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Where am I now? Lawlink > Law Reform Commission > Publications > Section 4 - Marital and De Facto Relationships: A Comparison
Issues Paper 1 (1981) - De Facto Relationships
Section 4 - Marital and De Facto Relationships: A Comparison
4.1 The following material explains briefly the major differences between the approach of the law in Australia to marital relationships and the approach of New South Wales law to de facto relationships. The account is not intended to suggest that the differences cannot be justified. It may be that it is entirely proper for the law to distinguish between the rights and obligations of married couples and those of de facto partners in relation to such matters as property and maintenance claims, domestic violence and devolution of property on death. An account of the differences is, however, essential to isolating the policy issues requiring resolution.
I. THE RELATIONSHIP BETWEEN THE PARTNERS
A. Property
1. Jurisdiction
4.2 In Australia property disputes between married couples, in general, are heard by the Family Court applying the principles laid down in the Family Law Act 1975 (Cth).1 As has been seen, the Act gives the court power to alter the interests of the parties in property owned by them.2 In exercising this power the Court is directed to take into account a number of factors. These include the respective financial contributions of the parties to the acquisition, conservation or improvement of the property; their financial resources, needs and obligations; their responsibilities to children and other persons; their age, state of health and earning capacity, and their contributions to the marriage. Thus the court is able to adjust the property rights of the parties taking into account their special circumstances. The fact that title to the property, on orthodox principles of law and equity, is vested in one party does not prevent the court making an order vesting the property or portion of it, in the other party.
4.3 The Family Law Act 1975 (Cth) does not, and constitutionally cannot apply to disputes between de facto spouses. As noted in Section 1, this is because, on accepted principles of constitutional interpretation, the Commonwealth’s power to make laws with respect to “marriage” and “divorce and matrimonial causes” does not extend to regulating the property rights of de facto spouses. Consequently, the Family Court, which derives its powers from the Family Law Act, does not have jurisdiction to hear property disputes between de facto spouses. These must be determined by State courts in accordance with State law. Since there is no State legislation which makes any special provision for such disputes, they fall to be determined by the same general principles of law that govern property claims between strangers. There is therefore no statutory basis for adjusting the property rights of the parties on the ground that such a variation would be fair or would meet their special circumstances.3
2. The General Law
4.4 The proprietary rights of de facto spouses are governed by the law of property. The general rule is that the beneficial interests in a disputed asset will be allocated by a court in accordance with the formal title to that asset. If, for example, de facto spouses acquire a house in their joint names they will usually be regarded as holding the beneficial interest jointly. Either party can apply to the court seeking an order for sale and division of the proceeds.4 Each can expect to receive one-half of the sale price. Where, however, title to the “matrimonial” home is in one party, that party will generally be entitled to the full beneficial interest unless there is room for the application of equitable doctrines. Thus, if title to the house is in the man, the mere fact that the woman has contributed to the wellbeing of the family by performing household duties or caring for the children of the relationship will not be enough to establish a claim by her to a share in the home. Similarly, the fact that following the breakdown of the relationship she has an urgent need for accommodation for herself and her children does not give the court any discretion to vary the established proprietary rights of the parties.
4.5 It is widely acknowledged that this approach can cause serious injustice. It may mean, for example, that a woman who has spent many years in a de facto relationship, and whose household activities have assisted her de facto spouse to accumulate assets, may have no claim to those assets because they have been placed in the name of the man. Problems of this kind have led some courts, notably in England, to modify traditional property principles in order to achieve results which recognise adequately the respective contributions of the parties to the relationship. Various devices have been employed for this purpose, principally the doctrine of trusts.
