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Wednesday, 1 May 1957


Mr WHITLAM (Werriwa) .- The Opposition regarded this bill as of such sociological significance and humanitarian value that it was desired that the Leader of the Opposition (Dr. Evatt) should initiate the Opposition's contribution to the secondreading debate. I have to express the regret of the Leader of the Opposition that, an hour ago, he had to take to his bed with a cold. He also wished personally to participate in this debate, not least in response to the gracious remarks that the honorable and learned member for Balaclava (Mr. Joske) made about him when that honorable member introduced the bill.

The Opposition has so far determined only that, in dealing with this bill, it should move an amendment, which I shall shortly outline to you, Mr. Speaker, and which I shall move at the end of my speech. It is altogether likely that the Opposition will treat this bill, during the secondreading stage, and at its succeeding stages, on a non-party basis. It takes exactly the same attitude towards the bill as the Leader of the House (Mr. Harold Holt) has conveyed to the House as the Government's attitude - that is, that this is a matter in respect of which members should be guided by their own good sense and good conscience.

Before I outline the amendment which the Opposition proposes to move, Mr. Speaker, I am sure that I express the view of every honorable member on this side of the House when I say that the Opposition wants to pay tribute to the work that the honorable member for Balaclava has done in preparing this bill, in collaboration, over many years, with Mr. Justice Toose and Mr. Harry Alderman, Q.C., whose common labours the honorable member also graciously acknowledged. We want to say that we feel that the Parliament is fortunate in having a member of such experience in this subject. But experience alone would not have got the bill to its present stage. It has taken the prestige of the honorable member for Balaclava, and his persistence and persuasiveness, to get the bill to this stage.

We hope that the amendment I shall move will be taken in the same nonpartisan sense in which the Leader of the House has announced the Government intends to treat the bill. We want to thank the Leader of the House for the opportunity he is giving for a proper consideration of the bill at all stages.

Since federation the Australian Parliament has had the power to legislate in regard to divorce and matrimonial causes and, in relation thereto, parental rights and the custody and guardianship of infants. I think I am right in saying that this Parliament has never passed an act dealing with parental rights and the custody and guardianship of infants. I think we have passed only two or three bills dealing with divorce and matrimonial causes. I think one was passed after World War I. - I have not checked on this. It was a temporary measure, at all events. There was a bill introduced by the Leader of the Opposition, as Attorney-General, in 1945, and there was a bill introduced by the honorable member for Balaclava in 1955. But, for the first time, the step is now being taken to occupy the field and to see that Australians in this important field are regarded as Australians, and not as citizens of nine different geographical divisions - six States and three Territories. It is the fact that there are large codes, mostly of great antiquity, all with considerable anachronisms and anomalies, dealing with divorce and matrimonial causes, in each of the six States and in the Australian Capital Territory, the Northern Territory and the Territory of Papua and New Guinea. Now, for the first time, we are dealing with Australian families as members of the one community as, in every social sense, they should be regarded. There may well be different opinions among members of this House and among members of the community as to what the grounds, if any, for securing a divorce should be, and what procedures should be adopted for effectuating those grounds. But, surely, there can be very little doubt that what grounds are agreed on should apply throughout Australia, and that what procedures are agreed on should also apply throughout Australia. At this stage, Mr. Speaker, for your information and the information of honorable members, I shall read the amendment that I propose to move at the end of my speech. It is as follows: -

That all words after "That" be omitted with a view to inserting the following words in place thereof: - " the Bill be referred to a Joint Select Committee of both Houses of the Parliament because of its great importance, i's farreaching implications to all sections of the community, and the necessity for the widest possible prior consultation with child welfare and marriage guidance councils, churches, and social institutions vitally interested in the matters covered by the Bill ".

The amendment refers to the great importance of the bill. There can be no doubt of its importance, because it seems a regrettable fact that there is in Australia, each year, almost one decree for the dissolution of marriage for every ten marriages contracted. In the last year for which published figures are available - 1955 - there were 72,172 marriages performed in Australia and 6,724 divorce decrees were made absolute. There were, in addition, 45 decrees for nullity and 13 for judicial separation. As the most prevalent stage of marriage at which persons are divorced is between the fifth and tenth years of marriage, and the next most prevalent between the tenth and fifteenth years of marriage, it would seem that one-tenth of our marriages contracted in former years are now breaking up. It is, therefore, of overwhelming importance to the community as a whole, as well as to the parties to each of these troubled marriages and to the issue of these troubled marriages, that the Australian Parliament should, at the earliest possible moment, do what it can to see that there is proper social preparation for marriage, that proper social assistance is given to married people and that proper welfare steps are taken as regards the children of marriages. Hitherto, this Parliament has done very little in that regard. This bill is a considerable step in many respects.

