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Thursday, 19 November 1959

Dr EVATT (Hunter) (Leader of the Opposition) . - I intervene to try to clarify the position from my own point of view. This committee last night agreed to the inclusion of paragraph (m) of clause 27 as a ground for divorce. This morning the honorable member for Mackellar (Mr. Wentworth) moved an amendment to this effect -

A decree of dissolution of marriage shall not be made on the grounds specified in paragraph (m) of clause 27 of this Act where the suit is defended.

I do not want to say much about this amendment, because I want to pass on to what might be called another point of view, which is contained in an amendment also circulated by the honorable member for Mackellar. However, 1 will consider first the amendment I have just read. It seems to embody a rather contradictory idea, because the acceptance of paragraph (m) of clause 27 seems to imply that a divorce may be obtained in the circumstances set out in that paragraph, subject, of course, to the safeguards mentioned in the other amendment. I do not think there can be any question about that. The purpose of the Attorney-General (Sir Garfield Barwick) was to provide safeguards and to add to those safeguards, always having in mind the fact that we are breaking new ground in a law of divorce. It is perfectly true that New Zealand has, to some extent, adopted the principle that without proof of matrimonial offence in the strict historic sense a divorce is obtainable after so many years' separation. It is also true that Western Australia has had such a provision for fifteen or seventeen years. It does not matter how many members of the tribunal in England favoured acceptance of this ground. It was discussed, and some favoured it. The theory of it is, in modern times, that if there is a break-down of marriage the law cannot permit the marriage to be given away by the authority of the State.

The period of five years is an enormous period of separation. Western Australia has a provision under which, in certain circumstances, another chance is given to one or both of the spouses. I do not intend to argue the question of how far the principle of break-down applies or what limitations there should be. But certainly the Government, through the Attorney-General, has added various safeguards. Adultery by the petitioner, whether it took place before or after the separation, is reckoned against him. If the divorce would be harsh and oppressive, that is reckoned against the petitioner. Then we have the provisions as to financial payments in certain circumstances. From the practical point of view, the safeguards are not contradictory to the ground stated in paragraph (m). When we say that this is a ground for dissolution of marriage, we mean that a court exercising federal jurisdiction can, subject to these safeguards, grant a divorce.

Because of its form, there may not be a direct contradiction between the amendment of the honorable member for Mackellar and the proposed new section 32b. It is very like it, and no doubt many honorable members this morning thought that the amendment was an attempt to contradict the decision of the committee taken last night. I pass from that amendment.

Sir Garfield Barwick - The other amendment is not before us yet. It has not been moved.

Dr EVATT - No, it has not been moved, but I can look at it as an idea. That is all I am doing, and I am only doing this to assist the committee. Somehow, we must try to break the deadlock that seems to have occurred. If it were removed, the passage of the bill might be assisted. The honorable member for Mackellar moved an amendment to provide that the decree of dissolution shall not be made on the ground specified in paragraph (m) of clause 27 where the suit is defended. If the suit is defended, then the person defending it - not by proving anything but merely by being there to defend it - can procure the result that the decree shall not be made. This amendment has been discussed. But there is a second amendment. I shall read it with the permission of the honorable member.

Sir Garfield Barwick - I did not say to read it; I said it is not before the committee yet.

Dr EVATT - It is not before the committee yet, but I put it forward as an amendment which has been distributed by the honorable member, and which has been discussed by him with other honorable members. I merely put this as a possible view. I want to read it to show that there is another approach which may be acceptable to the Attorney-General. I want him to consider it, and unless I read it, he cannot consider it.

The CHAIRMAN - I think the right honorable gentleman is wrong. He cannot discuss proposed new section 33a until proposed new section 32b is dealt with.

Dr EVATT - I do not want to use the words; I want to put a proposition.

F.9421/59.- R.- [Ill]

The CHAIRMAN - It is not before the committee.

Dr EVATT - It is not formally before the committee; but an amendment can be foreshadowed or it can be said that other honorable members intend to move amendments.

The CHAIRMAN - It is against Standing Orders.

Dr EVATT - I wish to read a possible formula-

The CHAIRMAN - You may refer to it incidentally, but you may not debate it.

Dr EVATT - 1 merely want to indicate, without debating it, that another alternative will be placed before the committee at some time. The proposition is that a further safeguard should be included in the bill. I have referred to the safeguards inserted by the Government through the Attorney-General. I think this would relieve the minds and hearts of many people who are concerned about the position of the spouse. This safeguard is -

A decree of dissolution of marriage shall not be made on the ground specified in clause 27 (m) in a defended suit unless the petitioner has satisfied the court that the separation was in part due to the unreasonable conduct of the other spouse.

I think the anxiety in the minds of quite a number of honorable members is-

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

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