyed with the maximum fairness and with the minimum bitterness, distress and humiliation. 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 spouses should be resolved as quickly and as finally as possible. The whole process should be performed with dignity, relative privacy and as little expense as possible. This 1 believe the Bill, as amended by the Senate, provides adequately.
At that meeting in my electorate to which I referred earlier I asked those who opposed the Bill whether they would stand up and be counted as supporters of expensive divorces, of forcing people to live together although they did not wish to. I asked whether they wished to preserve, continue and perpetuate the difficulties, the stress and the strain that have led to so many social disruptions in later life following an unhappy relationship in a marriage situation. Half of that audience who opposed this Bill stood up and wanted to be counted as being opposed to putting a speedy, humane end to all that trouble- to all that lack of understanding in a situation of marriage. I can only condemn those who stood up to be counted and ask them to adduce those principles of compassion, love and humanity that they say is pan and parcel of the Christian religion.
Rather than undermine families and marriage, the Bill strengthens them. What the opponents to this Bill are trying to preserve are unstable and unhealthy marriages where the relationship has broken down and become embittered; an environment in which children are likely to be greatly affected and exposed to pressures and tensions that develop insecurity and anti-social behaviour later in life; and huge incomes on which some lawyers- only somespecialising in divorce proceedings wax fat. It is the parties to a marriage who make or break that marriage. One cannot legislate to make good marriages, bad marriages, happy marriages or unhappy marriages. But what the law can do, and what this Bill does, is to encourage preparation and understanding of marriage. This Bill provides for the establishment of a family law council and an institute of family studies which I hope will adopt some of the more progressive ideas and attitudes of, say, Canada where children, through a gradual increase in content of the preparation for marriage in their school syllabuses, in turn are able to assimilate a greater understanding of marriage, and to study the responsibilities- financial, moral and so on- that come with a marriage.
Surely preventative measures to create good marriages are the only way of preventing them from breaking up. It cannot be done by the law. It can be done only by social education. By creating a family court, reconciliation, discussion of the marriage situation and how it should be resolved or dissolved- peacefully, without bitterness or recrimination, fairly and equitably- is encouraged. Recognising irretrievable breakdown of marriage as evidenced by one year’s separation as the sole ground for divorce encourages and provides for new, stable and more successful marriages. It should be noted that threequarters of divorced people re-marry and hardly ever more than once. In other words reasonable divorce laws- an opportunity to sever an unhappy, non-working marriage- contribute to the stability of new marriages.
I know that one should not contribute to a debate his opinions based solely on personal experience, and I do not intend to do so. But I shall draw on the experience of thousands of people, who can say that a stable, happy and fruitful marriage can result from the dissolution of an unhappy, nonfruitful and unrewarding marriage. Over-restrictive divorce laws weaken marriage because people are forced into living ‘in sin’- de facto relationships. If the law will not allow them to get round their situation they will find an ‘illegal’ way of doing so which is also immoral in the eyes of those who oppose this Bill. This Bill will not encourage divorce but will encourage marriage. The nature of marriage has changed and will continue to change despite the law and despite whether this Bill is passed. Divorce is not necessarily good, but marriage under some circumstances may be very bad. I wish to draw attention, before I finish my remarks in the shortened time available, to 2 letters which have been received from marriage guidance councils. The first letter is from the National Marriage Guidance Council of Australia. As I have stressed time and time again, I do not wish to intersperse into my locution my personal beliefs, but I shall rely heavily on preparing legislation based on wide experience through those concerned with marriage. The National Marriage Guidance Council of Australia passed this resolution:
That this National Marriage Guidance Council of Australia, in relation to the Family Law Bill, August 1974, welcomes the removal of ‘fault’ and the introduction of ‘irretrievable breakdown’ as the sole ground for dissolution of marriage. Far from viewing the change as a threat to the basis of marriage in Australia, it views the Bill as upholding the voluntary principle in marriage and thus enhances the marital relationship. It is also pleased to see the opportunity taken for the introduction in the Bill of a uniform Australian law concerning maintenance of spouses and children.
The second letter is from the Tasmanian Marriage Guidance Council Inc. dated 19 February under the signature of its President, G. Causon. It states:
I am writing on behalf of the Tasmanian Marriage Guidance Council to express our support for the proposed Family Law Bill. It is our opinion that the old concept of matrimonial fault is not only wrong in princple but has adverse effects on relationships far beyond the denned issues of divorce and separation. We believe the concept of matrimonial offence actually hinders the process of relationship, reconciliation and growth which presumably it originally thought to protect.
Fault should rightly be removed from the basis of divorce proceedings, but it is impossible for the court not to consider needs and welfare without it. The new examination of fault is to evaluate the future welfare and concern of all members of the family. This Bill outlines the principles of the family court- not the old court which was highly legalistic and argumentativebased on reasonableness, discussion and welfare principles, and takes into consideration the needs of each member of the family and their capacity to contribute to continuing welfare outside that existing marital relationship.
I reject wholeheartedly the arguments that fault must be continued in any new law and that we must pinpoint fault to a single individual or apportion it between the two spouses. Invariably, if not completely, it can be shown that fault is built up over time and can be attributed to both spouses. There is no such thing in my mind as a completely innocent party to a marriage. Therefore the new proceedings under the Family Court, which are based on determining the continuing contribution of the partners of the dismembered marriage should be continued on a basis of need. It is only when we consider the needs of people rather than the legalistic rights of people, and base those rights on needs and contribution, that we can say we are preserving marriage, not as an outmoded institution but as a family unit of welfare which will lead to a better and stronger nation. I commend the Family Law Bill to the House.
– I want to say from the outset that I support the principles as outlined in the amendment but will find great difficulty in supporting the amendment as it stands because of a ruling given by the former Speaker that this would not allow the debate to proceed to a Committee stage. The honourable member for La Trobe (Mr Lamb) put a case very eloquently in support of the guiding principles in the Bill. I hope to put a case against the principles that will guide us to a decision as to the way in which we will vote.
Let us have no illusions that this Bill, as it stands, produces the basis for an alternative philosophical approach to marriage and family. It introduces a new concept of marriage, family and divorce. If this Bill passes unamended our traditional approach to marriage and family will undergo dramatic change. Under the guise of removing some of the unsatisfactory and inhuman provisions existent in our divorce laws, the Bill aids the erosion of the basic concept of marriage and the foundation of the family unit.
True, it will remove some of the divorce law provisions that crush the human dignity of those who face the courts in sorrow of marriage dissolution. The introduction of closed courts is a humane action in the interest of family relations. Why should the private lives of married people be exposed to public scrutiny? There are provisions for the welfare and custody of children and a requirement that proper arrangements are to be made for the welfare of children before divorce becomes absolute. These and other provisions in the Bill are admirable, and I will want to support them in the course of a Committee debate.
Having acknowledge these worthy provisions I now turn to the reasons I believe this Bill provides an alternative philosophical approach to marriage and family. The first is the single untested cause for the dissolution of the marriage, the irretrievable breakdown provision, the second is the one-year separation provision and the third is the provision which allows one marriage partner only to secure dissolution of marriage. The other provision is the failure in the legislation to give adequate protection to the divorced wife who is unable to earn her own living. The Bill proposes in clause 117, for instance, that in the event of a divorce being defended on any ground each party shall pay his or her own costs. The end result of this monstrous provision is that if a wife becomes deserted and becomes involved in a defended maintenance proceeding she has not only the disadvantage of being deserted but also the privilege of paying for it. In terms of the law under this Bill, the marriage contract is the only form of contract which may be broken at the option of either party, with the offended party suffering the injustice of paying for the breach of contract if he or she opposes any relief sought by the first party or, what is more, seeks any relief for himself or herself.
Let us be honest. If this Bill is carried in its present form, a married woman facing divorce from a husband earning, say, the average weekly earnings is worse off financially under this legislation. Similarly a father, or a father with the custody of children, could well find himself worse off under the provisions to which I have referred. Moreover, with the no fault 12 months provision, it does not matter how serious or intolerable the real ground for divorce is. Once the no fault provision is completely removed, no matter how serious, cruel or monstrous the misconduct of one of the parties to a marriage may be they must separate for 12 months before proceedings for dissolution can commence. In such cases clause 43 does not ease the problems for the victim of violent misconduct. In fact it makes the position even more intolerable.
Clause 48 is the philosophical key to this Bill. It says, in effect, that the only way in which it can be established that a marriage has irretrievably broken down is by separation for one year. As the honourable member for Wentworth (Mr Ellicott) has said, this represents a charade in that the parties must live apart for 12 months.
After having done that they can go to a judge and say: ‘We have lived apart for 12 months; therefore we are eligible for a divorce’. It does not matter if the real cause of the separation was cruelty, adultery- no matter how serious or vicious the misconduct might have been- or any other matrimonial misconduct.
I submit that one of the most serious weaknesses of the Bill is that a marriage can be dissolved by one partner only after one year’s separation. This is an incredibly short period of time for an objective judgment to be made that a marriage has irretrievably broken down. Under the terms of such a limited qualification a man separated from his wife for 12 months by reason of military service, ill health in hospital or deten tion in prison could find himself divorced upon his return home. Another erroneous presumption underlying this new proposal for divorce is that husband and wife can simply separate, terminate their marriage and begin a new life on equal terms. This is not a fact of life. A divorced woman who is without a profession, who has not had a career before marriage or who has been away from her career, profession or area of skilled employment for a number of years, does not easily find a way to adjust to re-entering the employment stream; nor does she, in most cases, readily adjust psychologically to her new situation.
As I said earlier, there is before us an irreconcilable conflict between the 2 philosophical approaches to marriage. One philosophical approach is the traditional principle of lifelong marriage. We know that it does not exist in many cases, but surely most people who enter this bond do so hoping that it will be a lifelong contract. On the other side there is the attitude of some people that marriage can be, and perhaps will be, a temporary union terminable in easy circumstances. This Bill favours the view that marriage may be regarded as being terminable at the whim of one partner and is not to be regarded as a holy estate and a permanent institution. How many people have been compelled to listen to and to accept the principle of marriage as being that what God has united man must not divide? It might be old hat to mention that in this debate; but do we, in this so-called enlightened age, turn from this Christian ethic by making as law to facilitate the easy dissolution of marriage? Marriage and the family life that generally flows from it are the basis on which our whole society has been built. There are those marriages that fail because of a variety of reasons, and the consequences are traumatic to those concerned. But there are those marriages that succeed, with fulfilling advantages to those concerned, and they are of immense advantage to the structure of our society.
Marriage is not a contract to be entered into lightly by either partner. Marriage is a contract of the utmost importance between 2 people. It involves a deep commitment- or it should involve a deep commitment- a tolerance, an understanding, and the ultimate in human relations. To those who contemplate this estate, let it be understood that marriage is not without its problems and its moments of friction. Nothing that is worthwhile in life comes to one without effort and perseverance. But for all that, marriage has given warm comfort and great security to countless millions.
A farmer, when speaking about marriage, once said to me: ‘Anybody who thinks marriage is without its problems is not ready for marriage. But, in a sense, it is like farming; you have to take the good with the bad’. He went on to say: ‘If I had walked off my farm in the first drought, I would ultimately have regarded myself as a despondent dropout’. So it is with life itself. I think that young people in our community should be encouraged to accept that principle, when entering into a contract with each other, that all is not going to be well all the time but that the benefits of trying to be tolerant, understanding, and to make it work will bring to them and to the community greater benefits than entering this holy estate, as I regard it, with their eyes shut expecting it to be all sunshine and laughter.
The Family Law Bill creates the temptation to married people to walk out at the drop of a hat and with little penalty. Therefore, the provisions of this Bill make a mockery of its title. As the Bill stands, it further threatens the nature of the marriage contract and thus, I believe, the foundation of our society which, after all, is the family unit. In clauses 48 and 49, as I said ealier, the Bill gives expression to a new philosophy which weakens the commitment of a marriage contract. It is drafted to satisfy the wants of an unfortunate minority in our community and not the need for a stable, orderly and secure society.
What couple would enter into a marriage contract with a real sense of compulsion and responsibility when both parties know that if their whims and passions and all those things to which they aspire are not achieved within the first 12 months, either party can go back to square one after a separation of 12 months, renounce the commitment- as I said, in many cases that is a commitment to a contract taken not just according to the law but a commitment before Godand then call it off. The clauses of this Bill provide for an easy dissolution of the contract. In other words, when it gets too hot in the kitchen either partner can opt out without the consent of the other, so long as they separate for 12 months.
The Bill plays down the importance of marriage, not exalting its benefits. If we want to see the destruction of our system- the Christian ethic, as some would call it- there is no better way to do it than to enact this Bill in its present form. Sure, there are unsavoury provisionsprovisions to which I have referred- in the existing laws where a marriage has broken down and a partner feels compelled to denigrate, to smear and to humiliate the other in order to achieve dissolution of marriage when that becomes so necessary for that partner. This is anachronistic and barbaric. But to remove any fault and to require only 12 months separation makes a mockery of marriage, the most intimate and binding contract into which humans can enter.
There is no need to throw the baby out with the bath water in order to bring some humanity into our existing divorce laws. My conviction and concern for a stable society lead me into conflict with the insidious philosophy that I have mentioned. I support the amendment and the principles in the amendment as moved by the Honourable Frank Stewart, and I hope that others will see the importance of elevating the binding provisions of marriage and not relegate marriage into some trial and error experiment that can be thrown away at a whim. To remove the need to approach marriage with a sense of responsibility, tolerance, discipline and per-severence in the eyes of God or in the eyes of the contract itself is to destroy the fundamental principles of the Christian ethic, and I can have no part of it.
It is true that some marriages will fail; people will try to work at their marriages and still fail. But it is better to have a motivation and a discipline to try and still fail than to fail after never having had the motivation or discipline to have tried at all. In my view this Bill removes the incentive, the motivation and the challenge to so many young people contemplating marriage to try at all. I know the question may be asked: What is the difference between 2 year’s separation and one year’s separation? But that is the thin edge of the wedge. In a broken marriage it is the children who suffer. A broken marriage is a nightmare, and the basis of the greatest source of insecurity for the children. If too many of our children suffer the consequences of broken marriage that could arise from the easy provisions of this Bill, the stability of our whole society must suffer. Where children are involved, too often we forget that they are the greatest losers, that they are the real victims. If marriage can be dissolved so easily as this Bill provides, the fate and security of our children are being ignored.
