MARRIAGE CONCILIATION UNDER AUSTRALIAN LAW

MARRIAGE CONCILIATION UNDER AUSTRALIAN LAW

H. A. F in lay

(EDITOR’S NOTE: Barrister at Law, Senior Lecturer in Law, Monash University, Melbourne, Australla.)

The following excerpts are from a paper presented by H. A. Finlay,

Introductory

Australia is a Federation consisting of s i x States and t w o Federal Territories. T h e official t i t l e of this Federation is the Commonwealth of ,Australia. It operates under a federal constitution which was modelled, in many respects, upon the United S ta tes Constitution. Whilst there are many differences in con- stitutional law and practice between the two countries, there are also very many similarities. In particular, the concept of a divided legislative and jurisdictional competence a s between the Federation on the one hand, and the individual S ta tes on the other will b e a familiar one to a United S ta tes audience.

There are other similari t ies with the United States. In area, Australia i s nearly three million square miles. However, on that territory there l ives R population of only just over twelve million a t the present day. T h e great majority of that population i s concentrated in a coastal belt s i t ua t ed in the south-east corner of the continent, and reaching f rom the populated coas ta l areas of southern Queensland, t o South Australia, and including within it our two most populous centres: the c i t ies of Sydney and hlelbourrie, having each some t w o and a quarter million inhabitants.

‘It is perhaps noteworthy that Australia i s one of !he most highly urbonised countries in the world. Our capital c i t i e s account for about 60% of the population and all in all, nearly 85% of a l l Australians l ive in c i t ies or towns. That means that w e have a rural population of about 15%.

When the Australian federal constitution became law in 1901 many subjec t matters were transferred from the conipetence of the individual S la tes , - formerly British Colonies, - to the newly created federal Common- wealth of Australia. Among these powers were the subjects of marriaEe and of divorce. However, the Com- monweath did not immediately enter these a reas of legislation. For s i x t y years each of the s ix S ta tes continued to make and administer laws of marriage and divorce quite independently of one another, with the result that each Sta te had a different law regarding marriage and divorce. Although there was a certain correspondence in these laws which were all derived from the law of England, it is nevertheless true t o s a y that there w e r e some marked differences. In some Sta tes certain divorce grounds ex is ted and others did not, and some States were more liberal in their attitude than others.

One of the things wchich caused perhaps more inconvenience than others was the fact that jurisdiction to grant divorces was based on domicile or, to a certain extent, residence within ;I particular State. In a country in which the tendency has been to ever greater mqbility of the population th i s was becoming productive of inconvenience and hardship, particularly -

1 The u s e of the word “Commonwealth” here should not be corifused with the u s e of that word in the expression “ the British Commonwealth of Nntiotis.”

to deserted wives who had not the means either t o s e e k missing husbands or of travelling to the State of their domicile which w a s that of their husbands, in order to s e e k a divorce.

In 1959 the Commonwealth a t l a s t enacted a uniform law under the provisions of the federal Consti- tutiori: the Matrimonial Causes Act of 1959 which.became law in 1961. In that year, a l so , a federal Marriage - Act was passed and thus the law of marriage as well as of divorce became uniform throughout Australia. T h e Act created a uniform domicile throughout Australia for the purposes of matrimonial causes , but i t s principal feature was to standardize the grounds of divorce throughout the Commonwealth.

Jurisdiction of the Courts

Before 1959, the general pattern in each of the Australian S ta tes was that matrimonial causes , the most important of which a re dissolution and annulment of marriage, w e r e justiciable in the S ta te Supreme Courts.2 They w e r e commonly instituted by a document called a “petition” s ince traditionally the grant of a dissolution w a s not a legal right but a matter of judicial discretion. Ancillary questions, which might comprise maintenance of wives and children. custody and visit- ation rights, insofar as t hese sncil larv questions a rose incidentallv to a petition for di v o r c e either on an in- terim bas i s pending su i t , or on a permanent b a s i s after hearing, were likewise dea l t with by the same court in which the petition had been filed.

Where no divorce petition had been filed, b“t relief such 3s maintenance or custody was sought, proceedings had to b e taken in a Court of Petty Ses- s ions , generally by w a y of complaint. The typical c a s e would b e that of a deserted w i f e whose husband had walked out on her and left her and the children without means of support. Until the three years formerly requir- e d (now t w o years) for the ground of desertion to mature had elapsed, s h e could not f i le a divorce petition in the Supreme Court. The only ground for “instant divorce” which was generally, though not universally, available w a s adultery, but even where th i s had accrued, proof might. be difficult. T h e Cour t of Pe t ty Sess ions thus was and s t i l l is the forum in which matrimonial ba t t les typically are first fought out in Australia, and a t a s t age often long before divorce is actively con- templated. On the other hand, once a divorce petition i s instituted and fi led in a Supreme Court, that court becomes se ized of the matter and a l l ancillary ques- t ions arising incidentally to it, whether before or after hearing.

