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Wednesday, 18 November 1959


Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I move -

Omit the paragraph, insert the following paragraph: - " (m) that the parties to the marriage have separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed; ".

I suggest to the committee that with this provision we debate the proposal to insert the clause contained in the amendment No. 14 which is numbered 32a and also clause 33 as in the bill, and further, amendment No. 15, which seeks to insert a sub-clause in clause 33. I make that suggestion because these clauses qualify the provision of paragraph (m). If it is convenient I shall explain the inter-relationship of all of these so that the whole ground can be seen at the one time.

The reason for the substitution of the paragraph, which is the amendment, for the paragraph in the bill, is merely for clarity of expression and to make quite sure that the ground does not cover some involuntary separation; that is, the parties must be separated. As expressed, that is made quite clear.


Dr Evatt - You have removed certain words?


Sir GARFIELD BARWICK - I have taken out of the paragraph in the bill the words " whether by agreement, decree or otherwise " and I have expressed them in proposed new clause 32a without any real change of effect. I did so because, when I discussed this matter with some members of the legal profession, some thought that there might be some ambiguity in the word " otherwise ". I must confess that I was not aware of it and I doubt whether the word is ambiguous. But I thought that there was no sense in leaving possible ambiguity, if some minds which are trained can see ambiguity. It is just as well for it to be made clear. I hope I have made it clear in proposed new clause 32a. That is the reason for the change in that respect.

The reason for amendment No. 15 is to insert a provision to make it quite clear that certain financial arrangements must be made before a court can grant a decree on this ground. The first thing I want to observe and bring to the notice of the committee is that paragraph (m) of clause 27 states only the ground on which a petition can be lodged. If honorable members want to discover what decree can be made, they must look up these other provisions to which 1 have referred. By virtue of clause 27 (m) one can put this into a petition but a court cannot make any decree on it except in accordance with the other provisions. Consequently, these other provisions are of immense importance in relation to this ground. The ground, by itself, will not take a party anywhere, because there are provisions in the act which stipulate that a decree cannot be made on this ground.

If I may, I should like to develop what these conditions are on which a court can make a decree. Let me take them in the order they appear in clause 33. A court is unable to make a decree because it has no discretion, on this ground, if it is satisfied that the conduct of the petitioner, whether before or after the separation, or for any other reason would make it harsh and oppressive on the respondent to grant a decree. My paraphrase of that is that if it would be unjust on the respondent, personally, by reason of the conduct of the other party or for any other reason, the court must refuse the decree.


Mr Ward - Give us an illustration of " harsh and oppressive ".


Sir GARFIELD BARWICK - Let us assume that a man has wantonly broken up his home - with complete abandon as it were - and disgracefully treated the lady and then gone off, as some one has suggested, and carried on deliberately with somebody else, perhaps flaunting his relationship under her very eyes. Would the court say, " You cannot have a decree in those circumstances? "


Mr Stewart - How will the court find that out?


Sir GARFIELD BARWICK - It will find it out by evidence, as it does any other fact.


Mr Stewart - Given by whom?


Sir GARFIELD BARWICK - If there is no one to give it, the court will itself ask questions. The court does not need to sit dumb when it has a duty of this kind to perform.


Mr Whitlam - The wife can defend the suit.


Sir GARFIELD BARWICK - Of course she can, and if she wants to defend it the court sees that the husband provides the wherewithal for her to defend it. She is not helpless by any means. The other condition is that the court must refuse a decree if the granting of it in the circumstances would be against the public interest. The phrase " public interest " is found in the Law Reports in relation to matrimonial causes, because the courts have traditionally looked to see whether some particular sort of conduct was against public morals. Having said that it is against the public interest, the court will refuse a decree. In the set of notes which I provided with the amendments honorable members will find references to cases where a court has actually expounded this doctrine. A particular case was one in which a marriage took place where one party was incompetent, but the marriage went on after the knowledge of incompetence. There was nothing in the positive law - the statutory law - to require the court to refuse a decree; but the court said, "We will not give you a decree because it is against the public interest to do so. It is against public morals. You cannot approbate this marriage over a period of years and then suddenly wheel round and say that you want a decree." The court regarded that as against the public interest.

Under this ground the courts will be able to develop doctrines and illustrations which will govern the conduct of parties and the granting of a decree. Those provisions in clause 33 have been thought out quite deliberately in order to prevent this ground from being abused and from being used as an instrument of unjust treatment to a party who, so far as legal matrimonial offences are concerned, is not guilty.