4.6 The law of trusts, developed by courts of equity, has long accepted that in certain circumstances beneficial interests in property may be held otherwise than in accordance with the legal title. Thus it is well settled that if two parties make direct financial contributions to the purchase price of an asset, the beneficial interest will be held by the parties in proportion to their contributions notwithstanding that the legal title is vested in only one party.5 When, for example, de facto spouses contribute equally to the purchase price of the “matrimonial” home, they will be regarded in equity as entitled beneficially in equal shares even though title to the house may be registered in the name of, say, the man alone. He will be regarded by the court as a constructive trustee, holding legal title on trust for himself and his de facto spouse in equal shares. It is equally well recognised that where one party acquires the legal title on the basis of an agreement to recognise the beneficial interest of another party, the first party will not be allowed to set up his legal title to defeat the interest he has promised to recognise.6 Courts of equity will not permit the legal title to be used to defeat agreements entered into in the course of acquiring that title.7
4.7 In the post-war years the courts, particularly in England, have extended the traditional scope of law of trusts in property disputes involving de facto spouses. The first steps were taken in the context of matrimonial property disputes, before any power had been vested in the courts by statute to vary established property rights between husband and wife. Later the principles were extended to de facto spouses as litigation between unmarried couples began to reach the courts more often. Thus some cases have held that non-financial contributions to the acquisition or movement of the disputed asset, such as physical labour in building or renovating a house,8 may be sufficient to justify the imposition of a trust in favour of the party making the contributions. The courts have been prepared to hold that a trust may exist, even in the absence of agreement between the parties, where there is a “common intention” that beneficial enjoyment in the asset should be shared between them. One interpretation of the English decisions is that they empower the court to impute a common intention on the basis of reasonableness and fairness where no such intention in fact existed or could be inferred from the parties’ conduct.9 There have been cases in England in which financial contributions to household expenses, even if not directly referable to the acquisition or improvement of an asset such as the family home, have been held to found a claim to a beneficial interest in that asset.10
3. New South Wales Cases
4.8 The Australian cases, with some exceptions, have not gone as far as the English authorities in allowing the courts to adjust the property rights of de facto spouses. In the leading case of Allen v. Snyder11 the New South Wales Court of Appeal insisted that courts should adhere to orthodox doctrine, emphasising the uncertainty caused by attempting to meet social problems by developing new principles.
“The velocity of social change affecting, not only the financial balance in the relationship of husband and wife, but also producing new forms of association outside marriage has, indeed, produced a flurry of litigious activity. New situations have, it appears, produced some new legal rules. It is inevitable that judge made law will alter to meet the changing conditions of society. That is the way it has always evolved. But it is essential that new rules should be related to fundamental doctrine. If the foundations of accepted doctrine be submerged under new principles, without regard to the interaction between the two, there will be high uncertainty as to the state of the law, both old and new.”12
Glass J.A. stressed that the court’s role was merely to declare the rights of the parties and not to vary them in accordance with considerations of fairness. Moreover, while the court may give effect to the common intention of the parties,
“[W]hat is enforced is an actual intention, inferred as a matter of fact, not an imputed intention which they never had, but would have had, if they had applied their minds to it.”13
Thus, a woman who could not prove a subjective intention that she should have a beneficial share in the house she occupied with her de facto husband, was unable to resist a claim by him for possession of the house even though she had lived there for 8 of the 13 years of their relationship.14
4.9 The approach in Allen v. Snyder has been followed in New South Wales and elsewhere in Australia. In some cases the requirement of a common intention for the imposition of a trust has not prevented a finding that the legal title was held on trust for both de facto spouses.15 In others it has prevented such a finding to the regret of the court concerned. Thus in one New South Wales case a woman had lived with a man as his wife for 20 years in his house, performing household tasks and caring for him in his illness, but the court was unable to find a common intention that she should acquire an interest in the house.16 Wootten J. stated that the case was “one of a significant number that came before the courts injustices which in results from the failure of the law to adapt to changing patterns of cohabitation”.