T h i s pattern of a spli t jurisdiction in matrimonial questions h a s not been affected by the 1959 legislation. \\here proceedings have been taken in a l o n m court and subsequently a divorce petition is filed byeithcr party, the whole matter becomes automatically

2 See Appendix A

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transferred to the Supreme Court, subject only to the p v j s o that any order which h a s actually been made by a lower court does not automatically te rs ina te , but continues to operate until such time as the Supreme Court sees fit to vary it, or until a final decree i s made, Any subsequent proceedings of course will have to be initiated in the Supreme Court.

Australian Divorce Law

T h e uniform law provides for altogether fourteen grounds for divorce.3 in addition to certain grounds for annulment. Of the grounds for divorce proper, i t may be said that of these fourteen grounds eleven are based upon fault or contain some element of fault. The other three grounds are entirely without any necessary fault element, namely, unsoundness of mind, separation for five vears or more, and presumDtion of dceth. But of the eleven fault grounds t w o a re not exclusively con- fined to fault but may also b e available without fault. They are cruelty, and desertion. T h e former h a s s i n c e 1963, as a result of two dec is ions in the House of ILords, been available not only in c a s e s of wilfully cruel conduct, but a l so where the cruelty of the offending conduct was unintended or w a s unaccompanied by any intention’ to hurt o r t o drive out the complaining spouse. However, i t must be pointed out that t he ease with which divorce on the ground cf "extreme cruclty” is available in certain American jurisdictions i s lack- ing in Australia. For one thing, the ground as es tab- lished by law must have been habitual durinE a period of not l e s s than one vear so that it is by no means in- stantly available. But m o r e importantly, a well es tab- lished l ine of caye law, whilst :&zing to attempt any comprehensive definition of cruel conduct, h a s ins i s ted upon proof of conduct which h a s been described as “grave and weighty.” If not involving actual physical injury it must be accompanied by mental injury or by reasonable apprehension of mental or physical injury. This attitude of the cour t s has precluded the develop- ment af cruelty a s a ground of “easy” divorce even i n undefended or possibly consensual cases.

In relation to desertion the law has always been there mcs! b e a n intention to desert , as well a s an actual desertion in fact. However, th i s has been extended by what is ca l led constructive 3esertion, to cases where the spouse who actually left the matrimonial home w a s not in desertion in law. If that spouse was driven out of t he home by the conduct of the other spouse, the l a w no longer requires an intent to expel on the part of the offending spouse. As in the c a s e of cruelty, i t is the effect of the conduct,upon the spouse who actually leaves which is the determining factor as to whether desertion ex is t s .

It can b e s a i d therefore that the present tendency in .Australian law is towards a greater recognition of breakdown of marriage as d is t inc t from matrimonial offenses as a ground for dissolution of marriage. How- ever the notion of offence i s deeply ingrained in out traditional attitude to divorce, so that whilst the increasing availability of breakdown grounds i s probably in keeping with the prevailing morality of our community, the cancept of marital offence as a ground for divorce

i s s t i l l \*cry much part of our official moral philosophy. Sincc divorce by conscnt is not yet openly acceptable. the fact that the respondent spouse otlers noopposition or defence does not alter t h e legal position for the judge who must be - sa t i s f i ed on the evidence that the ground h a s been established, even though in practice an un- opposed application will be l e s s onerous of proof.

Thus when Parliament in 1959 for the first time introduced into Australian l a w the ground of separation for a period of not l e s s than five years immediate- l y preceding the da te of the petition, where t b r e % a s no reasonable likelihood of cohabitation being resumed, i t did so in sp i t e of considerable opposition, both in Parliament and outside. Voices were raised that t h i s was going to spell the end of the family and of any respect for the institution of marriage. (The fact that t h i s ground had already been in ex is tence in at l eas t one State in the same form, and in a modified form in another State, as well as in N e w Zea!and, without any noticeable deterioration in public morality, was an argument which was of course made in debate, but which did not convince those opposed to i t s intro- d uction.)

