• Threshold tests to invoke jurisdiction
• Residency
• Contributions made before or after the relationship
• What property is taken into account under section 20?
• Disclosure requirements
• Consent orders

6.1 The previous chapter addresses the broader policy questions regarding what model of property division is appropriate for NSW. This chapter deals with the more peripheral issues that surround the making of a property adjustment. While the issues raised may seem quite technical, determining which approach the court should take on each one has a considerable impact on the amount of property each party will receive. As theses issues are discussed it should be remembered that the Property (Relationships) Act 1984 (NSW) (“the PRA”) is intended to be a beneficial piece of legislation and that the aim of the court is to facilitate an adjustment that is just and equitable between the parties.

THRESHOLD TESTS TO INVOKE JURISDICTION

6.2 Before an order for an adjustment to property interests or an application for maintenance can be made under the PRA, the court has to be satisfied on the balance of probabilities that:

• there was a domestic relationship between the plaintiff and the defendant;
• the parties lived together for at least two years prior to the breakdown of the relationship;
• the domestic relationship ceased after the date that the legislation came into operation;
• the parties, or one of them, was resident in NSW at the time of making the application; and
• the application for property adjustment orders and/or maintenance under Part III of the PRA was brought within two years of the date that the relationship is taken to have ceased.

Is there a de facto relationship between the parties?

6.3 In many cases that have come to the Supreme Court, either under the PRA or more frequently, under the Family Provisions Act 1982 (NSW) (“the FPA”), there has been a dispute as to whether a de facto relationship existed between the parties at all. In Miglietta v Biesiada,¹ for example, the plaintiff said they had lived in a de facto relationship for 20 years. The defendant denied this, claiming that she hardly knew the plaintiff. According to her, he was simply a boarder in her house. In cases like this where it is virtually impossible to reconcile the completely conflicting versions, the case inevitably turns on the credibility of the parties.² Here, the Master found that both parties were unreliable but preferred the evidence of the plaintiff and found that there had been a de facto relationship within the meaning of the FPA.³

6.4 Under s 4 of the FPA, to determine whether the parties were in a de facto relationship the court is required to make a value judgment having regard to the following factors:

• the duration of the relationship;
• the nature and extent of the common residence;
• whether or not a sexual relationship existed;
• the degree of financial dependence or interdependence and any arrangements for financial support between or by the parties;
• the ownership, use and acquisition of property;
• the care and support of children;
• the performance of household duties;
• the degree of mutual commitment and mutual support; and
• the reputation and “public” aspects of the relationship.

6.5 The list is inclusive and is intended as a guide only. While the court may consider these factors and attach whatever weight to them it considers appropriate, a finding in relation to any of them is not in itself determinative of whether or not a de facto relationship exists.⁵ This is because the factors may not be appropriate for all types of relationship. For example, some people in same sex relationships would dispute the importance of the public aspects of the relationship given that, because of homophobia, they may possibly avoid holding themselves out as a couple. The list is a guide only, and therefore the incidence of homophobia should be taken into account when determining whether a same sex de facto relationship exists.

6.6 When dividing property upon breakdown of a relationship, arguably the most important factors are financial dependence and interdependence. Specifically, the court should focus on how the parties shared their property and financial resources, the care and support of children and how the paid and unpaid work was shared between the parties.

ISSUE 16

Are these factors appropriate? Are there any other factors that should be included?

6.7 Under the PRA, a close personal relationship is defined as a relationship “between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care”.⁶ The PRA also provides that a close personal relationship does not exist where the care and support is provided either for a fee or a reward or on behalf of another person or organisation (including a government agency or charity).⁷ The limited scope of the “close personal relationships” category was stated in the Bill’s second reading speeches. The then Attorney General stated:

… it is clear that there is no intention to create rights and obligations between persons who are merely sharing accommodation as a matter of convenience, in the way flatmates might.⁸

“Close personal relationship” is not necessarily restricted to people related by family, but they have to be living together, and one or each of them has to provide the other with domestic support and personal care. Thus there are three main criteria to the ‘close personal relationship’ definition, which is intended mainly, if not exclusively, to cover carers. Examples of those relationships would be a son or daughter caring for an elderly parent. It is not intended to cover flatmates or paid carers.⁹

6.10 The category of close personal relationship has recently been considered by the Supreme Court in a property dispute between two gay men.¹² In this case, it was argued before Master Macready that the parties were in a de facto relationship for a period of time, and after the sexual relationship ended, they continued to live together in a close personal relationship. In determining whether a close personal relationship existed between the two men, the Master examined the two statutory requirements that must be satisfied. In relation to the requirement for the parties to have lived together, it was held that this would be satisfied simply by evidence that the parties shared accommodation;¹³ it does not require them to have lived together as a couple.¹⁴ In relation to the second requirement, the court found that there must be evidence of domestic support and personal care.¹⁵ Master Macready held that domestic support includes supplying free accommodation and meals and performing tasks such as shopping and laundry for the other party.¹⁶ He found evidence of this, but not enough evidence of personal care, which he considered entailed more than just “emotional support”. It requires a level of care such as “assistance with mobility, personal hygiene and physical comfort”.¹⁷

6.11 Master Macready followed this interpretation in a recent case under the FPA.¹⁸ He again emphasised that the second requirement was "cumulative"; both domestic support and personal care are required.¹⁹ The Master found that the plaintiff had lived with the deceased and provided him with domestic support. The evidence also showed that the deceased was diabetic, very obese and suffered deteriorating health in his last year. The Master inferred from these facts that the deceased would have required personal care and as the plaintiff lived with the deceased,him made it was likely that the plaintiff he in fact supplied the requisite care under the FPA.²⁰

6.12 These cases highlight the restrictive nature of the definition of close personal relationship in that it only covers relationships involving a degree of personal care. A preferable approach may be for the PRA to include a more inclusive definition rather than one which automatically excludes otherwise meritorious claims. A high evidentiary burden to prove financial and personal dependency or interdependency could then be imposed to ensure that the claim has merit.

6.13 The Legislative Council’s Standing Committee on Social Issues (“the Social Issues Committee”) considered the current definition of a close personal relationship in its inquiry into De Facto Relationships Legislation. They found that the provision was too narrow and that a more general definition was required, one that could be applied on a case by case basis.²¹ The Social Issues Committee received many submissions, which argued that interdependence should be the defining factor in the legislation,²² rather than a definition that only includes a specific type of relationship such as carer relationships. The Social Issues Committee recommended that the definition of close personal relationship “be broadened to encompass a wider range of interdependent personal relationships”.²³ Any relationships considered inappropriate for the PRA to cover, such as flatmates, could be expressly precluded from its operation.²⁴

ISSUE 17

What factors should be taken into account when determining whether a close personal relationship exists between the parties?

6.14 Both the definitions of a de facto relationship and a close personal relationship require that the relationship exist between two adults.²⁵ It therefore applies only to persons over the age of 18 years.²⁶ In her submission, the NSW Commissioner for Children and Young People argued that restricting access to the provisions of the PRA to adults is discriminatory and has no rational basis, especially since people under the age of 18 years may live together.²⁷ The restriction also raises an anomaly; a person who is 16 or 17 can be married and have access to the provisions of the FLA.²⁸ The Commissioner further contends that a younger person may have an even greater need for the protection of the PRA, especially if they are in a relationship with an older person and consequently are in a weaker bargaining position.²⁹

ISSUE 18

Should the PRA be amended to allow people under the age of 18 years access to its provisions?

If so, what should be the new age limit, if any?

