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Wednesday, 27 November 1974
Page: 2865


Senator GREEN WOOD (QUEENSLAND) -The attitude ofthe Government Party senators is that they must get this Bill through, because it is common talk in the lobbies of this Parliament that there has been a constant wrangle day by day as to whether or not the Family Law Bill is to be the subject for debate in the Senate. We have on the list at the moment some 40 Bills which have been introduced into the Senate during the past fortnight and which have been held up because of the debate on the Family Law Bill.


Senator James McClelland (NEW SOUTH WALES) - I rise on a point of order, Mr Chairman. We are in the Committee stage, debating an amendment proposed by Senator Greenwood. He is addressing himself now to subjects widely astray from his own proposed amendment. The attitude in the lobbies, what may be the attitude of the Government Party, has nothing to do with Senator Greenwood 's own proposed amendment, which proposes to set back the clock in the matter of matrimonial law. Let him address himself to that subject.


The CHAIRMAN -I note the point of order, and there is some weight in it. I think that Senator Greenwood is capable of making the point relating to attitude, lt may be something associated with this amendment. But I would ask

Senator Greenwoodto relate his remarks directly to his amendment, and we may be able to get a vote.


Senator GREENWOOD - Mr Chairman,I accept your suggestion. In the light of what I have said, what we have heard from Senator James McClelland tonight is an accusation totally unsubstantiated and totally inaccurate in what it seeks to portray as my attitude. I have not argued in terms of misrepresentation of the legal position. I have not been filibustering. I sat here throughout the whole afternoon listening to the debate, and I did not contribute to it at all; I listened. If I have a particular point that I want to make tonight, I do not know why 1, when I start to speak, should be regarded as filibustering. I have my points of view on this issue and I desire to be heard. The suggestion made by Senator James McClelland that the amendment which I have moved would deny to the poor something which was available to the rich is a specious argument ofthe nature of an irrelevancy. The real issue is not what is right or proper or available for wealthy people and what is not available for not so wealthy people; it is simply a question of what should be a ground for divorce.

The Committee has decided by its earlier votes that the ground for divorce should be one year's separation. All 1 am concerned to say is that if it is to be one year's separation let it be a genuine separation, and what is proposed in this Bill is not a genuine separation. No matter how much people may seek to argue that the words in the Bill constitute a genuine separation they are arguing, I believe, an impossibility because I cannot accept- I do not believe that ordinary people faced with ordinary situations would acceptthat if a husband and wife are living together under the same roof, in one house, in which the wife provides the daily meals for the husband and in which she provides other household services, such as washing his clothes, making his bed and doing all the other household chores which happily married families would expect a wife to do for a husband, that constitutes a separation which ought to be regarded as a separation for the purpose of divorce. If people want to argue that way, let them build up the arguments and show why it is a ground for divorce. It is that sort of argument which brings the law into disrepute.

It is no excuse to say that rich people can live in large houses and that one party can live in one corner of an establishment and the other party can live in the far corner of the establishment and that they never meet, and therefore there are 2 separate households. That type of situation is rare. If people are wealthy enough to live in that situation, let them separate if they want to use this ground for divorce. But I think that it is absolutely absurd where people are living in a three or four roomed house and we want to establish a proper ground for divorce- that is what we are concerned about- to say that they can be regarded as separate and living apart if they still continue to live in a three or four roomed house, particularly when they are jointly caring for the children. It is humbug and hypocrisy to say that that can be a situation in which there can be a ground for divorce.


Senator Devitt - Sit down.


Senator GREENWOOD - I hear Senator Devitt say: 'Sit down'. That, Mr Chairman, was why I introduced my remarks with the comments which I made, because I know- it has been said to me outside this chamber- that this Government will get this Bill through tonight; it will push it through. I resent that sort of attitude because it is inconsistent with the standards which ought to prevail on a vote of this character, particularly when this clause is being considered.

There was another argument which I submit is completely specious. I think it is absolutely specious to use the argument that where parties cannot live together and they want to be divorced, they should not be required to live separately and apart because it may not be possible for the wife or the husband to leave the house in which they are living together. I know there may be problems like that. When we have argued, as we argued with regard to clause 26, that there may be occasions when a husband is ill-treating a wife, is subjecting her to cruelty and to mistreatment which makes it intolerable, we have been told that the wife can go to the court and get an injunction and that will require the husband to live separate and apart from her. If it is easy enough, as a matter of argument, to ask a wife to do that, why is it unreasonable to expect either party, if the parties cannot live together, to separate from the house in which they are living? The 2 arguments do not stand together, and when the attempt is made to equate the one with the other then I think it reveals the hollowness ofthe arguments which are being put forward. It is a terribly difficult task to argue against the combined strength of a Committee which has looked at this Bill for months, and against the AttorneyGeneral, who presented it, with any hope of having a point of view even listened to, let alone accepted, because it is held that only one point of view ought to prevail.

