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Friday, 19 November 1965


Mr CLYDE CAMERON (Hindmarsh) . - I begin like my Deputy Leader (Mr. Whitlam) began, and as the honorable member for Moreton (Mr. Killen) began, by paying tribute to the very great work performed in this field, within this Parliament, by Mr. Justice Joske, as he now is, and by the Chief Justice of the High Court, Sir Garfield Barwick. I think I can join the two previous speakers in adding to those names the name of the present Attorney-General (Mr. Snedden). It is to his credit that he has tackled these problems. It always takes great courage for a parliamentarian to in trude into these fields because it is only the minority that is affected and likely to benefit. Most people seem to regard this field - like death - to be a thing which will never happen to them personally. This of course, is a wrong attitude. The minority is entitled to protection, and every person in the community unfortunate enough to find that he has drifted into an unhappy matrimonial relationship is entitled to relief from it, unless it can be shown that some innocent person, other than the two parties directly concerned, is likely to be adversely affected by the release that these laws give to people from a life of sheer misery.

Even the present law has some deficiencies that ought to be rectified by act of Parliament, if they are not shortly rectified by the judiciary. This brings me to one of the great difficulties of administering the Commonwealth law through six State courts and a Federal Territory court. There is no absolute way of guaranteeing uniformity in the decisions though, let me hasten to add here, it is to the credit of the judiciary in the various supreme courts of Australia that they have succeeded in achieving a remarkable degree of uniformity in administering this Act since it became law. I think there will come a day when the Commonwealth Government will have to give serious consideration to the establishment of a Federal court in which all Federal laws can be litigated because by this means we will have a better method of securing uniformity of interpretation.

If we had a Federal court with judges of that court acting in each of the six States it would be within the competence of the Chief Justice of that court to order periodical conferences of the judges attached to the court for the purpose of ironing out the questions that have to be left to case law for clarification. I want to quote an example. Section 28 (m) of the Matrimonial Causes Act provides as a ground for divorce that the parties have lived separately and apart for five years. Attached to that right of divorce, however, is section 37. Among the requirements that have to be met by a person seeking relief under section 28 (m) are the provisions of section 37 (1 .) which reads as follows -

Where, on the hearing of a petition for a decree of dissolution of marriage on the ground specified

In paragraph (m) of section twenty-eight of this Act (in this section referred to as "the ground for separation"), the court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground on the petition of the petitioner, the court shall refuse to make the decree sought.

The words to which I direct attention are that the court shall refuse the petition if it believes that the granting of the petition would be " harsh and oppressive " and, further on, the reference to " public interest". "Harsh and oppressive" are words which require from a judge a subjective rather than an objective test. This, therefore, depends upon what point of view a particular judge may have of the question that he has immediately before him. For example, one judge has ruled already that it is harsh and oppressive to a respondent to grant a decree to a petitioner where the respondent belongs to a religion which is opposed to divorce. For that reason, he held that it was therefore harsh and oppressive to the respondent to grant the decree sought by the petitioner because this would violate the beliefs of the respondent. This, however, is a matter upon which the various judges have not agreed by any means. The great majority of them called on to adjudicate upon this point have agreed that it is not a fair interpretation of the Act to say that it would be harsh and oppressive upon a respondent to grant the decree. Consequently, these judges have dismissed that argument as a ground for objection to the granting of a decree. I do not ask here that the Parliament should lay down in more precise terms the bars against granting a decree on grounds of separation. Personally, I think we could make a very strong case for deleting section 37 by saying that there is no more reason for attaching to section 28 (m) the conditions laid down in section 37(1.) of the Act than there is attaching that section to the other grounds for divorce. But I say that we could make a good case for and against the retention of that section.

I consider that if the section is to remain in the Act it will be better to continue as we are doing and allow the courts to give their interpretation upon what is " harsh and oppressive ". Those words leave a wide margin. There is plenty of room to swerve in the interpretation of the words " harsh and oppressive ". A very wide interpretation can be placed upon the ambit covered by the words "public interest". However, a conference ought to be held periodically so that the courts can act in a uniform way and so that people who commence petitions for divorce will know with some reasonable degree of certainty in advance the possibilities of obtaining a decree under the petition.

What I am saying now applies only if section 37 is to remain attached to section 28 (m) - the courts may be able to administer this section better than perhaps the Parliament can define it. Courts can change their attitude towards divorce as the public attitude towards divorce changes and becomes more liberal.