4.10 In another case a woman lived with a man as his de facto wife for approximately two years before his death. She provided him with substantial financial assistance, but the court was not satisfied that the money had been applied to the acquisition or improvement of specific property. Moreover, the court was unable to find sufficient evidence of an express agreement or common intention that the woman should have an interest in the home in which the parties lived. Accordingly, her claim to a share in the home failed.17 Powell J. observed that the rules to be applied to such cases, on the principle of Allen v. Snyder, could cause “significant hardship” and he invited the intervention of the legislature to prevent injustice. In a third New South Wales case the court reluctantly gave effect to an arrangement where a de facto wife had given a half share in a cottage to her de facto husband (who had contributed less than 10 per cent of the purchase price) intending him to hold that share beneficially.18 Waddell J. noted that, although this result followed from the application of settled rules of property, it could not be described as a fair outcome. He expressed the view that it was unfortunate that the court had no power to vary the rights of the parties as did the Family Court.
4. Contractual Licences
4.11 The law of trusts is not the only device employed by the courts to avoid what they see as injustice in property disputes between de facto spouses. The English courts in particular have used the concept of a “contractual licence” to permit one partner to remain in occupation of the home which is owned by the other. In one case, for example, the court found that there was an implied agreement between the parties under which the woman was entitled to remain in occupation of the home so long as the children of the relationship were of school age.19 This conclusion was reached despite the fact that there was no express agreement between the parties and despite the holding that there was no basis on which a constructive trust could be implied. As one commentator has observed,20 the contractual licence approach is fraught with difficulty. The courts attempt to construct an agreement in circumstances in which it is difficult to suggest that the parties had actually directed their minds to the question. Imputing an agreement is therefore largely a fictitious process. In any event the creation of a licence may not provide an adequate remedy since the successful party (the licensee), although able to remain in occupation for a specified period, is not usually entitled to share in the proceeds of sale.21
5. Money and Personal Property
4.12 Personal property (for example, a car, furniture, bank accounts) of cohabiting couples will be governed by the principle of “separate property”, according to the ordinary laws of property. In general, therefore, a party who pays for an item of personal property will have title to that asset. In some circumstances, however, courts will infer an intention that the property is to be jointly owned. For example, where a de facto couple open a bank account in their joint names, and both contribute to and withdraw from the account, it may be treated as a “common pool”. This means both parties will have a joint interest in all the money in the account and on separation will share equally, not in proportion to their respective contributions.22 It does not necessarily follow that goods purchased by one partner from the joint account moneys will be a jointly owned asset, unless clearly purchased for the parties’ joint use. The principles of law described earlier will be applied to determine ownership.
6. Cohabitation Contracts
4.13 It has been suggested that de facto couples should draw up formal agreements at the outset of the relationship, specifying clearly their respective interests in the house, furniture, car and other assets in the event of separation. In one New South Wales case, the judge noted the growing frequency of claims involving de facto spouses which led him
“devoutly to wish that parties who choose to enter into social relationships which are less than conventional - particularly if the entry into such a relationship is, or is intended to be, attended by the acquisition of property - would, in their own interests, as well as for the assistance of the courts which may later be required to adjudicate upon them, record in a clear and legally binding form what are, or are intended to be, their respective rights with respect to any property then held, or later acquired.”23
It would now seem that “ cohabitation contracts” entered into at the outset of a relationship, are not necessarily invalid on the basis that they contravene public policy.24 There may, of course, be other questions, such as misrepresentations or duress, which affect the enforceability of particular agreements.
4.14 Several points should be noted about cohabitation contracts as a solution to the problem of adjusting property rights on the breakdown of a relationship. First, it would not seem to be realistic to expect all people entering de facto relationships to anticipate the breakdown of those relationships and to provide for the division of their property. Second, an agreement entered into at the outset of a relationship may not provide adequately for the changed circumstances applying when the breakdown occurs. Indeed, couples may make later arrangements which conflict with their original agreement, leading to difficult questions of law about the status of agreement.25 Third, the agreement may favour one party unduly, either because its terms are unfair or because circumstances change. It is principally for this reason that the Family Law Act 1975 (Cth) permits the court to alter the property rights of the parties to the marriage, including those created by agreement between them (s.79(1)). Thus, apart from the question of whether the position of de facto couples should be similar to that of married couples under the Family Law Act, the suggestion that property rights should always be determined by agreement between the parties perhaps overlooks the possibility of injustice caused by ill-advised or inappropriate agreements.