6.15 The date at which the relationship is taken to have begun and the date that it is said to have ceased are very important preliminary facts that must be established to determine whether the court has jurisdiction to make an order for property adjustment or maintenance. It cannot make any order unless it is satisfied that the parties have lived together for at least 2 years.³⁰ In Kolacek v Brezina³¹ for example, the parties agreed that the relationship began in about April 1987 but there was considerable dispute about when it ended. The plaintiff contended that it ceased in December 1994 but the defendant submitted that the relationship ended in January 1989 and thus did not meet the duration required under s 17.

6.16 Questions as to when a relationship is taken to have begun and when it is said to have ended raise other important considerations in terms of what contributions the court may take into account when making an order for property adjustment. These issues are discussed below.

Should there be a minimum cohabitation period?

6.17 This was an issue visited by the Commission in 1983, in Report 36. The Commission then considered that it was appropriate to require the parties to have cohabited for a minimum period of time in order to be able to make a claim for maintenance or property adjustment, but there was disagreement about the length of time that ought to be required. Two members believed the minimum period should be two years while another two members believed a three year period should be required.³²

6.18 There is a view, supported by some community and interest groups, that the legislation should not require a minimum period of cohabitation at all.³³ For example, the Gay and Lesbian Rights Lobby argue that cohabitation should not be required, partly for the reason that many gay and lesbian people choose not to live together because of homophobia in the community.³⁴ The Social Issues Committee recommended that whilst the cohabitation requirement should remain in the definition of a de facto relationship, it should not be included in the definition of a close personal relationship. As they recommended a broader definition for close personal relationship, based on interdependence, any non-cohabiting de facto couples, same-sex or heterosexual, would be covered by the PRA as a close personal relationship.³⁵ The Anti-Discrimination Board also suggested that instead of a minimum period of cohabitation the definition of both a de facto and domestic relationship should be based “on a primary relationship of mutual emotional interdependency”.³⁶ Removing the cohabitation requirement would allow maximum flexibility and the court could make an order as the circumstances warrant. Supporters of this view say that since there is no automatic right of adjustment it would be up to the court, having regard to the factors outlined in the PRA, to make an order as it considered just and equitable. Also, unfounded claims can be discouraged by costs orders against the unsuccessful party.

6.19 As noted above, the view that prevailed in 1983 required a minimum period of cohabitation. This would clearly discourage unmeritorious claims. The Commission at the time thought it was inappropriate to create rights and obligations on persons as soon as they enter into a de facto relationship. For example, it considered that a right to rehabilitative maintenance when the parties had lived together a short time and where there were no children was inappropriate.³⁷ However, it recognised that a disadvantage of requiring a minimum period of cohabitation is that applicants who cannot prove they lived with their partners for the requisite time have no opportunity to have the court consider their contributions. So the Commission proposed that there be no minimum period of cohabitation requirement where there was a child of the relationship; or where the applicant had made substantial contributions; or where the applicant has the care and control of the other partner’s child or children.

6.20 Other Australian jurisdictions require varying lengths of cohabitation; some two years³⁸ and others three.³⁹ The ACT does not require cohabitation at all in its definition of a domestic relationship.⁴⁰

Exceptions to the minimum cohabitation requirement

6.21 Under the PRA, parties may apply for property division or a maintenance order even if they have not lived together for two years provided they satisfy one of two exceptions:

(a) the parties have had a child together;⁴¹ or

(b) the applicant:

(i) has made substantial contributions for which he or she would not be adequately compensated if the order were not made; or

(ii) has the care and control of a child of the respondent,

Substantial contributions exception

6.22 In determining whether the applicant has made a substantial contribution, the court needs “to be satisfied on a prima facie basis and take a ‘broad brush’ approach to the applicant’s s 20 contributions”.⁴³ Whether the court allows the applicant to proceed depends on whether the court considers that such contributions would otherwise not be adequately compensated and a serious injustice would result.⁴⁴

6.23 In assessing whether the contributions have already been adequately compensated, the court generally looks at whether they have been offset by the other party’s contributions.⁴⁵ In Reilly v Gross it was found that the plaintiff’s financial contributions towards renovating the defendant’s home and paying for a holiday for them both, and also contributions as homemaker for the defendant and his son, were substantial and far outweighed the defendant’s contributions.⁴⁶ In Kolacek v Brezina,⁴⁷ on the other hand, it was held that the plaintiff’s financial and homemaker contributions were more than offset by the defendant’s contributions, who provided her with rent-free accommodation and a high standard of living.⁴⁸ In a recent case, it has been held it would be unrealistic to assess whether substantial contributions had been made in isolation from the nature and incidents of the relationship as a whole.⁴⁹

6.24 This type of assessment is a very subjective one that tends to produce varying judicial decisions. For example, becoming a joint mortgagor (albeit never being required to make mortgage repayments) was not considered a substantial contribution in the 1993 case of Street v Bell⁵⁰ but it was in Dries v Ryan.⁵¹ The reluctance of appeal courts to overturn decisions based on the exercise of statutory discretion has meant that a clear precedent has not developed. Consequently, it is very difficult for parties to arrive at negotiated resolutions.

Serious injustice

6.25 It is not clear how the additional requirement of “serious injustice” is to be applied to the two exceptions under this section. There are two possibilities for its application. First, the requirement of serious injustice may be merely illustrative. That is, if substantial contributions are made and these are not compensated for, then a serious injustice will always arise and hence an order is needed to rectify this injustice. Alternatively the requirement of serious injustice adds a second threshold that a party must satisfy to fall under the exception. In other words, if there have been substantial contributions made and these have not been compensated for, then a serious injustice may or may not arise. The court is required to make a determination and invoke the exception only if a serious injustice has arisen.

6.26 The Commission believes that the former construction is preferable as the requirement that a serious injustice would result only adds a further burden on the plaintiff and one which again demands a subjective assessment by the court. Hence, the reference to serious injustice is possibly not necessary, at least in so far as it applies to the substantial contributions exception.

ISSUE 19

Should the PRA require cohabitation at all?

If so, should a minimum period of cohabitation be required? If yes, what should the period be?

Should the PRA limit the court’s discretion in determining whether there has been a “substantial contribution”? If so, how? Should the requirement of “serious injustice” apply to this exception?

6.27 The PRA has no retrospective element. In relation to heterosexual cohabiting couples, the PRA only applies to those de facto relationships that were current on the date that it first came into operation, namely 1 July 1985, and end after this date. In relation to persons in domestic relationships, which includes persons in same sex relationships and in close personal relationships, the PRA only applies if those relationships ended after the Property (Relationships) Legislation Amendment Act 1999 came into operation, that is, 28 June 1999. Parties to relationships that ended before these operative dates have recourse to the common law and equitable principles.⁵² The first case to be decided by the Supreme Court under the new amendments, Dridi v Fillmore,⁵³ failed in this regard. The Master found that though there had been a de facto relationship within the meaning of the PRA, as extended in 1999, the relationship ended before 28 June 1999 and the action was therefore unsuccessful.⁵⁴

When does a relationship end?

6.28 In Dridi v Filmore, Master Macready traced the law relating to how the court is to determine whether a de facto relationship has terminated.⁵⁵ It is a question of fact and one that cannot be answered merely by determining when the parties were cohabiting. Although the cessation of full-time common residence will be significant in many cases,⁵⁶ periods of separation for holidays, business or illness will not affect the continuation of the relationship.⁵⁷ However, there is some dispute as to whether one party leaving the common residence for a short while after a fight, in order to think about the relationship, will constitute a termination. In Hibberson v George, Mahoney JA drew a distinction between parties who are married with those in a de facto relationship:

The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as was suggested in the present case, to enable one party or the other to decide whether it should continue.⁵⁸

6.30 The reasoning of Mahoney J has been approved by Powell JA in subsequent cases,⁶⁰ although in one case he stated that he did not fully reject the notion that a relationship can continue whilst parties separate in order to work through a difficulty.⁶¹ In Gazzard v Winders, Beazley JA refused to endorse Mahoney JA’s comments and held that a small hiccup in a long relationship (in that case, six weeks out of fourteen and a half years) should not be enough to interrupt it.⁶² In Thomson v Badger,⁶³ Young J viewed the living-apart periods in the context of the whole relationship. He found that the relationship was a volatile one, punctuated by a number of separations, but the parties got back together after each one.

