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Wednesday, 27 November 1974
Page: 2863


Senator MURPHY (New South WalesAttorneyGeneral) - I resist this amendment. I think that it is not well designed. It states:

The parties to a marriage shall not be held to have separated and to have lived separately and apart if they have continued to reside in the same residence.

Now that is a direction to the court. No matter how much the evidence is that although under the same roof the parties have lived separately and apart, that one has lived at one end of the house and the other at the other end, or one has lived in the fowlhouse and the other in the master bedroom, the amendment would compel the court to decline to hold that they had lived separately and apart. This means that an awful difficulty is placed in the path of those people who cannot afford to get another home. One might say it is almost a class amendment directed at the poor people who cannot, when they get into marital difficulties, separate one from the other in different residences although, as sometimes occurs- it occurs in times, say, of housing crises; it has happened from time to time in our society and happens even now- people find it difficult to move into another place because they just do not have the finance. For one reason or another they cannot do so. The obligation is on the court if this amendment is not accepted to decide that the parties have lived separately and apart whether or not under the same roof. Surely that ought to be enough. What the honourable senator is suggesting would, I think, reverse the whole line of decisions on this aspect which have held that people may be living separately and apart even though they happen to be under the same roof. The honourable senator is saying that the courts should be prevented from developing the law in that direction. 1 think it would be extremely unsatisfactory and I ask the Committee to reject the amendment.

I think that as a matter of convenience and in order to avoid having to go through the same argument again the Committee ought to deal with my amendment as well as the amendment moved by Senator Greenwood. Therefore, I move:

Add at end of sub-clause (2) 'or that either party has rendered some household services to the other'.

Mr Chairman,1 suggest that we deal with the matter in this way. There are 2 proposals in relation to the same clause. I suggest that the Senate vote on each matter. I do not care which one is put first. In regard to my amendment, I give the example where some service is performed by either party such as in the case mentioned earlier by Senator James McClelland in which the wife cooked the Christmas dinner, no doubt in the interests of the children. This might have hap- . pened even if the husband had been living apart and residing somewhere else. It may have been done for the sake of the children. It may have involved an access situation in which some small service was performed by either party. It seems wrong to me that as a result of a humanitarian gesture like that the right of the party to divorce should be affected when there may be some kind of exigency or out of the goodness ofthe heart of a party some service like that may be performed. If this proposal is added to the clause the court will still be left in the position where it must decide that the parties are living separately and apart notwithstanding that a service has been rendered. Simply because the parties are under the same roof and because some household service is rendered should not prevent the court from coming to the conclusion that they are living separately and apart. The court is not forced to come to that conclusion, but it is left open to the court to come to the conclusion that they are living separately and apart.

What Senator Greenwood is asking this Committee to put into the Bill is that if the parties are living under the same roof in no circumstance whatever could the court come to the conclusion that they were living separately and apart. So the poor people who are in this position will not be able to do anything about it, no matter how much the court wants to find that the parties were living separately and apart. The court might say: 'Look, if it were open to the court to find that the parties were living separately and apart, as a judge 1 would find that they were living separately and apart'. But Senator Greenwood is asking this Committee to put into this Bill a provision which will debar a court from so finding. He is saying that the parties to a marriage shall not be held to have separated and lived apart if they have continued to reside in the same residence.


Senator Drake-Brockman - Do I understand you to say that you want to deal with both amendments?


Senator MURPHY -Yes. We could have the arguments now and then take the votes, one after the other without further argument. The proposition in the Bill is that the parties may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence. My amendment seeks to add the words 'or that either party has rendered some household services to the other'. 1 have suggested these additional words because it was the considered opinion of the Standing Committee that this should be done, and I adopted its suggestion. That is why I am seeking to add those words. The acceptance of my amendment would mean that the court would decide the fundamental question of whether the parties have lived separately and apart. The court may decide that, even if the parties are under the same roof and even if some household service has been rendered. The court will not be forced to make that finding. It may do so.

Senator Greenwoodhas put a proposal to the effect that if the parties happen to be under the same roof then the matter is out of the hands of the court and in no way at all may the court come to the conclusion that the parties have lived separately and apart. Therefore, irrespective of how the parties feel, despite the strong circumstances and irrespective of whether it may seem to the ordinary person absolutely clear that the parties have lived separately and apart, the court will have no option in the matter. By his amendment Senator Greenwood seeks to take this out of the judicial sphere despite all the fine words we hear about judicial discretion and about the proper judicial approach. He is saying that in this circumstance the judge will have no option whatever and will be forced out of the matter by this amendment. Despite any weight of evidence that is put to him he will have to say: ' I am not able to find, because of this amendment, that the parties have lived separately and apart'. I ask this Committee to reject the amendment moved by Senator Greenwood and to accept the amendment which I have moved.







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