The Operation of the Commonwealth Matrimonial Causes Act in New South Wales
| Author | David Mayer Selby |
| Published date | 01 March 1966 |
| Date | 01 March 1966 |
| DOI | 10.1177/0067205X6600200101 |
| Subject Matter | Article |
THE
OPERATION
OF
THE
COMMONWEALTH
MATRIMONIAl
CAUSES ACT
IN
NEW SOUTH
WALES
By
THE
HONOURABLE
DAVID
MAYER
SELBY*
The First Four Years
The object
of
this article is not to discuss in detail any
of
the questions
of
law which have arisen under the Matrimonial Causes Act
1959
(Cth),
but
merely to review in afairly general way the manner in which the
Act has operated since it came into force in February,
1961.
My remarks
will necessarily be confined, in the main, to experience in New South
Wales since
that
is
the State in which Ihave seen the Act operating
but
presumably the experience
of
Judges and practitioners in this State will
not
be greatly dissimilar from
that
of
their opposite numbers in the
other States
of
the Commonwealth. In one respect, however, the
position
of
legal practitioners in this State is unique for New South
Wales alone
of
the States still clings obstinately to the pre-Judicature
Acts method
of
pleading. Accordingly, the provisions as to pleading
contained in the Matrimonial Causes Rules made under the Act were
at
first viewed here with some dismay for the wealth
of
detail which the
Rules require was entirely foreign to the experience
of
local solicitors
with the exception, perhaps,
of
those who practised in Equity and, as
arule, the divorce specialists had little
or
no experience in the equitable
jurisdiction.
For
some time after the Act came into force, it was the
usual procedure
to
brief counsel
to
draft the pleadings, with consequent
increase in the cost to the litigant, and this
is
still acommon practice.
On the whole,
it
may be said
that
the fears
of
divorce practitioners were
ill-founded for they had little trouble in adapting themselves to the new
procedure.
It
is not surprising, however,
that
there should still be a
considerable diversity in the standard
of
pleading, and pleaders fre-
quently have trouble in distinguishing between facts and the evidence
by which the facts are to be proved. Applications for further
and
better particulars are not uncommon and occasionally, application is
made to strike
out
apleading on the ground
that
it
is
prolix and embar-
rassing.
In
arecent case, arespondent seeking an order for further
particulars had sought from the petitioner seventy odd particulars in
asimple issue
of
adultery.
In
another, the respondent sought
to
strike out as prolix and embarrassing aparagraph in apetition alleging
habitual cruelty running into well over ahundred sub-paragraphs.
On the subject
of
applications, it might be worth mentioning
that
unnecessary confusion
is
often caused by the absence in the Rules
of
a
*Judge
of
Supreme Court
of
New South Wales.
2Federal Law Review [VOLUME 2
suitable designation for the respondent
to
an application. Often such
respondent is the petitioner, the applicant being the respondent in the
suit. Asimple amendment to the rules would overcome this difficulty.
Conciliation
and
Reconciliation
There is considerable emphasis in the Act and Rules on conciliation
and
reconciliation
of
the parties.
It
is sought
to
achieve this
both
directly and indirectly. The direct attempt includes the provisions
of
Part
II
relating to marriage guidance organisations, the provisions
of
Part
III laying on the Court the duty
of
giving consideration, from
time
to
time, to the possibility
of
areconciliation in appropriate cases
and
providing certain courses which aJudge may
adopt
when he con-
siders
that
there is areasonable possibility
of
reconciliation and the
provisions
of
rule
15
which require asolicitor
to
certify that he has
brought to the attention
of
his client the provisions
of
the Act relating
to
reconciliation and the existence
of
approved marriage guidance
organisations and
that
he has discussed with his client the possibility
of
reconciliation. Indirect attempts include the provisions
of
section
43
prohibiting the institution, without leave
of
the court,
of
proceedings
for dissolution
of
marriage within three years
of
the date
of
the marriage,
with certain exceptions. Asubtle indirect attempt is made by section
68
which, in effect, requires apetitioner to include in his petition all claims
for ancillary relief except where permitted
to
do otherwise by the rules
or
by leave
of
the court. The effect
of
this section is
to
bring home to
apotential petitioner
at
the time he is instructing his solicitor
to
institute
divorce proceedings, the full implications
of
adissolution
of
his marriage.
His attention will be directed
to
the destination
of
his property,
to
questions
of
maintenance, to the custody
of
his children
of
the marriage
and
to
the arrangements
to
be made for their welfare, advancement
and
education. He may have entered into marriage with little
or
no
thought as to what it is going to involve
but
the Act and Rules ensure
that
he will give considerable thought to what is involved in its dis-
solution.
The provisions for approval and subsidy
of
marriage guidance
organisations have been most beneficial
to
those organisations. The
granting
of
substantial subsidies has freed them
to
agreat extent from
the perpetual dissipation
of
their energies in fund-raising activities and
has enabled them
to
extend the area
of
their operations and
to
operate
in appropriate premises. The official imprimatur which approval
involves has enhanced their prestige. But it
is
too early yet
to
be able
to
form any estimate
of
the extent
to
which these benefits have enabled
such organisations
to
reduce the divorce rate by bringing about
reconciliation.
As regards the other provisions relating to conciliation and recon-
ciliation, there seems
to
be no evidence
to
indicate
that
they have
had
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