Apart from opposition on religious or moral grounds i! was aiso feared th3t the introduction of th i s ground might increase the danger of wives being first deserted a d tircn left without any protection if they could b e divorced by absconding husbands siniplg after the lapse of five years and without any fault on the part of the wife. It was partly in order to counter t hese cri t icisms that certain safeguards w e r e inserted in the new law. I t was provided, firstly, that there should Ec no reasonable likelilrocsd of colralitatiuri being resumed; secondly, that if by reason of the conduct of the petitioner it would be harsh and oppressive to the respondent or contrary to the public interest to grant a decree the court i s bound t o refuse it. Thirdly, where insufficient provision for the maintence of the respondent h a s been made, the court i s bound to re fuse a decree until s a t i s f ac to ry arrangements for maintenance have been made and fourthly, it is provided that the court has a discretion to r e f u s e a decree if the petitioner h a s himself committed adultery. Adultery committed by a petitioner must be disclosed to the courtby the petitioner himself in a sea led “Discretion State- ment” filed with the divorce petition which isintended for the information of the judge only so as to enable him t o exerc ise the discretion to grant or refuse a divorce which h a s been conferred on him in s u c h cases. Only the fact that Discretion Statement h a s been filed, but not i t s mn ten t s , must be d isc losed to the other party. - Unlike the Californian doctrine of recrimination which constituted a defence prior to the decision in De BurEh v. De nurnh [39 Cal. 2d. 858, 250 P598 (1952),, adultery by a petitioner in Australia ra i ses adiscretion- ary bar only.

‘In practice, t hese provisions have not to any appreciable extent prevented decrees from being granted. In particular there have been very f e w c a s e s where a court h a s felt constrained to refuse a decree because it was harsh and oppressive or contrary to public policy. And i t i s suggcsted that the discretionary provision by which a court may refuse a decree in a case where a petitioner h a s committed adultery i s most likely to be invoked where there i s a counter-petition 3 See Appendix B

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before the court from the other party. So that the effect of that provision wi l l be not so much to prevent a divorce from being granted a t all but to ensure that a divorce is not granted to a (‘guilty” party i f the “in- nocent” party is also applying for a decree. To all practical intents and piirposes, i t could be sa id that the result will be very much the same in either case , particularly as the concept of community property does not exist. While the conduct of the parties may affect decisions on maintenance, custody or property se t t le ments, it is the conduct itself a s objectively determined which h a s such effect, rather than the formal recognition of it in the divorce decree.

Conciliation under the L a w

Certain further provisions w e r e inserted in the Act, probably partly in order to s i lence the critics of the new liberal provisions of the Act. T h e s e provisions were designed t o facil i tate conciliation and marriage guidance.

When the Act refers to marriage counsell ing or reconciliation it does not specifically prescribe any method or technique that should b e employed for that purpose. Presumably i t is left to the organizations or persons entrusted with it to use any techniques or methods that may be considered su i tab le for the purpose.

It will be apparent to any one who looks a t these provisions that they consti tute but a beginning in the introduction of marriage conciliation into the law. Add to this the fact that marriage guidance facil i t ies a re not yet very widely developed and not everywhere available, particularly in country areas, and it becomes obvious that we a re only a t the beginning of marriage conciliation as a se r ious and s ta t i s t ica l ly significant attempt to dea l with ques t ions of marriage breakdown. This i s where w b may have much to learn from the United S ta tes whose methods and experience may be profitably studied by Australian Lawyers and legislators.

T h e machinery created by the Matrimonial C a u s e s Act i s twofold. T h e Act first c rea tes 2 framc- work for the official recognition of marriage guidance ofganizations and in proper cases, for public moneys tQ be made available t o support them.4These marriage guidance organizations a re voluntary bodies. They are not, as such, attached to, nor do they operate under the supervision of any courts. They ex i s t within a framework of largely voluntary social serv ice agencies, sometimes in conjunction with some of the religious denominations. A marriage guidance organization may apply to the Attorney-General of t he Commonwealth fot recognition and if, upon investigation, it meets certain minimum standards, i t niny b e officially approved and thereby become eligible‘ for financial support. It will also become subjec t to periodical check up so that the AttorneyXeneral, in return for financial ass i s t - ance, can and must sa t i s fy himself continually of the maintenance of recognised standards of counselling.

In each State and Territory there now ex i s t s a Marriage. Guidance Counci l which is officially recog- nized, and subsidised and which operates upon D non- denominational bas i s , providing i t s se rv ices free of

charge. There further ex is t additional bodies, most of them affiliated with particular organizations such as the Church of England o r the Roman Ca tho l i c Church. T h e s e are l ikewise approved and subs id ised under the Act.

