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Wednesday, 18 November 1959


Mr E JAMES HARRISON (Blaxland) (1:29 AM) . - In dealing with this matter, we should look at the whole framework of this bill rather than the clause itself. As I said earlier, it is my considered view that if this clause is removed we shall spoil a piece of legislation that is designed for the protection of both parties right from the commencement of marriage. There is provision for marriage guidance councils, which are designed to prevent divorce. The submission made by the honorable member for West Sydney (Mr. Minogue) was not a laughing matter. It went to the crux of the situation that has to be faced. A child, even though it may be the product of an illicit association, should have a proper place in society. What right have we to condemn that child, which had no say in the affairs of its parents, to bear throughout its life a stigma which it would not bear if we had legislation in this form?

If, in point of fact, this were a provision designed to give a guilty party freedom without obligation, there would be a great deal in what has been said in opposition to it. But it is not designed to do that. We must keep in mind that, if I understand the measure correctly, when a guilty party makes an approach to the court at any time, the court, within the framework of this legislation, will see that that guilty party carries his share of responsibility for the upkeep of the family he has left. That is a factor of great value, which will disappear unless this provision is carried into effect.

Let us consider the new act, as it will be, divorced from this provision. Then let us take a case such as the honorable member for West Sydney mentioned. There is no ground for redress there. I can appreciate the honorable member for East Sydney (Mr. Ward) being so concerned about the protection of the child, irrespective of what the faults of the parents may have been. That is the most important factor. In the case outlined by the honorable member for East Sydney, a break in the marriage relationship takes place, but there are no children involved. In a case such as that, I should not like to be the one to decide who was the guilty party. Perhaps, after a period of two or three years, the husband or the wife finds some one else and forms an alliance, as a result of which children are born. The Attorney-General was right when he said that illegitimacy is a brand and a condemnation carried for all time. Would it not be right and proper to give that party his or her freedom, not as a matter of right, but after the court had had an opportunity of investigating the situation? That is what this provision would make possible.

If this provision is taken out of the bill, it will destroy the very principle which makes the bill so important as a piece of nation-wide legislation. That is why I have supported this measure right through. This provision is the finishing touch to a plan that has been laid down on an Australiawide basis for the first time. Its purpose is not to provide an easy way to divorce. It seeks to provide a code which, in my view, will have the effect of strengthening marriage ties throughout Australia by making use of marriage guidance councils, working under the close supervision of the Churches, irrespective of denomination. The marriage guidance councils will also play an important part when either party comes before the court for relief from a condition which he believes is not in the best interests of either or both parties.

This clause does not confer upon an individual an undeniable right to gain freedom. Its purpose is to bring before the courts cases which should be examined by somebody. So far as I am concerned, after a five-year separation a marriage has gone on the rocks. The clause is very clear. Surely none of us would like to create a situation which would prevent an examination being made then, in the interests of the parties concerned. The new paragraph which the Attorney-General has moved to be inserted refers to the parties to a marriage having separated - that is the first point - and thereafter having lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there being no reasonable likelihood of cohabitation being resumed. We are not dealing lightly with this matter. The term of five years proposed represents 7 per cent, of the allotted span of life of 70 years. If a couple have been separated for 7 per cent, of their full allotted span, and at the end of that period they have come to the conclusion that cohabitation is not possible, then it is time for some authority to examine the situation in the interests of the moral standards of the community. I should not like to be the one to judge who was the guilty party. That responsibility is placed upon the court. The petitioner has to make an application to the court, and the court makes an examination. That is a fact we seem to be losing sight of when we are talking about guilty and innocent parties. If the guilty party is so clear in his or her mind that he or she has a case which will warrant the court, having regard to all these safeguards, granting a decree, and if that party makes application for a decree in the full knowledge that he or she will have to face an investigation, the court should be empowered to grant a decree if it is satisfied that that would be in the best interests of the parties. But without this provision in the legislation, that would not be possible and this problem could not be solved. I have no hesitation in supporting the clause and I hope that the committee will agree to it.


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







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