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Wednesday, 27 November 1974
Page: 2862

Senator James McClelland (NEW SOUTH WALES) - Senator Greenwoodis not content with resisting reform; he wants to set the clock back and reverse the tendencies of an enlightened interpretation of our existing divorce laws. A long line of authority indicates that judges have come to accept the notion that people may live under the same roof and yet, for all practical purposes, may be living separately. I do not need to refer to the cases; we are not in a court of law. But Senator Greenwood said, in answer to an interjection of mine, that he would advert to the authorities. The leading ones that lawyers will know are Crabtree v. Crabtree, Fewkes v. Fewkes and Hastings v. Hastings. They are recent cases.

Senator Greenwood - Well, Main v. Main is still the main High Court judgment.

Senator James McClelland (NEW SOUTH WALES) - Hastings v. Hastings is a fairly recent case. It was decided in the South Australian courts in 1970. It is authority for this proposition: The parties had lived under the same roof but occupied separate bedrooms, had not had sexual intercourse, did not go to social functions together; and though the wife did not cook or perform any domestic services for the husband they were held to be living separately and apart within the meaning of section 28 (m) ofthe old Act.

What really is the force of Senator Greenwood 's proposition? It is well known that people with enough financial resources were always able to part when life together became intolerable and live in separate establishments, but people who are more poorly placed do not happen to be able to afford that luxury. What Senator Greenwood is really suggesting is that those who cannot afford to leave an intolerable household but who are forced, even though their marriage has become an empty husk, to stay together should be prevented from being regarded as having mentally, physically and emotionally severed the marital tie. Senator Greenwood seeks to reverse a humane tendency in judicial interpretation of the notion of separation which is well established in the authoritiesauthorities which Senator Greenwood chose to ignore.

Senator Greenwood - That is not fair. You know that I am familiar with the authorities -

Senator James McClelland (NEW SOUTH WALES) -The honourable senator did not advert to Crabtree v. Crabtree. He did not mention Hastings v. Hastings in which case the interpretation of the judge is quite contrary to his and has been established in the minds of all lawyers practising in this jurisdiction. The interpretation is that parties may live under the same roof and yet be living totally separate lives.

Senator Greenwood - If you are to suggest that this is our attitude then as far as I am concerned you can have this debate going on all night. You are being quite unreasonable.

Senator James McClelland (NEW SOUTH WALES) -Senator Greenwood has unwittingly dropped his guard. He has made it quite clear that his intention in this debate is not to shed some light on a very profound human problem but to filibuster and to prolong this debate in order that this enlightened piece of legislation will not be carried. If that is his will, if that is his wish, I think he should make it quite clear to the people of Australia. He can go ahead and take all his pettifogging points, misinterpret the authorities and keep this debate going forever, but he will not be thanked by the people of Australia or by this Parliament. I assure him that he will not even be thanked by his own colleagues.

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