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Wednesday, 18 November 1959

Mr MACKINNON (Corangamite) (12:41 PM) . - Paragraph (m) of clause 27 is obviously the most contentious portion of the bill. I should like to thank the AttorneyGeneral for his courtesy in making available some two hours of his very valuable time to discuss it with me and certain of my colleagues. I should like to express my appreciation of the way in which he has approached, in the bill generally, and also in this particular portion of it, the position of the unoffending party and the children. It is with very deep regret that I must say that I find that I cannot accept his arguments and must, therefore, vote against this clause.

During the course of the debate extensive reference has been made to the similar ground which exists in New Zealand. However, we should be deceived if we assumed from the insertion of the reference to the New Zealand act in the explanatory notes that there is some analogy between that part of the New Zealand act and this clause, as presented to the committee. My main objection to the clause is based on the portion of it that is not included in the New Zealand legislation. Section 18 of that legislation is quoted in the explanatory notes and provides that where . . .

.   . the respondent opposes the making of a decree, and it is proved to the satisfaction of the Court that the separation was due to the wrongful act or conduct of the petitioner, the Court shall dismiss the petition.

That is my basic objection to this particular clause, as drafted. I believe that the sentiment expressed in those notes on the New Zealand legislation is in harmony with my own idea that an unoffending party should not be placed in the position which he or she may be placed in under this bill.

Another point on which there might be some misunderstanding in the mind of certain members of the committee has been the temporarily high incidence in Western Australia of divorces taken under this or a similar ground. Reference has been made to the fact that at one stage more than 30 per cent, of the total divorces in a year were obtained by the use of this ground. It has also been pointed out that at least 85 per cent, of this comparatively large group could have taken a divorce under other grounds. 1 believe that I am justified in saying that it is a subterfuge to use that ground in respect of cases which obviously should be brought out in their true light before the public. I know that some of my sentimental friends will say that it is nice to get out quietly by using a ground such as this, to which no moral or spiritual stigma attaches, but I should also like to point out something that has not so far been mentioned. It concerns the position of the unoffending party. It is well known - indeed no one can deny - that a social stigma attaches to being a divorced person. Under the bill we are going to place certain innocent people in the position of becoming divorced people. Whether we like it or not, that is a fact. There is undoubtedly a social stigma attached to being a divorced person.

Mr Falkinder - There is not.

Mr MACKINNON - Of course there is. For instance, divorced persons are not eligible when it comes to the award of certain types of decorations. I could quote one or two cases, but I shall not do so here. It is well known that, in court circles for instance, divorced people are regarded with a certain amount of diffidence, if they are not excluded altogether. One realizes that, by going through a long rigmarole, an unoffending party to a divorce may say, " 1 was divorced not for a matrimonial offence, but under section 27 (m) ". It is going to take a lot of explaining. It has been suggested that sufficient safeguards exist to ensure that the court will exercise its discretion in the public interest. I want to direct attention to the situation that could easily arise when an offending party, during the five year period, decides that a court is likely to use its discretion in his or her favour. Such a person could go along to the court and say, " I have had two or three children since the break-up of the marriage and I feel that the public interest would be better served if some regularity were to be given to my association in the interests of the children ". I do not think that that suggestion is far-fetched. I consider it a natural corollary to actions that ordinary human beings would take. I am not saying that it is praiseworthy - lar from it - but I believe that such a plea could be taken to a court which had a discretionary power, in the public interest, to allow a divorce under this separation clause.

Finally, I want to say that I realize that this is a very vexed problem. I compliment the Attorney-General upon the thoroughness with which he has gone into the whole legislation. The problem seems to be to make a decision between expediency and legality. While I have the highest regard for members of the legal profession, and for their sincerity of purpose, I feel that the decision on this matter clashes with what we believe to be one of the finest institutions in our social set-up, one that is blessed by the religions that we observe. I personally propose, therefore, to vote against this ground and to urge that it be removed from the bill.

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