A s part of the general framework, a further provision was inserted in the law which protects information that h a s come to a marriage counsellor in the course of h i s work by exempting him from being compellable to disclose such information in any court o r before any other person authorised by law to receive evidence. In fact, a l l marriage counsellors have to take an oath of secrecy. Undoubtedly th i s is a very neces- sa ry and beneficinl provision and does much to promote public confidence in marriage conciliation.

T h e second provision which the Act created comes under the heading of reconciliation.5’It ,imposes a duty on the courts to give constant consideration to the possibility of reconciliation of the parties. T h e courts are thereby enjoined to keep th i s possibility in mind at a l l times and if a t any s t age a judge thinks that there may besome profit in doing so, h e . i s given p o w e r t o adjourn the proceedings, to interview the parties and to refer them to an approved organization or su i tab le person for th i s purpose.

A third provision requires any solicitor or attorney before se t t ing a matrimonial cause down for hearing, to point out to h i s client the marriegeguidance and reconciliation provisions of the Act, t o d i s c u s s the possibility of a reconciliation, and to bring to h i s client% attention the names or addresses of su i tab le marriage guidance organizations. Furthermore> h e m u s t before filing a divorce petition, endorse on that petition a certif icate to s a y that he h a s brought t hese provisions to h i s client’s attention.

Effectiveness of existing marriage conci I iotion provision I

I t may be objected that some nf t h e s e a re provisions without any teeth. It i s probably no exag- geration t o s a y that most solicitors, in pointing out t o their c l ien ts the ex is tence of the marriage guidance provisions of the Act a t the s t age a t which they a re required to do so treat th i s requirement of the law as a m e r e formality which they a re obliged t o comply with. It is difficult !o cr i t ic ize them for this. T h e typical reaction of a client who comes to see a solicitor to get a divorce is, “Would I b e here if there were there- rnotest chance of reconciliation? Don’t was te time but get on with the job.” T h i s reaction is surely not un- natural a t that particular s tage . F o r once the client h a s made u p h i s mind to get a divorce, relations between the parties have been so strained for so long that i t i s probably far too l a t e to try to knit the broken marriage together again. I have reproduced some official s t a t i s - t i cs6 which show that by far the greatest incidence of divorces i s under the ground of desertion, amounting in 1967 to 4,398 out of a total of 9,688 divorces. T h i s ground accrues only after a minimum period of two years. T h e third largest gronnd is that of separation

5 See Appendix D 6 See Appendix B 4 See Appendix 7C

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and t h i s becomes available only after f ive years. A l l in ell, in about two-thirds of a l l divorce cases filed there must have been an actual separation of the parties of at least two years if not more. T o talk of teconcil- iation once the parties are at am's length to that extent seems to be c los ing the stable-door after t he horse h a s bolted.

To improve t h e e f fec t iveness of marriage counsell ing in Australia w e should try to get people to seek counsell ing a t a much earlier s t age than w e now do. 'This could be achieved if we encouraged legal practitioners to do t he same thing which they ore now obliged to do in relation to matrimonial causes in matters of maintenance or custody which come before the cour t s of suinmary jurisdiction. That is to say , w e should get them to 'd i scuss with their c l ien ts the possibil i ty of reconciliation and to refer them to appropriate counsell ing agencies. A s ye t only the smallest of t he Australian States, Tasmania, h a s done so by writing into its hlaintenance Act a provision which is to a l l intents identical with sec t ion 14 of theCommon- wealth Matrimonial Causes Act. T h e Tasmanian provision d a t e s back only to 1967 and it is probably too early as ye t to assess the effectiveneks of i t s oper- ation.

How can Marriogc Conciliation in Australia be improved?

1. We could make marriage guidance corrpulsory. .It would be possible to compel couples to

have a compulsory conference on a t l ea s t one occasion with a marriage counsellor, possibly an officer of t he Court , who could explore the pos- s ib i l i t i es of- reconciliation, before allowing a divorce to proceed.

Such provisions, whether compuisory or not, shou ld b e made to operate a t every level at which matrimonial d i sputes come before the courts. Principally, th i s would mean that a s soon as a spouse t akes maintenance or custody proceedings in a lower court, a referral to a marriage guidance agency could take p lace as a prerequisite t o any future proceedings.

It ,is doubtful whether i t would b e desirable to make such conciliation provisions compulsory. While the law remains as it is now, there a re many objections to any element of compulsion. Perhaps the most important practical argument against it would be that there probably is not anywhere near the number of persons available who could dea l with these problems. To train suitable persons for counsell ing would c o s t a considerable atnount of money which must fall on the public purse.'If, to lighten the burden, counselling is to be available only on a payment of a f e e , objections would b e raised from people involved in matrimonial difficulties on the ground tha t t h i s is an additional and perhaps unnecessary burden upon them. It is probable, in any case, that compulsory counselling could b e introduced only i f certain other reforms were implemented. some of which are d iscussed below.