In Dridi v Fillmore, Master Macready read down these two cases as applicable only when a behavioural pattern of separation and reconciliation is evidenced.⁶⁴ The Master held that “if one party withdraws from the relationship and determines thereafter it is to end, this is an effective end to the relationship.”⁶⁵

6.31 In Howland v Ellis, the parties became physically separated when the plaintiff was sent to prison. Master McLaughlin stated that the intention of one or both parties that the relationship would continue cannot be the sole consideration when the parties are going to be continually separated for such a lengthy time, distinguishing a prison sentence from a holiday or business commitment.⁶⁶ He found that whilst there may have been an intention that the relationship would continue if the plaintiff was granted bail and released from custody pending his trial, at the very least, the relationship must be taken to have ended on the day the plaintiff was sentenced.⁶⁷ This finding was overturned on appeal, however, with the court determining that more than physical separation is necessary to end a de facto relationship. The Court of Appeal considered that there was evidence to suggest that the relationship continued beyond the date of the plaintiff’s sentencing.⁶⁸

ISSUE 20

Should the PRA specify in what circumstances a relationship will be taken to havehas ended?

If so, what should these circumstances be?

6.32 The court has no jurisdiction to hear an application for property adjustment unless the requirements for residency, under s 15(1)(a) and s 15(1)(b), are both met. The first is that one or both of the parties to the application must have been living in NSW at the time the application was made. The second comprises two limbs, offered in the alternative: either the parties must have lived in NSW for a substantial period of their relationship or, the applicant must have made substantial contributions of the kind referred to in s 20.⁶⁹

6.33 The PRA further provides that the parties will satisfy the requirement that they lived in NSW for a “substantial period” if they lived in the State for at least one-third of the duration of their relationship.⁷⁰ In the case of Flett v Brough, it was held that the failure of the parties to have lived in NSW for one-third of the length of their relationship was not in itself determinative of whether they had lived in NSW for a “substantial period”. It was not an essential requirement.⁷¹ Master McLaughlin considered that, due to the lengthy relationship between them, which spanned 21 years, a continuous period of almost three years living in NSW could properly be regarded as substantial.

6.34 The reason for the residency requirement appears to be to dissuade a flood of claims from persons in other jurisdictions. Being the first legislation of its kind, it was considered to have been a unique, and for this reason, attractive forum for people living in de facto relationships in other parts of Australia. In its 1983 Report, the Commission did not want to allow parties to invoke the legislation simply by moving to NSW after the breakdown of a relationship.⁷²

6.35 Similar residency requirements apply in South Australia, the ACT, the Northern Territory and in Victoria.⁷³ There is no residency requirement in Queensland and Tasmania. However, there is the argument that because same sex relationships and close personal relationships are not covered in all jurisdictions, NSW may still be an attractive forum. But, unless the provisions for property adjustment in the PRA are reformed, Queensland and the ACT may be more attractive as their respective Acts offer better protection, especially to parties whose contributions are mostly non-financial. Another reason for dropping the residency requirement may be that people are more mobile today; they are more likely to move interstate and to own property in other parts of the country.⁷⁴

6.36 If the residency requirement is omitted, the issues to consider are enforcement of court orders interstate, “forum shopping” and conflict of laws across jurisdictions. If residency is not required, the NSW court may have to make orders with respect to property that is located interstate. For the NSW order to be effective it must be recognised and enforced by a court in the other State.⁷⁵ In principle, Australian courts do recognise the judgments of courts in other jurisdictions.⁷⁶ Also, even if the PRA dispenses with the residency requirement and allows parties from all jurisdictions within Australia to apply, the court’s jurisdiction could still be challenged under common law principles. At common law, a particular court will not have jurisdiction when it is a “clearly inappropriate forum” for deciding the case at hand.⁷⁷ However, there is uncertainty regarding whether the principle applies to the State courts, with some cases suggesting that, in practice, Australia is already one jurisdiction.⁷⁸ If it does apply across State courts, the argument could be made that NSW is an inappropriate forum for determining property disputes between couples from a State that has their own de facto relationships legislation.

ISSUE 21

Should the residency requirement be retained in its current form? Is there any need for it?

If there is reason to keep it, should it be modified to make it less onerous as in the initial model recommended by the Queensland LRC?

6.37 An application under s 20 must be brought within two years of the parties ceasing to live together.⁷⁹ However, the court can allow a claim to be brought out of time where it considers that the applicant would suffer greater hardship if it did not allow the claim than would be suffered by the respondent if leave were granted.⁸⁰ However, where maintenance is sought, there is no provision for an extension to be granted; an application must be brought within two years. This means that a prompt application and hearing for maintenance is vital because absolute time limits run from the moment of separation under both s 18 and s 30.⁸¹

6.38 There are many reasons why persons might not be able to bring an application within the two year time frame. One of the partners might not consider that the relationship has ceased on a particular day, even if the other has moved out of the home, or it may be that people are not aware that they have statutory rights under the PRA. Alternatively, it could be because their legal representative has delayed filing an application.

6.39 The court has taken a somewhat strict position regarding when it will allow an application to be brought out of time, such that few applications are granted.⁸² In Parker v McNair,⁸³ the court held that although hardship was a prerequisite to granting leave it would not necessarily suffice. It was found that the use of the word “may” in s 18(2) gives the court a discretion to consider other matters of justice, such as whether there is an adequate explanation for the delay. In this case, the adequate explanation was that part of the delay was the fault of the plaintiff’s solicitor. Other explanations found to be adequate by the court include where the applicant had strongly hoped for a reconciliation after the parties’ initial separation. She did not know of her rights under the PRA until well after final separation.⁸⁴ In another case, the court found that the defendant’s ill-health and poor financial circumstances made it not unreasonable for him to wait to make a claim under the PRA until the plaintiff had instituted her proceedings in equity.⁸⁵

6.40 In Trelore v Romeo, however, no such adequate explanation was found and the court was firm in stating that leave would not be granted:

… where the only hardship the defendant would suffer was in actually having the case heard and where the plaintiff might otherwise be deprived of the fruits of the action. Parker’s case does not say that at all. It says that whilst hardship must be evaluated the case for an extension is to be considered on all the circumstances as to whether it is just in the court’s discretion to extend time.⁸⁶

6.42 In a Victorian case, an application was brought by the de facto wife for leave to bring an application under Part IX of the Property Law Act (Vic) (and under trust laws) four years after the parties ceased living in a de facto relationship. The parties had lived together for at least 14 years, had had two children together and at the end of the relationship, by a separation agreement, the de facto wife agreed to accept $40,000 in full and final settlement of any claim against the de facto husband. At the time of the application, she was 48, had custody of the children, lived in rented premises, had assets of about $17,000 and her $100 per week part-time salary was supplemented by social security. He, on the other hand, was 55, retired and lived on the rental income of his investment properties. His total assets were in the order of $1 million and he paid about $2 per week in child support.⁸⁸

6.43 Taking into account all the relevant matters, Gillard J was satisfied that greater hardship would be caused to the de facto wife than to the defendant de facto husband and granted leave. Among the relevant matters, Gillard J considered the question of delay and the requirement by some judges for an adequate explanation to be given in order to exercise the discretion in the applicant’s favour.⁸⁹ He held that the primary concern when exercising this discretion is to do justice between the parties. In particular, the concern was to see where the greater hardship would fall. His Honour said:

I can not see how an explanation for a delay, an inadequate explanation or no explanation for delay could in justice ever preclude the granting of an order where the greater hardship falls on the plaintiff if leave were not granted.

