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Thursday, 12 November 1959


Mr STEWART (Lang) .- In this bill an attempt is being made to provide a uniform divorce law throughout Australia. It was brought down by the AttorneyGeneral (Sir Garfield Barwick) after the path had been laid by the honorable member for Balaclava (Mr. Joske) in a bill which he brought down not so long ago. That bill had much more to commend it than this measure. I feel that the honorable member for Balaclava made a sincere and courageous attempt to bring about uniformity of divorce in Australia without pandering to the interests of any section of the community. Uppermost in his mind was the welfare of the family in Australia.

The bill before the House commends itself because of its attempt to establish uniform divorce law in Australia. It contains certain aspects which have brought praise from most sections of the community. I refer particularly to the part dealing with conciliation and that which covers the care and welfare of children. Another part provides encouragement for marriage guidance bureaux and family welfare organizations. There is also the provision restricting divorce within the first three years of marriage. But I feel that outside those few points this bill has much in it which should be condemned.

Although I have no intention of speaking about the religious aspects of marriage and divorce, I feel that at this stage I should say I believe the Churches have every right to express an opinion on this subject. Not only does divorce involve civil law but to most of the Churches it involves divine law also. Constantly in this House and in other places and in the press we find that whenever the Churches voice an opinion, whether it is on communism, divorce, education or any other matter which may be of interest to the community, certain individuals criticize them and say that they have no right at all to intervene. Above all, this is a matter on which they have every right to express an opinion. They have stated their views most conservatively and in particularly mild language. Whatever resolutions have been passed, whether by the Church of England, or by the Catholic Church in Australia, they have all been couched in the most conservative terms and have been a sincere attempt to point out to the people of Australia the pitfalls that might lie in the way of making divorce in Australia easier than it is at the present time.

Therefore, any honorable member who says that the Churches' duty is to teach the Ten Commandments and stay out of this matter because it is of purely political concern is going too far. The Churches have every right to voice an opinion on this subject or on any matter which concerns the welfare of Australia. People who say that the duty of the Churches is 'only to teach the Ten Commandments would possibly do well to endeavour to live up to the Ten Commandments themselves. If each one of us tried to do that, we would find that many of the laws of this country and of other countries would not be necessary.

I say this to indicate that this matter involves not only a moral and sociological issue but also a civil issue. As the guardians of our welfare, the Churches, irrespective of denomination, have a right to voice an opinion based on their particular principles. Divorce is a moral issue and the provisions of this bill should be discussed fully and openly in this Parliament and be listened to by all sections of the community without bias. As the AttorneyGeneral pointed out in his second-reading speech, the paramount aim of the bill is to preserve the family. To do that, we have to see that we do not make it easier for people who enter into marriage to obtain a divorce without due and proper consideration. Unfortunately, I believe that the Attorney-General has erred in including in this bill many of its provisions.

I say that because in the summary which he issued on the bill, as well as in his second-reading speech, I find that not one cause for divorce in any of the States has been deleted. Perhaps the only condition that has been restricted is that of the restitution of conjugal rights which applies in New South Wales. It is interesting to note that in New South Wales five new causes for divorce have been included and five of the existing causes extended. In Victoria five new causes have been added and six existing causes extended. In Queensland nine new causes have been added and two extended. In South Australia one new cause has been added and six extended. In Western Australia two new causes have been added and four extended; and in Tasmania five new causes have been added and five extended.

In the Attorney-General's explanatory memorandum on the bill, the grounds for divorce in the United Kingdom are shown. It appears that there are seven grounds for divorce in Australia which do not exist in the United Kingdom. For the AttorneyGeneral to say that the paramount aim of this bill is to .preserve the sanctity of marriage and the welfare of the family and then to extend the grounds for divorce in every State is like giving with one hand and taking away with the other.

I do not criticize the Attorney-General for insincerity or for not having made a definite attempt to bring a bill before this House which would meet with the approval of the Australian people, but I cannot help feeling that he made up his mind without due and proper consideration of what lay before him. I do not say this disparagingly, but I feel that most of the information on which the Attorney-General acted was a result of the efforts of the honorable member for Balaclava (Mr. Joske) and of people in the Minister's department. In the United Kingdom, before the Parliament amended the marriage and divorce laws, it appointed a royal commission, which inquired into the matter from 1951 to 1955. A perusal of the report of that commission shows that it took evidence from multitudes of organizations and individuals.