2. 'The C o u r t s could take a more positive part in m at r i m or1 i n 1 disputes .

One thing which h a s been much criticised is the fact that our divorce courts proceed upon the dversary method as distinct from an inquisitorial method. T h e court which dec ides on family dis- pu tes proceeds in the ordinary way of a court of law, as i f it were dealing with criminal or civil litigation. T h e characterist ic procedure of such litigation involves the attack of one paJty by the other, and the seeking of some remedy which the law provides. T h i s almost inevitably results in increasing the hostility which probably already e x i s t s between the spouses. So, paradoxically, i f there is any shred of a positive human relation- sh ip le f t between them, the law at present destroys it for them.

The current procedure also involves the s u c c e s s of litigation being dependent to a large extent upon tactics. Whilst l a w s u i t s are as e general rule no doubt determined by the merits of a case, it does not seem that the procedure above described i s well suited t o the highly personal and intricatc relationships involved in family disputes. Not only does it require a translation into cold legal and technical terms of transactions which are personal in nature and which were never thought of as transactions between opponents in the first place. I t also means that the opposition between the parties is sharpened be- c a u s e i t must b e focussed clearly for the pur- p o s e s of the law suit . T h e end result is that they a re more embittered towards one another at the conclusion of the proceedings than they ever w e r e when the marriage actually broke up. Th i s i s not merely unpleasant, - it l eaves lingering e f fec ts that can be far-reaching, particularly in their adverse effects upon any children of the marriage.

Allied to the last-mentioned consideration is the fact that our divorce law is still very largely based upon the concept of marital offences. True, as h a s been pointed out, t h i s principle is no longer of universal application. The tendency undoubtedly is t o d ispense with offence grounds more and more and i t may be safe t o predict that in ten or twenty years w e w i l l have a divorce law that is based upon the breakdown of marriage rather than the commission of spec i f ic offences. Nevertheless, while offences remain important as divorce grounds we are continuing t o force the par t ies into a framework of hostility rather than encouraging them to think of themselves as fellows in misfortune who s t i l l have one interest and purpose ,in common, namely t o end the unfortunate relationship in which they have become involved. The plain fact i s that th i s subject matter simply does not lend i tself to the kind of treatment to which our lcgal system subjec ts it.

The reasons why it i s being s o treated are almost entirely historical. Divorce by courts of law was established in England in 1857. In creat- ing th i s jurisdiction, Parliament grafted i t onto

3. Breakdown versus offence.

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the law and procedure of theecc le s i a s t i ca l courts. It i s not surprising that the att i tudes, if no t the laws of these courts, have continuned t o pervade Anglo-Australian matrimonial law. ’True, adultery is no longer a crime but it is s t i l l looked upon with disapprobakion by the community, - rightly no doubt. But lit h a s really no longer got any necessary connection with the question of whether a marriage should be dissolved or not. It may be, and frequently is, a strong indication that the marriage h a s ceased t o b e a reality. A s such, the adultery may have strong evidentiary value. But i t does not necessarily c a u s e a marriage t o break up, nor does i t necessarily confer an unqualified right to divorce.

Moreover, our continued ins i s tence upon marital o f fences as grounds for divorce h a s led t o s u c h undesirable practices as collusive divorces, faking of grounds and other ac t iv i t ies which could be regarded as far more immoral than adultery o r other matrimonial offences. T h e s e practices have served to bring the practice in th i s jurisdiction into disrepute and they have contributed to the st igma with which divorce h a s i n the past been afflicted. If w e can perceive today a lessening of that stigma, it is not, i t is suggested, from MY lessening of such collusive and dishonest prac- t ices, but from changing moral standards and a far more permissive moral climate than o u r civilization h a s known for centuries.

This fact brings into sharp focus and witk considerable force the growing divergence between our laws in the field of divorce. T h e plain fact of the matter i s that the average person jus t does not think of divorce in terms of offence any longer, except in a technical sense . That our legal structure s t i l l encom- passes marital offences is bad because laws which ate out of keeping with the prevailing morality a re dis- iegarded or circumvented without evoking feelings of condemnation o r disapproval. Once such an att i tude is allowed to develop, i t w i l l transfer i tself to other areas of the law. As a result d i s respec t for law and arder can become widespread.