I find it difficult to support the Bill, and I will not support it in its present form. I support the guiding principles in the amendment that has been moved, but I will not continue to support the amendment unless there can be conceived some action that would enable us to go on to debate the Bill at the Committee stage. I certainly will support the provisions that take some of the inhumanity out of the proceedings in our divorce courts in Australia.
-Mr Deputy Speaker, I very much regret that the exigencies of travel and of catching a plane mean that after many months of work on this Bill I have to curtail my remarks substantially. I support the Bill and oppose the amendment. I regret that my dear friend who spoke before me, the honourable member for Gwydir (Mr Hunt), spoke in terms of the Christian ethic. I do not want to deal with that at any length, but simply say that those of us who embrace Christianity feel ourselves to be christians notwithstanding our support for this Bill. In making that statement I am supported, so far as the Victorian churches are concerned, by the Anglican Church, the Methodist Church, the Presbyterian Church and both Jewish faiths- liberal and orthodox. I hardly feel that the Christian spirit or ethic in those establishments will be on the wane as a consequence of this Bill.
I believe that the Matrimonial Causes Act of 1959 was a landmark. The Commonwealth chose to legislate uniformly in an area which it had hitherto resisted, and I believe that we owe much to those who persevered notwithstanding the strength of criticism at the time that marriage would collapse and that the institution of marriage would be swept aside as a. consequence of that legislation which was ultimately passed. That did not occur, nor do I believe that it will occur under this more enlightened piece of legislation. I have also met with those in my electorate who are opposed to the Bill for religious reasons. My electorate covers 6 Catholic parishes- Balwyn, Balwyn North, Deepdene, Hawthorn, Kew and Kew East. I might say that the tolerance and understanding shown by those people towards the view that I have is in marked contrast evidently to approaches being made by people opposed to the Bill which some of my colleagues who are supporting the Bill allege are being made with some ferocity. I have not faced this. Those who disagree with my view argued their case plausibly and gave me a respectful hearing of my views in a manner that I found most welcome.
As a consequence, I have to say that there is one aspect of the Bill about which I am concerned and I wish to foreshadow some form of amendment, if that is possible. I can well understand the difficulty of those who, being Catholics, enter into marriage and because of their deeply held religious belief feel that there can be no dissolution whatsoever of that marriage. They are able at this stage, when there is an irretrievable breakdown of marriage, to avail themselves of a form of separation known under the law as judicial separation. This Bill removes that provision. It would appear to me that there ought to be the opportunity for a judicial separation. After all, this separation is recognised by ecclesiastic courts. Under this legislation it would not be recognised by the civil courts. It is possible, of course, to use the injunctive powers contained within the Bill to provide for judicial separation but, having examined the legislation, I would have to say that the injunctive power necessarily is a power that is basically for a short term. That is the whole idea of injunctions. Certainly in law we do have permanent injunctions, but these have never been used in matrimonial matters, except for non-molestation. Therefore I put to the House that concept, which I will want to follow up at a later stage, because I believe that those of the Catholic faith have a legitimate concern in that area of the Bill. But that does not deter me from my support of the Bill and my opposition to the amendment.
I said at the outset that the Act of 1959 was a landmark. It did not produce any of the floodgates that were said at that time to be present. It was alleged that writing into a form of legislation for the first time provisions that separation and desertion for 5 years and 2 years were grounds for divorce would lead to a total breakdown in marriage. This has not occurred nor did that Act bring about the so-called quickie divorces, any more than this legislation will. Indeed, at the present moment 47 per cent of petitions in the divorce courts following a break in the marriage union are on the ground of adultery. Under this legislation, those who are able to petition on the ground of adultery will lose their immediate right to so petition. It is well to bear in mind in regard to the allegation that this will bring about quickie divorces that in fact the right to petition for divorce immediately is taken from those who have that right at the present moment on the ground of adultery.
My colleague the honourable member for Wentworth (Mr Ellicott), who is at present overseas, is strongly of the view that legislation should never take away established rights. I do not follow his line of reasoning to that conclusion, but it does seem to me worthy of examination, particularly by those who allege that this Bill will establish rapid divorce, quite apart from increasing the rate of divorce, as that right is being taken from people. The Bill is noteworthy because of the position that it adopts in relation to custody, access and maintenance and the substantial changes that are made in these areas.
The provision of family courts is an outstanding i j - - - * o one.
Finally in my remarks I want to refer to the period of 12 months separation. It has been alleged that this time is too short. I believe that that allegation can be answered on 3 grounds. Firstly, there is the answer of fairness. On the immediate ground of adultery being taken away from people, there ought to be a fairness so that the period that they should wait in those circumstances ought not to be too long, and 12 months seems adequate on that basis. Secondly, the family court structure itself will be a helping, ongoing organisation to those who are faced with a breakdown of their marriage during that period of 12 months. Thirdly- I now inject a personal note- from the small number of divorces I handled when in practice I found that unquestionably the second year- I accept the reasoning contained in Senator Missen’s argument on this point- of the breakdown of the marriage time and time again was the period of the greatest bitterness when one was seeking either a break or a bringing together.
It is terribly difficult. No one can be certain. No one in the platonic sense can know what is the right period. One can only believe. On the basis of my experience, on the basis of equity, on the basis of the family court structure itself, I support the 12-month period. I reiterate that I support the Bill with one qualm that I have about judicial separation to provide for those with deep seated religious belief. I think that would repay further examination.
This legislation has been the subject of 3 years of the closest scrutiny in the Senate. An enormous number of amendments have been made. I do not believe the amendment before the House would provide the sort of legislation required. Its consequence would be that this legislation would be taken away to be rewritten. I believe that after the examination that has been made on the matter this Bill is worthy of support. For those reasons I am pleased to stand in support of it. I regret that because of my travel to Nowra I must leave and curtail my remarks so severely.
– I welcome the opportunity to enter this debate on the Family Law Bill which must be one of the most significant pieces of social legislation presented to the Parliament. The honourable member for Kooyong (Mr Peacock) referred to the introduction of the present Matrimonial Causes Act in 1959- a landmark in social legislation dealing with marriage and divorce. This Bill is intended to reform that legislaton to take into account changing social attitudes. I am sure that all of us in this House and in the Senate have discerned within the community changes in social attitudes which require changes in the existing legislation. But naturally enough when we have a free vote in both places on legislation of this kind we find a variety of expressions by individual members according to their own personal or religious convictions.
I set about my task in considering what I should do when casting my vote considering that I should blend, so far as I am able, both my own personal views and those of the people whom I represent in this Parliament. In this kind of situation I regard myself very much as the representative of the people. I know at times that that can well place and individual in a dilemma that he cannot easily resolve. Nevertheless it must be resolved. I invited all church groups and other significant social groups in the community to give me their views on this legislation. I must express my praise for the way in which so many of those groups went about investigating the Bill, seeking opinions within their own communities and passing them on to me. For that I am thankful. I have received, as a result, a great many letters, obviously carefully thought out. These are not stereotyped letters that have been duplicated so many of which members find come onto their desks. I think this was an exercise that could well be repeated. I certainly propose to repeat it whenever I am faced with social legislation in particular on which I have not only to consider what my personal vote should be in a free vote situation but also to present my arguments to my own Party before the Party’s opinion is formulated.
I support the amendment moved by the Minister for Tourism and Recreation. I do so not because I want to oppose the Bill outright but because I consider the Bill to be inadequate for the purpose of the reform that it is intended to achieve. If that amendment is carried, 1 hope that the Attorney-General (Mr Enderby) will accept the responsibility which would thereby be cast upon him by this House to refer the Bill to the law officers of the Crown for reconsideration and redrafting in the light of the opinions expressed by this House. In that situation the AttorneyGeneral would be acting as the servant of the House rather than the servant of the Government. It may well cast the Attorney-General in a totally different role from that in which he has been cast before but as a free vote has been given to all honourable members, he would be necessarily cast in that role. I hope- indeed, I would expect- that if the amendment is carried the Attorney-General will accept that responsibility and serve the House in that way.
Certainly 2 things can be said of the Family Law Bill. Firstly, it does not satisfy reformers such as the Divorce Law Reform Association, certain groups within the Women’s Electoral Lobby and the other groups which are seeking divorce law reform, even though the Bill does remove fault as the basis for dissolving a marriage and even though it embraces the concept of equal responsibilty by the parties to a marriage in respect of the children of the marriage and also embraces the concept of their own independent individual responsibility for themselves after dissolution. To many of those groups the Bill does not go far enough. On the other hand, the Bill does not satisfy those who want to see reform brought about but who object to the sole ground for dissolution being 12 months separation and those who also see in the maintenance and property settlement provisions inadequate protection for the wife and children of a broken marriage. Somewhere, it appears quite clear from the arguments we have heard in this debate, the Bill must go down the middle.
I object to the Bill in its present form because as it has come through the process of being the fourth Bill in the line originally started off by the former Attorney-General, the then Senator Murphy, it has become a hotchpotch of ideas, philosophies and practical provisions. This hotchpotch centres upon 4 things, namely, the grounds for divorce, the financial arrangements between the parties upon divorce, protection for either party and the children of the former marriage and, fourthly, the administration of the law throughout this nation. In respect of the last mentioned point let me say immediately that I welcomethis was the universal opinion within my electorate- the formation of family courts with marriage counselling and reconciliation assistance being made available through those family courts- a comprehensive administration both of the law and the efforts at marriage counselling and reconciliation.
There is common ground in the community on a number of things. It seems to me that they are these: Firstly, the need for reform in the law and its administration; secondly, the indignity of divorce by fault as it presently is found should be removed; thirdly, that irretrievable breakdown of marriage should be the test to relieve the parties of the legal ties of marriage; fourthly, that the wife and the children should be protected upon divorce; fifthly, that so far as possible, the financial affairs of the family should be settled once and for all upon divorce; and sixthly, that administration of divorce law should be as efficient and dignified as human hands can make it, and the courts and the protection of the law should be available to all who need it, irrespective of costs.
Against that background, it ought not be forgotten that the law in this field is a social instrument by which rights of parties during marriage and upon divorce are established. Therefore, when legislation is introduced in the name of social reform, it is proper to ask these questions: What new rights are created? What old rights and responsibilities does it remove or lessen? I find an intolerable inconsistency in many of the provisions of this Bill, as well as an objection to some of the fundamental bases on which the Bill is drawn. For example, the central provision of clause 48 provides for the ground of dissolution of the marriage to be 12 months separation. That is the no-fault provision so often referred to. But then one finds clause 43 endeavouring to stand alongside clause 48, which of course is impossible. Clause 43 states that the Family Court shall, in the exercise of its jurisdiction, have regard to such matters as the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life. When regard is had to the fact that upon establishing simply separation for 12 months, the court has no discretion as to whether to grant a decree dissolving the marriage, the impossibility of clause 48 standing alongside clause 43 becomes abundantly clear.
The honourable member for Wentworth (Mr Ellicott) referred to clause 48 and the ground of 12 months separation as a legal fiction, and I agree with him. It states that there shall be a decree of dissolution on the ground that the marriage has broken down irretrievably and that that breakdown is established by 12 months separation. I would go further and say that that is both a legal and a social fiction, because anyone with experience in the field of marriage and marriage breakdown can point to innumerable examples where a mere separation does not necessarily indicate, let alone establish, the irretrievable breakdown of a marriage. I think that when we look at the basic concept behind irretrievable breakdown, it really does point up the fiction that 12 months separation establishes that breakdown.
My learned colleague the honourable member for Moreton (Mr Killen) has foreshadowed an amendment which seeks to introduce into clause 48 objective grounds on which to establish irretrievable breakdown. The terms of the amendment are drawn from the English Divorce Reform Act 1969. That Act says that breakdown of marriage is to be the sole ground for divorce, and it goes on to state that the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts: That the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent, that there has been a continuous period of at least 2 years desertion immediately preceding the presentation of the petition, that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition and the respondent consents to a decree being granted and, finally, that the parties to the marriage have lived apart for a continuous period of at least 5 years immediately preceding the presentation of the petition.
I would think that, if the concept of irretrievable breakdown of marriage is to be introduced into our law, by far the most sensible approach to it is to acknowledge that breakdown of marriage is caused; it just does not happen. The fact that it is caused implies that there is responsibility somewhere. I would not for one minute want to see a legal system which allowed the parties to wrangle over their conduct during marriage in determining whether or not there should be a divorce. Nevertheless, I think that, inevitably within the concept of irretrievable breakdown there must also be contained the concept of responsibility. That is the point which the amendment moved to the motion for the second reading of the Bill seeks to draw to the attention of the House.
There are other inconsistencies in the Bill which I shall mention. The most significant inconsistency I find in the Bill is in the handling of the injunctive provisions. The injunctive provisions of the Bill enable a party to the marriage to be protected in his or her marital relationship. That can mean only that, if one party to the marriage has misbehaved in a way which is intolerable to the other, that other party can go to the court and obtain an injunction calling upon the party misbehaving to desist from doing so. That introduces immediately the concept of fault; that is, misconduct or misbehaviour. I cannot understand then why a wife, for example, who hears of the adultery of her husband and notwithstanding the adultery persists in coming back home, can obtain an injunction from the court to protect her from that intolerable conduct but cannot, even though the court is prepared to grant her such an injunction, go to the court and obtain a divorce if she wishes to do so immediately.
My colleague the honourable member for Griffith (Mr Donald Cameron) talks of brutal conduct. I agree that a wife who suffers brutally at the hands of her husband ought to have the protection of the law available to her immediately. That protection is given by the injunctive provisions of the Bill but denied by the provisions of the Bill establishing the ground for dissolution of marriage. I cannot understand why the proponents of this Bill would grant to a spouse protection in one legal form but not in another legal form. They are then compelling the spouse who has been badly treated to stand off and wait for a period of at least 12 months. Certainly she will be able to obtain the protection of the law as to maintenance, but that may not be enough in the particular circumstances of the case. The point of raising this matter is that however hard one may try to remove what is so commonly called fault, one cannot. We all know that marriages break down and pass through periods of hardship and difficulty. The law serves no purpose if one seeks to deny what ought to be acknowledged in one part of the legislation but then recognises it in another part of the legislation.