The amendment which I shall move suggests consultation with various members of the community who are in a favorable position to advise such a committee as this. 1 should think that such consultation would be in line with the course hitherto pursued in the preparation of this bill because as the honorable member for Balaclava has said, it has been in preparation for tcn years. It was framed largely by the honorable member and his distinguished colleagues to whom 1 have referred, then it was considered by all the professional legal bodies of Australia including the Law Council of Australia, which is the federal professional body in Australia. Speaking from recollection, however, as a member of the New South Wales Bar Council until I was translated to this sphere, the grounds of the bill approved by all the professional bodies, including that one last-mentioned, were different from those in this bill. I have not a copy of them before me and I will not trust to my memory, but they did differ in number and extent. I, for one, should think that it would be valuable for a joint committee to have the benefit of the opinions of the honorable member for Balaclava, Mr. Alderman, Mr. Justice Toose and other distinguished practitioners, as well as of members of the community who are experienced in these matters, on such subjects as procedure and grounds. It has taken ten years already to prepare this measure, another ten weeks or even ten months should not be begrudged for its - consideration.

This method of consultation has been adopted extensively in the United Kingdom from whose divorce laws of 100 years ago Australian divorce laws have been derived. Such uniformity as there is between Australian divorce laws derives not from any consultation between the States and Territories but from their common ancestry in the Imperial Parliament. In the last few years this matter has been referred to several committees in the United Kingdom. In 1946, the Attlee Government appointed a committee on procedure in matrimonii causes presided over by Mr. Justice Denning, as he then was, Lord Justice Denning as he now is. That commit.ee presented three reports. In its first interim report in July, 1946, it made some recommendations as to procedure - in particular, that the period should be reduced from six months to six weeks after which the decree nisi could be made absolute. I notice in the present bill that the uniform period has been made three months in Australia, although in some States it has been six months. !n November. 1946, the Denning committee presented a second interim report which dealt largely with other matters of procedure, whereby County Court Judges should be appointed commissioners for matrimonial causes so as to deal with the great number of divorce suits in the United Kingdom - I think they range from 50,000 to 60,000 a year- at greater speed and with less expense. Both of those recommendations were adopted by the United Kingdom Parliament. in February, 1947, the final report of the committee was made, setting out in detail machinery for reconciliation. For example, it dealt with the marriage welfare service, with giving more dignity to registry office marriages, with child welfare, with alimony and maintenance - making proposals to block up some of the methods of delay and evasion in that regard - and with questions of permissible evidence and court procedure. The Home Secretary then appointed a departmental committee to consider on what lines such marriage guidance could be advantageously developed as a form of social service.

On this side of the House there seems to be unanimous approbation of the innovation which the honorable member for Balaclava has made in providing two clauses dealing with reconciliation which allow considerable latitude to the parties and to the tribunals in effecting reconciliation with a minimum of technicality, expense and delay.

I have outlined the steps that were taken ten years ago in the United Kingdom and which were implemented after due consideration by a skilled committee. More recently, a royal commission on marriage and divorce was appointed by the Churchill Government. It comprised thirteen men and six women. It was presided over by Lord Morton of Henryton, a Lord of Appeal in Ordinary. It included among its other members Lord Keith of Avonholm, another Lord of Appeal in Ordinary, Mr. Justice Pearce of the Probate, Divorce and Admiralty Division of the High Court, Lord Walker, Q.C., and Mr. Geoffrey Lawrence, Q.C., who recently has greatly distinguished himself. Honorable members will be able to appreciate that the personnel of that committee included some of the highest members of the judiciary and men of the greatest distinction in the legal profession. They were willing to take part in the deliberations of that royal commission.