The next condition would be inserted by amendment No. 15, which provides that a decree shall not be made on this ground until such financial arrangements are made as the court thinks just and proper in the circumstances. I have paraphrased the amendment. That is a good charter to any court. The court is required to look at the situation and see whether there are provisions that ought to be made in order to do justice, and having found those provisions it is unable to grant a decree until the conditions are met. I had an illustration of this put to me only in the last few hours. Consider the case of a woman who has been deserted by a man who has access to some superannuation right later on. Under this provision, if she came before the court and said, "If you grant this decree I will lose that financial benefit, because I will become a divorced woman ", the court will say, " That is right, and this decree cannot be made until that right is substituted by some other arrangement".


Mr Crean - Are you referring to superannuation?


Sir GARFIELD BARWICK - Yes.


Mr Ward - Does the court take the responsibility of seeing that the order is enforced?


Sir GARFIELD BARWICK - Of course. This directs the court not to grant the decree until the arrangements have been made. They must make the arrangements and the court has to see that the necessary deeds are executed. Indeed, there is provision in this bill to enable the court to appoint somebody to sign the deed for a man, and make it binding on him, if the man has bailed up and not signed the deed.

As another illustration, consider the case of a woman who has helped to build the fortune of the family, or quietly done her part in enabling it to be amassed. Let me assume that her husband has deserted her and is suing for divorce under this provision. The court is empowered, under the provision, to do two things: First of all, to look into the circumstances of the two parties and see whether it is right and proper that some provision be made for the respondent woman. Secondly, in accordance with the provision 1 have made in clause 79, the court will have power to make a settlement of property. This is a new power in divorce law. It means that a court, using the powers under clause 33 (1.) (a), as proposed to be amended in a case where the wife has contributed something to the property by either effort or money, would be able to say to the man, "You must make a settlement; you must execute an instrument which will vest in the respondent some interest in some specific property ", and make that completely binding.

That seemed to me to provide what I called financial justice - to see that the person being divorced under this ground, unwillingly, was secure financially. If you add the three limitations together you find that there is an endeavour to see that there is no personal injustice, that the granting of the decree is not being harsh and oppressive--


Mr Ward - What is the position if an order for maintenance is not observed? Does the court accept the responsibility of seeing that it is enforced?


Sir GARFIELD BARWICK - No.


Mr Ward - That is a weakness.


Sir GARFIELD BARWICK - It has never been so anywhere in Australia. The party always has to enforce it, but I have provided in this bill much greater facility for enforcement, because under this bill a maintenance order can be registered in any court in the Commonwealth, whether a court of summary jurisdiction or a supreme court, and be enforced immediately through that court as if it had been made by that court. As honorable members know, I have also provided the power to garnishee. This is a new provision in this country. The honorable member for East Sydney is quite right; the court itself has never undertaken the job of enforcing these orders. Alimony orders are enforceable by imprisonment, and the court will, of course, grant an application for committing a man to prison if he disobeys an order of this kind, so in that sense the court participates in the enforcement.


Dr Evatt - In the direct sense.


Sir GARFIELD BARWICK - Yes. Now I should like to return to the point I was making when the honorable member for East Sydney interjected. The conditions of the decree are, first, that it shall not be harsh and oppressive to grant it. I called that an endeavour to secure personal justice. The second is that the granting of the decree shall not be against the public interest. I called that an endeavour to secure the community against wanton and outrageous conduct - immoral conduct in the community sense. Thirdly, financial justice is secured to the party by means of this provision under which the court is directed not to grant the decree until financial arrangements which it thinks just and proper in the circumstances have been made.

There is also a qualification that adultery, whether before or after the separation, is a discretionary bar. That means that the court is able to look at the circumstances of the adultery, pass upon it, and say whether the circumstances were such as warrant a refusal of the decree. While I am dealing with this matter I should like to compare this provision, first of all with the Western Australian provision as it now exists. In Western Australia at the moment there is this five-year-separation ground, expressed somewhat similarly to the ground in 27 (m). There is an absolute bar - in fact there are a number of them. First of all, there is the commission of adultery in that five years. That is to say, in Western Australia the adultery that perhaps caused the separation and which occurred before the separation, is out of mind. Under this bill it is not.

Sitting suspended from 11.30 p.m. to 12 midnight.

Thursday, 19 November 1959







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