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Tuesday, 26 November 1974
Page: 2787

Senator BAUME (New South Wales) - Senator Sir KennethAnderson's amendment contains 2 main propositions one of which relates to a clause involving fault and one of which relates to a period of time. I find it difficult to agree that the period of time should be 3 years. I would like to suggest that part of my proposed amendment has to do with matrimonial fault, lt might be convenient to argue the case now and not re-argue that part of the case later on. I am intervening only to discuss the question of matrimonial fault as Senator Sir Kenneth Anderson has raised it. I would start off by saying that the Bill purports to do away with fault. I have had the opportunity, as have all honourable senators, to read the reports of the Senate Standing Committee on Constitutional and Legal Affairs and also to read the transcripts of evidence which were made available to us. It is quite clear that conduct remains relevant even with this new Bill. I should like to quote from part of the report to illustrate my point. On page 25 of the report of the Standing Committee on Constitutional and Legal Affairs appears the following statement:

The provisions of the Bill do not abolish all consideration of so-called 'fault'. In particular, in the provisions which deal wilh the right of a spouse to maintenance, the Court is required to take into account a number of matters which involve detailed facts relating to the marital relationship.

Paragraph 58 on the same page states:

Moreover in respect of custody proceedings the conduct of the panics is relevant to the determination ofthe issue.

It is quite clear that this Bill does not eliminate the element of conduct. If honourable senators believe the report of the Committee, it does not eliminate fault. To say that fault is absent from this Bill is not correct. There has been an attempt to remove fault from the area of dissolution but it does not follow that one could say that this is a no fault Bill. I found the proceedings of the Constitutional and Legal Affairs Committee of considerable help when I was examining this question of where we stand with regard to matrimonial fault and trying to make up my mind.

If honourable senators examine what the Committee considered in evidence they would find a lot of detail relevant to this matter. I remind the Committee that on 1 1 September 1974 when Mr Watson gave evidence to the Committee- I quote from the transcript of evidence taken on 1 1 September 1974, page 15- he stated in his written submission: .-

As to (g) there are those who argue that there should be an immediate ground of divorce to deal with intolerable spouses. They remind mc that in July, 1972 1 advocated such a ground . . . I do not entirely abandon this ground. However I realise the conflict in philosophy by putting it into the present Bill.

Mr Watsongoes on to say that on balance he is inclined to reject the idea of matrimonial fault as part of dissolution but makes the point that he has some ambivalence. Further in that transcript of evidence at page 37 Mr Watson is reported as follows:

I have advocated that there should be an immediate ground of what I would call 'intolerable conduct'. In other words, where the conduct is intolerable, the party should be able to get out of it. So let me read what I have written here because it is a problem which I think is a real problem.

He then read that part of his written submission to which I have referred earlier. Mr Watson again makes the point during his evidence that he does not entirely abandon that ground. On page 38 he is reported as saying:

Whilst I am still ambivalent on the question. I would recommend that the present ground be given a trial.

The consultant advising this Committee had considerable ambivalence about whether or not there was a place for a ground involving matrimonial fault. I would like the Committee of the House to accept that it is not a black and white matter- it is not a simple matter to determine. It is obviously a matter which gave the Constitutional and Legal Affairs Committee considerable concern and which exercised it for a considerable time. That Committee recognised the need for some kind of immediate action. My colleagues who have spoken in relation to this point have brought my mind back to the injunctive provisions in this Bill by saying that this will provide adequate and immediate relief for people.

I am not entirely persuaded that that is so. I still believe that there is a case which says that some people may be worse off for not having available to them the immediate ground. So I looked further into the evidence presented to the Constitutional and Legal Affairs Committee. I looked to find exactly what had been meant when Mr Watson spoke about an immediate ground. Mr Watson was asked what kind of other proof of irretrievable breakdown he would accept. On page 57 of the transcript of evidence of 1 1 September 1 974 he stated:

We build in, perhaps, a tripartite thing which is basically intolerable conduct and secondly involves a certain period of separation- probably 6 months at least- and which thirdly involves mandatory counselling.

Mr Watsongoes on to discuss this in some detail. He discusses the ground of intolerable conduct a little further on and as may be seen at page 60 of that evidence he stated:

It is intolerable conduct and it has to show 6 months' separation, or some period of separation and has to be subject to mandatory counselling.

