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Thursday, 11 April 1957

Mr JOSKE (Balaclava) .- "I move -

That the bill be now read a second time.

This is a bill relating to marriage and matrimonial causes, and in relation thereto, parental rights and the custody of infants. The bill seeks to bring about a uniform set of laws for the Commonwealth, to take the place of the diverse sets of laws which at present exist in the various States and Territories of Australia.

I think it is only right that 1 should sax something about the background and history of the bill and pay some tribute to those who have helped to bring it to its present stage. In 1947, the right honorable member for Barton (Dr. Evatt), who was then Attorney-General, set up a committee of three members of the bar, Mr. S. V. Toose, later Mr. Justice Toose, Judge in Divorce in New South Wales, Mr. Harry Alderman. Q.C., and myself. This committee formulated a draft bill. I must express my gratitude to the right honorable member for Barton for having given me the opportunity to direct my energies towards the production of the draft bill, and for having put me in a position to work on the bill, which I have been doing ever since that time.

Subsequently, the Law Council of Australia requested Mr. Alderman and me to prepare a bill on the subject. We considered that the best bill that we could produce was the one that we had already drafted in association with Mr. Justice Toose. That bill was circulated among the law societies of Australia. It was accepted by the majority of them. In fact, it was accepted by all of the societies from which replies were received by the Law Council of Australia. Various amendments were suggested by the different societies. Mr. Alderman and 1 gave most careful consideration to those amendments, and we accepted those that we thought would be useful and valuable. The bill was then accepted in its final form by the Law Council of Australia. Since that time, various discussions have taken place with regard to the original draft, and some amendments have been made to it. but the bill as presented to the House to-day is in substance the bill which was originally drafted by Mr. Alderman and me, incorporating some amendments made by the law societies. l should like to pay tribute to the work done by Mr. Justice Toose and Mr. Harry Alderman, and to thank them for the great help and encouragement that they have at all times during the last ten years given to me in my work of endeavouring to produce a bill that will satisfy this House. 1 should also like to thank those members of the public and many associations who have encouraged me to persist in this work of preparing the bill and bringing it before the House. I think that 1 should thank the Prime Minister (Mr. Menzies), the Leader of the House, the Minister for Labour and National Service (Mr. Harold Holt), and members of the Cabinet for their undertaking to allow sufficient time for debate on the bill so that the House may be able to consider it fully. I also thank the clerks of the House for the assistance they have given me. I wish to pay tribute to the Parliamentary Draftsman, and particularly to his assistant, Mr. Comans, who has taken a tremendous amount of care in the preparation of this bill. One may say that the latter has shown real devotion in the way in which he has applied himself to the task of putting the bill into a form that will meet all possible constitutional objections, and would even satisfy the meticulous eye of a chief " Hansard " reporter.

This bill will be enacted, should the Parliament so choose, pursuant to the constitutional power. There is full power under the Constitution to make laws upon this subject of marriage and matrimonial causes. It is intended that the laws of the Commonwealth shall take the place of the existing State laws, but, as various persons may have vested rights under the State laws, it is not intended that those State laws should be superseded until the end of 1958. That should allow ample time for those with vested rights under State laws to take their proceedings under those laws.

I come now to the policy contained in the bill. In the first place, it is a matrimonial bill. What it seeks primarily lo bring about is reconciliation of married people who are living apart and who are estranged, lt is strongly opposed to separation. In that respect it is not only sound in principle but also well justified in law. At one time all separations were entirely opposed to public policy, and even to-day agreements between husband and wife for future separation are considered contrary to public policy.