I think the time has arrived for court to consign this outdated requirement to adequately explain a delay to the judicial dustbin … The failure to adequately explain delay, in my opinion, could never be a basis for refusing leave where there were factors which justified leave.⁹⁰

6.45 The Commission’s tentative view is that the Queensland model should be followed. The sole requirement when considering applications for claims to be brought outside the limitation period should be hardship. Whether there is an adequate explanation or whether the claim is meritorious are subsidiary factors, and perhaps should not be relevant at all.

ISSUE 22

Should an adequate explanation be required before a court will allow an applicant to bring a claim out of time?

Should hardship be the only relevant factor?

6.46 The duration of a domestic relationship also affects the contributions upon which an applicant can rely in her or his claim.

Can contributions that pre-date the PRA be taken into account?

6.47 Section 16 of the PRA says that in determining whether to make or refuse an order the court may consider facts and circumstances that took place before the commencement of the PRA. This indicates that for relationships which existed before the PRA came into operation, the court can consider property and contributions towards the acquisition or maintenance of that property which pre-date the PRA.⁹⁴

Can contributions that were made prior to the domestic relationship be taken into account?

6.48 There are two lines of judicial authority on this issue. One holds that contributions made before the commencement of the de facto relationship cannot be taken into account; the other holds that they can.

6.49 Justice Powell is one of the proponents of the first view. In Roy v Sturgeon,⁹⁵ he held that pre-relationship contributions could not be considered in a property adjustment claim under s 20. He declined to follow the Family Court approach, which does allow contributions made before marriage to be taken into account.⁹⁶ He held that the different wording of the PRA and the policy considerations which underpin it indicate that “the relationship between de facto partners was not to be elevated to one equivalent in status to that of parties to a marriage.”⁹⁷ Justice Powell has maintained this view in recent cases.⁹⁸ Master Macready also felt bound to accept this view when deciding the case of Del Gallo v Frederikson.⁹⁹ Although his decision was upheld,¹⁰⁰ the Court of Appeal actually left the issue of pre-relationship contributions undecided. Had the issue been resolved, there is reason to believe that the opposite view may have been taken, with Justice Rolfe speculating that:

… it is arguable that, upon a proper construction of the De Facto Relationships Act 1984, pre-relationship contributions made in contemplation of and for the purpose of the relationship which, ex hypothesi, came into existence, should be taken into account in making the adjustment which the Act permits.¹⁰¹

6.51 The Family Court has taken the broader approach with respect to contributions made prior to marriage. In the recent case of G and G,¹⁰⁷ Justice Nicholson held that there was a long line of authority supporting the proposition that contributions to the welfare of the family made prior to the marriage can be taken into account.¹⁰⁸ The judge at first instance stated that:

… the Full Court has not limited the phase the “welfare of the family” to when the family is an intact family. By analogy therefore, it follows that contributions made by one party to the welfare of the other party including contributions in the capacity of homemaker should not be limited to cohabitation or an “intact” family situation. However the rendering of such contributions, the circumstances of the parties, and the weight to be accorded to those contributions must be a factual matter to be determined in each case.¹⁰⁹

It seems to me to be quite clear that the trigger to the Court’s jurisdiction is the fact of the marriage and the Court is then not confined to the actual period of the marriage in taking account of contributions. It can look to the situation both before and after the marriage.¹¹⁰

ISSUE 23

Should the court be able to consider contributions made prior to the domestic relationship when making orders for property adjustment?

6.53 Related to the issue of whether the court can take into account contributions made before the relationship began is the issue of how to deal with a break, or series of breaks, in the relationship. First, what sort of a break in the relationship will or should constitute the end of that relationship?¹¹¹ Second, should the court be able to consider only those contributions made during the most recent period of cohabitation, or can it look to contributions made during the entire “on-again, off-again” relationship? As with the issue of pre-relationship contributions, there are two strands of judicial thought.

6.54 The narrower view is that a separation period between the parties will constitute the end of that de facto relationship and any eventual reconciliation between them will be treated as the commencement of a new discrete de facto relationship. This has significant ramifications on any claim for property division under the PRA. By treating the relationship as a series of discrete de facto relationships, parties may have difficulty first, in establishing that they cohabited for the relevant minimum time for each of the relevant periods, and secondly, in meeting the limitation period for bringing the claim for each relevant period.¹¹² It is highly probable that, unless the court allows the applicant to bring a claim out of time, only the latest period of cohabitation will be considered relevant. Significantly, this means that only contributions made during that period will be taken into account. Contributions made earlier may be completely disregarded.

6.55 The broader view is that despite any breaks in the relationship, the court should consider the aggregate of the time that the parties were together in order to reach a “just and equitable” order.¹¹³ A very recent case which cast the community spotlight on the rights of de facto partners on separation was the highly publicised case of Grech v Jones.¹¹⁴ The parties had been in a relationship spanning some 32 years, although they had not always cohabited during that time. They had separated for various periods and then reconciled, leading to some confusion about the exact periods in which they were living together. At first instance, the court awarded Ms Jones a mere 16 percent of the house the parties shared because Mr Grech’s financial contributions towards the acquisition of the house were held to be much greater than her homemaker contributions. Notoriously, the Master did not even begin his adjustment process from the starting point of the parties’ legal title. The property was in both of their names as joint tenants and the Master was criticised on appeal for not commencing the adjustment from the standpoint that Ms Jones was entitled to a half-share.¹¹⁵

6.56 On appeal, the decision was overturned. The majority adopted the broader view and considered the aggregate of the time that the parties cohabited.¹¹⁶ Justice Davies treated the issue as part of the wider one of pre-relationship contributions, concluding that:

… the application of s 20 of the PRA, including examination of the factors specified in s 20(1)(a) and (b), required the Master to look at events which occurred prior to the commencement of the last period of the de facto relationship. The actions of the parties must be placed in context and given weight and relevance according to the incidents of their relationship over time, including during any prior time when a relationship existed between them.¹¹⁷

ISSUE 24

Should contributions made during the earlier periods of the relationship be considered when making a property adjustment order upon cessation of the last period of cohabitation?

6.58 Generally, property settlements or orders under the PRA will consider what is often described as “basic” or “domestic” property, namely the house, car, furniture and bank accounts.¹¹⁹ There are, however, also non-domestic assets to consider, such as businesses and farms.

6.59 Section 3 of the PRA contains a definition of property which includes real and personal property, including any present, future or contingent estate or interest in the property, and also any cause of action for damages (including damages for personal injury), and any other chose in action.¹²⁰ Only what is defined as property can be made part of an order under the PRA.¹²¹ Financial resources may also be considered, but only in the context of whether one or both parties has contributed to a particular financial resource.¹²² Section 3 of the PRA defines “financial resources” as superannuation entitlements, interests in trusts, property over which one party has control and any other valuable benefit. As they are not property they cannot be divided. However, the court can take them into account when adjusting the parties’ interests in available property.¹²⁴

Windfalls

6.60 A major issue that arises in this area is how windfalls, such as lottery wins and inheritances, gained by one party either during or after the relationship are to be treated.