I simply say that if one looks at the authorities as decided by the courts the position is not as the Chairman of the Committee, Senator James McClelland, declared it to be. I do not care whether one looks at the book which was edited by the Attorney-General's adviser, Mr Watson, together with Mr Justice Toose and Dr Benjafield, whether one looks at Mr Finlay 's volume or whether one looks at the other writings of the academic writers, but there is generally accepted to be a very real area of doubt as to what is the proper material upon which a court should decide whether or not separation has been established between the parties. I refer to the volume Toose, Benjafield and Watson on family law, which 1 concede was written in 1968, but on my researches the position has not significantly altered in the intervening years. They say at paragraph 409 -


Senator Chaney - Whom are you going to convince?


Senator GREENWOOD - I am told that I am not going to convince anybody. I am interested that this is the standard of debate in this chamber. As I said, a committee has looked at this, the Attorney-General has looked at it, and no one else's point of view is regarded as worth while putting. That is a viewpoint I have never accepted and it is a viewpoint that I will not accept so long as there is an argument which is able to be advanced. When one has the advantage of having the law reports and textbook writers and the writings of academic lawyers to support the viewpoint one is putting, contrary to the viewpoint which is put by the AttorneyGeneral and the Committee, then at least one has got that comfort. As far as the question of separation is concerned and 'separate and living apart' for the purpose of establishing that separation, there is no question but that under the ground of separation there is a moot point as to whether the parties can be separated while under the one roof or whether they have to move into separate residences. The volume to which I am referring states:

So far as concerns desertion under s. 28b -

That is, of the present legislation, it is clear that there may be destruction of consortium -

That is, the desire to live together- . . while the parties still occupy the same house ... but it has been much debated whether the same approach can be made to the ground of separation . . . In the United States -

And this is an indication of where the United States position is quite contrary to what the Attorney-General is urging on Australia, and he is urging a vastly more liberal position in Australia-

In the United States the courts seem consistently to have held that the ground of separation is not available where the parties have occupied the same house. The courts appear to have reached this position either on the basis of grammatical interpretation ofthe words used in the relevant legislation or on the basis that the policy underlying the legislation is that dissolution should bc granted only where it is clear to those in the neighbourhood that the marriage has broken down.

If people are living together in the same house and to all intents and appearances the wife is providing for the husband the ordinary household services that one would expect a wife to provide for a husband, how can it be reasonably argued or assumed that that marriage has broken down? If we allow that situation to exist, then it appears to me that we are making of the question of separation a mockery and a farce.

Why is it unreasonable to say that to establish this aspect of separation the parties should be prepared to live not under the same roof but in separate residences? To the ordinary lay mind, to anyone who asks the question: Are the parties separated?, one would expect to get a response: Obviously they are separated because they are not living together'. But if the answer is 'They can 't be separated, they are living together and she is providing for him', then I should have thought and most people would assume that there is no separation existing. Yet this is the point which is at the heart of this debate, and I have not yet heard from the Attorney-General or from any member of the Committee why it should be otherwise. As I said earlier, it is regrettable that the Committee did not take further time to examine the matter and to elaborate the position more than it did. All that the Committee said in its report is this:

The provision in Clause 27 (2) reproduces the Common Law position that separation may occur 'under the one roof.

I interpolate that that is not the Common Law position, and indeed the issue of whether or not that is the law is one in which the High Court has decided precisely the opposite in its only decision on this question in Main v. Main under the Western Australian legislation and therefore that particular assertion is wrong. The report continues:

The Committee believes this requires extension by providing that such separation may occur notwithstanding that one party has from time to time performed services for the other party.

It is trying to create by legislation a notional situation, a make-believe situation, that the parties have separated when in fact they are performing services for each other, and I do not believe that the Parliament should lend itself to establishing that farce.

Amendment (Senator Greenwood's) negatived.


The CHAIRMAN (Senator Webster -The question is that the amendment moved by the Attorney-General be agreed to.







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