Conclusion

The need for greater facilitation of conciliation goes hand in hand with the other reforms which have been advocated. If our traditionally restrictive attitude to divorce is in truth based, as w e like to believe, on a des i re to uphold the cohesion of the family and to discourage i t s disintegration, w e must recognize that more posit ive *steps are required to achieve these aims than the purely negative expedient of making divorce difficult: that is to s a y of preventing formal disintegration a s distinct from rcal disintegration If divorce is made eas ie r to obtain, then a t the same time w e must balance that facilitatioii by positive s t e p s which will reduce the need for people to ava i l them- se lves of it. Happily, there are s igns in our community, that the public is becoming more aware of the exist- ence of marriage guidance facil i t ies. It is felt by our authorities that the increase in the number of people .seeking counselling is due largely to t h i s greater awareness.7 Rut more must be done in th i s regard.

7 According to official s ta t ic t ics the number of c a s e s dealt with by approved maxiage guidance organizations h a s increased from 4,854 i n 1960-1 to 10,048 in 1967-68. (These figures are based on the f i sca l year which runs from 1 s t July to 30111 June). 12.

Fortunately, there is a i so a growing awareness in Australia of the need for reform. Envious glances are being c a s t across the Pacific, and Family Courts8 which are known to ex is t in the United S ta tes are frequently mentioned. Whether marriage guidance, when practised in conjunction with and under the supervision of a court handling matrimonial c a u s e s c a n b e more e f fec t ive than when conducted by voluntary approved organisations as is now t he c a s e inAustralia i s a matter for speculation at present. Perhaps, as long as our law is based in part on the offence principle and ad- ministered by the adversary procedure, it would be more appropriate for counselling to continue to be carried on by extra-curial agencies, l e s t counsellors be regarded as some kind of probation officers or policemen and suspec ted of trying to enforce policies of the courts rather than acting entirely in the in te res t s of the party. It i s not suggested that that is what hap- pens but it might have that effect on people, particularly if greater reliance is to be placed on conciliation agencies by the courts.

On t h e other hand, once we get away from the purely lega l i s t ic approach and try t o dea l with marriage disorganisation on a more rational sociological and behaviouristic bas i s , purged of moral or quasi-criminal overtones, then i t would seem t o b e eminently sens ib le for a l l matters connected with marital difficulties to be carried out through one and the same agency. One could envisage a Family Cour t which would be equipped to dea l with broken marriages a t every possible stage. T h i s would comprehend counselling, arranging financial relief both in relation to temporary and permanent dis- solutions, disposit ions of property, supervision of children a s to lega l guardianship, custody and adoptions, and a s a l a s t resort, dissolution ot marriage. Such dissolution would not b e granted until the court was sa t i s f ied that t he marriage had really broken down. TO assess whether th i s was so t he court should have the benefit not only of the evidence of the parties but also of reports from qualified and independent persons who had investigated the marriage.

Perhaps w e have t o wait for the Millenium before man can bring himself to dea l rationally with h i s many problems. But surely it i s not too much to hope for that w e a re mature enough to organize our soc ia l l ife in sanity, and purge the arrangements of o u r family life of outmoded concepts and practices which have lo s t any usefulness they might once have had. How th is may b e done is one of the ques t ions which was intended to be posed here. Since other countries have already tried varying solutions, i t i s to b e hoped that before w e attempt a solution of o u r own, w e will make it our bus iness to find out what the ex- periences of others have been. Only by learning from each other, in th i s a s in other f ie lds of human endeavour, can wc t q c to build a better future.

8 As the term “Conciliation Court” is commonly associated with Courts of Industrial Arbitration and Conciliation, the term “Family Court” is becoming accepted in Australia to embrace any,Court such a s the Los Angeles Conciliation Court which concerns i t se l f with problems of the family in the widest sense.

A P P E N D I X A Court Structure

The structure of the Australian court hier- archy is relatively simple. T h e highest federo! court in the Commonwealth of Australia i s the High Court of Australia. It dea ls with both appellate and certain original matters a s laid down in the Federal @Consti- tution. Apart f r o m the Commonwealth Industrial Court, federal jurisdiction is generally exercised by Sta te courts under a provision of the Federal Constitution conferring fedet a1 jurisdiction on such courts. Th i s arrangement w a s no doubt inspired by the circumstance of a small population whose anticipated judicial busi- n e s s a t the time of federation was not economically thought to warrant the creation of a n e w parallel judicial structure. It h a s worked well and it i s only now that the creation of a new federal superior court has been found necessary, although th is new court will nct disturb the existing arrangements a s t o the delegation of federal jurisdiction.

Each State h a s a Supreme Court having both appellate and original jurisdiction. The former i s generally c i c i a i sed by a Bend-, of three Judgcs si t t ing together as a Ful l C o u r t . The original jurisdiction is exercised by a s ing le Judge and i s generally unlimited.