I cannot help feeling - and again I do not say this disparagingly - that this bill has been made by lawyers, for lawyers and on the advice of lawyers. At the stage when the bill is being debated in this House, after having been discussed in the community for a number of months, we find a great divergence of opinion on two or three of the clauses contained in it. There is much difference of opinion on whether this should be allowed or that should be allowed. The matters now being put before the House should all have been considered before the bill was brought down. I think it is worth while reminding the House - although it has been reminded on earlier occasions - that within a very short time of the introduction of the bill the Attorney-General had to announce 56 proposed amendments. Some of them, as he says, are merely machinery amendments designed to make the legislation work a little better, but others are quite substantial. If it was found necessary, after representations had been made to him by certain organizations, to make so many amendments to the bill, surely there must be a number of other errors in it which will come to light when the legislation is put into operation.

As a layman I cannot, unfortunately, understand the bill as well as the AttorneyGeneral undoubtedly does, and there are one or two features of it which seem to me to need a certain amount of explanation. Let me first congratulate the AttorneyGeneral on the provisions for conciliation and for assistance to marriage guidance councils throughout the Commonwealth. The Minister said, in his second-reading speech -

I do not hold with the view that this work can be done satisfactorily by people who make it no more than a means of livelihood. The work will best be done by those who, as well as being trained, have a sense of vocation and who, to a large extent, volunteer their good offices in this very skilful and sympathetic task.

At a later stage the Attorney-General spoke about the duty of a judge in a divorce case. The relevant clause of the bill is clause 14. - (1.), which says: -

It is the duty of the court in which a matrimonial cause has been instituted to give consideration, from time to time, to the possibility of a reconciliation of the parties to the marriage.

This also is a provision deserving of praise. Later in his second-reading speech the Attorney-General said that the judge had certain rights to conciliate personally or to appoint a conciliator, or to do various other things. The Minister said: -

I am conscious that a judge, who unwisely intervenes and fails of his purpose, may thus cause the parties delay and expense while another judge is found and the case recommencd. But I would expect judges not to undertake to conciliate unless there are sound prospects of success, and the parties will no doubt realize before giving their consent to conciliation by the judge himself that they may thereby involve themselves in some additional costs.

They will have to pay additional costs in the form of extra legal fees. If, in the view of the Attorney-General, people who are to act as marriage guidance councillors should do that work, to a large extent, voluntarily and out of a sense of vocation, then I think it is only reasonable to expect that if a judge intervenes in order to conciliate in a divorce matter, the legal men acting in the case should also volunteer their services out of a similar sense of vocation, in order to preserve the welfare of the family. Without being in any way disparaging, let me remind the House that lawyers are able to act in divorce matters only because of the unhappiness of the unfortunate married couples, and if they are prepared to take on such cases, then surely they should also be prepared, if a judge attempts to conciliate, to refrain from charging extra fees.

I wish to refer also to the matter of damages. If I read the bill correctly, damages can be claimed only when adultery is involved. Surely a man who walks out on his wife and children and leaves them to provide shelter, food and clothing for themselves, or at the mercy of charity, is as much to blame as an adulterer. The man who walks out on his responsibilities deserves no more consideration than the man who is unfaithful to his wife. In many cases the main reason for a man walking out on his wife is that he is going to seek some other woman. Why is there not a provision in the legislation to allow any person who is not a guilty party to sue the guilty party for damages?

Provisions such as this would tend to make divorce harder and to safeguard the sanctity of marriage and the welfare of the family. But no such provisions have been included in the bill, and the only ways in which the Minister has attempted to achieve these desirable ends is by encouraging and assisting marriage guidance councils and having judges conciliate in certain cases. The Minister has made it less difficult for a person to get a divorce than it would have been in the past. As a matter of fact it will be much easier, under the provisions of this bill, in every State of the Commonwealth to obtain a divorce than it is at present. It was strange indeed that the Attorney-General should have spent a third of his speech talking about the welfare of the family, and about the family being the foundation of our way of life, and then devoted the rest of his time to a recital of clause after clause providing reason after reason why a man may leave his wife or a wife may leave her husband.

I believe that in most instances the reason for divorce is that the parties to the marriage are not prepared to face up to their responsibilities. Show me a divorced couple and I will show you one person, and in some cases two people who are intolerant, selfish, mean, immoral or unfaithful - people who are not prepared to make concessions to each other is order to keep their home going; people who are not in the true sense good citizens of Australia. Most of the weaknesses that cause divorce are weaknesses that can quite easily be overcome, if a determined effort is made by both parties to cure their faults. Sometimes divorce or separation is absolutely essential, for instance when there is a completely cruel husband, or one who is an incurable drunkard. But in many ways, and particularly by means of sub-section (m) of proposed section 27, which has come in for so much criticism, the Minister is making it possible for people who, for no other reason than that the wife cannot stand the husband or the husband cannot stand her, to break up their marriage, to separate, and, after five years, to obtain a divorce and be in a position to remarry.

