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Wednesday, 19 October 1983
Page: 1957

Mr MAHER(6.13) —I have read the amendment circulated in the name of the honourable member for Mitchell (Mr Cadman). I fail to see any particular merit in what is proposed. The honourable member has just acknowledged that, in the legislation at present, all marriages of under two years' duration cannot proceed to divorce unless there has been compulsory counselling. Of course these could well be marriages in which there are young children; they could be second marriages in which there are older children. There could be ex-nuptial children or children of any age even though the couple has been legally married for only two years. This amendment proposes that parties who live separately may file a notice of divorce. I envisage this requirement as only really helping a spouse who cuts out of the marriage situation with a clear intention to divorce. As I understand it, in most marriages when there is a separation there is a rugged period and the parties separate for a while, but the last thing they want to do is to take the first step towards divorce. I believe that it is quite contrary to the workings of reconciliation, of counselling, of sensitive advising, to get the couple together to actually go and file a notice in the Family Court of Australia.

The honourable member for Mitchell is proposing in his amendment that a notice be filed in the Family Court. It would not be compulsory, but if it were not filed there would be no divorce later or there would be a delay in the divorce. The parties, even if they were irretrievably antagonistic and completely separated, would subsequently be made to go individually to marriage counsellors and would then have to appear together. This perfunctory, routine type of charade at reconciliation would be a return to the pre-1959 law, under which solicitors could not lodge an application for divorce unless a statement was made concerning counselling. It was a farce in those days.

I am sure that the amendment moved by the honourable member for Mitchell was moved in good faith, but from my experience and from what I know of the law before Sir Garfield Barwick brought in his celebrated changes, this amendment would do nothing. We are not dealing with an industrial dispute, when the parties are at loggerheads, when one has to have a compulsory conference. It is not a situation in which the parties are at arm's length as in an industrial situation. We are dealing with a family, a husband and wife with children. There has to be great sensitivity and care in the endeavours to get them back together . The Parliament in its wisdom has said that young marriages of under two years will have to go through this procedure.

It is my belief that this amendment should be rejected by the Committee. I see no particular benefit deriving from it. I see no argument that this amendment will strengthen marriage or encourage couples to come back together. There is no possible way that a couple, when separated, can be made to file a notice of separation. It is not yet 1984. We do not have a police state in which someone goes around and says: 'You are living apart. Therefore, you have to file a notice of separation and a registrar has to come and drag you before a marriage counsellor'. That is not what the honourable member for Mitchell wants. He has said that a notice may be filed some time after the parties live apart. If this were accepted this would normally be just the first step towards divorce. Once that first step is taken I am afraid that the die is cast in most cases. Any honourable member in this chamber who has advised couples who have separated will know that once they start seeing solicitors it is a very dicey situation and, in many cases, the marriage is on the rocks. I have looked at this rather hastily drafted amendment that is now before us. To be fair to the honourable member for Mitchell, a supplementary amendment is proposed to another clause. But I think this amendment should be rejected by the Committee. I see no benefit and no merit in it. There is no way in which it would strengthen marriage.