This Bill contains many more provisions than those to which I have referred. I hope that at the Committee stage- if we get to that point- I can refer to and point out other inconsistencies in the legislation. I think it is proper to say that all members of this House and the Senate have approached this piece of legislation with a great deal of goodwill. It has been a salutary lesson for the Parliament, in the light of events of recent days, that we as individual members of Parliament can approach a matter of such importance to Australia in that spirit of goodwill and with a sense of seriousness and obligation to the community.
Mr DEPUTY SPEAKER (Mr Luchetti)Order! The honourable gentleman’s time has expired.
Sitting suspended from 12.57 to 2.15 p.m.
– Could I raise a point of procedure with the indulgence of the House? I do not know whether it should be done by way of a point of order or with the indulgence of the House but it is a matter which does concern a number of honourable members. It relates to the amendment moved by the Minister for Tourism and Recreation (Mr Stewart). It has become clear that a number of honourable members would like to be able to support that amendment but would not want to support it if it meant that it would deny a second reading to the Bill. I am in that position. I would have thought that it would be a reasonable procedure since this is not a governmental measure for the House which is, as I understand it, in command of its own procedures, to adopt a process which would enable that second reading amendment to be carried but would not involve the withdrawal of the Bill for redrafting in any sense, in other words, a process which would enable the Bill to go ahead in Committee so that on the third reading the House could judge whether whatever amendments had been moved in Committee met with the general agreement of honourable members.
So the first point I would put to you, Mr Speaker, is that the amendment moved by the Minister should not be regarded as requiring the withdrawal of a Bill for any period but rather as enabling it to go straight into Committee for examination. However, if your ruling on that point confirms the ruling of your predecessor that the Bill would have to be withdrawn and redrafted and resubmitted by a Minister, I would ask what is your view concerning the contingent notice of motion that has been moved by the Minister and read by the Clerk earlier this morning, namely, that so much of Standing Orders be suspended as would prevent a Minister moving that the second reading of the Family Law Bill 1974 be made an order for a later hour this day’.
– It may quicken proceedings if I clarify that matter at this stage.
– Before doing so, Mr Speaker, may I say that I would have hoped that the contingent notice of motion would not have been necessary but, if it is necessary that it be moved and carried, I would hope that it would be your judgment that the Bill could proceed into Committee, having gone through the second reading stage, and follow the normal stages, through to the third reading thus enabling all honourable members to express their views on matters of principle on the third reading without holding up the BUI.
– May I speak -
-Order! I will reply to this particular question first.
– I would just like to say something -
-Order! The honourable member will resume his seat. The position with the amendment is that the question which will be put from the Chair is ‘that the words proposed to be omitted stand part of the question’. If that is defeated, the motion that the Bill be now read a second time will not have been carried. Therefore, at that stage the Bill could not proceed. That would not prevent the Bill proceeding at another time and it certainly would not require the Bill to be withdrawn and redrafted. If the amendment is carried it is an expression of opinion of the House and at a subsequent time the House could reinstate the motion that the Bill be now read a second time; that is to say, the motion that the Bill be now read a second time could be reintroduced at a subsequent time as Government business. Subject to the order of the House, debate could then re-commence on that question. The contingent motion would, subject to the amendment being carried or the words being deleted- which is the relevant point- if it were moved, then enable the second reading to be reinstated. Following passage of the contingent motion debate could commence on the motion ‘That the Bill be now read a second time.’ I have not worded that in the phraseology that my predecessor used but I think I have made it clear to the House.
– May I seek a further point of clarification? I am not seeking to delay the proceedings unduly. If the Minister’s second reading amendment were carried and if subsequently the contingent motion were also carried, would that mean that the second reading would be put again, giving honourable members an opportunity to express a view in relation to the second reading, or does the carriage of the contingent motion automatically mean that the Bill proceeds to the Committee stage?
-No. If the amendment were carried the motion ‘That the Bill be now read a second time’ is a completely new motion for that purpose and is open to debate in the same manner as the motion now before the House.
- Mr Speaker, I do not mean to tangle horns with you for one moment, but is the honourable member for Wannon correct in raising this matter as a point of order or should it be raised with the indulgence of the House as a point of clarification? As I see it, if the forces that have proposed the amendment before the House suddenly find themselves defeating themselves by their own actions this is not a matter of a point of order but rather a procedural matter.
-The honourable member for Wannon asked whether he could raise a point of procedure with me. I agreed to that. I think that it is in the interests of the House that every honourable member knows exactly what is the effect of his vote. Whether or not that affects the numbers is not important. The important thing is that honourable members voting on the Bill understand what they are voting on.
- Mr Speaker, I came into the House a fraction late and I missed some of the earlier contributions. I wonder whether, in the interests of clarification, I might seek your guidance to this extent: If the amendment proposed by the Minister for Tourism and Recreation is carried and if the contingent motion is also carried, is the practical result that the debate on the second reading merely continues?
-No. The practical result is that the Bill would be made an order of the day for a later hour that day. It would then be up to the Government as to whether or not it proceeded immediately with that on the passage of that motion. Debate would not continue; debate would commence.
– For further clarification: If those steps which you have just described took place we would begin again the second reading debate?
– That would be the effect. I would hope that the House would not take it to that extent.
- Mr Speaker, may I take it further? If both the amendment and the contingent motion were carried and we reached the situation which the Attorney-General has just described, I assume that it would be competent upon any honourable member or the Leader of the House to move immediately ‘That the question be now put’. I raise this because I think that there is a fear being raised that if both the Minister’s amendment and the contingent motion were carried we might have the situation where we started again on the second reading debate.
-Let me answer that. It is in the hands of the House what decisions it would make on the proposition. All I can say from the Chair is that when the motion ‘That the Bill be now read a second time’ is proposed debate would ensue. If the House decided otherwise, then that is a matter for the House.
-I wish to speak to the point raised by the Attorney-General. I seek, if I may, clarification from him. This is an important matter; it is not a partisan matter. There might have been an implication from the AttorneyGeneral that honourable members would want to re-enact the second reading debate. I do not believe that that would be the case at all. I do not believe any honourable members would be wanting to repeat or to add to their speeches which they have already made.
-I think we are now debating what might be a likely effect of an occurrence which has not happened. I do not think any purpose is served at this stage by continuing on this point.
– I wish to make a personal explanation.
-Does the Minister claim to have been misrepresented?
-Yes, I claim to have been misrepresented. My motives during the whole of the debate on this Bill have been construed and misrepresented by people who support the Bill. The purpose of my amendment, which was seconded by the honourable member for Bennelong (Mr Howard), was to allow this Housethe people’s House; a democratic House- to express a point of view. It asks for an expression of opinion of this House on family matters and on divorce. Because of the misconstruction which has been quite deliberately placed upon that amendment I sought advice and moved the contingency motion. It is not my intention, nor the intention of any of those who believe that the family is the basic unit of any country, to prevent this Bill from entering the Committee stage. I should like to make it absolutely and perfectly clear that if the Bill is prevented from entering the Committee stage it will not be the responsibility of those who support me in the amendment that I have moved.
-Although I had listed myself to speak on the Family Law Bill I had decided to withdraw. I felt that other honourable members who had spoken in this debate had adequately and in many cases far more efficiently represented my view on the procedural and technical questions surrounding the proposed legislation. The second reading speech of the Prime Minister (Mr Whitlam) and the practical expression of the Attorney-General (Mr Enderby) had gone further and had demonstrated a philosophical consensus of public opinion supported by all the elements of sound practical common sense. The report of the Senate Standing Committee on Constitutional and Legal Affairs and the subsequent exhaustive but necessary debate in the other place on this Bill had, it seemed to me, covered every point of contention. The debate in the other place and to date in this House has been carried out with conviction and candour. There seemed little if anything new that was left to say. My entry into this debate therefore has to have a valid reason, which I believe I have.
I wish to speak as one who is and has been active in the Christian Church for most of my life and a lay preacher for nearly 30 years. I wish to speak on behalf of a very significant section of the Christian Church which supports the Bill and opposes the amendment. In the Church of which I am a member, the Methodist Church, the President General, the Reverend Rex Mathias and the Departments of Christian Citizenship have spoken out firmly in support of the proposed changes. However, I know that this does not mean that all members of the Methodist Church support the Bill. The situation appears to be similar in the Presbyterian and Anglican churches. It is also equally clear that some members of the Roman Catholic Church are supporting the Bill. It is right that churches and church members should be deeply concerned about this important piece of social legislation, certainly the most significant in the last decade. However, social behaviour and human concern are not subjects which are the exclusive prerogatives of Christians. It is the epitome of arrogance to think so. The attitude of ‘we know best’ in matters which concern legislation for the whole community as distinct from those of us who hold interpretive religious positions is one which is gravely misunderstood and dallies with the sin of selfrighteousness.
Let me hasten to say that I do not seek to deprecate the religious and moral convictions of those who, like the Minister for Tourism and Recreation (Mr Stewart), hold views which, after the consideration of the same basic facts of faith, reach different conclusions about the frameworks of law in a pluralist society. Rather I respect those who for themselves and the groups, societies and churches to which they belong, accept philosophies, concepts and practices which they believe are valid. It is, however, one thing to acknowledge the rights and convictions of those described to practise and to recommend, even to urge, others to accept; it is quite another to support amendments which by legislation impose thought systems, theological propositions and religious sanctions which may or may not be relevant in respect to those who seek the resolution of their problems within the protection of the secular law of the State.
Opposition to the most controversial aspect of the Bill, that of irretrievable breakdown in marriage as the single ground of dissolution, emanates chiefly from certain bishops of the Church and from the self-appointed guardians of public morals, the Festival of T.ight. T regret to say that the supporting arguments by certain of these pressure groups are not always as careful as they might be in their exaggerated claims for the total body of Christian opinion. Indeed, I regard it as a duty to seek to represent a concerned and informed strength of support within the Christian community for the humane proposals of the Bill, undergirded by the setting up of family courts, a family law council and an institute of family studies- aspects which have been conveniently ignored or brushed aside by the emotive claims of the ‘no fault’ argument.
In this debate opposing speakers have affirmed their belief that the family is the basic and stable unit of Australian society or that marriage should be buttressed or that full and proper recognition should be given to wives, mothers and children. It should be clearly and unequivocally understood that those of us who support the legal and procedural provisions of the Bill have not abandoned that belief, nor do we reject the basis of commitment which for some of us was and is enshrined within our religious convictions.
If divorce is recognised in our society, the responsibility of lawmakers must be to devise and place on statute the means whereby such breakdowns are dealt with in terms of human dignity and common justice. If, on the other hand, certain groups within the community believe that their religious convictions prohibit their taking advantage of courses of law open to them and that they must therefore oppose reforming legislation for others who may not share the same binding religious principle, then, although at all times such groups should be accepted, they must be strenuously opposed when the imposition of that principle is sought within the inclusion of the law.
It may indeed be the duty of some of us to expound another and for some a far more important aspect of Christian teaching, that which supersedes a doctrinal or ecclesiastical principlethe imperative cry of compassion and charity. My plea then is unashamedly on the grounds of personal Christian conviction and my conscience vote on this issue is consistent with a lifelong experience of situations both within and outside the Church- situations of misery, distress and trauma. A Bill which so comprehensively grapples with these problems and provides the enlightenment of enabling legislation claims my support along with that of countless others who would call themselves Christians.
I would be guilty of the self-righteousness which I have so roundly deplored if I did not also recognise that others who have spoken in support of this Bill have reached their conclusions from different terms of reference and different processes of logic. I have said that those of us who claim membership in the various branches of the Christian church do not have a monopoly of wisdom, of social morality or of human compassion and concern. The points which have been made by others, particularly those who have carefully considered the technical aspect of the Bill, are accepted and welcomed by those of us less skilled in the area of legal detail. I believe, however, that speakers from this side have demonstrated a realistic and humanitarian concern sometimes sadly lacking among the more extremist and hard core propagandists from the opposing forces.
I remind honourable members opposing the Bill and supporting the amendment moved by the Minister for Tourism and Recreation that the vital and continuing buttress of marriage is not the legal contract, however important that looms in the kind of society in which we live. Marriage is buttressed and sustained by mutual love, cooperation and respect. It takes effort and resourcefulness to keep it alive. For some of us it may have religious implications which are paramount. So be it. But when, by all human and social judgments, by all personal and conjugal standards, the relationship has been destroyed, it cannot be saved by the law. The law can serve only to examine, to test and finally to determine that on the basis of the contract, not on religious conviction which it is not competent to exercise, such a marriage should be dissolved. The manner and the method of this process is the subject of the Bill. I support it with enthusiasm and conviction.
– I support, indeed I seconded, the amendment moved by the Minister for Tourism and Recreation (Mr Stewart). The sole purpose of that amendment, despite what may already have been alleged in this debate and despite what may be alleged later in this debate, was to give a general expression to the concern felt by a wide range of people on certain aspects of the Bill. I think it would be fair to say that there are some people in the community who would like to see the Bill totally defeated, that there are some who would like to see the Bill carried without amendment and that there is a great number of others who would like to see the Bill carried with amendments. It is for that reason and because this legislation touches so directly the most intimate and personal of all the human relationships in our society that those of us who support the amendment to the motion for the second reading of the Bill thought that by presenting that amendment we could crystallise in some way the feelings of those people who have reservations about the Bill.
For my part, I do not wish to see the Bill defeated in its entirety. I do not wish a decision unduly delayed on the Bill. I believe that a very adequate period of time has elapsed for examination of the main thrust of the Bill. There have been plenty of opportunities for people who have opinions for and against the Bill to press their opinions on members of this Parliament. I make but one comment about the whole range of opinions that have been expressed about this Bill- I do not believe, on the one hand, that the passage of this Bill will annihilate overnight the institution of marriage or destroy the real strength of the great majority of marriages in our society. Nor, on the other hand, do I believe, as many of the protagonists of this Bill have alleged, that its passage in unamended form will produce some kind of Utopian atmosphere surrounding the process of divorce. Divorce is unhappy. It is unpleasant. The fracture of such a deep human relationship is an emotional and unhappy experience.