B. Maintenance of a Spouse
1. Marital Relationships
4.15 The Family Law Act 1975 (Cth) provides that the court may make such order as it thinks proper for the maintenance of a party to the marriage (s.74). In exercising its powers the court is guided by the general principle that one party is liable to support the other only if the latter is unable to support himself or herself adequately for any reason recognised by the legislation (s.72). The court is also directed to take into account a number of matters specified in the Act in determining whether an order should be made (s.75).26 The powers of the court are not limited to ordering the payment of periodic sums, but extend to ordering payment of a lump sum, requiring the payment of any sum to be wholly or partly secured and imposing terms and conditions on the order (s.80). It is possible for a maintenance order to be made even while the parties are still living together.27
2. De Facto Relationships
4.16 Under New South Wales law there is no legal obligation on one de facto spouse to maintain or support the other, either during the relationship or on its termination by separation. This is true regardless of the duration of the relationship and notwithstanding that one party may be affluent and the other incapable of supporting himself or herself. There is, for example, no legal basis on which a de facto wife who has custody of several children of the de facto relationship may obtain an award of maintenance for herself, although she may be entitled to maintenance from her former de facto spouse in respect of the children.
4.17 The law of New South Wales is the same as that of all other jurisdictions in Australia, except Tasmania. This provides an interesting contrast with the assumptions on which the social security system is based. The “cohabitation rule”, referred to earlier,28 appears to assume that where a man and woman are living together as husband and wife “on a bona fide domestic basis” each should support the other and not rely on the State for support. Only in Tasmania is this implied obligation enforceable. There a woman who has cohabited with a man for a period of 12 months may apply to the court for a maintenance order if she has, without just cause or excuse, been left without adequate means of support.29
C. Domestic Violence
1. Marital Relationships
4.18 Under Commonwealth law a married person who is assaulted or fears assault by his or her spouse may apply to the Family Court for an injunction restraining the spouse from making further attacks or, if appropriate, from entering the matrimonial home. The court has power to issue an injunction under s.114(1) of the Family Law Act 1975 (Cth), which permits the court to issue an injunction in circumstances arising out of the marital relationship “including an injunction for the personal protection of a party to the marriage”. If the terms of the injunction are knowingly breached, the offender is liable to be fined or, in extreme cases, imprisoned for contempt of court (s. 114(4), (5)). The Commonwealth Attorney-General has introduced a Bill amending the Family Law Act to allow courts to attach a power of arrest to an injunction issued for the protection of a party to or a child of the marriage.30 Injunctions are widely regarded as a useful legal weapon against domestic assaults because they can be obtained at short notice and, in urgent cases, this may be done without the attendance in court of the person threatening violence. In addition, proceedings for an injunction are regarded as civil not criminal, and therefore do not require the intervention of police or the imposition of criminal penalties. The New South Wales Task Force on Domestic Violence considered this to be a significant advantage particularly from the point of view of an assaulted woman who may be reluctant to involve her partner in criminal proceedings.31
2. De Facto Relationships
4.19 The provisions of the Family Law Act, as has been seen, do not and cannot extend to de facto spouses. Accordingly, the Family Court has no power to issue injunctions to restrain domestic violence in a de facto relationship.32 A de facto wife, for example, who fears continued domestic violence is left to her remedies under State law. Unlike the United Kingdom, New South Wales has no legislation which specifically empowers the court to grant an injunction to prevent one de facto spouse from molesting the other or restraining that spouse from entering the matrimonial home.33 Courts in Australia have reached different conclusions as to whether they have power to issue injunctions to restrain threatened domestic violence. Queensland courts, for example, have disagreed on the extent of their power to issue an injunction restraining a man from assaulting or otherwise molesting his de facto spouse and child.34 The Chief Justice of the Supreme Court of South Australia has expressed the view that the court has power to grant an injunction to restrain apprehended future assaults, on the ground that every tort (civil wrong) may be redressed by way of injunction.35 However, his Honour stressed that the court, in its discretion, should refuse to grant injunctions to restrain apprehended future assaults “in all but the most exceptional circumstances”. Another member of the court agreed with the Chief Justice, while a third judge considered that injunctions may be granted more readily, although accepting that they are available only in specified categories of cases.36 The present law is therefore uncertain as to whether the superior courts have an inherent jurisdiction to issue injunctions to restrain apprehended domestic assaults. If there is such a jurisdiction, its nature and extent is not clear.