In a very full report, which was presented on 20th March last year, the various opinions of the nineteen members were set out with great frankness after hearing evidence from a great variety of welfare organizations and representatives of the churches - including the Archbishop of Canterbury, the Cardinal Archbishop of Westminster and leaders of the free churches, as they are known in the United Kingdom. The committee recommended two grounds which do not appear in the present bill. I merely mention these as examples - wilful refusal to consummate, and artificial insemination by a donor without the husband's consent. The committee recommended, also, that alterations should be made to two existing grounds which the bill leaves unchanged. One simplifies the ground of cruelty. The other does not insist on an unbroken period of three years' desertion but permits two periods of desertion, amounting to three years in all, thus removing the present incentive to remain apart for three years rather than risk a return to married life. I note that the honorable member for Balaclava has, in effect, adopted another alteration recommended by the royal commission on conduct amounting to desertion. The royal commission's report dealt also with other outstanding matters such as property rights, including the vexed question of whether a woman is entitled to retain what she has saved out of her housekeeping allowance, the protection of children, and various matters of reconciliation.

We can still learn a very great deal in social and legal problems from the United Kingdom. The Parliament at Westminster, in 1946-47 and again in 1955-56 saw fit to appoint these committees, and if such distinguished persons who comprised them were willing to participate in the investigations of these important subjects, I do not think that we need to be coy about setting up a similar committee. May I be forgiven for obtruding a personal note? I have had the privilege for some months now of being a member of a joint select committee upon which the honorable member for Balaclava also sits. I am sure that every member of that committee knows very well the contribution that the honorable member can make to the work of such committees. On this subject, to which he has devoted so much of an active and distinguished life, I should imagine that he would be of still more assistance. I do not, nor. I believe,, do members of the Opposition generally, wish at this stage to traverse the various grounds and procedural matters, and any comments that I make on them are not to express a dogmatic opinion - I confess that I would benefit as much as any one from further consideration of this extremely complex but important matter - but merely to indicate subjects which do show that this is important and deserves perhaps still further consideration.

I have dealt with the fact that there has been consultation with other legal bodies. From my recollection, they approved a draft which was significantly different from the bill before us.

My second point is that under this bill two grounds, one in New South Wales and one in Western Australia, which are the most frequently used in those States, will no longer be available.

An honorable member interjecting.


Mr WHITLAM - I do not want to be facetious, but Western Australia is the only State in which adultery is the most popular ground for divorce - perhaps I should say the ground most frequently stated or proved. The two grounds which I have mentioned are, in New South Wales, dissolution for non-compliance with an order for restitution and, in Western Australia, dissolution after separation for more than five years with no reasonable likelihood of resumption of cohabitation It may be that those grounds should not be available in Australia as a whole. It may be that they should no longer be available in the two States to which I have referred. I think that in recent years South Australia has adopted the Western Australian ground, but that very few dissolutions are granted upon it. Whether one should or should not have those grounds in New South Wales and Western Australia, or whether one should or should not have them in Australia as a whole, can be better decided after a committee, royal commission or other body of inquiry has considered the whole matter.

I would like to give honorable members the figures for these grounds in the respective States. The most recent figures available are those for 1955. In New South Wales 1903 divorces, or 66 per cent, of the divorces granted in that State during the year, were granted on the ground of desertion. I cannot cite for that year how many decrees were granted for desertion following on non-compliance with an order for restitution, and how many for desertion for three years. Figures over the years show that nearly as many men as women sue for divorce on the grounds of desertion, and that half as many men sue on the ground of non-compliance with an order for restitution as sue after three years. If one includes petitions by wives, one finds that a quarter of the decrees for dissolution on the ground of desertion in New South Wales are granted on the specific ground that an order for restitution has not been complied with. That is, some 500 a year are so granted. Thus, the rights of 1,000 adults and possibly many hundreds of children will be affected by this bill each year. I know that it is said-


Mr Beale - Indeed, a very distinguished judge said it the day before yesterday. He said that in six years only one in each year had been genuine.


Mr WHITLAM - I am closely acquainted with the learned gentleman to whom the Minister refers, and I know that that opinion is very frequently expressed from the bench and from the bar. As the honorable and learned Minister also knows, however, a very thorough investigation of this subject was conducted some years ago by the late Mr. Justice Bonney, a former Judge in Divorce in New South Wales. I should say that his capacity for taking pains has never been surpassed, and rarely equalled, on the bench or at the bar. He conducted the most exhaustive inquiries through the divorce office, and through attorneys practising in that jurisdiction. He came to the conclusion that in between 7 per cent, and 10 per cent, of the cases where the preliminary letter requesting return to cohabitation was sent there was, in fact, a return to cohabitation, and that in another 7 per cent, to 10 per cent, of cases where a petition for restitution of conjugal rights was served, there was in fact a return to cohabitation. Therefore, if that investigation was correctly based, one cannot lightly dismiss a procedure which results in the restoration of between 14 per cent, and 20 per cent, of marriages in which the initial steps are taken. Be that as it may, the fact is that a quarter of the divorces on the ground of desertion in New South Wales are granted in this fashion.