Of all the propaganda that has been advanced in aid of this Bill, the most mischievous, in my view, has been the allegation that the only thing which really causes the misery and unhappiness associated with the dissolution of marriage is the existing matrimonial causes law. This legislation is unique, and we must approach it as such, because no legislation which deals with the most sensitive and personal of all human relationships can possibly be neutral in its impact on those relationships. For anybody to suggest that the passage of this legislation will not have some long term impact on the general community attitude towards marriage and on the general community attitude towards relationships between men and women within marriage is, I think, to fail to understand the real impact of social legislation in our society.
In looking at this legislation, I ask myself 2 questions; I apply 2 tests to the legislation. It is against the criteria of those 2 tests that I judge the legislation. The first criterion is that any law dealing with divorce must be humane, relatively inexpensive and speedy for those who must have resort to it. The second criterion is that it must give proper expression to community attitudes towards divorce. I believe that many of the amendments to the existing matrimonial causes law that have been foreshadowed in the Family Law Bill represent considerable advances on unsatisfactory situations.
In particular, I welcome the abolition of discretion statements. In practising from time to time in the divorce jurisdiction, I have always found the current requirement in the law, that a discretion statement be obtained where appropriate from a petitioner, a humiliating, embarrassing and unnecessary personal inquiry. Secondly, I welcome the provision proposing closed courts. I know that this proposal has been met with some controversy from members of the legal profession who regard it as a most fundamental pillar of our society that the judicial process should as far as possible be open to public scrutiny. Whilst I accept the force of that argument, I believe that, on balance, the uniquely personal nature of matrimonial causes proceedings demands that, except in special circumstances, courts be closed.
The third aspect of the legislation that I particularly welcome is the recognition of the nonfinancial contribution of parties to a marriage which is contained in clause 79 of the Bill. 1 read the relevant paragraph of sub-clause (4):
I believe that that provision is the first legislative expression which has been given to a growing demand in our society that, in adjudicating on and assessing financial relationships between a husband and a wife, both in a divorce situation and in an estate situation, proper and adequate recognition be made of non-financial contributions made to the relationship and to the acquisition of the matrimonial assets.
Inevitably, when one applies the 2 tests which I mentioned a moment ago one comes to the question of non-fault. In some ways, the supporters of this Bill are prepared to sacrifice everything on the alter of the non-fault concept. Those of us who support the amendment that has been moved, and those in the community who oppose some aspects of the Family Law Bill, have been accused of sacrificing everything, so far as divorce law is concerned, on the alter of what the former Attorney-General of this Commonwealth described as ‘ecclesiastical garbage’. If it is wrong to have our matrimonial laws dominated by what the former Attorney described as ‘ecclesiastical garbage’, it is equally wrong to sacrifice everything on the altar of non-fault. I believe that in a great number of casesprobably the majority of cases- it is possible and overwhelmingly desirable to eliminate allegations of misconduct and allegations of fault But I believe with equal force that in some cases you cannot eliminate allegations of misconduct and allegations of fault without doing to some people in the community a greater injustice than the result that you are trying to achieve and more unpleasantness than you are trying to eliminate by doing away with allegations of fault.
This morning the honourable member for Parramatta (Mr Ruddock), in speaking in support of the amendment, described some of the criteria that he thought ought to be applied so far as a breakdown in marriage is concerned. When he was speaking I was reminded of 2 points made in the speech of the Minister for Education (Mr Beazley) recently. In that speech the Minister, amongst other things, advanced 2 interesting propositions. Firstly, he said that the words ‘irretrievable breakdown’ had been used within the context of clause 48 because of their enormous propaganda value. Secondly, he said he believes that the law, so far as is possible, should buttress sound custom. I think that all of us in this House believe that stable marriage is a sound custom. Those of us who approach marriage from a religious standpoint and those of us who approach marriage from a completely secular standpoint would agree that it is a sound custom to have stable marriages in our society.
From my examination of clause 48, which is really the thrust of the Bill, I applaud the attempt made to eliminate, as far as possible, allegations of misconduct, but I deprecate what is inherent in clause 48, and that is the proposition that in all cases it is possible to eliminate allegations of misconduct. I for my part would support- I hope to do so at the Committee stage of this debate- an amendment to clause 48 which would introduce 3 criteria for the dissolution of a marriage. The first criterion is that a dissolution of marriage could be granted after 2 years continuous separation, whether or not the separation occurred at the instance of both parties. The second criterion is that a party should be entitled to obtain a dissolution of marriage after 12 months separation if the court is satisfied that both parties genuinely desire a divorce. The third criterion relates to what I might categorise in a second reading debate context as a general dragnet provision that persons ought to be able to obtain a dissolution of marriage immediately if there are grave and weighty reasons for such a course of action.
I do not support the reintroduction into the Family Law Bill of the specific grounds of adultery and desertion. I respect the views of those who feel that any divorce law should contain, as a specific ground, the ground of adultery. I would prefer that insofar as any amendment to the Family Law Bill reintroduces the concept of fault, the concept of an objective test, it should be based on grave and weighty grounds. I remind the House of one of the examples which the honourable member for Parramatta used in his speech this morning. Under the proposed law, the Bill that we are debating this afternoon, if a party to a marriage found that the other party treated him or her with great and continual cruelty from the time that they were married, it would be necessary for the party so treated to separate and remain apart for a period of 12 months before he or she could start divorce proceedings. Under the present law, the so-called antiquated Barwick law, it would be quite possible for that person to commence proceedings immediately. It is that sort of situation, that sort of conduct- not a large number of cases but a significant number- that this amendment covers.
I think all honourable members will be aware of the very unhappy incidence of wife bashing that occurs in our community. It is all very well for those who are prepared to sacrifice everything on the altar of no fault to say: ‘Those people can wait for 12 months. Those people can avail themselves of the injunctive proceedings. ‘ But I ask: Is there any justice in a situation like that? Is there anything humane in a situation like that where a person, having suffered such indignities and such cruelties, has to wait a period of 12 months before taking action? That is not progressive; in my view, that is totally regressive.
Of all the speeches that have been made in favour of the Bill in its present form, the one that impressed me most was that made by my colleague the honourable member for Balaclava (Mr Macphee). He advanced a very thoughtful examination of the changing relationship between men and women, not only in marriage but also in society. I acknowledge much of what the honourable member said to be a very accurate statement of the present situation. It is impossible to examine a divorce law in our present society without taking some note of the changing roles of men and women inside marriage. I have believed for a long time that the changes that have occurred in the status of women in our society have been a considerable advance. There is no doubt that a generation ago many women faced overwhelming social pressure to conform to the traditional pattern of an exclusive mother and wife role within marriage. That has changed.
The time has now arrived when it is possible for women in our society to exercise more and more an effective choice as to the type of role they should adopt without in any way feeling that their role is any less or that they are under any social pressure to conform to a traditional role. I very strongly welcome that trend. I think it is a proper trend and one that recognises reality. For my part, I have a very simple attitude to it. I support any legislation- I think this is relevant to the Family Law Bill- which makes it possible for men and women in our society to exercise a complete choice as to the type of role they should adopt. I enter only one qualification. I very strongly believe that, a married couple having decided to have children, and in our society it is quite possible for them consciously and deliberately to exercise this choice in a way that was not possible a generation ago, it is the prime responsibility of both of them- not just the wife- to defer their own interests to the interests of their children in their early years.
I commend this amendment to the House. I believe that it gives to honourable members the opportunity to express a general view towards marriage and towards the sort of divorce law that we have in our society. I hope that when the House votes on the Minister’s amendment it will do so uncluttered by any considerations of delay or frustration that may occur in the passage of this legislation. I repeat that it is not the intention of those who support this amendment to kill the Bill. It is not our intention to frustrate and delay the Bill. It is our intention to obtain from this House a general expression of opinion on the principles set forth in our amendment. I regard the amendment of section 48 as being very important. We can deal with that in Committee, but I ask all members of the House, whatever their views on the legislation may be, when they vote on the Minister’s second reading amendment to make an assessment of the principles set out in that amendment and to disregard any suggestionswhich I repeat are unfounded- that the purpose of this amendment is to obstruct, delay and kill the Bill.
– I am not one of the trendies. I am not committed to the permissive society. I believe in the retention of the death penalty in certain cases. I do not believe in abortion on request. The New South Wales law, as set out in Smart’s case, satisfies me both in its liberal approach to abortion and its procedures to safeguard the health of the women concerned. I do not believe in the legalisation of homosexuality practised by consenting adults, and I did not vote on the motion then before the House on this issue. I do strongly and deeply believe that every person has the right to live in freedom, with dignity and with opportunities to pursue his or her own objectives and to achieve personal happiness and true realisation; and that the State has the duty not to obstruct those activities within the law but to remove impediments to their realisation and to protect individual privacy. It is against this philosophy that I personally and independently judge the Bill.
Automatically this immediately directs attention and debate to the paramount provisions of the Bill contained in clause 48. The grounds and terms on which a decree for dissolution of marriage will be granted will be, and only be, because the marriage has broken down irretrievably. Secondly, complementary to this, the proof and the only proof needed to establish irretrievable breakdown is to satisfy the court that the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months before the filing of the application. This second proposition involves the abandonment of the long endured anachronism and social barbarism of the necessity to prove ‘fault’ or ‘guilt’ by one or other of the parties to dissolution of the marriage.
I do not believe it has ever been practicable to prove ‘fault’ beyond any reasonable doubt in any real sense in matrimonial causes or proceedings for dissolution of marriage. Seldom is one party completely responsible for the irreparable breakdown of marriage and the proportions of blame and fault can never be mathematically or actuarilly apportioned. Worse, the degrading and humiliating necessity to fight marital issues publicly in an open court in an atmosphere of hostility and with tactics is more suited to a battlefield or criminal case against the Crown than to the solution of a delicate personal relationship, must be abandoned. The very word ‘versus’ in the name of the divorce case is itself emotive and introduces a battle concept. Too frequently contested divorce cases degenerate into contests or fights. Even though the couple may have entered the marriage agreement with the greatest goodwill. The conditions under which they have to fight their divorce can and do cause permanent traumatic psychological and emotional damage.
Emotions are battered. Characters are assassinated and- worst of all- the children in the marriage suffer dreadfully as a result. A change had to be made and concepts and new institutional procedures introduced which are more harmonious with the contemporary attitudes of a liberal society and more in keeping with life as it is today.
I would have turned clause 48 upside down, if I had been responsible for the Bill, so as to provide that the grounds and terms on which a decree for dissolution of marriage would be, and only be, that the parties have separated and thereafter lived separately and apart for a continuous period of not less than 12 months. I would have liked to overcome the need to introduce a legal fiction. The real grounds are in fact 12 months separation. But the fictional ground is contained in the emotive phrase that the marriage ‘has broken down irretrievably’. It is unnecessary as well as a confusion between the grounds for divorce and proof or evidence of the act on which the divorce is based. I would have liked in order to avoid humbug and fiction, to state the real grounds for divorce in clear unmistakable language: 12 months separation stands on its own. I do not pursue this argument because it does not go to the substance of clause 48 or the Bill as a whole.
It is true that, in historical times, in a civilised and Christian sense, and ignoring Old Testament dialogues, we have come down out of the trees for only a little more than 1 974 years. But I doubt whether the ideals of Christianity and the other great religions have yet truly reflected themselves in the law relating to marriage and divorce.
In my view no 2 matrimonial causes are the same. We are dealing with people with different personalities, different problems and different emotional states and with a greater or lesser tolerance to the modes of and changing attitudes to life. Every marriage that breaks down does so for a different set of reasons. We cannot modify the divorce laws to meet the whole gamut and variety of conditions leading to the breakdown of a marriage. We must accept contemporary life, life as it is really lived, with all its variety and complexity with all its greatness and savagery and with all its charm and crudeness. If we care for humanity we must accept that disillusionment and heartbreak should not be made permanent and the opportunity to enjoy life made irretrievable or unnecessarily prolonged by the law.
So I must ask: To what new concepts and institutions can we turn? The first reservation I had about the Bill was that the Bill should also provide for immediate access to the Family Court in the special cases of adultery and cruelty. I abandoned that idea because it contained the objectionable features of the necessity to prove fault or blame and because of the resultant psychological effects on the people involved. I thought of the desirability of adding a fifth principle to clause 43 or of amending clause 48 to make it necessary for the Family Court to have regard to the behaviour of the parties before a decree nisi is granted. I abandoned the idea involving the behaviour of the parties for the reasons I have already given relating to fault and also because it is not the law in Australia today and has not been since the case of Gardiner v Gardiner in 1925 that the divorce courts will punish a man by way of increased maintenance for lack of morality.
I also gave careful consideration to the requirement that clause 48 ( 1 ) should be amended to provide that the period of separation should be 24 months and not 12 months. There is no basis for thinking that separation for 24 months is more likely to lead to reconciliation than separation for 12 months. The available evidence points the other way. Once separation actually occurs the prospects of reconciliation are probable only in a minority of cases. Once marriage has irretrievably broken down the legal ties should not be prolonged by an additional 12 months of bitterness, distress and humiliation. Let me put this in context. About 95 per cent of all divorce proceedings are not contested and, of the contested cases, 45 per cent are on the grounds of adultery or cruelty. We are basically concerned in this House with that 5 per cent of contested cases.
I turn now to the principles to be applied by the Family Court in the exercise of its jurisdiction under clause 43 of the Bill. The first principle to which the Court must have regard is contained in sub-clause (a) of clause 43. The first sentence of that principle establishes ‘the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others’. I believe in that principle, but I think that, to make it accurate, the word ‘voluntary’ should be inserted before the word ‘union’ and that the words ‘voluntarily entered into for life’, which are also contained in the sub-clause, should be omitted. The very purpose of the Bill is to enable the dissolution of a marriage and the use of the words ‘entered into for life ‘ is a contradiction of the purpose of the Bill. Those 4 words are humbug and have been given an odious title by the legal profession in two crude 4-letter words. In my opinion the dissolution of a marriage is too important a matter to permit humbug in the declaration of fundamental principles.
