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Tuesday, 26 November 1974
Page: 2789


Senator MISSEN (Victoria) - I would like to follow the very lucid explanation which Senator Baume has made of this point by saying that he very accurately quoted me and my agonising in the Committee on this subject. I do not think he quoted from the Committee something which is said on this particular subject:

On ultimate balance the majority of the Committee is of the opinion that it would not be desirable to amend clause 26 (2) in order to cover such cases which they consider will normally be the subject ofthe exercise ofthe court's jurisdiction under clause 90.

It is right that there was a great deal of agonising on this question in the Committee and I suppose I was the last to be converted to the view that there should not now at this stage be a second ground, and that certainly was subsequent to the Committee report being presented. I hold the view, on ultimate balance at the present time, that there is not a case for a second ground, an immediate ground, of divorce. I say that for a variety of reasons. I had the fear that if there was not an immediate ground, and if there was a long period of separation as the other ground, there may be injustice to some people who are living in rather intolerable circumstances. It was my feeling that this probably would require some further ground. I must say 1 am convinced now, as I was at all stages, that one year is a sufficient period and that people who will be suffering those intolerable circumstances are sufficiently protected by clauses like clause 90 and by the right to go before the court for ancillary relief before then. I am not saying that this may work out in practice to be entirely so. I hope that if this is not so the members of the Family Law Committee which is to investigate this matter will be the people who should put up a proposal if it changes thought. I am satisfied that the removal of fault from the determination of grounds is a pretty important matter and that it will greatly reduce the amount of bitterness and hatred and the litigation period. I have always thought that in the case of 'this is an unnecessary area in which to fight' you cannot eliminate what you may call the conduct of the parties, certainly in the areas of custody and, 1 think, in maintenance.

There are occasions when the position and even the conduct of the parties must be considered.

The Committee was strongly of the view that fault should be removed as far as possible. Irrespective of whether it is suggested that the person behaved in a way that another person could not reasonably be expected to live with him or her, the difficulty is that the proposed clause is very vague in its language and it is very difficult to know just how it would be applied. Senator Baume 's amendment refers to misconduct that is grave and weighty. Again it is difficult to know where to go. What is the type of proof required and what evidence is to be used to prove that fault? One could imagine many contested divorces. There is another problem also. If there is to be any real possibility of reconciliation succeeding there must be some time for that to operate. If a party can go immediately before a court and start proceedings for a divorce, I think the opportunity for a successful reconciliation is greatly restricted.

Taking all these things into account, and recognising the force of the arguments which both speakers have expressed, I am reasonably satisfied now that there should not be an attempt to go into one of these new and vague grounds or methods of proof. We may be proved right or wrong. The situation is not irretrievable in the sense that it will not be possible to change this legislation. It may be easier to change it in the future. Very few people may suffer any disadvantage by not having the second ground but a lot of people may suffer if we reintroduce the fault ground into this section of the Bill.







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