Lottery wins

6.61 In Fowler v Zoka,¹²⁵ the court held that the ordinary rule is to assess the assets of both parties at the date of the hearing rather than the date of separation. One exception they gave was that found in Mackie v Mackie,¹²⁶ where the court used the separation date due to the “extraordinary factor” of one party winning the lottery after separation. The lottery win was considered as the property of that party only and not available for the adjustment. A similar principle was accepted in Wallace v Stanford where a hypothetical example of a lottery win was given:

Assume that a woman has, by a lottery win, acquired $1 million the day before or the day after separation from a de facto relationship: what, if any, account is to be taken of that fact? There is, in such a case, no contribution to that sum by the other party to the relationship. (I put aside special cases, eg, joint ownership of the money used to buy the lottery ticket or joint ownership of the ticket). In my opinion, the fact that she has such moneys is not as such, a ground for making an order which otherwise the Court would not have made. The winnings are a windfall which has no relationship to the exercise of the Court’s discretion.¹²⁷

6.63 These cases can be compared with how the Family Court has dealt with lottery wins in the context of marriage and divorce. The leading case here is In the Marriage of Zyk,¹²⁹ where the court held that, unless it was an unusual case, the court will assume that the ticket was purchased from joint funds, whether both parties were working outside the home or only one was earning money. In other words, a lottery win will usually be treated as a contribution to the relationship by both parties. An unusual case would be “where the parties have so conducted their affairs and/or expressed their intentions that this would not be the appropriate conclusion”.¹³⁰ An example of an unusual case was found in the case of Brease and Brease.¹³¹ In that case the ticket was brought prior to the marriage and although at that stage the parties were already in a “quasi-de facto relationship”, there was yet to be a pooling of their funds.

6.64 The Family Court’s rationale in Zyk stands in direct contrast with Justice Mahoney’s statements in Wallace v Stanford, quoted above. He states that the general rule under the PRA is that lottery windfalls are not to be included in the property adjustment. An exception is the “special case” of a ticket that is jointly owned or was purchased by joint funds. Unlike the case with married couples where joint ownership is assumed, it seems de facto couples must prove a direct financial link to the ticket.

6.65 Another area where the treatment of lottery wins in marriage cases differs is with respect to the s 75(2) factors under the FLA, for which there is presently no equivalent in the PRA.¹³² In Farmer and Bramley,¹³³ 15% of the husband’s post-separation lottery win was transferred to the wife, due in part to factors under s 75(2). The small asset pool at separation was also a consideration. It was held that the property available was not large enough to compensate the wife for her contributions considering, as the trial judge stated, life “was not a bed of roses” for Mrs Bramley. A similar adjustment was made in Bradley v Weber where 20% of the husband’s lottery win was transferred to the wife largely due to the fact that she was caring for young children.¹³⁴

Inheritances

6.66 Another common windfall is an inheritance received by one party. A leading case on this issue is Wallace v Stanford, where the majority held that although the inheritance was a windfall, the parties did have a relationship to the inherited land. For several years preceding the inheritance the parties had lived on the land and made contributions to its development and maintenance. However, the majority held that the contributions made by the party who had inherited the land outweighed those made by the other.¹³⁵ It was found he had built the house and worked the land, which were considered substantial contributions. Whereas, although she tended the poddy calves and did other work around the farm as well as all of the housework, her contributions were considered to have been compensated by being able to live on the land rent-free. In their decision, the majority read s 20 narrowly, holding that the only relevant considerations in a claim for property adjustment are contributions.¹³⁶ They held that if the adjustment cannot be justified by evidence of the parties’ contributions, the court cannot otherwise make the adjustment under the broad justification that it was “just and equitable” to do so. Justice Handley, in dissent, disagreed and took the broader approach. He held that the inherited land should be made part of the property adjustment, otherwise the order would not be “just and equitable”.

6.67 In most cases regarding inheritances, the court has classified the windfall as a contribution by the party who inherited it only.¹³⁷ Usually the inheritance, especially if it is received towards the end or after the relationship has ceased, is classified as having no connection to the parties’ relationship and hence the other party is considered not to have contributed to the property or money inherited. The majority view in Wallace v Stanford is adopted, namely that there must be a link between the contributions of the other party and the inheritance for it to be included in the adjustment. However, it may be possible to apply Justice Priestley’s statements in Theodoropoulos v Theodosiou with respect to lottery wins to inheritances also.¹³⁸ When the rest of the property pool is relatively small and the other party’s contributions will not be adequately compensated unless the inheritance is included in the adjustment, then an argument could be made that it should be included.

6.68 In comparison, the Family Court case of In the Marriage of Bonnici held that whether inheritances will be dealt with as part of the property adjustment will depend on the circumstances of each case. It will depend, for example, on the funds available and whether a just and equitable settlement can be achieved without recourse to the inheritance. If a just result can otherwise be arrived at, a recently acquired inheritance will usually be treated as the entitlement of the receiving party only. When an inheritance is received late in the relationship, the other party will generally not be considered to have contributed to it except in unusual circumstances where, for example, they helped to care for the deceased.¹³⁹ This was the case In the Marriage of Heath¹⁴⁰ where Justice Nygh had regard to the wife’s care for her husband’s parents which was seen as a contribution towards the bequest he received from them.

Gambling wins

6.69 A recent case which dealt with windfalls in a de facto relationship was McGrath v Ter Hedde.¹⁴¹ The first issue was the defendant’s claim that through gambling on horses he had won $277,742, of which he kept records. Conversely, he had kept no records of his losses, which he “merely estimated” at $100,000. Due to the vague and incomplete nature of his records the court did not accept these as contributions by the defendant. The court did, however, regard evidence of trifecta winnings totalling $31,550 (which the plaintiff corroborated) as a contribution by the defendant to the relationship. In the case of Rigg v Kersh¹⁴² the court found that the proceeds from a winning trifecta ticket was a contribution by both parties. Although it was purchased in the plaintiff’s name alone, the ticket was purchased from joint funds and hence it was held that the parties were jointly entitled to the win. Conversely, gambling losses that result in a dissipation of the parties’ assets have been taken into account as “negative” contributions.¹⁴³

Loans

6.70 McGrath v Ter Hedde also dealt with the issue of loans from the defendant’s parents which were put towards property acquired by the parties that was later sold for profit. It was held that the loans were “thus a substantial contribution on the part of the defendant”.¹⁴⁴

Gifts

6.71 Gifts are treated (in a similar way to loans) as a contribution by the party who received the gift.¹⁴⁵ In Fowler v Zoka the defendant’s parents’ company funded a substantial part of the purchase price of the parties’ property. It was found that the gift “clearly was intended on the evidence to be a benefit for the defendant and not for the parties jointly”,¹⁴⁶ hence she alone was credited with the contribution. By analogy, it could be argued that if a donor intends that both parties should benefit from the gift, then it should be seen as a contribution by both of them.

6.72 The leading Family Court decision on this issue is In the Marriage of Gosper. In that case it was held that the intention of the donor is “the critical issue”, but that evidence of this intention is often conflicting, and hence the strongest indicator of whether both or only one party was the intended recipient is whether the title of the property was transferred to the name of both or only one party.¹⁴⁷ For smaller gifts, the court approved of the “rule of thumb”, which although cannot replace actual evidence, presumes that if the gift was from one party’s family or friends it was intended for that party alone.¹⁴⁸ The law in this area has been extended to non-financial gifts, such as free babysitting by one party’s parent.¹⁴⁹ It has also been applied to gifts of property received by one party before the marriage. In these cases, the property is seen as a contribution by the recipient party only, especially if that party works on the property or otherwise increases its value before it is brought into the relationship.¹⁵⁰ However, as the marriage progresses, the weight of that contribution diminishes through it being offset by contributions of the other party.¹⁵¹

Shares in businesses

6.73 As stated above, the court can only make orders adjusting the interests of the parties in available property, not their interests in any financial resources. Shares in family businesses are financial resources. In the case of King v Kemp,¹⁵² the Family Court stated that, in order to decide what order was just and equitable, the court should consider the contributions of the parties not only to their property but also to their financial resources. They upheld the trial judge’s finding that a partner’s one-quarter share in the family business, as well as his expectancy to inherit the other three-quarters, was considered a valuable financial resource. However, they also stated that the court is only to have regard to it as a financial resource and to ensure that the orders adequately reflect whatever contribution the applicant made to it.