Mr Watsonfurther states that he is not entirely happy with mandatory counselling. The Constitutional and Legal Affairs Committee went as far as looking at a provisional draft for a possible second ground. I will not bore the Committee by reading it now. The Constitutional and Legal Affairs Committee was sufficiently concerned and uncertain about this matter to go into it in great depth and detail to examine just what place matrimonial fault had. Some of the members of that Committee themselves were uncertain. Senator Missen, as may be seen at page 42 of the transcript of evidence, when trying to examine this question of whether there should be an extra ground based on matrimonial fault to give immediate relief- that is what the objective of a fault ground is- said: . . the suggestion is surely not that a new ground be established but a new method of proof of irretrievable breakdown not just 12 months' separation, but a second means of proof, namely, that over a period of perhaps 12 months there has been an intolerable situation?

Senator Sir Kenneth Anderson - In the judgment of the court.

Senator BAUME -Well, perhaps. But Senator Missen was saying something terribly important. What we are looking for is not the establishment of fault or blame: we are looking for the means by which we can show that there has been irretrievable breakdown. One of the central arguments to which we return again and again is that there is a certain lack of logic in asserting that there is only one way to arrive at the conclusion that a marriage has broken down irretrievably. Senator Missen went on to say: ls not the real problem, which you do not advert to here, (hai under the present Bill you may not be able to prove separation in any real sense, you have a small family, in a small house, living obviously, apparently together, and even what has been written into the Bill at the present time which says that you can have separation under the one roof, but you have no real separation? Are you not left with a situation, it seems to me. where people must fail in their divorce applications, unless you have a further means of proof in this case?

The Committee went on to deliberate a lot further but Senator Missen has stated the kind of dilemma that concerns a lot of us; that in fact people may be losing something which is available to them at present under the Bill being proposed. Mr Watson, in replying to Senator Missen 's statement, stated, according to page 43 of the transcript:

I think there is a great deal in what you have said, and 1 have indicated my ambivalence in this in all fairness. I have tried to get round it by drafting into section 90 and section 14 a way to practically handle the situation. But I think you still have, with respect, a very good point.

He went on to say that he would personally like to try the Bill for 12 months to see how it worked. Senator James McClelland, the Chairman of the Committee, tried to clarify what Senator Missen had asked for by saying, as reported at pages 44 and 45:

.   . what Senator Missen has put in but which does not really involve fault, if you could say: Could you have the test that one spouse found the conduct of the other spouse intolerable? Now the reassertion of that fact by one of the spouses does not involve any inquiry as to whether the spouse complained or was guilty of fault.

But if the conduct was intolerable as between the 2 parties- they are my own words- Mr Watson went on to say that he would go along with this. He also indicated that there was a stage during the drafting of the Bill when the AttorneyGeneral had asked Mr Yuill and Mr Watson to have an alternative proof available to the Committee. So we have from the members of the Committee considerable concern that it is not possible to eliminate fault and that there are real grounds for concern that a single method of proof may disadvantage some people.

I understand that the Committee eventually reached an alternative view and I understand that the Attorney-General holds an alternative view. I respect their bona fides and I respect their opinions but I am not certain that they are right. I am not certain that that small group of people who would benefit from having a second form of proof available are necessarily going to be better off. I think they may be worse off. The argument against allowing in this kind of provision has nothing to do with the argument we are putting forward. I think few people would disagree that a second method of proof would be useful. The concern, as I understand it, is related to potential abuse of such a provision if it was there. So to prevent the abuse, we are going to deny to certain people a possible means of relief in matters of dissolution.

I think we need to examine the place of a second ground. I think it would be of benefit to a small but real number of people, whether we take the present provisions of the divorce law, whether we take the English provisions, or whether we take some other grounds of behaviour which indicates some way in which a court may decide that there has been intolerable conduct, 'intolerable' used not in a blaming sense but in a sense that the relationship between the 2 people is no longer viable. I do not care what kind of second ground we use but 1 think many people deserve an opportunity for a second mechanism, a method of proving irretrievable breakdown of marriage.

Having said all that, I indicate that 1 would like to see us vote on this question of a second ground. If the vote is unsuccessful, when it comes time to consider my amendment I will not insist on proceeding with that part of it which deals with fault. I will look at the vote on Senator Sir Kenneth Anderson's amendment and Senator Laucke 's amendment and decide from that point that if the Committee is going to reject any idea of a second ground I will accept that verdict. I thought it appropriate to speak at this stage.

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