The only other principles to which I wish to . refer and which are also of equal paramount importance are contained in sub-clauses (b) and (c) of clause 43. Sub-clause (b) provides for the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children. Sub-clause (c) provides for the need to protect the rights of children and to promote their welfare. I am satisfied that, providing those supplementary principles are effectively administered in spirit and substance by the Family Court, the proposal deserves support. They are enlightened and overdue, and enshrine an ethical approach that will effectively protect both parties and children of the marriage.
This brings me to the next 2 fundamental provisions of the proposed legislation- Parts VII and VIII relating to the welfare and custody of children and to maintenance and property, which are the 2 areas where so much litigation now takes place and Part IV relating to family courts. The passage of time and the Standing Orders for debate prevent me from expressing my opinions on each of these matters, but I do want to say something about the welfare and custody of children, the family court and the proposed amendment to Parts VII and VIII of the Bill which should be made.
Clause 72 states that a party to a marriage is liable to maintain the other party to the extent that the first-mentioned party is able to do so. In proceedings with respect to the custody or guardianship or access to a child of a marriage the Family Court shall, under clause 64, have regard to the welfare of the child as of paramount importance. Under clause 73, the parties to a marriage are liable, according to their respective financial resources, to maintain the children of the marriage who have not attained the age of 18 years. Under clause 74 the court may make such orders as it thinks proper for the provision of maintenance of both a child and either party of the marriage.
Liberal guidelines have been proposed in clause 75 to ensure that the Family Court has regard to those matters which must be taken into consideration in respect of maintenance of the parties. In addition, clause 76 has provision for determining the nature, duration and amount of payment under such orders for the maintenance of children. In such cases, both as to custody and maintenance, the Family Courts will examine relevant matrimonial conduct but not the fault or degree of blame of either party. In custody cases what is vital is the behaviour of the parties having regard to fitness, and in maintenance cases, the ability to pay, against the background of the responsibilites and incomes of the parties. The court will take a more active part than under the present law in supervising arrangements for the custody and welfare of a child, and a support staff of welfare workers will be provided and will be available to the court to assist both the court and the children who are subject to custody orders.
Finally, 1 want to touch upon the concept of a separate Australian Family Court with supplementary services, which it is proposed will be established. Clause 21 is a most significant new institutional concept and will deal solely with family matters. The court will be a superior court of record with power to punish for contempt, and will have jurisdiction under clause 31, in all matrimonial causes instituted or continued under the provisions of the Bill. It is provided by clause 97 which relates to procedings and evidence, that all proceedings shall be conducted in closed court and without undue formality, and shall endeavour to ensure that the proceedings are not protracted. Under clause.101 the court shall forbid the asking of or excuse a witness from answering a question that it regards as offensive, scandalous, insulting or humiliating unless the court is satisfied that it is essential in the interests of justice. I particularly welcome the proposal providing for the proceedings to take place in closed courts.
The Family Court has the power under Part XIII of the Bill to enforce all decrees made under the proposed law. Under clause 108, it has power to punish persons for wilful disobedience of any decree. Under proposed section 1 14, the court may make such an order or grant such an injunction as it thinks proper, including an injunction for the personal protection of a party to the marriage or a child of the marriage; for the protection of the marital relationship; in relation to the property of a party to the marriage, or in relation to the use or occupancy of the matrimonial home; and to make an order relieving a party to a marriage from any obligation to perform marital services or render conjugal rights. My continuing worry in relation to the power and operation of the Family Court is to ensure that its decrees and orders, particularly with regard to welfare and custody of children and maintenance of property, are observed and that responsibility for compliance with and observation of the court’s decrees remain a function of the court itself, or one of its agencies. I believe the law should make it clear that the Family Court or its agencies should have the direct and primary responsibility for payment of maintenance and, where practicable, compliance with other court orders, with the complementary responsibility to ensure that the party responsible for compliance with maintenance and other court orders pays the corresponding amount of maintenance, with costs, to the agency. This should be a separate function of the Court and not of the Department of Social Security.
I have tried to state my case as best I can. We want to remove the anguish and fear associated with divorce proceedings. I want to do the same with regard to responsibility for compliance with the order of the court with the maximum of fairness and the minimum of bitterness, distress and humiliation. That can best be achieved by an agency of a Family Court rather than by an individual. Marriage can be a many-splendoured thing and a family a source of fulfilment, happiness, joy and laughter. No man in his right senses would want to prejudice these ideals. But far from undermining one of the essential foundations of the family as the basic unit of society, I believe that these reforms can prevent its further decay, perhaps even strengthen the basic conditions in. which both parties think about and understand the marriage vows.
Whilst the very words of the song ‘The Second Time Around’ sound morbid to me, the second marriage, even when both parties have been married before and both parties have children, is often more contented and physically and spiritually more satisfying than past experience would lead the observers to expect. In any event the opportunity for future happiness should not be foreclosed when marriage has irreparably broken down. I commend the Bill to the House, but I do so with the hope that I may be able to make some proposals for amendments in the Committee stage.
– It is the duty of this Parliament to make good laws- laws which will protect the weak and provide justice for the whole community. Our Constitution provides for peace, order and good government.
The Family Law Bill has been drafted to provide for easier, speedier divorce. It is an attack upon marriage, the family, the woman, the homemaker, the mother. 1 oppose the measure. I welcome the amendment moved by the Minister for Tourism and Recreation (Mr Stewart) as it provides an opportunity to the Parliament to consider this legislation in a more embracing and thorough fashion.
The right honourable member for Lowe (Mr McMahon) who preceded me in this debate said that changes had to be made in the law. Few of us would deny that changes should be made. I believe that changes are inevitable. But the changes which we make, the changes that this Parliament decides to place on the statute book, should be well thought out. They should not form part of a conglomeration of words and amendments which came from the Senate and are now presented to this place as the ultimate in providing for matrimonial happiness or, to be more precise, the dissolution of marriagedivorce. Nor should we be satisfied that this is the final expression. The right honourable member for Lowe referred to children and the need for welfare workers. Welfare workers have their place, but there is no substitute anywhere for parents, home and the love and affection which may come from a well adjusted and well organised home.
This nation has been built on sound foundations of marriage and family. The family is the firm foundation stone of our society. To me it is a tragic matter that Parliament should be asked to approve this Bill which must deal a devastating blow to our families and which places marriage on the basis of a yearly contract, because that is what the Bill does in clauses 48 and 49. In my estimation, this all forms part of a general campaign, which has gathered momentum in recent times, to attack marriage, the home and the family. Opportunities are being provided for someone to do the job that a mother ought to do. We should be directing our attention to the priceless place of a mother in the home and to assisting her to do the things that she should be doing as the queen of the household organising and ordering the family life. But she goes out to work, quite often by necessity. If a woman wants to go out to work because it is her desire to do so, it is a different matter. But quite frequently it is not her desire at all. Her attention to work is dictated by stern economic realities.
I should like to think that this Government, which has done so much in the field of social reform, which has provided a grant for children who are isolated in the education sense, which has provided a grant to the handicapped child who did not receive a benefit previously and which has provided a benefit to the orphan child who had become a ward of the State, will now direct its attention to building up the home by providing additional funds so that home life may be strengthened. Clause 43 contains a delightful expression which is an adornment and an ornament. Clause 43 states in part:
The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to-
the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life.
What a delightful expression. What a wonderful manner of presenting a Bill of this kind. One would think that this would have been a monumental piece of legislation to strengthen and protect families, not for the easy, speedy, quickie divorce for which the legislation before this House at present provides.
If one examines clauses 48 and 49 one sees that the basis for a divorce is mere separation for a period of 12 months. The separation need not be real in the sense that husband and wife live under separate roofs; they can be separated in some fashion or other. Clause 43 contains the phrase ‘to the exclusion of all others’. Yet clause 6 states:
For the purpose of proceedings under this Act, a union in the nature of a marriage which is, or has at any time been, polygamous, being a union entered into in a place outside Australia, shall be deemed to be a marriage.
We were given some information that that might deal with people in the field of foreign affairs. That is a delightful understatement of a situation. I could contemplate some types of people taking trips to Bali to enter into further marital relationships- polygamous of course- but returning to Australia as cleanskins in the matrimonial sense. Yet clause 43 in a most virtuous fashion holds up the delightful situation of a marriage between a husband and a wife being ‘to the exclusion of all others’. This is a brand of double talk which should not be accepted under any circumstances. I feel that this preliminary has been written into this Bill to sell features of it. It must not, and will not, be accepted by all the people of Australia, or by the great majority of the people of Australia. Quite a deal has been said about the Christian concept. The church has been pushed somewhat into the background on this matter, not with any reluctance but quite openly. It has been said that we have to consider this legislation in a secular and civil sense. Of course that is so, but what types of marriages are most of those that take place in Australia? They are Christian marriages and quite often we hear the words: ‘For richer for poorer, for sickness and in health, until death us do part. ‘ These days those words have been thrown out. In clause 43 the words ‘to the exclusion of all others’ are just so much a floral offering on the garbage can of divorce, divorces which will be facilitated and added to by this legislation.
We again see in clause 48 the use of the words ‘irretrievable breakdown’. What does ‘irretrievable breakdown mean’? It means no more nor less than that a spouse has decided to desert the partner. For example, the husband has decided to leave the wife who has found someone else. He has gambled and spent his money. He has led a life of debauchery. The wife has worked hard during the marriage and at the end of 12 months we find under this legislation that the husband can walk out and the marriage is terminated because under clause 48 the married couple have separated and . the marriage has broken down irretrievably.
The short title of this Bill is an utter misnomer. It is called the “Family Law Bill ‘. I could have only hoped that those who drafted this measure would have been utterly honest and would have described it as a divorce Bill, a matrimonial causes Bill or something of that kind because this Bill does not describe the married situation. It does not describe the position of the family. Looking at the number of divorces during 1 973 one finds that the wife petitioned for divorce on 13 144 occasions and the husband on 8055 occasions. In 5891 cases the ground for divorce was desertion. Those figures indicate that the women have been the losers under the legislation that we have had and inevitably they are going to be the losers under this legislation which we are called upon to debate today. I am utterly astonished, amazed and disgusted that in this year- International Women’s Year- we should have legislation of this kind which purports to help women, to strengthen the cause of women but which places them in such an invidious position. Clause 48 of the Bill reads:
Clause 49 reads: .
Let us contemplate the following position. The mother, concerned about her family, concerned about her position with the other-people in the community, knowing perhaps that her husband has not done the right thing by her, has continued to try to make a home. She has rendered service to her husband; she has cooked his meals; she has mended his clothes; she has attended to all domestic chores in the home. Despite all this that woman can be- divorced. As was pointed put by a solicitor, one of the honourable members, in the course of this debate, the man could bring into the house a mistress- this is not extraordinary and it is not something that has .-t occurred a at th*» ..A of 10 months a ^ I Y~ orce could occur. Is this the type of legislation that we are asked to place on the statute books of this nation? Is that the type of loose, shoddy legislation that we are to approve? ,
Let us look over the figures for the reasons for dissolution of marriage: Desertion 5891 cases; adultery 5490 cases; separation 2186 cases; cruelty 1660 cases. Yet we are told that there is to be one ground- separation. Desertion is not mentioned. Provision for the person who deserts his wife and piles up a heap of debts and involves his wife in problems is not made.. .The ground is to be merely separation. Desertion ought to be considered; cruelty ought to be considered; adultery ought to be considered. Also I make a plea for those people who want separation but not divorce. I see no reason why judicial separation, although not used to a great extent at present, should not be provided for in future legislation.
What we do by law is an indicator to the people in the community of what is good conduct. When we write a law providing for divorce at the end of 12 months, young people contemplating divorce will freely look at the situation and say: ‘Well, if I am not satisfied then in 12 months time I can break this union’. Think of the tragedy which has been caused to young people because of breaks- in marriage when young people are thrown out of harmony. It is one of the great social evils and ills in this country at the present time. Recently I had the opportunity of reading an address given by Mr Justice McClemens, Chief Judge in Common Law of the Supreme Court of New South Wales. It was a speech made at the conclusion of his long and illustrious career. He said:
My reading over the last quarter of a century and my experience convince me that in many cases crime is the result of divorce, deprivation and insecurity in childhood. In many cases, delinquency and car stealings, and breaking, entering and stealing by adolescents already represents the establishment of irreversible patterns. We live in a highly developed, sophisticated, technological community. As a community, does our philosophy of life take into account that, above all others, children require justice and that so many children are the victims of irreversible injustice? Children are the victims of irreversible injustice if they are deprived of parents, love, security, discipline and the opportunity to be children.
And so the learned judge went on to deliver his wise and sensible words. These are the things we ought to be paying attention to. We should be looking to see how we can build up the family; how we can build up homes; how we can strengthen the community. These are the vital and important considerations. I am disturbed also by clause 72 which in the final analysis throws the responsibility in court cases on the r* ii v) mc mother m:r, j … aa in firmly as n docs nil* man, the father. Of course, this is the modern idea- equality for the sexes. We give the wife the equality of paying the bills. That is her great equality in this legislation which is before us at the present time.
I think that it is a deplorable piece of legislation. I can only hope that, if the contingent motion proposed by the Minister for Tourism and Recreation is carried, the Bill will be redrafted in a sense that it will strengthen homes, strengthen families, protect women, protect children and help to advance this country. This legislation fails to do that. It provides for a divorce after 12 months. It will be the standard in this country. No blame will be attached to anyone. A person can perform any act of indecency and can cause his wife shattering, nerve-racking, healthdestroying worries. What happens? He walks out because there will be none of this unsightliness or unseemliness. It will not be advertised but who can say that it has not been there? It has been there the whole time. This problem has existed the whole time. The only thing we have been able to do is to permit it to be brushed under the carpet provided by this Government for this nation of ours by this private member’s Bill. I sincerely trust that the amendment will be carried and then we can reconstruct the Bill into something that meets the requirements of this nation.