A t the bottom level there arc Courts of Pe t ty 'Sessions presided over by 'hlagistrates. These Magis- trates, usually called Stipendiary Magistrates are permanently appointed full-time salaried judicial officers. In most S ta tes they have to b e fully qualified lawyers. Where th i s is not so they have to go through a course of training involving examinatioiis in certain legal subjects. T h e jurisdiction of t hese courts, both civil and criminal, i s limited but is otherwise exercised in a similar manner to that of a superior court. T h e Magistrates presiding over them are in effect judges of courts of limited jurisdiction.

i s in the larger S ta tes an intermediate jurisdiction of a County or District Cour t and inter- posed between the Supreme Court on the one hand and the Courts of Pe t ty Sess ions on the other. Where th i s court ex is t s , there is therefore a three-tier structure whilst the other S ta tes have bas ica l ly a two-tier structure. To t rans la te the above insti tutions into their approximate American equivalents, i t could perhaps be sa id that t he ,Australian Supreme Cour t s com- bine the functions of American State Supreme Cour t s and County Superior Courts, that Australian County or District Courts, where they ex is t , correspond to the American Superior Cour t s except that their jurisdiction is limited, and that Cour t s of Pe t ty Sess ions may perhaps be equated with American Municipal Courts.

There

A P P E N D I X B Grounds for Divorce

The grounds for divorce are contained in Section 28 of the Matrimonial C a u s e s Act. They a re summarised below. To indicate their relative frequency, the number of divorces granted in Australia in 1967 on each ground i s shown in the margin.

(a) adultery 2,270

(b) desertion for 2 years or more (c) refusal to consummate (d) habitual cruelty for 1 year or

more (e) rape, sodomy, or bestiali ty by

other s p o u s e ( f ) drunkenness or intoxication by

drugs for 2 years or more (g) frequent convictions within 5

years

4,398 30

550

4

129

(h) imprisonment for 3 years or more ( i ) attempted murder or infliction of

grievous bodily harm on other spouse

( j ) failure to pay maintenance for 2 years 3

(k) non-compliance with restitution decree 5

( I ) insanity 7 1,868

(n) presumption of death 4 (m) 'separation for 5 years or more

12 7

(In addition, somc divorccs wcrc graritcd on 2 combi- nation of two o r three of the above grounds. In a l l , the total number of divorces granted i n 1Y67 was Y,688).

A P P E N D I X C Part 11. - Marriage Guidance Organizations.

9. C h a t s t o aF7'roved zxzizgc gc idxce 0 ~ ~ x 1 - zations. T h e Attorney-General m a y , from time to time, o u t of moneys appropriated by the Parlia- ment for the purposes of th i s Par t , grant to an a;proved marriage guidance organization, upon such conditions a s he thinks fit, such s u m s by way of financial a s s i s t ance a s he determines.

10. Approval of marriage guidance orRanizations. - (1 ) A voliintary organization may apply to the

Attorney-General for approval tinder this Pa r t a s a marriage guidance organization.

( 2 ) T h e Attorney-General may approve any such organization a s a marriage guidance organization where hc i s sa t i s f ied that - (a) the organization i s willing and ab le to

engage in marriage guidance; and (b) marriage guidance consti tutes or will

consti tute t he whole or the major part of its activit ies.

(3 ) T h e approval of an organization under th i s .section may b e given subjec t to such conditions a s the Attorney-General determines.

(4 ) Where the approval of an organization has been given subjec t to conditions, the At- torneyLGeneral may, f r o m time to time, ;evoke cr vary all or m y of those conditions or add further conditions.

(S.) T h e Attorney-General may, a t any time, revoke the approval of an organization where - (a ) the Organization h a s not complied with

a condition of the approval of the organization;

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(h) the organization h a s not furnished, in accordance with the next succeeding section, a statement o r report that the organization was required by that section to furnish; or

(c) the Attorney-General i s satisfied that the organization his not adequately carrying out marriage guidance.

(6.) Notice of the approval of an organization under th i s section, and of the revocation of such an approval, sha l l be published in the 'Gazette.

11. Reports. etc.. by approved marriaRe Ruidance greanizationq. - (1 ) An approved marriage guidance organi-

zation shall , not latcr than the thirty-first day of December in each year, furnish to the AttorneyXeneral, in respect of the year that ended on the las t preceding thirtieth day of J u n e - (a) an audited financial statement of the

receipts and expenditure of the organization, in which receipts and expenditure in respect of i t s marriage guidance activit ies a re shown separately f rom other receipts and expenditure; and

(h) a report on i t s marriage guidance activ- i t ies, including information as to the number of c a s e s dealt with by the organization during the year.