4.20 If an assaulted de facto spouse is unable to obtain or apply for an injunction to restrain further domestic violence, his or (more often) her legal remedies will be limited to initiating criminal proceedings for assault. As the New South Wales Task Force on Domestic Violence out,37 has pointed such proceedings are fraught with difficulty for the assaulted spouse. A prosecution for assault, if it is to be successful, must satisfy the criminal standard of proof beyond a reasonable doubt. The police may be reluctant to initiate a prosecution in relation to an alleged domestic assault unless the evidence is clear cut and includes proof that the victim suffered actual bodily harm. Moreover, the practice of requiring the victim of a domestic assault to be the legal “informant” (or complainant) who formally initiates a prosecution for assault often deters victims from commencing criminal proceedings.
4.21 In New South Wales the Crimes Act 1900 (N.S.W.), s.547, provides that any person apprehending violence to themselves may lay a complaint to this effect before a Court of Petty Sessions. After the parties have been heard, the court may require the defendant to enter into a recognizance to keep the peace, with or without sureties, for a term not exceeding six months. If a defendant refuses to enter into the recognizance, he or she may be imprisoned for up to three months. Section 547 does not provide for any sanction to be imposed automatically should the terms of the recognizance be breached. If the defendant breaches the terms of the recognizance it is necessary for the complainant to lay a further complaint in respect of the breach. For the initial order to be made, the complainant must satisfy the criminal standard of proof-, the same standard must be satisfied in order to prove a breach of the recognizance. The effect of an order under s.547 is to give the defendant a criminal record. Consequently, proceedings under the section may be vigorously opposed by a defendant who might not be concerned to resist an application for an injunction before a civil court. The procedure under s.547 is therefore cumbersome and the standard of proof required of a complainant difficult to satisfy.
4.22 As noted earlier, the New South Wales Task Force on Domestic Violence has recommended the enactment of a Domestic Violence Act which would permit a de facto wife (at least) to apply for an injunction to protect her against threatened violence from her de facto spouse.38 A power of arrest would automatically be attached to such an injunction. The Task Force also recommended that New South Wales courts should be able to attach conditions to an order to keep the peace under s.547 and that breach of any such conditions should constitute an arrestable offence.39
D. Inter- Spousal Immunities
1. Evidence
4.23 Under the Crimes Act 1900 (N.S.W.), s.407, a husband and wife generally may not be compelled against their will to give evidence in criminal proceedings in which the spouse is the accused person.40 The section applies only to persons who are married to each other, not to de facto spouses. Thus, one de ‘ facto spouse can be compelled by the prosecution to give evidence in criminal proceedings in which the other spouse is the accused. This Commission has tentatively suggested changes to s.407, including the introduction of a discretion in the court to require a married person to give evidence against his or her spouse where “the interests of justice outweigh the importance of respecting the bond of marriage.”41 The Commission did not recommend extension of the rule against compellability of spouses to de facto spouses.42
2. Privacy
4.24 Under the Evidence Act 1898 (N.S.W.), neither a husband nor wife can be compelled to disclose communications between them during the marriage (s.11). This statutory immunity does not extend to de facto spouses, who therefore may be compelled to divulge communications between them, if such evidence is otherwise admissible.
4.25 Apart from the statutory immunity, it is now well established that a court may grant an injunction to restrain a person publicising secrets relating to the personal life, personal affairs or conduct of the parties to a marriage.43 The injunction may be issued independently of any breach of contract or trust. The principle therefore amounts to a recognition by the law, at least in certain circumstances, of a right to marital privacy. The principle has not been applied to protect confidences between de facto spouses, although it is perhaps arguable that the law could be extended to such a case.
