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Wednesday, 27 November 1974
Page: 2848


Senator BUTTON (Victoria) -I support the recommendation for a period of 12 months' separation. As Senator Missen has said, it is a matter of judgment for each of us. In a sense my judgment has been determined by the report of the Senate Standing Committee on Constitutional and Legal Affairs of which I was a member. I want to say something about Senator Durack 's amendment and the context in which it was put. To be fair to him, what he really said was that in this Family Law Bill we have some proposals which in one context he described as revolutionary and in another as far reaching, and I agree with him. He then went on to say that having made those sorts of changes, having introduced a ground of irretrievable breakdown, we should perhaps retreat slightly from that position, and that when we look at the period for which separation must be established we should make it 2 years instead of one year because we may have gone a bit far in establishing the new ground of irretrievable breakdown.

What I am really putting to the Senate is that the sort of criteria which Senator Durack put forward in support of his proposal for 2 years are not logically valid. The period of time is a matter of judgment and is quite independent of the ground of irretrievable breakdown, the establishment of that ground and a number of other factors which are new and have been described as revolutionary in this legislation. I agree with Senator Missen when he says that the relevant period must be looked at in the light of other proposals made in the Bill- for example, the almost instant availability of counselling facilities and the whole structure of the Family Court.

I also remind honourable senators that it is not compulsory, as some have almost suggested by implication, to seek a divorce after 12 months separation. With the amendment to clause 26 (2) a party cannot proceed with a divorce until that ground of 12 months separation has been established, which means that it will probably be 18 months or so before a divorce is granted. It has been said by Senator Missen and me that this is a matter of personal judgment. One factor which has strongly influenced me in exercising my judgment in favour of a 12-month period is simply that we are dealing with a situation of marital breakdown in which 2 parties are involved and in which frequently children also are involved. I think it is most desirable that we do everything that we can, even though the formal structure of a marriage has gone, to ensure that as far as possible there is an on-going relationship between those 2 people as human beings and that we should do nothing in this legislation which is likely in any way to disrupt and fracture the possibility of some permanent on-going relationship between the parties, particularly where children are involved.

It seems to me very strongly that if there is added to the established period of 12 months separation another period of 6 months, 12 months or whatever one likes, it is in that extra period that most likely there will develop between the parties friction and tension which are adverse to any relationship which they might have though divorced and, more particularly, adverse to the future of the children of that marriage. That is to say, if we prolong a situation in limbo too much we will very adversely affect the possibility, of a viable situation developing between that father and that mother if there are children or between that husband and that wife if it is a marriage without children. For that reason I strongly support the 12 months ground, not because we are dealing just with the formal structure of a dissolution of marriage but because in a much more profound sense we are dealing with human relationships and the viability of human relationships whether in marriage or outside marriage.







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