Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Full Day's HansardDownload Full Day's Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Wednesday, 27 November 1974
Page: 2847

Senator MISSEN (Victoria) - I join with the Attorney-General (Senator Murphy) in urging the Senate to reject this amendment. It is a very important amendment. It is one which I think will destroy most of the benefits of this Bill and which will reverse the progress which has been made if it is in fact adopted. As one of the majority of the Committee who supported this recommendation in the Committee's report, I now feel more strongly than ever that it is a wise and desirable thing that one year should be chosen as the period.

Senator Davidsonmade two or three points which I think should be answered. He suggestedI agree with him- that the law must promote a sense of responsibility in marriage. The Family Law Bill is not the only place in which that should be done because the Marriage Act is also a greatly responsible aspect in that respect. When we consider amendments to that Act no doubt that point should be in the forefront of our minds. Senator Davidson also pointed out that not only is a sense of responsibility necessarythe Bill goes a long way towards that end- but also we must not impose an undue hardship on those persons who come before the courts to obtain a divorce. The period which should be chosen as proof of irretrievable breakdown is a matter of judgment. Senator Davidson says that 12 months is not enough. He illustrates- in this I am afraid he shows that he does not quite understand the concept of separation- that illness or duty may take a person away. Separation has been defined for many years. It is a matter which has been considered by the courts. To separate and live apart means that there must be a conscious decision, lt means that something must be done. It is not sufficient to say that it is merely an absence due to no deliberate act. Therefore we must come to the conclusion that this one year period is a year of deliberate separation which will be shown to have taken place.

Senator Durack - If that is the case, how will you get on in cases of insanity and so on?

Senator MISSEN - The separation by the party who is applying for a divorce will have to be established to the satisfaction of the court.

The party concerned will have to establish that he or she intends to live apart from the person to whom he or she is married and who is insane.

Senator James McClelland (NEW SOUTH WALES) - Senator Durack,how does the 2-year period solve the problem?

Senator MISSEN - That is a further point, of course; 2 years makes no difference whatever in this regard. In fact, it probably makes the position worse.

I want to turn to what Senator Durack said in relation to this matter. Last evening he made some points in support of his case for a 2-year period. In the first place, he made the point that there is a great deal of evidence from experts in this field who have found in their experience that people going through the turmoil of marriage breakdown may well be separated for a period longer than 12 months but are ultimately reconciled. From my reading of what the experts have been saying to us, there is not very much evidence of that, and it certainly has not been my professional experience over many years that many people are reconciled after they have been separated for a period of 12 months. I think that such cases are rare, and if we are to act upon that rarity for the purpose of making the period 2 years we will be doing a great deal of injustice to those people- it would be something like half the present petitioners- who will have to give up an opportunity of an immediate ground for relief.

Senator James McClelland (NEW SOUTH WALES) - The rare cases can remarry.

Senator MISSEN - The rare cases will overwhelm half the cases in this community. Senator Durack, who is noted for his fairness, said this in justification for his case:

That is why I have brought forward this amendment for the period of separation to bc 2 years. I can conceive that maybe that is going a little too far, but I just have the feeling that 12 months is too short a period of time, lt does seem to be unrealistic to talk about any period between 12 months and 2 years and that is why I have settled on 2 years.

I would suggest that even in Senator Durack 's mind there is a great deal of obscurity and doubt about this matter. As a matter of judgment he has chosen 2 years. As a matter of judgment I go for' one year as being a desirable period. In addition to the various experts referred to by the Attorney-General who have said that they believe that one year is sufficient, let me refer to a statement appearing in the Melbourne 'Herald' of 22 November of this year from the Reverend Bruce Reddrop who is and has been since 1961 the Director of the Church of England Marriage Guidance Council in Melbourne. He, like many other religious leaders and marriage guidance people, has expressed his views favourably on this Bill.

Senator Sir Kenneth Anderson - I will remind you about the religious leaders in a few minutes.

Senator MISSEN - An impression has been given abroad that religious leaders are mostly against this Bill, whereas if we leave out the city of Sydney my experience as a member of this Senate is that throughout the rest of the country they are overwhelmingly in support of the general principles of the Bill. In this newspaper article Reverend Bruce Reddrop says:

I see the Family Law Bill as sound, imaginative legislation which fills a long-felt need.

In referring particularly to the 12 months' period, he says this:

The 12 months' separation envisaged by the Bill is. I believe, an accurate indication that the marriage has broken down. No doubt there arc cases where marriages have been resumed after a year or more of separation, but I believe they are very few.

That is the experience of a man who has directed the operations of that organisation for the last 16 years. I believe it is accurate and true.

I do not propose to repeat the arguments which I raised in my speech in the second reading debate on this Bill. There are arguments of fairness to petitioners referred to by the Attorney-General. There are arguments in favour of the Family Court now envisaged in this Bill. It will be a helping court, an involved court, as distinct from the past where there has been no involvement until one came to the judgment of the court after perhaps 2lA or 3 years. Therefore the situation is quite different. Of course, the second year, as I have said, is the one in which far from there being much prospect of reconciliation trouble breaks out and permanent harm is done to the relationship within families.

More than 60 per cent of people, as illustrated by the Morgan poll, believe that the period of separation should be one year or less. We must remember that most of those who voted in this poll plumped for less than one year. But when a poll was taken of those who wanted a period of separation of 2 years the vote over Australia was 3.7 per cent and in Western Australia, from which this amendment proceeds, it was 2 per cent. Are we to impose the opinions- and I believe the figures to be accurate- of 2, 3 or 4 per cent of people on 60 per cent of the community who I really believe recognise that one year of separation is a fair amount. I support the original Bill and oppose the amendment.

Suggest corrections