6.74 In the ACT case of Ferris v Winslade, it was held that part of the plaintiff’s financial resources which ought to be taken into account by the court included her expected inheritance from her deceased father’s estate. However, it was also held that the worth of this resource had to be discounted due to the possibility of other claims on the estate and delays in its administration.¹⁵³ It should be noted that, as it currently stands, the PRA does not allow the court to consider the financial resources of the parties unless it is in the context of assessing contributions towards them. Unlike in the two cases above, the court cannot make an adjustment because of a disparity in the parties’ future financial positions, hence financial resources cannot be considered in this context under the PRA.

How is property defined in other jurisdictions?

6.75 Section 20 of the De Facto Relationships Act 1996 (SA) defines property as:

• a prospective entitlement or benefit under a superannuation scheme;
• property held under a discretionary trust that could, under the terms of the trust, be vested in the person or applied for the person’s benefit;
• property over which the person has a direct or indirect power of disposition and which may be used or applied for the person’s benefit;
• any other valuable benefit.

DISCLOSURE REQUIREMENTS

6.77 Neither the PRA nor the Regulations contain a provision that requires parties to make a full and frank disclosure of their assets and liabilities. However, a reading of the case law suggests that it is required.

6.78 In Dowrick v Sissons,¹⁵⁶ the major issue for the court was valuing the shares held by the defendant in a consultancy company. The defendant’s valuation of the 100 shares he held came in at $1 per share. The plaintiff’s experts valued them, the first time, at over $400,000. After certain documents had been subpoenaed, it was revealed that accountants for the defendant had not entered any of the work in progress on the company’s balance sheets even though they had entered expenses relating to that work in progress. It was further revealed, after documents were subpoenaed from the defendant’s bank, that the defendant had not disclosed management accounts. Master Macready quoted a passage from the English case of Livesey v Jenkins:

… unless a court is provided with correct, complete and up-to-date information on the matters to which, under s 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that subsection…It follows necessarily from this that each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and the court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice.¹⁵⁷

6.80 Dowrick v Sissons has been cited with approval in Parks v Thompson, where Master McLaughlin commented:

It cannot be emphasised too strongly that in proceedings under the De Facto Relationships Act, each party bears a responsibility to place before the Court full and complete information concerning the financial and material circumstances, including the assets and liabilities, of that party at the commencement of the relationship, at the termination of the relationship and at the time of the trial. In the instant case the defendant appears deliberately to have chosen not to fulfil his obligations in this regard … He cannot be heard to complain, therefore, if any order made in favour of the plaintiff is more generous than might have been the case if the defendant had chosen to place before the Court accurate and complete information concerning his financial and material circumstances, his assets and liabilities, at each of the times to which I have referred.¹⁵⁸

6.82 Similarly, there is also an obligation to make full and frank disclosure under the FPA:

It cannot be emphasised too strongly that an applicant seeking an order for provision under the Family Provision Act has an obligation to place before the court information as full and as frank as possible concerning the applicant’s financial and material circumstances (which include the financial and material circumstances of the applicant’s spouse or de facto partner).¹⁶²

ISSUE 25

Should the duty of full and frank disclosure be expressly included in the PRA?

Should parties be required to submit a financial statement stating their assets and liabilities?

Should non-disclosure of assets be expressly included as a ground for setting aside or varying an order?

6.84 Consent orders made under the FLA must be approved by the Family Court to ensure that they are just and equitable under s 79.¹⁶⁵ However, the court is not required to investigate them as fully as contested orders, especially when both parties are represented.¹⁶⁶ In fact, it has been held that

“[p]rovided that a court, or a registrar, is adequately informed, where the parties are at arms length and are properly represented little more than consent may be needed to establish that the requirements of the section have been met”.¹⁶⁷

… a comparison of the differences between s 20 and s 27 of the De Facto Relationships Act and the difference between s 20 of the De Facto Relationships Act and s 79 of the Family Law Act, to which I have already referred, indicates that there is no duty on the court to consider whether a consent order under s 20 is just and equitable. Power to make a consent order is expressly given in s 38(1)(J). In the case of a consent order made under circumstances where there is no legislative prescriptions for conditions precedent to the making of the order, there are well established principles under which such an order may be set aside.¹⁶⁸

ISSUE 26

Should consent orders be subject to the court’s approval that they are “just and equitable”?

6.87 Section 41 of the PRA contains the grounds upon which an order can be set aside or varied.¹⁷¹ Currently, these grounds relate to the behaviour of the parties themselves and the effect that the order would have on one or both of them if it was enforced. However, an order which transfers property from one party to the other could possibly defeat the interests of a bona fide purchaser of the property or some other third party. Whilst the court is required to recognise and protect the interests of third parties when making a property order,¹⁷² a couple could mislead the court into making a sham order, most likely a consent order, for the purpose of avoiding the claim of a third party. If the court makes these orders, unaware of the competing interests, it could incur the undesirable consequence of being seen as a party to the sham. There is currently no specific provision in the PRA for setting aside or varying orders on the ground that the interests of a third party were not sufficiently recognised and protected. The FLA also does not specifically contain this ground. It does have a provision which states that, when setting aside or varying orders on one of the grounds listed in s 79A, the court shall have regard to and protect the rights of bona fide purchasers or other interested persons. However, this is not a ground in itself for setting aside or varying agreements, but rather a factor for the court to consider in exercising its discretion.

ISSUE 27

Should interference with the rights of a third party be a specific ground for setting aside or varying orders?

Should any other grounds for varying or setting aside orders be added?

1. Miglietta v Biesiada [1999] NSWSC 1206.

2. See Berg v Mullins [1999] NSWSC 451 and also Marinis v Jeweller [2000] NSWSC 135 and Bar-Mordecai (Estate of Hillston) v Rotman (NSW, Supreme Court, No 120009/94, 18 June 1998, unreported), both brought under the FPA.

3. Miglietta v Biesiada [1999] NSWSC 1206 at para 45-47.

4. Roy v Sturgeon (1986) 11 NSWLR 454. Powell J also included procreation of children as a factor to be included in the assessment.

5. PRA s 4(3).

6. PRA s 5(1)(b).

7. PRA s 5(2).

8. NSW, Parliamentary Debates (Hansard) Legislative Council, 13 May 1999 at 229.

9. NSW, Parliamentary Debates (Hansard) Legislative Council, 25 May 1999 at 296.

10. NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Report 20, Parliamentary Paper 127, 1999) (“Social Issues Committee Report”) at 68.

11. FPA s 6. For an application of the definition see, for example, Jurd v Public Trustee [2001] NSWSC 632 outlined at para 6.11.

