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Thursday, 19 November 1959

Sir GARFIELD BARWICK (Parramatta) (Attorney-General) . - I suppose the committee will acquit me of the charge of not having read the Morton report before this bill was drafted. Before the draft was settled in an early form I considered whether the proposal that was advanced by the four members of the commission to whom the honorable member for Mackellar (Mr. Wentworth) has referred, was acceptable. I may say that I founded nothing at any stage on the authority of this commission. I thought then, and I still think, that the proposal was unacceptable for this simple and direct reason: I wanted to provide in this ground a means of dissolution in the case of parties who had done nothing amiss to each other but simply could not live together. That is not a rare case. This proposed amendment would destroy the utility of this ground in the case of the people to whom I have referred.

Mr Wentworth - If the suit is undefended, this proposal will not affect the case.

Sir GARFIELD BARWICK - The honorable member does not realize the weapon that he would place in the hands of one party. The whole purpose of this provision is to prevent such an eventuality.

Mr Crean - What is unreasonable in the honorable member's proposal?

Sir GARFIELD BARWICK - I have considered what is unreasonable. A man may find that he cannot live with a woman because ,of some particular mannerism which she has. It is not her fault. Is she unreasonable in being herself? Is he unreasonable in being himself? There are these real cases in the community, and I thought I should like to cover them. This concerns such a substantial area of the incidence of this bill that I felt I could not put in such a clause. It would be all right if I were considering only cases where, of necessity, there was deliberate conduct on the part of one partner affecting the other.

I also thought that I did not have, in this word " unreasonable ", a sufficiently firm criterion. For I do not know what the judges of this Commonwealth would get to by way of a common rule as to what was unreasonable in the conduct between two people. Other honorable members doubtless, and I have come home and found, very often that our good ladies, if they have taken up tennis, keep us waiting an hour for a meal. I can imagine some judge saying, "That is mighty unreasonable ". Where do you get to? It is imprecise. There is nothing that I can point to in the law. I know that we are supposed to have reasonable men on juries and that lawyers talk about the juryman as " the chap on the Clapham bus ", but he would not be able to decide this question with any sort of firmness and regularity.

May I say, finally, as one of my reasons, that, when parties litigate in divorce, they litigate in bitterness. You very rarely find friendly suits in divorce. When parties litigate in bitterness, and they have such a sloppy criterion as " unreasonable ", they have, of course, an unlimited charter to bring forward petty things and they will involve poor people - I mean, not poor financially, but to be pitied - in a litigation that is pretty unsatisfactory and will be pretty costly.

I think that the amendment proposed by the honorable member for Mackellar would, first of all, rule out the cases of parties who have not misconducted themselves in any sense or been unreasonable towards each other. Secondly, it would provide an imprecise criterion, anyhow. Thirdly, it would involve parties in very costly litigation. And finally, it would put into the hands of one of them the very weapon which this bill is designed to remove.

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