Mr Beale - The figure is a quarter of 66 per cent.


Mr WHITLAM - That is so. In Western Australia the other ground, that of separation for more than five years with no reasonable likelihood of resumption of cohabitation, applies. In 1955, there were in that State 479 decrees for dissolution, of which 127 were made on this ground. I appreciate that it is a novel ground. It is one of the few grounds in Australia where fault does not have to be proven on the part of the respondent, but it is surely significant that in 30 per cent, of the divorces granted in Western Australia it is availed of. It surely deserves further consideration.

I have mentioned these figures merely to illustrate some of the problems which arise when one considers the question of grounds of divorce. I have expressly resisted any temptation to express views as to whether divorce should be more liberal or more restricted, or as to whether those grounds should be of universal application, should be cut off forever, or should await the further amendment of this bill.

Let me now, Mr. Speaker, illustrate one question of procedure which occurs to a New South Wales practitioner. For the last ten years, it has been possible in New South Wales, in the interests of speed and saving of expense, to have matrimonial causes in country districts tried by District

Court judges, as for the last ten years it has been possible in the United Kingdom to have them tried by County Court judges.


Mr Beale - Does the honorable member refer to the trial of issues of fact by the remission of issues?


Mr WHITLAM - Yes. In uncontested country cases, the whole matter is automatically determined by a District Court judge in New South Wales.


Mr Freeth - Is there not still a fair amount of delay?


Mr WHITLAM - Indeed there is, but it varies from country circuit to country circuit. I think that I am correct in saying that there is certainly not nearly as much delay as there is in having such matters tried in Sydney, or on circuit, by justices of the Supreme Court, and there is certainly less expense. I am sure that 1 am correct in saying also that there has never been any public comment or protest - nor, so far as I know, has there been any private comment or protest - at the way in which District Court judges in New South Wales and County Court judges, sitting as commissioners, have dealt with these matters in the United Kingdom. Those procedures will no longer be possible under this measure. Again, sir, in many formal matters, there is the expeditious and cheap procedure before the Divorce Registrar, or his deputies, in New South Wales. I think it is at least doubtful under this measure, after the Boilermakers' case, whether registrars would be able to carry out those judicial functions.

I raise these matters because every year in Australia they affect many hundreds of litigants among our fellow citizens. 1 should hope that these matters could be dealt with by the joint select committee which I have proposed on behalf of the Opposition. 1 should think that the non-partisan character of this bill would not be impaired in any respect by its being referred to a joint select committee, because all parties and both Houses would be represented on it. It is certain, I should think, that the honorable member for Balaclava would be a member of the committee, and, I should think, would chair it, and there would be greater assurance in all sections of this House and of the other place, as well as in the community as a whole, that the very fullest consideration had been given to this serious sociological and humanitarian problem. 1 have expressed no concluded views, because I want guidance myself. I do not think that any member of this House would say that he would not be the richer for having participated in the work of such a committee, or for having read its report, and I feel that the community itself also would be re-assured.

I make this suggestion in no carping spirit, because I want to return to the note on which I began: We thoroughly applaud and admire the work that the honorable member for Balaclava has done this year, and did two years ago, on this very subject. We think that his bill is a good one, and we join in the tribute that he paid to the Parliamentary Draftsman for the very skilful assistance which was given by him and his staff. Speaking for myself, Mr. Speaker - because, here again, the Opposition takes the same attitude as the Government an,j considers that we should decide as individuals what our attitude towards this bill will be - I think that this measure is a great improvement on every existing matrimonial code in Australia and its territories. I would rather have this bill than any of the existing codes. I think that this measure, for the first time, makes us regard Australian family law from the stand-point of Australians. I say that as an individual, and I am sure that I speak for every member of the Opposition in saying that we feel that this bill, good as it is, would be better still after it had received the consideration of the joint select committee that I have proposed. Therefore, I move -

That all words after * That " be omitted with a view to inserting the following words in place thereof: - " the Bill be referred to a Joint Select Committee of both Houses of the Parliament because of its great importance, its far-reaching implications to all sections of the community, and the necessity for the widest possible prior consultation with child welfare and marriage guidance councils, churches, and social institutions vitally interested in the matters covered by the Bill ".







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