4.26 The Family Law Act 1975 at present prohibits, subject to certain exceptions, the printing or publication of an account of proceedings in the Family Court (s.121). In general, proceedings in the Family Court are heard in closed court (s.97(1)). The Commonwealth Attorney-General has however introduced amendments to make the Family Court an open court, subject to a discretion to exclude persons in particular cases. The amendments also relax the absolute prohibition on the publication of accounts of proceedings,. but prevent publication of details that would identify individuals involved in proceedings.44
4.27 State courts may be subject to similar requirements to those currently applying in the Family Court, depending on the legislation under which they are operating. The Children (Equality of Status) Act 1976 (N.S.W.), for example, provides that proceedings for a declaration of paternity or maternity (which may involve de facto spouses) shall be heard in closed court and shall not be reported. Children’s courts hearing maintenance applications under the Maintenance Act 1964 (N.S.W.), or custody applications under the Infants Custody and Settlements Act, 1899, are generally closed to the public.45 The name of a child involved in such proceedings, or any information which would identify the child, is not to be published unless the court otherwise directs. In cases before the Supreme Court the position is governed by the Supreme Court Act, 1970. The Act specifically provides that proceedings concerning the guardianship, custody or maintenance of an infant may be conducted in the absence of the public.46 The Equity Division of the Supreme Court (which will usually hear, for example, property disputes between de facto spouses) has a discretion to exclude members of the public “where the Court thinks fit”.47 Thus. the Supreme Court, in general, has a discretion to exclude the public from proceedings in which de facto spouses are involved, although the discretion is more likely to be exercised where the custody or guardianship of infants is in question than in other cases.
II. PARENTS AND CHILDREN
A. Custody and Guardianship
1. Marital Relationships
4.28 The Family Law Act 1975 (Cth) states the principles governing custody and guardianship of children of a marriage.48 The general principle, subject to any court order, is that each of the parties to a marriage is a guardian of any child of the marriage and the parties have the joint custody of the child(s.61(1)). The Family Law Act uses the word “custody” in a broad sense, to include not only the power of physical control over an infant, but the power to control education, the choice of religion and the administration of property.49 The word “guardian” is interpreted more narrowly. In general it refers to the person having the responsibility to assert the rights of the child against third parties, for example, by undertaking litigation or consenting to medical treatment. However, the status and rights of a non-custodial guardian are very uncertain, and may not extend to giving consent to medical treatment. In practice the distinction between custody and guardianship is not often of significance for the purposes of the Family Law Act, although the terms are not always used consistently by legislatures and courts.
4.29 Under the Family Law Act, in proceedings with respect to custody, guardianship or access of a child, the court is required to “regard the welfare of the child as the paramount consideration” (s.64(1)(a)). The Act, as presently drafted, requires a court to give effect to the wishes of a child aged 14 or over unless there are special circumstances (s.64(l)(b)), but this is to be replaced by a provision allowing the wishes of children of all ages to be taken into account to the extent appropriated.50 The Family Court, which has jurisdiction to determine custody disputes under the Act, has power to require the parties to attend a conference with a welfare officer or court counsellor to discuss the welfare of the child and to resolve any differences between the parties (s.62(1)). The court also may obtain a report from a court counsellor for use in the custody proceedings (s.62(4)). The Act specifically permits the court, in proceedings with respect to the custody of or access to a child, to order that the child be separately represented (s.65). If the 1981 amendments proceed, such orders may be made in any proceedings under the Act in which the welfare of the child is relevant. Custody disputes involving children of a marriage are therefore generally processed and determined by a specialist court which has wide-ranging powers and can call on the services of counsellors and welfare officers to minimise the disruption inherent in family breakdown.51 The legislation has by no means overcome the extraordinarily difficult problems associated with custody disputes - the delays in such cases, for example, have been a matter for serious concern.52 Nonetheless, the Family Law Act represents a concerted attempt to develop procedures, services and facilities capable of promoting the “welfare of the child”, or at least reaching the “least detrimental” solution.53
2. De Facto Relationships
4.30 The Family Law Act applies only to the custody and guardianship of the “children of a marriage”, as defined in the Act. In general, therefore the Family Law Act does not govern the custody and guardianship of the children of persons living in a de facto relationship.54 Indeed, unless the proposed reference of family law powers, discussed in Section 1, proceeds,55 the act could not constitutionally extend to such questions. It follows that, in general, the Family Court has no jurisdiction to deal with custody cases involving the children of de facto spouses and that these must be decided by State courts under State law.