-There is probably no honourable member in this House whom I would like less to follow in opposition in this debate than the honourable member for Macquarie (Mr Luchetti) because I am afraid that I disagree with my old friend. However, I assure the House that my respect for him is undiminished. I would like to make a few simple points on the Bill before the House. I am in favour of the Bill and opposed to the amendment. Of course, no one could be opposed to some clauses of the amendment because, to my mind, they virtually state much of what this Bill is all about.
The Bill is a major social reform. The Bill enhances the status of women. The Bill does more for the care of children involved in divorce cases than the existing legislation does. I concede that the family court will need to be tried in practice. I concede that it will need to be reviewed. I concede that perhaps in a year’s time there will need to be amendments to the Bill. But I believe that this is a major advance, that we should persevere with it and that we should debate it in the spirit in which we have been debating it here today.
I will not make any new points because I believe that most of it has been said. But I would like to comment on the sanity to today’s debate. Unlike the last time we discussed the Bill in this House, the debate has been cool and rational. People have put their points forward in a very careful manner. I have been interested to see what points of agreement and disagreement we have been able to reach. I was interested to hear the honourable member for Bennelong (Mr Howard) make the point that perhaps this Bill sacrifies too much at the altar of no fault, that there are times when we need to be able to dissolve a marriage in less than 12 months. I hope that the Attorney-General (Mr Enderby) will take some notice of this because there are extreme cases.
Rational discussion allows us to define the proper areas for discussion in this matter and to discern where divisions in thought lie. No honourable member can fail to be moved by the deeply held beliefs of people in their own electorates who believe that the Bill is against the tenets of Christianity and family life. No one can fail to respect the deeply held beliefs put forward by the honourable member for Macquarie. I believe that this Bill does not interfere with the rights of practising Christians- the great majority of our population- nor does it interfere with family life. One cannot fail to be moved by those who have a highly developed sense of absolute civil liberties which assumes that we are highly intelligent, balanced and all possessed of high capacity. Here again I believe that this Bill does not interfere with their rights or views, nor does it engender irresponsibility, a throwing away of values and a destruction of the basis of our society. In fact, in all the letters I have received for and against- perhaps most have been against- I have yet to receive a letter from people involved in divorces who are against this
Bill. ‘If one could abuse the privilege of confidentiality and read some of the letters people have written to me on this matter setting out the details of the divorce or the break-up of their own families, I think we would all look at this Bill in a new light.
I believe that the Bill does not do the things I have outlined. ‘I believe it is having aspects attributed to it -.which are not envisaged. It is being misrepresented, and I shall speak on that matter. Fundamentally the views expressed in the Bill to my mind rest on the division between the approach of a moralist and that of a moral philosopher. In my terms a moralist is a person who prescribes the values of society perhaps, but not necessarily, in terms of a religious belief or a system of values; for example, any of the religions including Marxism. It is the idea of do as I say; do as is said; if you do not do this you will be doing naughty things. A moral philosopher is one who seeks to discover the nature of truth, what is good or bad, what is the nature of goodness or badness and what values can be placed on the various aspects of the matter under discussion. He does not think in terms of do as I say or as it is said, but in terms of what is for the betterment of society in terms of real situations. I do not believe that this definition of the attitude of a moralist and that of a moral philospher represents any aspects of an arid materialism.
In this Parliament we are upholding the principles of a democratic state. Not only do we need to act in terms of the beliefs and prejudices of the community from which we come but also we have to uphold the values of democracy and to hold the state in check. What we are talking about in respect to marriage is, in one sense, the freedom of association. There is always a prima facie case for freedom; because men must not be used merely as tools, the onus of proof always rests on whoever wants to limit it not on those enjoying it. We must assume then, until we are proved wrong, that if men want to associate for sectional purposes they should be left unmolested. But it is easy to think of particular types of association like robber bands, for which a contrary case could. certainly be made out.
There is also a special case for freedom of association over and above the formal prima facie case for not interfering, analagous in some respects to the special case for freedom of discussion. The weight to be attached to this case will depend, of course, on the type of interest that any particular association is designed to serve and its impact on other interests. Of course there have to be limitations in a democratic state.
There are state regulations in respect of self defence. There are state regulations to protect nonmembers. Perhaps we could say the Corporations and Securities Industry Bill we debated the other night is an example. The state needs to impose limitations with respect to the interests of members of the associations. I refer, for example, to the sort of matters that are discussed in equity courts. Of course the state also has to intervene in conflicts between associations. When we are talking about the state of the family I think we are talking about a very special form of association. A lot of comment has been made about the title of this Bill- the Family Law Bill. As I understand it this title arises not due to the fact that anyone wished to give this Bill an incorrect title but simply from the point of view of legal usage and the way it is described in the law text books. AH these aspects of law as I understand it, are discussed under the general heading of ‘family law’. This title is not used for the purpose of misrepresentation.
I maintain in principle that the state will do well to leave people to manage their own domestic affairs, intervening as an umpire mainly in defence of other interests or of individual members if the association abuses its powers. Beyond that it can usefully co-ordinate activities which might otherwise be mutually defeating and initiate enterprises which would be impossible without co-operation from many associations. The problem of the family is superficially somewhat different. Unlike mass associations, its ties are informal, but it inspires powerful loyalties all the same; its authority is effective although it is exercised within a very indefinite rule structure. Families regulate such intimate and personal matters, and so many of their rules are vague understandings arrived at by experiment and mutual adjustment, but there seems to be an especially strong case for leaving them alone. Any general rule would seem beside the point in very many cases. The legal rules, for instance, governing the property rights of husband and wife are quite irrelevant in families where all property has always been pooled.
Nevertheless the state has built around the family an elaborate legal structure which prescribes a minimum age for marriage and forbids marriage between close relatives. It prohibits bigamy. It makes dissolution of the marriage association and the forming of a new one subject to strict conditions and procedures, or in some states it forbids it altogether, or in some advanced states it is bringing up new rules for the dissolution of the marriage association. That is what we are discussing. It obliges one associatethe husband and father- to support the others, at least while they are unable to support themselves. It regulates property relations between members while at the same time treating the family as a whole in some measure as a propertyowning unit. It may even prescribe limiting conditions for the transmission of family property from one generation to the next, although it upholds in principle the freedom of testamentary disposition.
One reason for this close interest is that the procreation and rearing of children, which is the principal function of the family, is of interest to others besides the parents. Precisely because children are automatically members of a family and can have no choice in the matter, and be- ….. they lIe subject try parental authority their - ——– j - - — ~j— j~ ——– ——- “j : - ~ - interests must be guaranteed by the state, as it must guarantee the rights of a member of any association which exercises effective power. Moreover, other citizens have an interest in the matter, for it is of general concern that children should be equipped to become reasonably social and useful men and women.
In secular terms, it is difficult to see what concern the state would have with marriage but for its procreative aspect. Some states have made adultery and fornication criminal offences, but it is doubtful whether such a law could be effective. On the whole these matters are probably best left to conventional rather than legal control, although of course one can concede that there may be a case on the ground of public health for legal control of prostitution, but this is another matter. The concern for children apart, there would be little point in drawing a legal distinction between informal sexual relations and formal and recognised marriage. Religious considerations are not here to the point. Marriage may be distinguished by its sacramental character, while other sorts of sexual relations may be sin; but that is a distinction to be drawn by a church, not by any state that adopts a position of religious neutrality. I believe this is not the role we play.
The state is concerned, of course, for the wife as well as for the children. Where the husband exercises a strong customary authority, as in early Victorian England or in Arabian countries, the state might be right to establish legal safeguards to protect the wife. But because the law in such matters is always a reflection of custom, that protection rarely exists in fact. In some legal systems, a wife’s status is more like that of an object of property rights than of a party to a contract.
The legal rights of married women against their husbands were considerably extended in this country in the 19th century as part of a general emancipation of women, in custom as well as in law. But the need for legal protection diminished as the protection itself increased. Today it is no longer so shocking or so difficult for a married woman to work for her living as once it was. She is therefore less subject to the economic power of her husband. Easier divorce too has partially opened up a legal way of escape. I would make the point here again that this is not a Bill for easy divorce. There would seem to be less reason today, then, for legal protection for married women than there was 100 years ago.
Nevertheless, a husband is still legally obliged in principle to support his wife, and she has special property rights against him. But what grounds could there be for this continuing interest of the state in a relationship which is rapidly becoming a partnership of equals rather than a subjection of one to the power and authority of the other? One answer may be that the wife’s independence lasts only until she becomes a mother, for then she usually loses the ability to fend for herself, except at her children’s expense, and becomes again dependent on her husband and in need of protection.
I believe if we look at the real world this Bill takes all these general concepts about the role of a state in a democratic society into account. I think if we look at the real world we need to say that the experience of marriage guidance organisations and world wide research on the subject of marriage recognise the fact that relationships between human beings are infinitely complex and that legislation can never hope to stand in judgment in such delicate matters. Therefore the only just and humane course is to allow citizens maximum freedom to work out these complexities in as dignified and humane a way as possible. I believe that the Family Law Bill goes further than any other legislation in the past to allow this to happen.
Having set out my general beliefs on this subject I would like to take some time to deal with criticisms of the Bill. Unlike my friend the honourable member for Macquarie, I believe that clause 43 sets out to break down the claim that the Bill will lead to the breakdown of family life. It states that the Family Court, which I concede may need looking at from time to time, shall have regard to the need to protect the institution of marriage and family life generally, the need to protect the rights of children and to promote their welfare, and the means available to assist parties to the marriage to consider reconciliation and the improvement of their relationship to each other and to the children of the marriage.
Some honourable members have mentioned their fears that in certain break-ups of marriage the wife will be left destitute, that she will not have the capacity to earn an income or will be too old to earn an income. Clause 75 states very clearly that income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment will be taken into account. I believe that all of clause 75, and what it implies, is a very clear statement of need. I do not think that people should try to impute into it the opposite of what clearly is meant.
We have to take into account the present law. I wonder how many people have experienced divorce proceedings. I do not want to go too much into my personal situation but my wife was married before and she had 3 children when I married her. Both she and her husband were from very good Christian homes but the marriage broke down. She was deserted and left destitute. I suppose that there were ideas of revenge in her mind and the idea of fault was very strong. But this did absolutely nothing towards helping that marriage. The marriage simply dissolved and it was 5 years before it could be legally dissolved. She had to fend for her children for 5 years. People who say that this Bill will provide quickie divorce and that the present law is just, do not understand how hideous present day divorce cases can be but I do not want to go into that. If someone wants a quickie divorce the present rules make it available. I will not go into examples in too great detail but I know of cases where marriages have been dissolved by the telling of lies and by the use of money. If you have the money, you virtually can buy another man ‘s wife and get a divorce within 6 weeks. This is being done. Most divorces now are by consent. In fact 95 per cent of most divorces are not contested. Most people remarry and a great percentage of those are happy marriages. In the remaining 5 per cent of cases the fight is not about the sanctity of marriage or Christian ethics, or any of these very desirable things to which we all aspire but know in the real world are pretty difficult to achieve; the fight is about the spoils of the marriage. Too often they are human but at other times, grubbily, they are simply material goods and chattels.
There are some figures on the concept of quickie divorce. A writer to the ‘Sydney Morning . Herald’ recently stated that people concerned about the Family Law Bill providing quickie divorces assumed this because the Bill allows dissolution of marriage after 12 months separation. I believe that clauses 48 and 49 are very good aspects of this legislation. People say these things because they do not realise that increasingly quickie divorces are being granted now and in a very horrible way. I would like to cite to the House some statistics. At present there are 14 grounds for dissolution and 4 of them account for 95 per cent of all cases. Desertion requires a waiting period of 2 years before a petition may be filed and separation requires 5 years. No waiting period is required in the case of the other 2 grounds, adultery and cruelty. In the 5 years from 1969 to 1973 inclusive, dissolutions of marriage on the waiting grounds of desertion and separation increased in Australia by 25 per cent and 24 per cent respectively. Dissolutions on the non-waiting grounds of adultery and cruelty increased by 88 per cent and 12 1 per cent respectively. In New South Wales, the increases over the same period were: Desertion 21 per cent, separation 19 per cent, adultery 81 per cent and cruelty 146 per cent. It is obvious that people seeking to end unhappy marriages are using adultery and cruelty as being calculated to get quicker results than desertion and separation. This demonstrates the use of the fault provisions of the present legislation under which faults often are cooked up.
The use of cruelty as a ground in New South Wales presents a quite preposterous situation. In 1973, in New South Wales, there were 1067 dissolutions of marriage on the ground of cruelty; in Victoria there were 54 such dissolutions. Converting the Victorian figure in terms of the New South Wales population, the comparison becomes 1067 to 72; thereby presuming New South Wales people to be 15 times more cruel in marital relations than Victorians. Of the 1067 New South Wales cruelty dissolutions in that year, excluding joint petitions 49 were granted to men and 1010 were granted to women, making the New South Wales husband appear to be 20 times more cruel than the New South Wales wife. From all this, it must surely be obvious that the present methods of dealing with marital breakdown have failed, and that a simple unified test which would apply in all cases and which would give reasonable, but not too little, opportunity for efforts towards reconciliation where desired, would be infinitely preferable to the present inequitable and chaotic procedures. I commend the Bill to the House.
-As the honourable member for Macarthur (Mr Kerin) who preceded me in this debate said, the tone of the debate is in keeping with the gravity and importance of the subject matter. Few issues have come before this Parliament which have been of greater importance, on which honourable members have received so many representations and about which honourable members have had so carefully to search their hearts and their experience. But I am bound to say at the outset that the main burden of my remarks can be put very simply. It is that the equating of 12 months separation with the irretrievable breakdown of marriage is arbitrary and unreal; indeed, it is arbitrary and unreal to the point of being unjust. To be fair to the provisions of clause 48 of the Bill, I should say that what is equated is 12 months separation and the opinion of the court that there is no reasonable likelihood of cohabitation being resumed. I have quoted from clause 48 (3) of the Bill in that respect. But, with the emphasis in the Bill on eliminating the concept of fault in divorce- an objective which I would support if it were practicable- I do not think sub-clause (3) of clause 48 would ever really come into play. Really, the shorthand term ‘12 months separation’ is adequate. I repeat: In my judgment- and this is a matter of judgmentthe equating of 12 months separation with the irretrievable breakdown of marriage is indeed arbitrary and unreal to the point of being unjust, in particular in depriving persons of rights now available to them. Nor in my opinion does the period of 12 months accord due respect to the institution of marriage, as we know it.
