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Wednesday, 27 November 1974
Page: 2860

Senator GREENWOOD (Victoria) - Clause 27 is vital because it is linked to clause 26 in a very direct way. Clause 26 provides that the sole ground of separation shall be irretrievable breakdown and clause 27 defines what is meant by separation. My particular concern is with subclause (2) of clause 27 which reads:

The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence.

The Attorney-General (Senator Murphy) has given notice that he intends to move a subsequent amendment which proposes that words shall be added so that the clause provides that the parties will be held to have separated and to have lived separately and apart not only where they have continued to reside in the same residence but also in circumstances in which either party has rendered some household service to the other. I feel that this clause ought to be looked at tremendously closely. If we are going to have as a ground for divorce one year's separation, I believe it ought to be effectively established by a demonstration that the parties have separated. I think it is a farce and would be regarded as a farce if a married couple could live in their matrimonial home and at the end of the 12-months period present to the court an argument that they have been separated over the course of that 12 months period.

Senator James McClelland (NEW SOUTH WALES) - Has the law been a farce up till now, because that is what the law is?

Senator GREENWOOD - With respect to Senator James McClelland, that is not what the law is, and I am surprised at the cursory treatment that was given to this matter by the Senate Standing Committee on Constitutional and Legal Affairs. Where the grounds of desertion existed it was recognised by decisions of the courts that in cases in which the parties lived under one roof it could be said that one party had deserted the other because an intention to terminate the marriage relationship was clearly disclosed and that following that determination or decision to terminate the marriage relationship there was a physical separateness, even if the parties lived under the one roof. The courts regarded this as a sufficient desertion. I think it was a matter for special pleading, but it developed as part of the general law. It was applied in cases of desertion, and I think that those who practised in the courts knew what it constituted. But I think there is still some doubt as to whether that same concept applied in the area of separation, and that doubt has not been resolved.

I am not familiar with the cases which may have been heard in the High Court of Australia in the last year or two. If I am wrong in the assumptions I am making I ask the AttorneyGeneral to correct me. But I would have thought that, even if in the last 1 2 months or 2 years there has been some High Court decision which says that the principles relating to the ground of desertion now apply to the ground of separation, there is sufficient reason in the origin of this practice for it not to be regarded as being obligatory upon the Senate to make that the law for the future. I believe that we should insist, with a 12 months separation ground, that the parties should not be regarded as having lived separately and apart if they have lived under the one roof. I move:

Leave out sub-clause (2 ). insert the following sub-clause:

(2)   The parties to a marriage shall not be held to have separated and to have lived separately and apart if they have continued to reside in the same residence.'.

Quite an amount of writing has been advanced by academic lawyers on this subject. It is interesting to refer to one set of facts which was said to be a distinctive case where a matrimonial causes judge applied the one roof test- that is the situation of parties living under the one roof and claiming to have been separated- to this ground of separation under the existing Matrimonial Causes Act. That was the case of Porter v. Porter in South Australia which was decided by Her Honour Justice Mitchell.

When the proceedings were instituted in 1968 the petitioner and her husband were living in the same house. They had for the last 6 years been sleeping in separate beds but they had occasionally communicated on matters concerning their children. From time to time the wife had taken meals with the rest of the family, especially when common acquaintances were present. In 1965 she had eaten Christmas dinner with her husband and children and had continued for a time to prepare their meals. But notwithstanding that she went before the court and said they had separated over a period of 5 years, the court did not accept that that was the situation.

Senator James McClelland (NEW SOUTH WALES) - Tell us about Crabtree v. Crabtree.

Senator GREENWOOD -Give me time and I will be delighted to discuss Crabtree v. Crabtree. In the circumstances in which Porter v. Porter was decided, Justice Mitchell said that if the facts met the test- that is, that people living under the one roof were still able to establish the ground of separation- that ground can be shown to have been proved. But it had not been proved in those circumstances.

Where there is a 5 year period of separation one can imagine the judges of the courts, as they interpret what constitutes 5 years separation, recognising that for one year or 2 years persons may well be living under the one roof but that for the balance of the period they were living separately and apart. The real test for the court is whether for a determinate time the parties can show that there has been 5 years separation. The way the courts would have interpreted a ground of separation may have allowed some part of that period to be under the one roof. Certainly the language of Justice Mitchell in Porter v. Porter and the language of the majority of the court in New South Wales in Crabtree v. Crabtree would permit that type of interpretation. But that was in respect of a 5 year period. It was in respect of a ground of separation which existed together with other grounds such as the ground of desertion where all that a petitioner had to show was that a party had deserted the other without just cause or excuse for a period of 2 years.

What we are now establishing is that there shall be one ground and one ground only of irretrievable breakdown of the marriage to be shown in one way and one way only, that is, that the parties have separated and have lived separately and apart for 12 months. Then let it be shown by the way in which we enact this particular provision, seeing that the concept has now been accepted, that it is a genuine separation and a genuine living separately and apart. I think that that is implicit in what the Attorney-General has said in advance of this argument. I do not believe we will show it in the genuine way in which it ought to be demonstrated if we accept that persons can live under the one roof and perform household services for each other. It is that sort of situation which will create disrespect for the law and develop practices which the AttorneyGeneral says characterise the existing law and which he wishes to eliminate.

Senator Murphy - I said they characterise the ground of desertion by reason of noncompliance with the decree for restitution of conjugal rights.

Sitting suspended from 6 to 8 p.m. (Quorum formed)

Senator GREENWOOD -Before the sitting of the Senate was suspended for dinner I had been referring to the definition of -

Senator Devitt - Senator Greenwoodcalled for a quorum on a matter which is the subject of a free vote. None of his mates would do so.

Senator GREENWOOD -Well, 1 hear the comment of Senator Devitt. When I came into the chamber there were, I think, one member of the Government and 2 members of the Opposition present and that is not fair for the chamber. I say that only because of the noise of the Government senators. Before the sitting of the Senate was suspended I was saying that the definition of what constitutes a separation for the purpose of this one ground which will now apply in the family law legislation is a matter of great consequence. I think it is quite unreal to say that separation can be established if husband and wife could be living together under the one roof, sleeping in the same bed, the wife providing meals for the husband, the wife washing for the husband and the husband providing the means by which the wife can buy the food which she cooks for both of them, lt is quite unreal, at the end of 12 months for the parties to come along and say that in some way they were separate.

I know the way the court has developed the law with regard to desertion. It appears to me that to develop that thesis so that the result can be as 1 have explained it is, totally inconsistent with the type of divorce law which the AttorneyGeneral has been espousing. To suggest in the amendment which is ultimately to come into this provision that the one can provide household services for the other and they can still be regarded as separated is, I believe, making a farce and mockery of divorce law. I have moved my amendment on the basis that if there is one thing which individual senators from the Opposition can do it is to make these provisions meaningful. I do not believe that as the provisions are now presented they are anything more than a farce, and that is demonstrable.

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