Reconciliation is sought to be brought about, under this bill, in three ways, by a request made by one of the parties to the other, by proceedings, being taken in order to bring about reconciliation, or, even at the late stage when the parties are in a divorce court, by the judge himself interrupting the proceedings and taking steps to reconcile the parties. I shall deal with these three ways in which it is hoped reconciliation will be effected. At the present time, when parties are living separately and apart pursuant to a verbal arrangement, one party may say to the other, " Come back ", and if that other has no reasonable excuse for not coming back and fails to come back, desertion starts as from the date of refusal to come back. The bill provides, with regard to all agreements for separation, whether they be verbal or in writing, or even formally made under seal - by deed, as it is called - that where one spouse says to the other, " Come back ", and there is no reasonable excuse for failing to come back, and in fact there is a refusal to come back, then as from that time desertion shall start. In other words, the bill endeavours to dispel the idea which is fairly widespread in the community to-day that one may live in a state of being both married and unmarried. Persons who have this idea will be told, " Either you become reconciled or you will be liable to be divorced ". The second way of effecting reconciliation is by taking proceedings for restitution of conjugal rights, and I emphasize, taking genuine proceedings for that purpose and not proceedings for any specious purpose of getting a divorce. It is provided that those proceedings may be taken. It is not provided that, if there is a 21 days' breach of the order to return, divorce proceedings may then be taken. That provision, which exists under the law of one State, is noi included in this proposed law. It is intended that the procedure of restitution of conjugal rights shall be a genuine procedure, used only for the purpose of genuinely endeavouring to obtain reconciliation of the spouses. If three years pass from the date of the order for restitution and there has been no return, then the period of three years' desertion will be complete, and the position will be the same as with any other period of three years' desertion - there will be a right to divorce. But I emphasize that restitution proceedings are provided for in the bill only for the genuine purpose of obtaining reconciliation.

The third way in which it is hoped to obtain reconciliation is by providing that, even at the late stage when divorce proceedings have been started, and even, if necessary, at the trial of the proceedings, if the judge thinks that there is a chance of bringing the parties together, then, of his own motion, he is entitled to intervene, to interview the parties and endeavour to bring about reconciliation. Should a husband decline without just cause to accept reconciliation which is offered to him, he will, of course, be liable to pay maintenance to his wife. A new procedure will be provided by the bill which will apply not only to the case in which reconciliation is refused, but also to any case in which a husband has wilfully neglected to pay reasonable maintenance to his wife and children.

Up to the present time in this country, maintenance can be obtained by a wife outside the divorce proceedings, or judicial separation proceedings, only by going to a police court and there obtaining a maintenance order; but that procedure has proved defective. Frequently, wives are not able to get orders, and in many cases they are not able to get adequate orders because of the defects of that particular jurisdiction. This new jurisdiction is. therefore, to be given to the higher courts so that they may make a direct order for the maintenance of a wife and children. This does not mean that the jurisdiction of magistrates to order maintenance is being taken away. No doubt in the future, as in the past, most maintenance orders will be made by magistrates, but the bill provides a new jurisdiction, so that wives who previously could not get either an order at all. or an adequate order in a lower court, will be able to obtain one from the Supreme Court.

The result is that it will be no longer necessary to have any provision for judicial separation. The whole notion of judicial separation springs from the past, lt comes from the day when the husband had practically a patriarchal authority over the wife; when he not only possessed all her property and was able completely to control and have absolute custody ot the children, but also was able to exercise physical restraint over his wife. Those days, happily, have passed. To-day, a judicial separation, on the occasions when it is used - and it is very rarely used - is only employed for the purpose of getting maintenance. The new procedure by which the wife may get maintenance from the higher courts will make the procedure of judicial separation completely outmoded. Since the policy of the bill is against separation, the judicial separation, or the separation by court order, is dropped. Just as the bill is opposed to separation, so there is no ground of divorce provided because of separation.

That, Mr. Deputy Speaker, represents the position with regard to the change in the nature of the jurisdiction of the court and the policy behind that particular part of the bill. The next matter to which I wish to invite attention is the question of domicile. An Australian domicile is provided by the bill. Domicile, as honorable members probably know, is, in the main, the basis of divorce jurisdiction. Domicile is a technical, legal, conception which I must very briefly, and from the point of view of a lawyer, inadequately, explain. Domicile, in effect, means that a person must have a permanent home in a particular country. That is where he is regarded as being domiciled; but by technical rules of law, a woman, on marriage, takes the domicile of her husband, and even though she has never lived in the country in which he is domiciled, she has to go to that country in order to obtain matrimonial relief. That is so whether she has the money to be able to go there or not. She must go to that country. This House has, on occasions, introduced legislation which has greatly alleviated that position, hut that legislation has been subject to certain technicalities. Residence, as distinct from domicile, has been made a qualification, but " residence " also has a technical, legal meaning. The case of a person moving from State to State without ever acquiring a permanent home in a particular State raises the question of whether he was ever domiciled in any part of Australia. Similarly, the case of a person chancing his residence from one State to another raises the question of whether he has changed his domicile from one State to another. There are various legal technicalities in regard to the matter, and therefore it is proposed in this bill that, instead of there being a State or territory domicile, as there has been in the past, domicile in the future shall be domicile in Australia, so that wherever a person lives in Australia he may take proceedings in that particular part. But in order that women shall not be deprived of their pre-existing rights, it is also provided that a deserted wife shall still be able to take proceedings here; that a wife who has been resident here for three ye;irs, which is the usual period for a man to acquire domicile in a country, also shall be able to take proceedings in Australia. She is to be regarded, for the purposes of this bill, as a person domiciled in Australia. In this way, not only have we created Australian domicile, but also we have put men and women on exactly the same basis before the law, so that both may take the legitimate proceedings to which they are entitled under the bill. It is also provided, with regard to matters such as nullity of marriage and so forth, the original jurisdiction of which comes from the old ecclesiastical procedure, that the same grounds of jurisdiction which have always existed with regard to those matters shall still be continued.

