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Tuesday, 26 November 1974
Page: 2789

Senator DURACK (Western Australia) - Like Senator Missen I have been very concerned for a long time as to whether there should be not only a ground based on a period of separation but also some immediate ground of divorce. I first toyed with the idea, when I was very attracted to the abolition of the fault grounds, that we could have a ground of irretrievable breakdown of marriage which could be proved by an immediate application to the court but after a period, whether it be 1 year, 2 years or 3 years, it should be conclusive that the marriage had irretrievably broken down. In other words, the immediate ground which Senator Baume has said he favours in principle should be available as an irretrievable breakdown of marriage.

However, I have finally come to the conclusion that as long as we have a ground which is other than a simple period of separation- whatever that period may be- we inevitably get into the area of fault. There will be no way of avoiding an investigation into the fault of one or probably both parties. Even if the argument before the court is whether the marriage has irretrievably broken down- this does not ostensibly raise fault grounds- I still think that people will be involved in essence in a fault argument. Senator Sir Kenneth Anderson's amendment used the words:

.   . that the applicant cannot reasonably be expected to live with that party . . .

I believe that that introduces even more clearly a fault ground because undoubtedly any investiga tion of what one party can reasonably be expected to put up with is introducing fault concepts.I notice that Senator Baume 's proposed ground is: 'Conduct sufficiently grave and weighty to justify termination of the relationship'. Whatever type of language is used it is inevitable that there will be an investigation of fault. Over the years we have found that it has been difficult enough to get a definition of cruelty and an application of the law as it stands on cruelty in any particular case. Over the years there has been a great deal of law on this subject. But if we move away from that body of law as to what has amounted to cruelty and if we start using words like 'grave and weighty conduct' or conduct by which one cannot reasonably be expected to live with the other' we are moving into an area where the decision which may be given by a court will be totally uncertain, erratic and in many cases capricious. This is apart altogether from my feeling that we should not be leaving any room for a fault ground.

Apart altogether from that aspect I have canvassed in my mind every conceivable way of expressing fault grounds. To me it seems inevitably to lead to the question of fault being canvassed. Let us turn for a moment to the argument that some people will suffer injustice if they do not have the availability of an immediate ground of divorce. As I have said, if there is an immediate ground it will be fault of some kind or another, whether it is certain or uncertain. But what is the real demand for an immediate ground for divorce? In my experience as a practitioner in this field- although it is some years ago now- the immediate concern of people who come to a lawyer is protection, maintenance and custody of the children.

At that stage they are not interested in a divorce. It is only later when they have settled down and probably- to be perfectly cynical- when they have met somebody else whom they want to marry that they start talking about divorce. What people immediately want when a marriage breaks down is the availability of a quick resolution of the problems of protection. It might be a case of a wife who has been beaten up by her husband. Let us face the situation that there are plenty of cases like that. Do not get away with the idea that in this day and age that does not happen quite often. There are these cases where the wife needs protection. She does not want a divorce. In fact, in my experience when one suggests to people that they apply for a divorce they say: 'Heavens, the last thing we want to be talking about is getting married again.' They want protection. Of course, if there are still children they want maintenance for the children and for themselves and custody of the children. I believe that the Bill as drafted clearly provides them with a type of protection and with maintenance and custody provisions. With due respect to Senator Sir Kenneth Anderson and to Senator Baume I just cannot see and understand the argument as to why an immediate ground of divorce is necessary.

Senator Sir KENNETHANDERSON (New South Wales) (9.28)- Against the background of our second reading debate and the exciting interest which has been conveyed by the Committee tonight I think I should make it clear that a decision will need to be taken in the context of the voices. In the background of what happened earlier I will not be calling for a division but at least I will call to have my view recorded in the records of the Senate in relation to my amendment. It may well be that if, as is obvious, the amendment is defeated I will give significant support to the amendments to be moved by Senator Laucke and Senator Baume to the point where those amendments are not inconsistent with one another.

It is inherent and it is fundamental to my amendment that the court has to be satisfied that there has been behaviour by one of the parties to the contract such that the applicant cannot reasonably be expected to live with the other party and that there has therefore been irrevocable breakdown of marriage. I do not need to canvass those grounds again. They have all been canvassed extensively here. As we go through the amendments that will arise later the points made by Senator Baume show that in this legislation and acknowledged by the Committee which gave its blessing to this no fault concept, there is demonstrably a fault concept. Later on in respect of clauses 51 and 56 which deal with maintenance of the issue of a marriage this question of the rights of the issue and of responsibility will emerge. Because we have already canvassed it extensively in the second reading debate and as no other honourable senators wish to speak, the obvious thing to do, subject to what the Attorney-General (Senator Murphy) may say, is to put the amendment to the test.

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