12. Dridi v Fillmore [2001] NSWSC 319.

13. Dridi v Fillmore [2001] NSWSC 319 at para 103.

14. Dridi v Fillmore [2001] NSWSC 319 at para 13.

15. Dridi v Fillmore [2001] NSWSC 319 at para 13.

16. Dridi v Fillmore [2001] NSWSC 319 at para 104.

17. Dridi v Fillmore [2001] NSWSC 319 at para 108.

18. Jurd v Public Trustee [2001] NSWSC 632.

19. Jurd v Public Trustee [2001] NSWSC 632 at para 25.

20. Jurd v Public Trustee [2001] NSWSC 632 at para 38.

21. Social Issues Committee Report at 50.

22. Social Issues Committee Report at 52.

23. Social Issues Committee Report at 55 (Recommendation 7).

24. Social Issues Committee Report at 54.

25. PRA s 4, s 5.

26. PRA s 3.

27. NSW Commissioner for Children and Young People, Submission at 5, 6.

28. FLA s 78; NSW Commissioner for Children and Young People, Submission at 5.

29. NSW Commissioner for Children and Young People, Submission at 5.

30. PRA s 17(1).

31. Kolacek v Brezina [1999] NSWSC 578.

32. NSW Law Reform Commission, De Facto Relationships (Report 36, 1983) at para 173.

33. Note also that the cohabitation requirement was dispensed with in the Significant Personal Relationship Bill 1997 s 5(2)(a)(i) and s 7(1)(b)(iii) and the De Facto Relationships Amendment Bill 1998 s 3(1).

34. Gay and Lesbians Right Lobby, The Bride Wore Pink: Legal Recognition of Our Relationships, A Discussion Paper (February 1993, first edition).

35. Social Issues Committee Report at 50.

36. Anti-Discrimination Board of NSW, Submission at 3.

37. NSWLRC Report 36 at para 9.5.

38. De Facto Relationships Act 1991 (NT) s 16(1); De Facto Relationships Act 1999 (Tas) s 13(1); Property Law Act 1958 (Vic) s 281(1).

39. De Facto Relationships Act 1996 (SA) s 9(2)(c). See also Property (Relationships) Act (NZ) s 2E(1)(b), s 14A.

40. Domestic Relationships Act 1994 (ACT) s 3.

41. PRA s 17(2)(a). See Chapter 3 at para 3.6-3.9 for a discussion of when the law recognises that parties have had a child together.

42. PRA s 17(2)(b).

43. Street v Bell (1993) 114 FLR 167 (Renauld J) (Family Court heard under cross vesting legislation).

44. Street v Bell (1993) 114 FLR 167 (Renauld J).

45. See for example Reilly v Gross (1986) DFC 95-035.

46. See also Weston v Castle (NSW, Supreme Court, No 1813/89, 23 August 1989, unreported) where a disparity in contributions was found and an adjustment made.

47. Kolacek v Brezina [1999] NSWSC 578.

48. See also Dorman v Beddowes (NSW, Supreme Court, No 1314/96, 22 April 1996, unreported).

49. Stelzer v McDonald [1999] NSWSC 602 at para 31 (Bergin J). Her Honour found that the plaintiff had made very large contributions to the property and financial resources of the parties as well as homemaker contributions, but so too had the defendant.

50. Street v Bell (1993) 114 FLR 167 (Renauld J).

51. Dries v Ryan [2000] NSWSC 1163. But note this case arose in the context of commercial litigation.

52. PRA s 7.

53. Dridi v Fillmore [2001] NSWSC 319.

54. Dridi v Fillmore [2001] NSWSC 319 at para 109.

55. Dridi v Fillmore [2001] NSWSC 319 at para 19-29.

56. See, for example, Kolacek v Brezina [1999] NSWSC 578 at para 63-64.

57. Howland v Ellis [1999] NSWSC 1142 at para 38.

58. Hibberson v George (1989) 12 Fam LR 725 at 740.

59. George v Hibberson (1987) DFC 95-054.

60. Theodoropoulos v Theodosiou (1995) 38 NSWLR 424; Gazzard v Winders (1998) 23 Fam LR 716.

61. Lipman v Lipman (1989) 13 Fam LR 1. However, Powell JA found that the relationship had in fact ended because the de facto husband had required that the de facto wife leave the home and had “installed” another in her place not long after.

62. Gazzard v Winders (1998) 23 Fam LR 716.

63. Thomson v Badger (1989) 13 Fam LR 559.

64. Dridi v Fillmore [2001] NSWSC 319 at para 28.

65. Dridi v Fillmore [2001] NSWSC 319 at para 29.

66. Howland v Ellis [1999] NSWSC 1142 at para 38.

67. Howland v Ellis [1999] NSWSC 1142 at para 46.

68. Howland v Ellis [2001] NSWCA 456.

69. PRA s 15(1)(b)(i) and s 15(1)(b)(ii).

70. PRA s 15(2).

71. Flett v Brough (NSW, Supreme Court, No 2638/97, 20 November 1998, unreported). See also Summers v Swan (NSW, Supreme Court, No 1895/94, McLaughlin M, 9 May 1997, unreported) and McKnight v Anderson (NSW, Supreme Court, No 1482/94, Macready M, 30 May 1997, unreported).

72. NSWLRC Report 36 at para 9.16.

73. In the latter three jurisdictions, a “substantial period” is not defined. Legislation covering heterosexual and same sex de facto relationships has been introduced into WA Parliament: Family Court Amendment Bill 2001 (WA). The Bill contains a residency requirement: Pt 3 s 45.

74. The Queensland Law Reform Commission found that the uncertainty in the common law was outweighed by the difficulties of proof, extra delay and costs that are associated with including a residency requirement in the legislation, so it dispensed with the residency requirement in its final report: Queensland Law Reform Commission, De Facto Relationships (Report 44, 1993) at 38.

75. P Nygh, Conflict of Laws in Australia (6th ed, Butterworths, Sydney, 1995) at 6.

76. P Nygh, Conflict of Laws in Australia (6th ed, Butterworths, Sydney, 1995) at 6.

77. Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538.

78. See for example Schmidt v Won and Ors [1998] 3 VR 435.

79. PRA s 18(1).

80. PRA s 18(2).

81. See Chapter 8.

82. O Jessep, “Financial Adjustment in Domestic Relationships in NSW: Some Problems of Interpretation”, paper prepared for NSW Law Reform Commission seminar (Sydney, 7 July 2000) available via «www.lawlink.nsw.gov.au/lrc.nsf/pages/seminar01.04».

83. Parker v McNair [1990] DFC 95-087.

84. McKone v Maretta [1999] NSWSC 438.

85. Meyer v Melocco [1991] DFC 95-111.

86. Trelore v Romeo (1991) DFC 95-108 (Young J).

87. Beavan v Fallshaw (1992) 15 Fam LR 686.

88. Harris v Harris (1997) DFC 95-192.

89. See for example, Danny Kidron and Andrew Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 572 (Meagher JA). Cf the judgment of Priestley JA in the same case who noted that “delay is small and appeal is not hopeless and no relevant prejudice will be caused by an extension of time it seems to me that a due exercise of discretion requires the granting of an extension of time” at 578.

90. Harris v Harris (1997) DFC 95-192 at 77,675.

91. Property Law Act 1974 (Qld) s 288(1).

92. Property Law Act 1974 (Qld) s 288(2).

93. Whitford v Whitford (1979) 24 ALR 424.

94. See also D v McA (1986) 11 Fam LR 214 and Roy v Sturgeon (1986) 11 NSWLR 454. Although it is not explicitly stated that matters prior to the Act are able to be considered, in both cases the court begins assessing contributions and property from April 1983 and November 1981 respectively, both of which pre-date the original De Facto Relationships Act 1984 (NSW).

95. Roy v Sturgeon (1986) 11 NSWLR 454.

96. In the Marriage of Olliver (1978) 32 FLR 129. See also the more recent case of G and G (2000) 26 Fam LR 592 at para 14 where Justice Nicholson held that the court was not confined to looking at contributions only during the period of marriage but could consider those made before and after. The case of W v W (1997) 136 FLR 430 extended the FLA’s application even further, holding that contributions to the welfare of the family by caring for a child of the parties could be considered even though the parties were not even cohabiting at the time: see D Sandor, “Accounting for Care Contributions before Cohabitation in Property Settlements” (1997) 11 Australian Journal of Family Law 223.