I have already mentioned some of the matters concerning jurisdiction covered by the bill, and 1 shall recapitulate them briefly. The bill provides for jurisdiction in matters of restitution of conjugal rights, the dissolution of marriage, the nullity of marriage in what is called jactitation of marriage - that is. holding oneself out as married when one is not married; and it also provides this procedure for maintenance. In addition, power is given to make declarations as to the validity of marriage, or as to the validity of decrees of dissolution or nullity of marriage. Provision is made for the creation of a federal divorce court but, as it will be for the Government to determine whether it will have a federal divorce court, it is provided that that part of the bill shall be subject to proclamation by the Governor-General. For the rest, jurisdiction is vested in the courts of the territories, and federal jurisdiction is given to the supreme courts of the States. The supreme courts of t*ie States will retain their present jurisdiction, as I have already said, until the end of 1958, and from then on they will be able to exercise federal jurisdiction only pursuant to this legislation.

Provision is made in the bill for uniform grounds for divorce. At present, not only are there separate systems of law relating to divorce in the States, but the grounds for divorce vary greatly from State to State. In fact, there are over 30 grounds for divorce in Australia, and many of them overlap, lt does not seem to be right that in one nation there should be separate systems of law governing such vital, personal rights of citizens. The fact that people live in different parts of Australia is no reason why their personal law should be subject to different rules. Consequently, it is regarded as proper to have brought in a uniform series of rules with regard to divorce and to have set out uniform grounds for divorce.

The questions arise: What are those grounds to be? On what basis are we to approach the matter? Of course, much depends on the point of view. One must realize that the subject of divorce has vexed and perplexed the minds and the consciences of many people. Notwithstanding that divorce is now 100 years old in England - the first divorce court was established there under the act of 1857 - and that we have had divorce in this country for well-nigh 100 years, there are still many people who say that they are so opposed to divorce that the only divorce that they would regard as satisfactory is no divorce at all. There are many other people who say, " If you must have divorce, make the grounds as narrow as possible ". There are others who are quite satisfied so long as you give them a divorce for the reasons they themselves want divorce. They are not worried about the anxieties of other people. Then, if we go in the other direction, we find people who say, " If you are going to make divorce reforms, make your reforms drastic ". None of those views appeals to the people who wish to bring about uniform grounds for divorce in this country.

The justification for divorce is that the law should meet the requirements of life; that divorce is not a disease, but a remedy for disease; that marriages are not broken by courts, but by various causes; and that where marriages have completely broken down for substantial reasons, this matrimonial relief should be given. To-day, divorce is not regarded in any sense as u stigma, as it was at one time. Divorce is regarded as a remedy in those cases in which marriages have broken down f jr substantial reasons. Consequently, peo, le are prepared to approve of reasonable divorce laws, based upon human needs, which will terminate improper social conditions and which, in fact, do not lessen the sanctity of married life.

If the approach is made from that angle, the question then is: What is the test of reasonableness? As I have pointed out, we have had in each of the States a set of divorce laws for close on 100 years. When one comes to examine the various grounds for divorce, one sees that in many of the States the same grounds recur and that, over the years, the States have approved of divorces being given on certain grounds. Therefore, it has been thought that we may safely say that the people of this country reasonably believe that those are suitable grounds for divorce. Consequently, the grounds which have been named in the bill are grounds which have been accepted in all or in most of the States for a long period of years. 1 propose at this stage to indicate to the House the grounds for divorce which are named in the bill. Eight grounds for divorce are named. As I have explained, there are over 30 grounds for divorce, in *11. throughout Australia. In the bill they have been brought, down to eight in number. They are, first, adultery, secondly, three years' wilful desertion without just cause or excuse; thirdly, three years' habitual drunkenness, coupled, in the ca e of a man, with habitual cruelty or habitually leaving his wife without means of support for the like period, or, in the case of a woman, habitual neglect of domestic duties tor the like period; fourthly, unnatural offences on the part of the man; fifth'y repeated assaults and cruel beatings; sixthly, that within a period of five years the husband has been frequently convicted, has been sentenced in the aggregate to imprisonment for over three years and has habitually left his wife without means of support; seventhly, incurable insanity. coupled with detention in a government institution for five years of the six years preceding the petition; and finally, the ground known as presumption of death, that is, that the respondent in the case has been away from the other party for such time and under such circumstances, and has not been known to be alive during that time, that he should be presumed to be dead.