Having said that, let me say that, with an appropriate amendment to clause 48, the Bill as it now comes before the House has many good features. Indeed, taken as a whole and with such amendment, it represents a comprehensive, forward looking and major piece of legislation. It is most important that the Australian people understand that there have been some very significant changes as compared with the Bill as originally introduced into the Senate. Even the number of clauses- there were 96 clauses in the original Bill and there are 123 clauses in the Bill now before us- bears that out. There has been a tendency, not entirely to the credit of some persons and organisations opposed to the Bill, to infer from the fact that the Bill has been subject to change, enlargement and amendment, that therefore the Bill is a hotch potch, that it is badly drafted, and so on. I believe that that is a wrong inference, and it is also a wrong inference that just because a clause is now in the Bill which was not in the original Bill, it will in some way be inoperative. If and when the Bill becomes an Act, that establishes the statute and the basis of the law, not what may be inferred to have been the intentions of the former Senator Murphy or anybody else.
I refer to clause 43 which was not in the original Bill. If the Bill is enacted, clause 43 becomes the guiding principle of the legislation. Although the honourable member for Macarthur, who preceded me in this debate, summarised the clause, I propose to read it in full because I find, in a large sampling of persons speaking to me, who are greatly concerned about this Bill, that only a small proportion of them are aware of the clause. Clause 43 reads:
The Family Court shall, in the exercise of its jurisdiction under this Act or any other Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to-
the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
the need to protect the rights of children and to promote their welfare; and
the means available for assisting parties to a mar- riage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage.
In accordance with that objective the Bill puts great emphasis on counselling and reconciliation. If the spirit of Part II, Part III and Part IV of the Bill- the latter relating to the Family Court- is carried through, the proposed law will represent a major advance in this area over the existing Matrimonial Causes Act. There can be little doubt that the reconciliation provisions of the existing Act have had little or no practical effect. That has been because the provisions operate only when the parties have actually instituted proceedings. What is essential is that reconciliation and counselling facilities are available and are used before or at the early stages of litigation if they are to achieve effect. Provided that these provisions of the Bill are given administrative effect, that is the positive thrust of the counselling and reconciliation provisions of the Bill as it now comes before the House- not, it is true, of the original Bill. In that sense I commend clauses 15 and 16 to the House.
The concept of a Family Court performing this positive service and, where reconciliation fails, playing a major role in reducing the area of disharmony and bitterness and facilitating the settlement of custody, access and property disputes, is a major feature of the Bill. Nevertheless, clause 48, which is at the heart of the legislation, remains unsatisfactory. Let us get it clear: It provides, firstly, that the sole ground for dissolution of marriage shall be’ the irretrievable breakdown of a marriage. I believe that the vast majorityvirtually all- of ,the Australian people would accept that. They would accept that parties should not be obliged by law to remain together if the marriage has in fact irretrievably broken down. Certainly that is my view. But it is the next step that is questioned. In the very next subclause it is provided that irretrievable breakdown is established if, and only if, the parties have separated, and therefore live separately and apart, for a period of not less than 12 months. Whether there has been irretrievable breakdown in fact is not looked at.
Why is there the arbitrary equating of irretrievable breakdown to 12 months separation? It has been done in an attempt to eliminate the issue of fault in the dissolution of marriage. That is an admirable and humane objective and, if I may say so, the Christian approach to the matter. It is entirely desirable, if it is possible, to eliminate the perjury, the exaggeration, the false attitudes, the dishonesty and indignity now so often a feature of divorce proceedings. I concede also that fault and the apportioning of blame are extremely difficult to determine, and all the more so in the adversary context of a courtroom. Even adultery can be the result rather than the cause of marriage breakdown. But unfortunately it is, I believe, an illusion that fault can be eliminated, admirable and humane as that objective is. Divorce is one thing; the settling of the surrounding issues is another.
One can seek to outlaw the search after fault in divorce proceedings, as such, but there is no way in which one can avoid a hard look at the conduct of the parties in determining matters of custody, maintenance and property which all have to be settled. Even clause 48 (3), if it is other than window-dressing, and I for one want to take it at its face value, states:
A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
One could not possibly determine that without looking at the conduct of the parties. In the event, therefore, it is my view that the false equation of irretrievable breakdown, which is accepted by and large as the ground, to the exclusive unreal ground of 12 months’ separation is again not worth a candle. As my colleague the honourable member for Bennelong (Mr Howard) put it, it is to sacrifice too much on the altar of no fault. I believe that we can go back and start from taws and, for my part, I would seek a new clause 48(2) along the lines suggested by my colleague the honourable member for Wentworth (Mr Ellicott) at page 329 of Hansard of 13 February 1975, to the effect that a decree of dissolution shall be granted if and only if:
As to the first part of such a provision, if it gets us back to fault then I submit that it is an illusion that one can avoid fault. That being so, that it would also serve justice in a goodly number of cases should prevail. As to the second part of such a proposed clause, I note- I stress this again, as other honourable members have done- that already we have as from 1959 no fault divorce but the period of separation is 5 years. I accept that it is now the community judgment that that is too long a period. But equally, I judge, a period of 12 months is too short to give respect to the institution of marriage and the family as the majority of the Australian people would require. But that is the period laid down in clause 43 of the Bill.
That is- as I might put it- the gut feeling, the judgment of this member. I put it forward as a contribution to forming the collective judgment of this Parliament on this crucially important matter. I conclude by saying: Let that collective judgment be determined in the near future. As I see it, the view I have expressed constrains me to vote for the amendment now before the House. But as I believe it has now been ruled, were that amendment to be carried it must not kill the Bill as a whole. I am sure that the common sense of honourable members and of this House will enable this Bill to go to the Committee stage whatever happens.
–I rise to support the Family Law Bill. I shall speak relatively briefly since I believe that all the issues involved have been adequately canvassed already in this debate and I have no wish to delay the passage of the Bill. But I feel obliged to inform the House of my views in the hope of improving the chances of the Bill obtaining a second reading and in fairness to my constituents who have a right to know my intentions in this matter. I point out, however, that I have always made clear my strong support for the principles embodied in the Bill. I spoke publicly about the Bill last year.
As the House knows but many of the public may not, giving the Bill a second reading involves support for the general aims of the Bill without necessarily agreeing with the detailed wording of every clause. Consideration of the Bill in detail, clause by clause, takes place in the Committee stage prior to the third and final reading. There may be some amendments to the clauses moved in the Committee stage which will be worthy of support but I shall be working on the premise that unless an amendment is of major importance or else an essential drafting matter, I shall vote for the clauses of the Bill as they stand. I want to avoid the situation, if possible, of the Bill being passed back and forth between the Senate and this House in a never ending ping-pong game, thus delaying its implementation.
It is a good Bill and there are far too many people who have been waiting far too long for this Bill to become an Act. I want to provide those people with the up-to-date divorce legislation for which Australia is now well and truly ready. My support for the reforms in this Bill is based on the view that marriage is entirely voluntary. No couple is forced to marry. It is not illegal not to marry. Likewise, no couple who wish to continue to be married can be forced to be divorced. This Bill presents no threat to them, nor to anyone for that matter. Those who do not believe in divorce are perfectly entitled to their opinion. The Parliament is not legislating to change their views; nor should the Parliament legislate to make too difficult the termination of a voluntary union which is no longer desired.
Divorce law is mainly necessary to provide for the problems arising from shared property and for maintenance and children. It is needed to settle such matters once a marriage has already irretrievably broken down. This Bill does not break down marriages. That just happens, for a thousand and one reasons. Even if it were possible to attribute degrees of fault and innocence it would be very rare to find an entirely innocent person. As I have said, this Bill does not break down marriages. The breakdown is entirely a personal matter. But the Bill provides for the means of tidying up things after the breakdown has occurred with as little acrimony, and pain and expense as possible for all the parties involved, including any children. The 12 months separation provision is merely evidence of an irretrievable breakdown. It is a symptom and not a cause in the same way as the present so-called matrimonial causes of cruelty, adultery and so on are symptoms of a broken marriage and not causes.
As previous speakers have said, most divorces occurring under the current law are not contested. The Family Law Bill does not really introduce a new principle. Separation is already a ground of divorce. I believe that one year’s separation- a whole year- before any action is taken is quite adequate evidence, particularly given the safeguards contained in the Bill. The safeguards are there in many different parts of the Bill. Clause 48, about which the opponents of the Bill object, includes sub-clause (3), which states:
A decree of dissolution of marriage shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
The honourable member for Berowra (Dr Edwards), who was the previous speaker in the debate, referred to that provision. Of course, a subjective judgment will have to be made. One cannot measure such matters objectively. But there are other protections in the Bill, including clause 14(1), which states:
Where proceedings for a dissolution of marriage have been instituted, or financial’ or custodial proceedings have been instituted by a party to a subsisting marriage, it is the duty of the Judge or magistrate constituting the court and of every legal practitioner representing a party to give consideration, from time to time, to the possibility of a reconciliation of the parties.
That provision goes on to provide for referral to marriage guidance and marriage counselling organisations, investigation of the possibility of reconciliation and so on.
The Bill is supported by the marriage guidance councils. It is supported by most churches and sections at least of other churches. I have no doubt that the Bill’s principles have majority support throughout the community. I have certainly received many more indications of support for the Bill than opposition to it, not that I am one who weighs the volume of mail one way and the other. I have carefully considered all the points made by those who have asked me to vote against the Bui and I am convinced that their objections to what they think is contained in the Bill are adequately covered. I acknowledge the sincerity of those in this House and in the community who are opposed to the principles contained in the Bill, but I must in conscience vote for it. I believe that the net result of the vote in this House will probably reflect the total community view. That is why there are 1 27 of us here and not just one.
I could say much more about the Bill, particularly about the Family Court provisions. I believe that the Family Court will be eventually reformed even more. I can say much more about the maintenance provisions which, despite what has been said by some people, are entirely fair to women and protect the rights and status of women. But in the debate on the motion for the second reading of the Bill I wanted to express some simple principles rather than to defend the clauses in detail. I strongly support the Family Law Bill and I will not be voting for the amendment. The Bill provides not so much for no fault divorce as no blame divorce once the breakdown has occurred. That, is a very desirable principle which I commend-to the House.
– A good many words have been spoken about the Bill before the House at the present time. One of the problems with a matter of this kind, even though it is not a party issue, is that there are other passions, commitments and concerns that seem to involve different members of this House in different ways. I think it is very important to try to look at the facts of the situation and not be unduly influenced by one’s own experience or by past prejudice that often flows from a particular experience. This legislation will operate in a difficult, vexed and controversial area of human relationships and certainly this House ought to have a capacity to deal with these matters with a sensitivity and a concern which I think the House does not always show in other matters that come before it.
There are many things in this Bill which I do and can support. There are some things in this Bill which give me a significant degree of concern. Stability, indeed permanence of marriage as a principle, is basically fundamental to Australian society and to most societies around the world. There is a fear throughout the community that the Bill will do something to reduce the stability of marriage and to increase the degree of impermanence .of marriage. If that were a correct view, the Bill would certainly need amending to remove that interpretation or impact. I believe that the Parliament needs to be convinced that the Bill does not weaken marriage, that it does not destroy the rights that attach to individuals -in particular perhaps to a woman who, throughout her life, wants to be nothing more than a wife and mother. With some of the changes in modern society there seems to be a growing view that women have an obligation to work as much as men. There was in the original drafting of this Bill quite certainly a view that the law ought to impel people in that direction. I know that amendments in another place have done something to redress that matter, but whether they have gone far enough is a matter which I have no doubt will be examined in the Committee stage of this debate.
There is a thrust to the legislation and a thrust in some of the speeches that indicate that marriage can be regarded as temporary, something which can be unilaterally ended without consultationa terminable association and nothing more than that. An amendment has been foreshadowed which provides, as I understand it, that the association may be terminated after 3 months at the initiative of one party, no matter what the other party might want. That is depreciating the contract of marriage below any commercial contract- below almost any other contract that one could envisage in the Australian community. I can see little justice and little reason in that kind of amendment or in that kind of approach to the problems of human relationships between a man and a woman. There is an amendment to the motion that the Bill be read a second time which many honourable members have said they support but will not vote for because they fear it will involve a delay of this measure. The Attorney-General (Mr Enderby) has sought to give the view that it would involve a delay. Let us examine the amendment. It states: that the family is the basic and stable unit of the Australian society;
That is accepted and not denied- that marriage should be buttressed; that marriage should be permanent and secure;
While obviously not all marriages are permanent or secure, that is the objective to which the law ought to address itself, insofar as it possibly can with fairness to everyone involved - that full and proper recognition be given to the status and rights of a woman as wife and mother; that there should be full and proper protection of the wife and children in the event of the dissolution of a marriage; that there is need for children to be reared and cared for by a present parent;
Again, let me say that that is the objective. It is not an invincible rule, because obviously we all know of circumstances where that situation cannot occur. But it is the objective which the law ought to support as far as it can. Finally, the amendment states: that marriage should be dissolved only when a Court is satisfied on objective grounds that the marriage has irretrievably broken down or that the parties have lived separately and apart for not less than two years.
I will have something to say about that later because I do not agree with the precise terms of that part of the amendment. If others do not do it before me, I will circulate an amendment that will express in clear terms what I believe is a more desirable situation. But again that is only indicating the thrust of what people have in mind, not the precise circumstances. The thrust would seem to be that it is not just for one person to get up and say: ‘That is the end of the marriage; it is over’, thereby making it very easy for that one person to do that, no matter what the views, the feelings, the concerns of the other partner might be.