The royal commission that inquired into this matter in the United Kingdom consisted of eighteen members, all of them of high repute in that country. Nine of them decided against the provision of a clause similar to our clause 27 (m) and nine of them were in favour of it. Those people heard evidence from a multitude of organizations and people, and the Attorney-General in his wisdom has now decided to make a casting vote and incorporate in our legislation the provision that was the bone of contention before the United Kingdom royal commission.


Mr Barnard - The United Kingdom clause provided for a waiting period of seven years.


Mr STEWART - That is so. The period of desertion in most States has been reduced from three years to two years, and the Attorney-General went to some pains to explain that that was because of the delay between the filing of the petition and the hearing of the case. But I ask him what will happen if the divorce courts catch up with the back-log of cases. Will he come into this House and say that because there is not now a twelve months delay in hearing cases, the period of desertion should be extended to three years?

Many things could be said about this bill which 1 think may be best left until the committee stage. The Attorney-General has erred in bringing down a bill that extends in all States the causes for divorce. I commend him on the conciliation aspects of the bill, on the attention that he has paid to the welfare of children and on the clause that does not allow divorce, except under certain circumstances, in the first three years of marriage. But the good work that was done by the Attorney-General, the foundation of which was laid by the honorable member for Balaclava (Mr. Joske), is undone when we consider that in all States the grounds for divorce have been extended and that in all States except Western Australia we have an absolutely new ground which will mean that people will be able to get a divorce virtually by consent. To say that that clause will not enable divorce by consent, because of the five-year waiting period will not hold water. I can envisage a married man living with a woman who is not his wife, or a married woman living with a man who is not her husband, waiting for the five-year period to pass. They may then apply for a divorce from their respective spouses, and as long as their actions in the five-year period are not revealed to the judge, he will have no reason to refuse to grant a divorce.

This Parliament could be dealing with a host of far more important matters than uniform divorce legislation in the time that is being devoted to this bill. I have no objection to uniformity of divorce law in Australia, but I object to the fact that this bill extends the grounds for divorce in the various States and makes very little attempt to achieve its paramount aim, which was to preserve the sanctity of marriage and the welfare of the family.

With respect to maintenance, new provisions have been inserted in the bill which will allow a wife to garnishee the wages of her husband in order to support herself and her children. I ask the AttorneyGeneral: What will happen if a maintenance order is issued against a husband and he then changes his name, goes to another State and disappears? How does the wife get on then? All those things should be taken into consideration before this bill becomes law. In a case such as I have just mentioned, what rights will the woman have? Those things should have been considered before this bill was introduced. At the committee stage, I sincerely trust that I will have an opportunity to discuss fully some aspects of the bill. It is not too late even now for the AttorneyGeneral to admit that whilst he thought his bill would be the acme of perfection and whilst he may have been misled initially by the praise lavished upon him by the law councils and the legal men in this House, he now finds that the people interested in the preservation of marriage - the church leaders and even some honorable members who sit on the back benches of this Parliament - know more about the day-to-day problems of ordinary people than the best legal brains.

The Attorney-General should consider withdrawing this bill and setting up a royal commission to investigate this problem thoroughly. That would allow all sections of the community - the churches, lawyers and everybody else - to come forward with information. The United Kingdom may have had a royal commission inquire into this matter which may have made recommendations; but Australia is a nation in its own right and what applies in the United Kingdom does not necessarily apply in Australia. The Attorney-General should admit that in this bill he has gone further than is right and just. He should admit that some of the clauses of the bill will not preserve the family, which was the paramount intention of the bill.

It is interesting to look at some divorce statistics. In Australia last year only 6,983 divorces were granted. That is an infinitesimal figure when we consider that only a few months ago 60,000 people were unemployed in Australia. It is ridiculous to say that a uniform divorce law is absolutely essential when so many people are without houses and so many are unemployed. The figures for 1958 show that 42 per cent. of wives who were divorced were in the 25 to 34 years age group, and 42 per cent. of husbands who were divorced were in the 30 to 39 years age group. The majority of marriages dissolved were of less than fifteen years duration and about 40 per cent. of such marriages were of less than ten years duration. One-third of all marriages dissolved in 1958 were childless. So, many people have made no real attempt to safeguard the sanctity of marriage. They have made no real attempt to see that the children they have brought into the world are given the love, care and attention of parents. The fact that divorced people are in the main up to 39 years of age and one-third of them are childless indicates that many people who are divorced failed to face up to the responsibilities of married life. I ask the Attorney-General to withdraw this bill and appoint a royal commission in order that all aspects of marriage and divorce may be considered by a truly comprehensive cross-section of Australian citizens.







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