I have said that those grounds have been accepted in al! or in most of the States, Three of them - adultery, three years' desertion and unnatural offences by a man - have been accepted in all the States. Three others - habitual drunkenness, insanity and frequent convictions - have been accepted in five of the States. The ground of repeated assault and cruel beatings has been accepted in four of the States, although in one State the term used is somewhat different. In three of the States, the ground of presumption of death has been accepted. That ground, which is noncontentious, has been accepted also in New Zealand and in England. It covers cases where a person who was originally a deserter has been away for so long that a court would be reluctant to grant a divorce, on the ground of desertion, because it would say that the person probably was dead. Because of that attitude, this sensible ground has been brought in. The bill provides that seven years' absence without having been known to be alive is sufficient prima facie evidence of death and, until the contrary is proved, is sufficient to found a case.

In addition, various provisions designed to remove anomalies and technicalities from the law of desertion have been introduced into the bill. I have already mentioned the fact that a separation can now be terminated by a request to return, and if there is no reasonable excuse for refusing to comply with the request, desertion starts. That is a considerable improvement in the law of desertion, which previously was anomalous in that respect. Many people who had been living apart for years could not get a divorce. Now, as I said earlier, either they must accept reconciliation, or they are liable to be divorced. Then there" is the other provision I mentioned with regard to the breach of a restitution order. It is only after the failure to comply with such an order has continued for three years that a period of desertion is completed, and that proceedings can be taken in respect of that breach on the ground of desertion.

There are two other amendments with regard to the law on desertion, both concerning the intention of the deserter. For years, we have had a doctrine of constructive desertion known to the law, according to which, if a partner to a marriage behaved in such a way that no self-respecting person could put up with his or her conduct, and the other party to the marriage left the home, that was regarded as constructive desertion, and the party who was forced to leave was able to bring proceedings for divorce on that ground at the end of the Statutory period of three years. But, in recent years, the courts have fogged themselves up on the question of intention, so that one finds cases like that of a man who brutally ill-treats his wife and then says to the court, " 1 did not intend her to leave me. The only way I could get her to be dutiful was to treat her in the way I did, but I wanted her to remain with me". Honorable members may think I am being facetious, but that is not so. That sort of case crops up again and again, and judges who once held that a man's intention was to be inferred from his conduct, now say that they are not quite so sure of that. The law has got into a hopeless state through trying to decide whether the real intention was different from what the conduct showed it to be.

I believe, and trust, that the House will accept the provision that where a man or a woman has behaved in such a way as to render it impossible for the other partner of the marriage to remain in the home any longer, that is a legitimate cause for leaving, and legitimate cause for a divorce action, after the statutory period, on the ground of constructive desertion. I believe that that is in accordance with the views of the courts in earlier days, for instance the High Court in the days of such great judges as Chief Justice Griffith and Chief Justice Isaacs.

The other question of intention in regard to desertion has arisen in cases such as that of the man or woman who is a deserter, but who. during the period of desertion, becomes insane. At one time the courts took what I think to be the sensible view, which was that had the deserter not become insane, the desertion would have continued. During the last fifteen years, however, judges have decided that once a person becomes insane that person cannot make up his or her mind one way or the other and. having no mind at all, the intention to desert ceases. The legislature in South Australia and the legislature in New Zealand have both provided that where desertion has commenced, and would probably have ' continued, but for the insanity of the deserter, it shall be deemed to have continued. Victorian judges who had a recent case of this sort before them recommended that a provision similar to the So,,th Australian provision should he embodied in the Victorian law, and in fact a committee of the Victorian Parliament made a recommendation to that effect after a very careful inquiry. That particular provision, which is found in the laws of South Australia and New Zealand, and has been recommended for inclusion in the Victorian law, is included in the present measure. The measure provides that desertion is not terminated by insanity if it would probably have continued had the insanity not occurred.