(2 ) Where the Attorney-General is sa t i s f ied that i t would be impracticable for an organization to COIF^!^ *.with the *ey i r emen t s of the l a s t preceding subsection o r that the application of those requirements to a n organization would be unduly onerous, h e may, by writing under h i s hand, exempt the organization, wholly or in part, from those requirements.

12. Admissions, etc., made to marriage guidance

(1 ) A marriage guidance counsellor is not competent or compellable, in any pioceed- ings before a court (whether exercising federal jurisdiction or not) or before a person authorized by a law of the Common- wealth o r of a S ta t e o r Territory of the Commonwealth, or by consent of parties, to hear, receive and examine evidence, t o d isc lose any admission or communication made to him in h i s capacity as a marriage guidance counsellor. A marriage guidance counscllcr shall , bc- fore entering upon the performance of h i s functions as s u c h a counsellor, make and subscribe, before a person authorized under the l a w of the Commonwealth or of a Sta te or a 'Territory t o which th i s Act applies to take affidavits, and oath or affirmation of s e c r e c y in accordance with the form in the F i r s t Schedule to th i s Act.

13. Application of Pa r t t o certain branches and sec t ions of voluntary oreanizationq. A reference to a branch or sec t ion or such an organization. being a branch or section identified by a distinct name and in respect of which separa te financial accounts are maintained.

APPENDIX D Part 111. - Reconciliation.

14. Reconciliation, - (1 ) It is the duty of the court in which a matri-

monial c a u s e h a s been instituted to give consideration, from time to time, to the possibil i ty of a reconciliation of the parties to the marriage (unless the proceedings are of such a nature that i t would not b e appropriate to d o so), and if at any time it appears to the Judge constituting the court, ei ther from the nature of the case, the evidence i n the proceedings or the att i tude of those parties, or of either of them, or of counsel, that there i s a reasonable possibil i ty of such a reconciliation, the Judge maydo all or any of the following: - (a) adjolirn the proceedings to afford those

parties an opportunity of becoming re- conciled or to enable anything to b e done in accordance with either of the next two succeeding paragraphs;

(b) with the consent of those parties, interview them in chambers, with or without counsel, as the Judge thinks proper, wit11 a view to effecting a reconGiliation;

(j) an approved marriage guidance organization or a person with experience or training in marriage conciliation; or

(ii) in spec ia l circumstances, some other suitab!e person, to endeavor, with the consent of those parties, to e f fec t a reconciliation.

( 2 ) I f , not less than fourteen days after an adjournment under t h e l e s t preceding s u b section h a s taken place, either of the par- t i e s to the marriage reques ts that the hearing be proceeded with, the Judge s h a l l resume the hearing, or arrangements sha l l b e made for the proceedings to b e dea l t with by another Judge, a s t h e c a s e requires, as soon as practicable.

(c) nominate -

15. Hearing when reconciliation fails. Where a Judge has acted as conciliator under paragraph (b) of sub-section (1 ) of the l a s t preceding- section but the attempt t o effect a reconciliation h a s failed, the Judge sha l l not, except at the request of the parties to the proceedings, continue to hear the proceedings, or determine the proceedings, and, in the absence of such a request, arrangements sha l l be made for the proceedings to b e dealt bit t i by another Judge.

14.

16. Statements etc. . made in course of attempt t o effect reconciliatiog. Evidence of anything sa id o r of any admission made in the course of an endeavor to effect a reconciliation under t h i s Part is not admissible in cny court (whether exercising federal jurisdiction or not) or in proceedings before a Fcrson authorized by a law of t he Commonwealth or of a Stete or Territory of the Commonwealth, or by consent of parties, t o hear, receive and examine evidence.

17. Marriage conciliator to take oeth of secrec j . A marriage conciliator .shall. before entering upon the performance of h i s functions a s such a conciliator, make and subscr ibe , before a person authorized under the law of the Commonwealth or of a State or a Territory towhich th i s Act applies to take affidavits, a n oath or affirmation of secrecy in accordance with the form in the Fi rs t Schedule to th is Act.

*An important a spec t of “togetherness” in marriage is “separateness” - - - t he right t o be one’s se l f and t o continue to grow as a person, each bending to the other as a beautiful flower turns t o the warmth of the sun.

*Love is l ike a t ickle around the heart we can’t scratch.

15.

Documents

MARRIAGE CONCILIATION UNDER AUSTRALIAN LAW