4.31 The State law relating to custody and guardianship tends to be complex and confusing. In New South Wales, custody orders concerning the children of a de facto relationship may be made as follows:
- by the Supreme Court pursuant to its “inherent jurisdiction” which it derived from the Court of Chancery in England;
- by the Supreme Court, the District Court or a magistrate’s court pursuant to the provisions of the Infants’ Custody and Settlements Act, 1899 (the terms of which derive from English legislation of 1839 and 1891).56
When exercising its inherent jurisdiction the court acts in accordance with the best interests of the child. The 1899 Act provides that in making an order for custody or access the court is to “have regard to the welfare of the minor, and to the conduct of the parents, and to the wishes as well of the mother as of the father” (ss.5(1), (6)).
4.32 Questions of custody and guardianship may also be raised pursuant to the Testator’s Family Maintenance and Guardianship of Infants Act 1916. This Act provides for the guardianship of minors after the death of either the father or the mother. The general rule is that the surviving parent is the guardian of the minor, either alone or jointly with any guardian appointed by the deceased parent (s.13). If the deceased parent does not appoint a guardian, or the guardian is dead or refuses to act, the court may appoint a guardian to act jointly with the surviving parent. Where a guardian is appointed (for example, a testamentary guardian appointed by the will of the deceased parent), the court has power to approve or reject the appointment. If the court decides that the testamentary guardian should be the sole guardian of the minor, the court may make an order regarding the custody of the minor and the right of access of the surviving parent. The court also has power to order the surviving parent to pay maintenance to the guardian (s.14(4)). Where guardians are unable to agree upon a question affecting the welfare of a minor, they may apply to the court for directions. The court has power to make such order as it thinks proper, including the power to vary any order made under the Infants’ Custody and Settlement Act, 1899 and (where one of the guardians is the father or mother) to make orders concerning the custody of and access to the child (s.17). The Act does not define the scope of the guardianship conferred by the legislation, beyond saying that every guardian under the Act shall have all the power over the estate and person as any guardian appointed by will or otherwise now has (s. 19). Guardianship of a minor ceases upon the minor reaching 18 (s.20A).
4.33 The law concerning the guardianship and custody of ex-nuptial children has been affected by the equality of status legislation referred to in Section 3. Before passage of the legislation, the position of a father claiming custody of an ex-nuptial child was not altogether clear, but was generally less advantageous than that of a father of a nuptial child, even where the ex-nuptial child had lived in a stable de facto household.57 The authorities recognised that the mother of an ex-nuptial child had the right to custody and guardianship until a contrary court order was made. While the father could apply to a court for an order for custody or access, he faced considerable difficulties in pursuing such a claim. The more recent authorities (pre-dating the status of children legislation) stressed the fact that the court should regard the welfare of the child as the paramount consideration and thus were more willing to recognise “the natural tie of the child with the father,58 once paternity was established. Nonetheless, the presumption (albeit weakened in modem times) was that the court should lean in favour of granting custody to the mother of an ex-nuptial child.