In those various ways I believe we will establish sound, sensible and sane grounds for divorce in this country which should be able to meet the cases where marriages have been broken up for serious reasons. The bill does not make for either easy divorce or quick divorce. I believe it makes for divorce in proper cases where it is necessary, from the stand-point of public policy, that divorce should be permitted.

The bill contains the usual provisions which are found in divorce acts. There are the usual bars to divorce in the nature of provisions regarding connivance, collusion and condonation. There are the discretionary powers concerning adultery or misconduct by the petitioner, and so on. There is provision for the plaintiff to seek damages from the co-respondent. There is provision for the intervention by the Commonwealth Crown Solicitor should the case appear to be one in which intervention is appropriate. In fact, prior to the trial, either a private individual or the Commonwealth Crown Solicitor may intervene, and at any time the court may request the Commonwealth Crown Solicitor to intervene if it wants his assistance. That is a great improvement on the provisions in some acts that the court may intervene and which do, in effect, make the court a party and partisan. This provision enables the case to be properly dealt with by the Con>monwealth Crown Solicitor, evidence to be properly produced by him, and allows the court to remain impartial.

There are the usual provisions with regard to alimony, maintenance, custody of children, settlements and so forth. Very wide powers indeed are to be provided with regard to these matters. I have endeavoured to make the best use of my experience in this particular jurisdiction in order to see that cases which have not been previously met by the existing State acts can be met under this law. If honorable members peruse the bill they will see the wide powers that are to be conferred in relation to these matters and the great discretion which is to be reposed in the court in order that it may make such an order as is fair, just and proper under the particular circumstances of a case.

I have referred to the custody of children, and, of course, provision is made also with regard to the maintenance and education of children and the power to vary settlements for the benefit of children. The term " children " is sometimes interpreted as meaning only children born in wedlock. That has been proved, particularly in these days, to be inadequate. Consequently, it is definitely provided in this bill that " children " includes adopted children - children adopted by the parties or one of them since the marriage - and also children legitimated since the marriage. The old form of nullity decree by which a voidable marriage is voided resulted in making children illegitimate. That has been overcome by providing that a decree of nullity shall operate only from the date of the decree and shall not void the marriage from the beginning. The result is that children who formerly were rendered illegitimate by such a decree will remain legitimate. That is a very valuable provision indeed.

There is one matter which called out for relief. That is the question of marriage within the prohibited degrees of consanguinity and affinity. In some of the States, the tables which are found in the Book of Leviticus have been extensively dealt with, and in other States they have not been dealt with very much. The application of the tables varies in each State. In some States, marriages of persons within these tables are valid, in other States such marriages are voidable, and in still others they are void. The result has been that a person married in one State could obtain a nullity degree in another State or, in a third State, could be in a position of never having been married. That is not a proper state of affairs. In

South Australia and Tasmania, the tables have been modernized, and quite a number of degrees of affinity have been removed from them. In Western Australia, the position is practically identical, and New Zealand1 has followed the example of those three States. This bill therefore provides tor' those degrees which have been accepted by the majority of the States. In other words, in that way also we will have followed existing procedure and what has been accepted previously by most of the States, or Li least a greater number of them, will, be accepted in this bill. Instead of it being queried, " Are you married ? " or " Are you not married ?" according to where one. is in Australia, it is provided, definitely, that those marriages which come within the table as set out in the act are void marriages. Other marriages not set out in that table are valid and can be entered into.

There is just one other matter I should refer to in the bill, and that is the recognition of decrees granted elsewhere in the British Commonwealth. Quite recently, in my own State of Victoria, a divorce which had been granted in England was not recognized. It is a lamentable state of affairs that a divorce granted in one part of the British Commonwealth should not be recognized in another part. The result is that, within our British Commonwealth, a person could be both married and unmarried at the same time. Consequently, provision has been introduced for the recognition of decrees granted elsewhere within the British Commonwealth.

Mr. Speaker,that represents, in very broad outline, the general purpose and nature of this bill. The bill, as I mentioned at the commencement of my speech, is the product of many years' work, and of a great deal of thought and experience on the part of many people. Uniform divorce laws are accepted as proper policy, as I understand it, by both the party in opposition and the parties on the Government benches. This bill, I believe, should meet a real want and I trust that it has been drafted in a sufficiently careful and cautious, but, at the same time, sound and sensible form, to enable it to meet with the approval of this Parliament.

Mr Wilson - I second the motion and reserve my right to speak at a later date.

Debate (on motion by Mr. Calwell) adjourned.

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