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Wednesday, 18 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - Let me first refer to paragraph (k). Of course it is not correct to say, as the honorable member for Chisholm (Sir Wilfrid Kent

Hughes) seems to suggest, that this ground is the same as the ground that exists under the New South Wales law. It is not. The whole purpose of lengthening the period to one year is to ensure that there will not be any short cut to divorce through this ground. As I indicated before, when speaking of the period of desertion, there could be no reason whatever for parties to use paragraph (k) rather than rely on the provisions relating to desertion contained in paragraph (b). It is not right to say, therefore, that paragraph (k) makes divorce easier.

Let me now shortly answer the honorable member for Mitchell (Mr. Wheeler), with regard to the meaning of the words " in accordance with law" in paragraph (1). This paragraph requires that the place in which a person is confined for the period of five years must be a place where persons may be confined for unsoundness of mind. That is to say, if a person is confined in Victoria, for instance, in an asylum, then it must be an institution in which, according to Victorian law, people may be confined. Similarly, if a person is in an institution in New South Wales, it must be an institution in which, under New South Wales law, people may be confined for unsoundness of mind. The standard of insanity has nothing to do with the matter; the paragraph merely designates the kinds of institutions in which persons may be confined.

It is important for the committee to realize how very narrow is the ground mentioned in paragraph (1). It must, of course, be read in conjunction with clause 32. It requires that the party whom it is sought to divorce must be of unsound mind and unlikely to recover. Let me say at once that the further medical science advances towards curing people, the harder it will be to satisfy a court that a particular party is unlikely to recover. The question would have to be determined on expert evidence.

It is also necessary that for at least five years, in the aggregate, of the six years before the date of the petition, the person concerned should have been confined in an institution in which persons can, in accordance with law, be confined for unsoundness of mind. In other words, it is not sufficient for the person to have been confined in some private institution, or to have remained at home although unsound of mind. The person must have been, as it were, put away, and must still be of unsound mind and unlikely to recover at the time of the hearing. This latter provision is contained in clause 32.

These are fairly wide prescriptions. They draw the picture of a person who has been of unsound mind and in an institution for five out of the preceding six years and who is still there and unlikely to recover.

I join with one other honorable member in saying that I did not take kindly to the suggestion of the honorable member for Macquarie (Mr. Luchetti) that he is the only person in this place who is a Christian. Nor did I appreciate the suggestion that only those people who are opposed to this ground for divorce are following Christian principles. It is no use saying that there is no difference, from the point of view of this kind of argument, between unsoundness of mind and cancer. A spouse with cancer can have companionship, and there can be a good deal of very pleasant life, even in looking after the sick one. But a person is put in an asylum when he is of unsound mind--


Mr Griffiths - But you do not have to put them there under the New South Wales law now.


Sir GARFIELD BARWICK - No, but let me suppose that the person is in an asylum, what of the person left behind? My form of Christianity, and I hope my humanity, causes me to look at the one who is left behind in utter, useless loneliness, unable to have any companionship and not even able to have the pleasure of looking after the other party. My Christianity says that in that event there is great virtue in saying that if that party wants to do so - he does not need to do so - and he can find companionship and meaning in life, he should be free to do so. The committee might well agree with me that this ground, which has been excluded in New South Wales for one reason or another--


Mr Cope - For what reason has it been excluded?


Sir GARFIELD BARWICK - Religious reasons have predominated in New South Wales.


Mr Cope - Tell us what the reasons are.







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