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Retro divorce and domestic violence - an old son looks back - 9 ways things are better

Updated: Nov 28, 2023

Mum made her escape from Dad on a hot night in late 1962. We were at our Uncle Gordon and Aunty Val's beach house at Quindalup. A beach house in those days was a couple of caravans on a concrete pad. Gordon and Val had introduced Mum and Dad so there was a symmetry in helping Mum leave him. We were four children: I was 6, Bec 4, Woody 3 and Len the baby was nine months. During the day Mum packed the station wagon for the trip to Perth. Dad was to join us at Gordon and Val’s after work; he drove a government car. Gordon and Val were to get Dad drunk and insensible so Mum could slip away. When that point arrived Mum shepherded us into the station wagon and got behind the wheel. Dad staggered in view and looked at us. Mum got out of the car and talked quietly to him. Dad was quiet and seemed confused; he watched while Mum got back in the car and drove off.

We lodged for a couple of weeks with Mrs Madden and her children in Swanbourne. She had left her husband some time ago. Dad found our location and came to the house. He talked to Mum on the garden path near the footpath. When he raised his voice, our host family’s Labrador dog walked over and stood between them.

Soon Mum bought a house in Claremont paying £6000. Her mother, our Nannan, gifted her the deposit. The owner let Mum to pay off the house in instalments. Mum made every house payment on time; she made a point of paying every debt on time reasoning that her finances were so precarious she couldn’t risk being a debtor.

Mum was given custody subject to Dad having access every third weekend on Saturday day and Sunday day. He religiously drove up from Busselton for his access days and stayed at his parents’ home in Subiaco (our Nanny and Papa). On those two days, Dad drove us around the metropolitan area stopping at playgrounds and hotels; playgrounds mainly in the morning and hotels mainly in the afternoon. We sat in the car in the hotel car park for the hour or so Dad was inside. We had fun wrestling and tickling each other and just as we were getting bored, Dad appeared with a glass of lemonade for each of us, a great treat. On these days he also bought us lots of lollies. Altogether access days were fun. In the late afternoon Dad took us to Nanny and Papa’s house and they fed and bathed us and put us in front of the television to watch the end of the race results and the whole of Felix the Cat. Dad delivered us home in the evening in our pyjamas and dressing gowns.

Handovers were unpleasant. When Dad arrived to take us for the day we piled into his car and he stood at the bottom of the steps and picked a fight with Mum standing on the veranda. One day Mum told Dad to piss off and he laughed and Mum briefly warmed to him.

Dad was head of the south west division of a government department. We lived in Busselton in a wonderful government house in Busselton just off the main street; asbestos of course. Each morning while Mum was feeding the baby Dad emerged holding up a shirt and roared at Mum about the state of it. I stood between them and cried and begged Dad not to shout at Mum. She gently moved me aside. That is the abuse and violence I witnessed or can remember. Mum told me of other incidents: Dad pulled a knife on her; he kicked my three-year-old brother down the central hallway. No doubt there was more she didn’t tell me.

When Dad left for America in 1965 the maintenance payments largely ceased. Mum’s lawyers told her she could not enforce her maintenance rights because he was out of the jurisdiction.

I don’t know whether there were property settlements in those days but there wasn’t one between Mum and Dad. Even if that arrangement existed Dad had nothing but his Humber Super snipe.

Soon after the separation Mum wanted a divorce but Dad refused; he agreed in 1970 only in order to remarry. Dad lived out his days in the US and died in Washington DC in 2008. He was a professor in Seattle, a director of tropical agriculture in Hawaii and a scientific adviser with the State Department in Washington DC. His second wife left him in around 2000. They had no children. Mum raised us to adulthood. To support us she went back to teaching and took in student teachers as boarders. Mum re-married at age 50 when Len, the youngest, was 19 and the only one home. She was married to Neil for three decades and died in 2018.

Mum left Dad at an interesting time in the development of family law. I am not a family lawyer and no one should rely on this blog as legal advice but I have done some reading, particularly a 1966 article written by a Judge: Development of Divorce Law in Australia DM Selby (1966) 29 Modern Law Review 478, which is online.

Earlier in the year, in February 1962, the Matrimonial Causes Act came into effect. It was a Commonwealth Act and changed a lot of family law that had been applied in State courts. It established throughout Australia, separation as a ground of divorce: separation for a continuous five years with no reasonable likelihood of the spouses getting back together. Before 1962, in most jurisdictions, a spouse could get a divorce only by proving the other spouse had committed a “matrimonial offence”. No matrimonial offence, no divorce. From February 1962 there was no-fault divorce although there was a five year wait.

Cruelty was a matrimonial offence and a ground for divorce. So was desertion. Mum could have applied on those grounds soon after the separation instead of waiting the five years. I infer the reason Mum did not apply on those grounds because there was too much wiggle room for Dad.

As to desertion, Mum had left Dad but she would argue it was a constructive desertion. Before the Matrimonial Causes Act came into force in February 1962, she would have needed to prove that she left because of Dad’s behaviour, but then go on and prove that Dad, in behaving that way, intended to end the marriage. It was a subjective test, depending on Dad’s state of mind. But Mum divorced just after the Act came into force, and the Act removed the subjective test. She would only have to prove that Dad’s conduct was good cause for her to live separately.

For the cruelty ground she would have to wait only one year and then show that during the year, Dad had been habitually cruel. Cruelty was probably the best description of Dad’s conduct but, again, Mum did not apply on that ground. I infer that her lawyers advised against it because it was a ground that gave rise to many problems (as the Judge said in the 1966 article above).

In the 1970’s the five years separation period was reduced to one year. When that came about a family court judge, a family friend of Mum, put on a cocktail party attended by family law judges and lawyers, and some divorcees including Mum. She was in a group of young lawyers and divorcees and a lawyer said it was a good thing that the separation period was now only one year. Mum disagreed. “I think one year is not enough time for the spouses to try to work things out. It should be two years.” The divorcees nodded.

When Dad left for America in 1965 there was no longer any issue of access. I had mixed feelings about Dad going away because I knew it would be for a long time or forever. He could be a lot of fun, he could make people laugh hysterically; he gave us lovely hugs and affection. Still, the weekend access days every three weeks were a disruption to my life and upsetting because of the arguments. When Dad left Australia mainly I was relieved even light-hearted.

How would it have played out these days? Only a family law lawyer could tell you that but it seems to me these things would have been different:

1. There would have been a women’s shelter for Mum to stay at immediately after leaving Dad.

2. Mum might have been able to get a restraining order.

3. The handover and handback on access days could have taken place at a neutral location with supervision.

4. Mum could have got a divorce after one year of separation.

5. Dad’s wages might have been garnisheed for child support.

6. Dad might have been more accessible to the jurisdiction of Australian courts than he was after he went to America.

7. Mum would have had more community support facilities.

8. Mum would have been less of a social oddity.

9. We the children would have been treated by people with less confusion and embarrassment.

In his fourth inauguration speech in 1945, as the Second World War was drawing to a close, US President Franklin D Roosevelt quoted his headmaster: "Things in life will not always run smoothly. Sometimes we will be rising toward the heights--then all will seem to reverse itself and start downward. The great fact to remember is that the trend of civilization itself is forever upward; that a line drawn through the middle of the peaks and the valleys of the centuries always has an upward trend."

Perhaps, on the whole, things are better now for a woman who suffers domestic violence and sustained cruelty.


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