97. Roy v Sturgeon (1986) 11 NSWLR 454 at 464.

98. Fotheringham v Fotheringham (NSW, Supreme Court, No 4161/94, 19 November 1996, unreported). See also Jones v Grech (2001) 27 Fam LR 711.

99. Del Gallo v Frederiksen [1999] NSWSC 737.

100. Del Gallo v Frederiksen (2000) 27 Fam LR 162.

101. Del Gallo v Frederiksen (2000) 27 Fam LR 162 at para 71. See also Justice Heydon at para 67.

102. Griffiths v Brodigan (1995) 129 FLR 102, heard in the Family Court under the now defunct cross-vesting scheme.

103. Stelzer v McDonald [1999] NSWSC 602.

104. McDonald v Stelzer (2000) 27 Fam LR 304 at para 39, approved in Jones v Grech (2001) 27 Fam LR 711 at para 25 (Davies J).

105. Campbell v Campbell (NSW, Court of Appeal, No 40123/95, 16 April 1997, unreported).

106. Jones v Grech (2001) 27 Fam LR 711 at para 82 (Ipp JA). See also Davies JA at para 24.

107. G and G (2000) 26 Fam LR 592.

108. The cases he cited as authority were Kowalski v Kowalski (1992) 109 FLR 193; W v W (1997) 136 FLR 430 and Nemeth and Nemeth (1987) FLC 91-844.

109. G and G (2000) 26 Fam LR 592 at para 13.

110. G and G (2000) 26 Fam LR 592 at para 14.

111. See para 6.28-6.31.

112. See, for example, Justice Powell in Lipman v Lipman (1989) 13 Fam LR 1 and Fotheringham v Fotheringham (NSW, Supreme Court, No 4161/94, 19 November 1996, unreported): O Jessep, “Financial Adjustment in Domestic Relationships in NSW: Some Problems of Interpretation”, paper prepared for NSW Law Reform Commission seminar (Sydney, 7 July 2000) at para 2.7.

113. See, for example, Griffiths v Brodigan (1995) 129 FLR 102, Campbell v Campbell (NSW, Court of Appeal, No 40123/95, 16 April 1997, unreported) and Stelzer v McDonald [1999] NSWSC 602: O Jessep, “Financial Adjustment in Domestic Relationships in NSW: Some Problems of Interpretation”, paper prepared for NSW Law Reform Commission seminar (Sydney, 7 July 2000) at para 2.7.

114. Grech v Jones [2000] NSWSC 61 (McLaughlin). Decision overturned on appeal: Jones v Grech (2001) 27 Fam LR 711.

115. Jones v Grech (2001) 27 Fam LR 711 at para 30 (Davies JA) and at para 91 (Ipp JA).

116. Ipp JA and Davies JA; Justice Powell dissented.

117. Jones v Grech (2001) 27 Fam LR 711 at para 24.

118. Jones v Grech (2001) 27 Fam LR 711 at para 76.

119. These definitions are used in G Sheehan and J Hughes, “What is a fair settlement? The division of matrimonial property in Australia” (2000) 55 Family Matters 28 at 31.

120. Other choses in action include any claims a party may have to recover a sum of money, for example insurance claims.

121. PRA s 20(1).

122. PRA s 20(1)(a).

123. See Chapter 7.

124. See Chapter 7.

125. Fowler v Zoka [2000] NSWSC 1117. See also Parker v Parker (1993) DFC 95-139.

126. Mackie v Mackie (1981) FLC 91-069.

127. Wallace v Stanford (1995) 37 NSWLR 1 at 15.

128. Theodoropoulos v Theodosiou (1995) 38 NSWLR 424.

129. In the Marriage of Zyk (1995) 128 FLR 28.

130. In the Marriage of Zyk (1995) 128 FLR 28 (Nicholson CJ) and at 40 (Fogarty and Baker JJ).

131. Brease and Brease (1997) 138 FLR 404.

132. Similar provisions are recommended for the PRA, see Chapter 5.

133. Farmer and Bramley (2000) 27 Fam LR 316.

134. Bradley v Weber [1998] FamCA 90, where the application of s 75(2)(c) was considered.

135. Mahoney and Sheller JJA. Handley JA dissenting.

136. See Chapter 5 at para 5.14-5.39 for discussion about various approaches to s 20.

137. Keene v Harkness (1997) DFC 95-179; Webber v Webber [1999] NSWSC 1178.

138. See para 6.62.

139. In the Marriage of Bonnici (1991) 105 FLR 102 (Nicholson CJ).

140. In the Marriage of Heath; Westpac Banking Corporation Intervener (1983) FLC 91-362 at 78,430 (Nygh J).

141. McGrath v Ter Hedde [1999] NSWSC 1192.

142. Rigg v Kersh (1992) DFC 95-116.

143. See, for example, Stroud v Simpson-Phillips [1999] NSWSC 994.

144. McGrath v Ter Hedde [1999] NSWSC 1192 at para 30 (Macready M).

145. See, for example, Trahana v Foley [2000] NSWSC 1086 at para 21 and 28 where contributions to the purchase price of a property, funded by the defendant’s mother, were credited to the defendant alone.

146. Fowler v Zoka [2000] NSWSC 1117 at para 18.

147. In the Marriage of Gosper (1987) 90 FLR 1.

148. In the Marriage of Gosper (1987) 90 FLR 1 citing with approval Samson v Samson (1960) 1 All ER 653 at 656.

149. Aleksovski v Aleksovski (1996) 135 FLR 131.

150. Lee Steere v Lee Steere (1985) FLC 91-626 at 80,078.

151. Lee Steere v Lee Steere (1985) FLC 91-626 at 80,078.

152. King v Kemp (1996) DFC 95-171.

153. Ferris v Winslade (1998) 22 Fam LR 725.

154. PRA s 3.

155. See Chapter 7.

156. Dowrick v Sissons (1996) 20 Fam LR 466.

157. Livesey v Jenkins [1985] 1 AC 424 at 437.

158. Parks v Thompson (NSW, Supreme Court, No 4298/94, McLaughlin M, 6 March 1997, unreported).

159. See, for example, Weir and Weir (1992) 110 FLR 403; Stein and Stein (1986) FLC 91-779; Giunti and Giunti (1986) FLC 91-759.

160. Weir and Weir (1992) 110 FLR 403.

161. Suiker v Suiker (1993) 117 FLR 254.

162. Fraser v Venables (NSW, Supreme Court, No 1847/95, 30 September 1998, unreported), cited by Berecry AM in Foster v Foster (1999) NSWSC 1016. See also the similar statements in Killiner v Freeman [2000] NSWSC 263 at para 13.

163. FLA s 79A(1)(a).

164. Pelerman and Pelerman (2000) 26 Fam LR 505; In the Marriage of Morrison (1994) 18 Fam LR 519; Suiker v Suiker (1993) 117 FLR 254.

165. Harris v Caladine (1991) 172 CLR 84.

166. See Harris v Caladine (1991) 172 CLR 84 and the cases which followed, Prowse and Prowse (1995) FLC 92-557 and Hueston and Hueston (1993) 112 FLR 316.

167. Harris v Caladine (1991) 172 CLR 84 at para 25 (Dawson J), citing as authority Livesey v Jenkins [1985] 1 AC 424 at 437 and 444.

168. Bradshaw v Walder (1998) DFC 95-195.

169. Harvey v Phillips (1956) 95 CLR 235, cited in Bradshaw v Walder (1998) DFC 95-195.

170. Harvey v Phillips (1956) 95 CLR 235.

171. See para 4.111-4.113.