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Wednesday, 18 November 1959


Mr WARD (East Sydney) (12:48 PM) .This is obviously the most objectionable feature of the legislation. As I listened to the debate proceed. I was greatly surprised that the Attorney-General had introduced it and persisted with it. It would seem that there would have been very little opposition to the bill which was presented to this House by the honorable member for Balaclava (Mr. Joske). Perhaps there is a little professional jealousy between these legal men over this measure. Perhaps the Attorney-General was faced with the problem of making this bill somewhat different from that which was introduced by the honorable member for Balaclava, so that in future the legislation will be called, not the Joske Divorce Act, but the Barwick Divorce Act.

Let us examine what the AttorneyGeneral has done. He has not taken the Western Australian provision and transferred it to the Commonwealth legislation. He has set himself to amend it. In Western Australia, if certain offences are committed by the petitioner, and proved to the satisfaction of the court, the court has no discretion at all in the matter. It must reject the petition. Honorable members must keep in mind that this is not a question of an ordinary court action, in which an innocent person moves the court to obtain his or her freedom. It is a question of giving a guilty person and an innocent person equal rights to approach the court for relief. What does that, in fact, mean?

It is quite true, as the Attorney-General has pointed out, that the provisions in this bill in regard to the maintenance of a wife who is respondent in a divorce case, or of any dependent children, appear to be a big improvement on the arrangement that previously existed. But I think that, when we set out to get uniform divorce laws, we should not be satisfied to grab the first measure presented to us and to accept it just for the purpose of getting uniformity.

I have seen the various maintenance provisions operating in the State sphere and I know that there are many occasions when an unfortunate woman is sorry that she ever obtained a maintenance order, because, if her husband clears out, she then has to go through the process of having a warrant issued for his arrest. It would appear that, in many cases, the police are not very anxious to apprehend the offender or very active in pursuing him. Under the existing social service law, the wife has to wait six months before she can receive any benefit from the Department of Social Services, which, within that period, regards a maintenance order, even if it is unsatisfied, as income in determining eligibility for socal service benefits.

What will be the position under the terms of this bill? The Attorney-General has pointed out that, in respect of property, a deed or an order can be made and registered, and I imagine that it would be very easily enforceable if the person against whom it was made failed to comply with it. But maintenance is in a slightly different category. It is perfectly true that, under the terms of this measure, the wife has an opportunity to get a court to make an order for maintenance, but the responsibility for taking the initiative in seeing that that order is enforced still rests with the unfortunate victim of the broken marriage. I believe that, if you want to make this protection complete in respect of both the wife and the children, the obligation and the responsibility for enforcing the order should be placed on the court itself. If the court can enforce an order with respect to the distribution of property, it can easily enforce an order imposing a penalty on the guilty person and ensuring that he maintains those dependent upon him.

It is a remarkable thing that some people see great virtue in this paragraph, but the Attorney-General, evidently, does not share the confidence possessed by other honorable members who support this provision, because he himself has already expressed some very serious doubts as to whether it will work satisfactorily. The honorable gentleman said, in his secondreading speech, that he is not certain that it will not be subject to abuse. He compared this paragraph and the provision in Western Australia, and he said -

But neither measure seems to me altogether satisfactory.

One would expect the Attorney-General, who presented this measure to the Parliament, fully to support this paragraph, but he said himself that neither this provision nor the one in Western Australia is satisfactory.


Sir Garfield Barwick - That is not right.


Mr WARD - I have the Minister's speech here.


Sir Garfield Barwick - Read it again!


Mr WARD - If the Minister wants to correct his speech, he may be entitled to do so, but I am reading from page 11 of the circulated printed copy of his secondreading speech, where it is recorded that he said -

But neither measure seems to me altogether satisfactory.

The honorable gentleman then went on to say that he was not satisfied that this provision would not be subject to abuse. If the Attorney-General is not satisfied, why should we be satisfied to accept this provision?

We know that when lawyers begin to talk about the public interest and use similar terms which have to be determined by the court their idea of what constitutes the public interest may be completely foreign to the view held by other members of the community. I shall be quite frank with the committee. If two people who have married find that they are incompatible, and they want to separate, I would not worry about it if there were no children; I would make the way easy for them to have a divorce. But I think that, where children are involved, we are not taking sufficient care to see that the interests of the children are protected.

Here is another reason for my opposition to this paragraph. Two people may marry young in life. They may be happily married for three or four years and may have three or four children. The husband may have been a good husband and father, but, after about four years, he may suddenly become infatuated with another woman and leave the home. From that point on, he may not take care of his children, he may not protect them and he may not give them the assistance that they should receive from him. If such a husband stays away for five years and then takes divorce proceedings, under the Western Australian law at least, if it can be proved that some matrimonial offence has been committed by the petitioner within the fiveyear period, the court has no option but to reject the petition. But, under the terms of this paragraph, the wife may prove to the court beyond doubt that the husband had beaten her or that he had left her without sufficient maintenance and the court may use its discretion and refuse the petition of the deserting husband. On the other hand, it may, in its discretion, grant the petition if it regards such a course as being in the public interest.

It is of no use for honorable members to quote Western Australian divorce figures. That is a wrong approach entirely. If there were only one case of an innocent person in Western Australia suffering a penalty as a result of an action taken by the guilty party, in my opinion even that one case would warrant our refusing us to write this principle into the present bill.


Mr Chaney - That sort of thing will happen, in any case.


Mr WARD - Apparently, because the honorable member thinks it will happen in any case, we have to make it legal by writing into a Commonwealth act this provision which permits it. I invite those honorable members who are so vociferous in acclaiming my remarks to show me where else in Australia, except in Western Australia, a guilty party can at present take the action necessary to bring about a dissolution of marriage. This principle is a complete violation of what I regard as one of the sound principles in law - that whatever protection is afforded by the law shall be afforded only at the instance of the innocent party. The Attorney-General says that there must be some protection for a person where the other party has been guilty of outrageous conduct, and that, therefore, the court is to be given discretion. Is it not interesting that honorable members opposite who support this paragraph and who say, " It is in the public interest to see that where- ".


The CHAIRMAN - Order! The honorable member's time has expired.







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