I believe that the suggestion is incorrect, that if the amendment to the motion for the second reading of the Bill were carried the Bill would not proceed to the Committee stage because it would be within the hands of the Minister to commit it to the Committee stage if he so wished immediately that same day or at least on the next day. The Minister for Tourism and Recreation (Mr Stewart) has moved a contingent notice of motion which would also need to be carried and which would enable this legislation as Government business as it now is- an important social reform- to be referred immediately to Committee for Committee discussion.
I am not in favour of the Bill being withdrawn and redrafted at the hands of the Minister, especially in view of some of the views he has expressed. I think it is within the competence of the House itself to determine the amendments it wants, and that is the way it ought to be. When the Bill is considered in Committee the House will determine which amendments it wants and which amendments it does not want. The amendment, with the contingent notice of motion, moved by the Minister for Tourism and Recreation would achieve precisely that effect. I would not vote for the amendment and for the contingent notice of motion if I did not believe that the Bill would proceed forthwith to the Committee stage. The Attorney-General who has already in conversation I think offered a confusion to the clear ruling that you gave this afternoon, Mr Speaker, has for some reason a basic objection to the broad principles enunciated in the second reading speech. The Minister would seem determined to establish the circumstance in which those broad principles cannot be given a general support by the members of this House, and that is something I find difficult to understand.
There are a number of changes in this legislation which I regard as acceptable and welcome. I welcome the establishment of family courts as distinct from other courts. I have some concern that a judge of 80 years will be looking at the difficult and delicate problems of the family relationships of a young couple, and I would like to see other arrangements made in that regard. Maybe experience can cover the problem of great age, but at the same time I would have thought that views can become somewhat fixed with age. This is a problem which may not be within the power of the Constitution to overcome, unless at the same time arrangements are made with the States to achieve a more flexible arrangement. The provision for proceedings to be conducted in closed courts is something that I believe is long overdue. The emphasis placed on the paramountcy of a child’s welfare in custody proceedings is important. The provisions in relation to the positive duty on both parents to maintain children under 18 years of age, attempts to improve counselling and reconciliation procedures and facilities are useful provisions in a difficult area of human and family relationships. The proposal to establish a Family Law Council to review the working of this legislation and legal aid related to these matters again is a useful proposal. The proposal to establish an Institute of Family Studies for research is a useful one. I do not believe that anyone would oppose those proposals.
Let me come now to one point concerning the grounds for divorce. The Bill proposes that there be one no-fault ground as the sole ground on one year’s separation as defined in the terms of the legislation. Those who support this ground claim that the Bill eliminates fault. Of course, that is a misconception. It does not eliminate fault because there are a number of clauses in the legislation in which fault certainly could be taken into account in relation to decisions or injunctions. I refer to clause 114, the injunctions clause, for example. Elements of fault run right throughout the provisions of the legislation dealing with custody, maintenance and property proceedings. For proponents of the legislation in its present form without amendment to suggest and to claim that this is no-fault legislation is perpetrating a view which is not a correct view. That view does not interpret the legislation as it exists, and it is confusing. Somebody said earlier today that an altar of no-fault has been created. It is not even a true explanation of what the legislation does. There is no-fault in the existing Act, which provides for 5 years separation. Now that would be regarded generally as being too long a period.
But let nobody think that no-fault in these matters is a new concept, a new idea or a new principle. It is already in the present Act. Other matters are in the Act as well. What is new is that one year’s separation on a unilateral decision is sufficient to achieve a divorce. Is this a contract that one party will be able to dissolve? This is a contract which many people would regard as more important and more sacred than any business contract. Is it to be dissolved much more easily than any business contract? I do not think this is an adequate explanation of what is required. I think it is too simple or too easy and that it would not solve the human problems that revolve around these matters. It would tend to lead to associations of convenience rather than to marriage as it has traditionally been known.
I would prefer to see-if others do not do so, I will move an amendment at the Committee stage- a situation in ‘which, if the parties are not in agreement, a period of 2 years separation would be- required, and if the parties are in agreement a one year period of separation would be adequate. But, within the first 12 months, if circumstances arise in which one person cannot reasonably be expected, to continue to live with the other, there would be other objective grounds which could be used to achieve quick relief for an injured party. In my view, that ground ought to be- available only within 12 months so that there will be no question of crosspetitioning in relation to other matters and other proceedings when the one-year or 2 -year grounds might become available. I think that that would limit, if not remove, many of the abuses that I have been advised can occur.
The one-year ground, and one year only, on the decision of one person is, I believe, too easy. It is also a denial of rights of individuals. I have some doubt whether this Parliament ought to deny such rights to individuals. We would all know of circumstances in which every member of this House would say that one party ought to be able to obtain immediate relief. Are we to establish circumstances in which that relief is denied for a minimum of 12 months? I do not believe that that is a reasonable decision for this Parliament to take. We are not compelling people to do one thing or the other; we are leaving a choice available. In these matters surely a choice, if the choice is rational and reasonable, is appropriate.
Several clauses in this legislation are bound up with the maintenance procedures. They are clauses 43, 72 and 75. To a significant extent clause 72 is the governing clause. I believe, especially having in mind clause 72 and its consequences and the fact that it comes before clause 75, that there is in the legislation an impetus or a thrust that would require a woman to go to work if a marriage were in fact dissolved. There might well be circumstances in which a woman who has been working before or during a marriage would wish to go to work, but I also believe that, if a woman wants to make her vocation or her career being a good mother and a good wife to her husband, that opportunity ought not to be denied to that woman. This legislation ought not to deny it and it ought not to try to thrust out into the market place somebody who is of that quality and that frame of mind. I believe that some amendments are needed to either clause 43, which states some general principles, or to clauses 72 and 75, which would help to achieve greater protection in that arena. With that qualification, I think the maintenance provisions spelt out in clause 75 are reasonable.
Let me again emphasise one point. It has been suggested that people want to kill this legislation and that that therefore is a good reason for voting against the amendment moved to the motion that the Bill be read a second time. The AttorneyGeneral especially has sought to propagate that view. It has been denied by those who support that amendment and would want to vote for it. It has been denied by the mover and the seconder of the amendment. To make the matter quite clear, the contingent notice of motion has been nut down which would make it quite proper for the legislation to go, if the amendment is accepted, to the contingent notice of motion thence to the Committeee stage if any Minister is prepared so to move. That is quite clear. Th( Attorney-General sought to suggest that the debate would take place all over again. I do not believe and he, with respect, does not believe, that honourable members are going to rise to their feet -
– I raise a point of order. I do not think it is in order for the honourable member to tell me what I believe. Surely it is a matter for me. When I was on my feet before I asked questions. I asserted nothing.
-Order! The Minister will resume his seat. That is not a point of order.
-Of course I could not know what the honourable member believes but I was suggesting, I thought in a charitable frame of mind, that he would find it difficult to believe that honourable members in this House are going to get to their feet and because of a procedural matter repeat the speeches they have made throughout the second reading debate. That is not a proposition that would accord with practical reality in this House. So to take that point of view is only trying to threaten those who might want to support the amendment and the contingent notice of motion into opposing the amendment and the contingent notice of motion. A great number of people want to support this legislation and a great many who want to support it have some amendments; a significant number would like to be able to give some voice to general principles which they believe are important so that the Australian people can see the general principles guiding this House in its examination of the Bill at the Committee stage. There is nothing mandatory about it. It would be a statement of general principle, leaving it entirely within the competence of this House while it determines one way or another the success of clauses at the Committee stage. To try to suggest that these are procedural devices to prevent that Committee stage taking place is unreasonable and irrational.
I think that the last point I would like to make is that some of the changes in this legislation do go too far but that will be revealed at the Committee stage of the debate which I want to see take place as much as anyone else. There is a tendency in some of the clauses, I believe, to depreciate the quality of marriage and to elevate the principle of convenience, if it can be called that, and that is already too dominant a factor in political and public life. I hope it will not become too dominant a factor in private life because of actions of this Parliament.
Debate (on motion by Dr Cass) adjourned.
House adjourned at 4.34 p.m.
The following answers to questions upon notice were circulated:
asked the Minister for Urban and Regional Development, upon notice:
As the. Federal Highway, the Barton Highway and the road through Braidwood to Batemans Bay are principally used by persons travelling to or from Canberra, and as these roads are in places inadequate for the traffic they carry, has the Australian Government had discussions with the Government of New South Wales concerning the possibility of:
the Australian Government assuming responsibility for all these roads or any of them; or
the provision of special financial assistance to the State to enable it to reconstruct these roads where this is needed; if not, why not.
– The answer to the honourable member’s question is as follows:
In the past, the Australian Government has liaised with various Departments of the New South Wales Government in an attempt to co-ordinate road maintenance programs undertaken by the respective Governments on each side of the Australian Capital Territory border. This process is continuing. Reconstruction of the Sutton Road, Letchworth Road and the Federal Highway have all been the subjects of co-ordinated exercises by both Governments within thenown boundaries.
There are precedents where the Australian Government has acted jointly with the New South Wales Government to finance work on the border of the Territory. The bridge over the railway line at Letchworth, on the road connecting Queanbeyan with the Monaro Highway, was financed by the NCDC to the extent of one third of the cost.
The precedent has been used as the basis for the recent offer by the Prime Minister that the Australian and New South Wales Governments share the financing of the cost of - a bridge over the railway line at Queanbeyan, associated with the duplication of Canberra Avenue from Fyshwick to Queanbeyan. The NSW Premier has agreed to this offer.
The status and adequacy of the Federal and Barton Highways will be influenced by the results of the joint study with the NSW Government of the national highway relocation between Goulburn and Albury.
The Roads Grant Act includes a provision for reserving up to 10 per cent of the rural arterial road grants to provide the Australian Government with an opportunity to accelerate works on roads such as the honourable member mentions, if these are seen as having high national priority. My colleague the Minister for Transport will bear these matters in mind in his administration of the roads legislation.
asked the Minister for Urban and Regional Development, upon notice:
– The answer to the right honourable member’s question is as follows:
As the figures show there was a decrease in the average price of land between the September and December quarters in 1974.
The activities of the South Australian Land Commission in the Adelaide land market, coupled with the measures introduced by the South Australian Government to control land prices, will ensure that land is available in Adelaide at a reasonable price.
asked the Minister for Urban and Regional Development, upon notice:
– The answer to the right honourable member’s question is as follows:
asked the Minister for Urban and Regional Development, upon notice:
– The answer .to the honourable member’s question is as follows;
asked the Minister for Health, upon notice
– The answer to the honourable member’s question is as follows:
Facilities are available within Australia for the laboratory diagnosis of all commonly occurring communicable human diseases.
Specific laboratories for which lam responsible, namely the School of Public Health and Tropical Medicine, Sydney, and the Commonwealth Serum Laboratories, Melbourne, are also able to diagnose the four (4) internationally prescribed quarantinable diseases: smallpox, cholera, plague and yellow fever.
In addition, individual Government and/or University laboratories have expertise for diagnosis of the majority of the more exotic infections likely to be of concern to Australia, e.g. rabies, dengue fever, and for diagnosis of the bacterial toxin-caused disease, botulism, which may affect groups of consumers of infected foods.
However, facilities are not available for the confirmation of some very rare infections, none of which has to date been known to occur in this country, and of which occurrence in the future is extremely unlikely.
Examples of these infections and the laboratories to which samples would be referred are:
In other instances it may be necessary to send strains of organisms to overseas reference laboratories to have the specific serotypes and/or phage types determined, or to have confirmation of the identity of some rare or new species of bacteria, virus or fungus not normally associated with human disease. Although this is of epidemiological and academic importance, it is of less importance in relation to the initial diagnosis and treatment of the infection. Examples are:-
Non-communicable diseases can usually be diagnosed in Australia, although it may be necessary to obtain a second opinion in the case of some extremely rare carcinomas or blood disorders for which World Reference Laboratories exist.
An urgent diagnosis may be required in the case of some very rare inherited disorders of the unborn child. Such a diagnosis is made on material collected by amniocentesis during the early stages of pregnancy. A specific example of this type of disease that requires overseas diagnosis is argininosuccinicaciduria. Diagnosis is carried out at the National Institute of Health, Bethesda U.S.A. However, facilities exist in Australia for intra-uterine diagnosis of most congenital abnonnalitites for which laboratory methods of diagnosis are presently available.
A list of World Health Organisation International Reference Centres is given in a WHO publication WPR/HC.S/IB/4 of20 October 1972.
Also it is possible that the Laboratory could do diagnostic work for the communicable human diseases listed above if the need arose. Because these infections are very rare, and because in most instances the causative agents are very infective, no specific steps are being taken to establish special diagnostic facilities for these infections in Australia.
Regarding the referral of organisms to overseas reference, laboratories for serotyping or further identification, steps are being taken to increase the range of reference facilities available for these purposes in Australia. One of the functions of the proposed National Pathology Accreditation Advisory Council as set out in the booklet ‘A Proposal for a Scheme to Accredit Pathology Services in Australia’, which was tabled in Parliament in September 1974, would be to select and contract with individual laboratories to act as National Reference Laboratories.
asked the Minister for Urban and Regional Development, upon notice:
What is his attitude to the construction of a car parking station in Canberra using public funds.
– The answer to the right honourable member’s question is as follows:
I have had discussions with my colleague the Minister for the Capital Territory, officers of his Department and officers of the National Capital Development Commission in which we have agreed upon methods for developing a comprehensive transport plan for Canberra. This plan will include consideration of parking requirements for Canberra in the light of public transport capacities and short-term parking needs for shoppers. We have decided that the National Capital Development Commission construct from its own funds a parking structure in Canberra’s City Centre for short-stay parking, which will cater primarily for shoppers and visitors to the city.
asked the Minister for Urban and Regional Development, upon notice:
Will a car parking station be built in Canberra using public funds; is so when.
– The answer to the right honourable member’s question is as follows:
I refer the right honourable gentleman to my answer to H.O.R. parliamentary question No. 1 730.
Cite as: Australia, House of Representatives, Debates, 28 February 1975, viewed 22 October 2017, <http://historichansard.net/hofreps/1975/19750228_reps_29_hor93/>.