Having dealt with that matter, I want to move onto one other aspect that, I think, needs clarification by the Parliament. The courts have laid it down that where parties to a divorce enter into an agreement as to maintenance, it is open to either party after the divorce has been granted and the agreement has been accepted to ask the court to reassess the agreement and alter it. Let us be practical about the whole matter. Let us not be hypocritical. Let us be realistic about what happens in a divorce court. We know that a court would not knowingly grant a divorce if it knew that collusion had taken place between the parties to the divorce action. Collusion at once rules out the prospect of a petition being granted. But we know also, because we are realists, that in a great majority of undefended cases which come before the divorce courts some kind of collusion does, in fact, sometimes occur. The kind of collusion to which I refer now is that which takes place between the parties as to the amount of maintenance and property settlement that should take place upon the granting of the decree in an undefended divorce action. A husband is enticed sometimes into agreeing to an undefended action in order, perhaps, to avoid the expenses of the litigation that will follow from a defended case and also to avoid the publicity that will arise from it.

Let us take the case of a man who goes to his legal adviser in regard to a petition for divorce for adultery. That would be a ground on which the wife, if found guilty, could have no chance of getting any maintenance payment for herself from the court. She would receive maintenance in respect of any dependent children, but not for herself. Desertion would be another ground upon which a person could obtain a decree in respect of which the guilty party, the wife, would not receive any maintenance order against the petitioner. In such cases, the petitioner is quite likely to go to his counsel and ask: "What do you think my position is?" His counsel will say: " I think I can win the action. However, I cannot of course, be sure. How can I be sure? I think I can win it all right. But the respondent's counsel has been to me and he suggests that they are prepared to agree to a maintenance order of f 3 a week for the lifetime of the respondent provided you agree not to contest the cross-petition ".

Let us assume that there is a defended cross-petition for desertion in this case. In these matters the facts determine which party is guilty of desertion and whether it is straight out desertion or constructive desertion. The husband says: "If I win it will cost me nothing, according to you. If I lose as a result of my wife's cross-petition, I would have to pay probably £8 a week. If the case is undefended, there will be no publicity. I will save a lot of legal costs. Yes, I will agree to let the case be heard undefended ". There is no doubt that this is a form of collusion. The petitioner agrees that the cross-petition will be undefended. If the undefended cross-petition results in a decree being granted by. the court, the petitioner can then go to the court subsequently and say: " I want this maintenance order reassessed. The maintenance of f 3 a week is not enough ". What can the assessing authority do? The assessing authority can say only this: " The applicant in this case seeking the reassessment was the innocent party to an undefended divorce proceeding in which the respondent agreed to pay a certain amount. Because the action was undefended, we have to assume prima facie that the respondent is the guilty party ".

So the court proceeds to reassess on the basis that the respondent was the guilty party and that therefore the reassessment is to be taken purely as a case of a guilty person versus an innocent person.

Another factor that causes people to enter into an agreement is the long delay that occurs between the filing of the petition and the hearing of it. Sometimes this delay tends to induce people to enter into maintenance agreements and to allow petitions to become undefended.

It has been said that the problem can be overcome by entering into an agreement for a lump sum payment instead of weekly payments. Up until now, the courts seem to have held that where a lump sum settlement in full redemption of any entitlement to weekly maintenance is entered into, it is not subject to review or reassessment. But even these agreements are now under challenge. If an appeal has not already been filed with the High Court, I understand that one is about to be filed. It is to be argued by the appellant that even though she accepted a lump sum settlement in lieu of weekly payments as total redemption of liability, the lump sum settlement is still subject to review by the court. To me, this could be patently unjust to a respondent. For that reason, I believe that serious consideration has to be given to what is to become of an agreement freely entered into by a petitioner and respondent and what is to be its effect on a petitioner's subsequent application for reassessment.

Perhaps it is not a bad thing that in South Australia so many cases are undefended. If two people can no longer live together happily and if, by living together, one partner imposes upon himself and upon the other insufferable misery, perhaps the quicker they break it up the better; provided that no innocent third party is injured. For that reason, perhaps it is a good thing that undefended divorce proceedings have become the order of the day. In South Australia the number of divorce orders granted each year is about 1,000. Less than 50 of them, I suppose, are defended. The hearing of a defended divorce proceeding averages two or three days. Some cases may last for six or seven days and some may finish in one day.

If we do not do something to safeguard a petitioner who enters into an agreement, believing that it will be the end of things, lawyers who are doing their duty properly will tell their clients not to enter into maintenance agreements nor to allow a divorce proceeding to go undefended. Lawyers will say: "You have to fight it. You dare not let this go through, if for no better reason than to protect yourself against an excessively high maintenance order at a subsequent date." I think this matter ought to be investigated. The best way to investigate it is not only to seek -the opinion of the courts and of the profession practising in this field, but also to have those opinions studied by a standing committee of both parties in the Parliament. It would then be taken out of the realm of politics. The Parliament could then pass an act knowing that no element of politics would be injected into the debate, just as today's proceedings have been a classic example of how Parliament can operate on a non-party basis when dealing with matters of vital importance to the minority of individuals in the community who are unfortunate enough to be personally concerned with the law of divorce.

Question resolved in the affirmative.

Bill read a second time.







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