4.34 The High Court has now held that the equality of status legislation has the effect of equating the relationship between an ex-nuptial child and its parents to that of a nuptial child and its parents”.59 The New South Wales Court of Appeal has recently decided, on the basis of this principle, that the Children (Equality of Status) Act 1976 makes the natural father of an ex-nuptial child its guardian, just as the father of a nuptial child is the guardian of that child. Street C.J. stated that s.6 of the Children (Equality of Status) Act 1976 60
“imports into the relationship between an illegitimate child and its parents so much of s. 61(1) of the Family Law Act as affects or regulates the relationship between a legitimate child and its parents... [ Section] 61(1) constitutes the parents of a legitimate child its joint guardians. The effect of s.6 is to constitute both parents of an illegitimate child its joint guardians.”61
4.35 There is now little doubt that the general principles applicable to a custody dispute between de facto spouses in relation to their ex-nuptial child will be very similar, if not identical. to those governing a custody dispute between married persons concerning a child of the marriage.62 This is so notwithstanding the antiquated language of parts of the New South Wales legislation and its emphasis on the conduct of the parties. There are other indications that the status of children legislation has done much to remove the distinction between nuptial and ex-nuptial children concerning questions of custody and guardianship. It has been held in New South Wales, for example, that the principles governing an application for interim custody of a child of the marriage in the Family Court also apply to an application under State law for interim custody of an ex-nuptial child whose parents have separated after having lived together.63 There are other examples.64
3. Distinction between Federal and State Law
4.36 It would seem, then, that the major distinction between federal and State law in relation to custody is that disputes concerning the children of a marriage are usually determined by the Family Court, a specialist court with counselling facilities and special procedures. Custody disputes arising under State law (such as those between de facto spouses), by contrast, may be heard in any one of several courts,65 none of which has counsellors or welfare officers attached to it. The most important New South Wales legislation, the Infants’ Custody and Settlements Act, 1899 (N.S.W.),66 makes no express provision for such important matters as conferences with welfare officers, the account to be taken of the child’s wishes, separate representation of the child or supervision of court orders. Unless the reference of powers proceeds, it will be necessary to decide whether the State law of custody and guardianship should be changed to bring it into line with the approach of the Family Law Act.
B. Maintenance of Children
1. Marital Relationships
4.37 The Family Law Act 1975 (Cth) provides that both parties to a marriage are liable, according to their respective financial resources, to maintain children of the marriage under the age of 18 years (s.73). In determining whether to make an order for maintenance of a child, or the period of such order, or the amount of any payment, the Family Court is directed to consider a number of matters. These include the financial resources and needs of the child and the manner in which the child is being or is expected to be educated (s.76). In addition, all the matters specified elsewhere in the Act as relevant to claims between the parents may be taken into account (ss.76, 75(2)). Maintenance orders for children are often made in the course of adjusting the property interests of the spouses. Indeed, the court’s power to order a settlement of property or a lump sum payment may be exercised in a way that takes account of the parties’ obligation to maintain their children. For example, in one case, a lump sum payment to a wife was reduced in recognition of the fact that the husband had custody of the children and had accepted responsibility for their support. The reduction in the lump sum payment was said “to liquidate the wife’s maintenance obligation to the children”, although the court acknowledged that the order could not rule out altogether the possibility of a future application for maintenance on behalf of the children if circumstances changed.67 An order settling the parents’ property interests may therefore operate, in effect, to discharge one parent’s future responsibility to maintain a child of the marriage. Furthermore, the court’s power to order a settlement or transfer of property extends to making an order for the benefit of a child of the marriage (s.79(1)). However, the Full Court of the Family Court has made it clear that
“[t]here is no obligation on a party to contribute to the building up of an asset for the children of the marriage. Children are entitled to be maintained and educated by their parents, but after their full time education is complete, except in unusual cases, they have no further claim on their parents ... There is no basis either in law or social desirability for children who must suffer because of a broken home, to be compensated by having an asset not only set aside for them, but built up by the parents to the ultimate advantage of those children.”68
The Full Court noted that, unless there are exceptional circumstances, the creation of trust by the court for the benefit of children should be restricted to such cases as securing maintenance where there is a likelihood that a spendthrift parent might dissipate substantial assets.69 The Family Court’s powers with respect to a child include ordering payment where the child is in immediate need of financial assistance, pending a final determination of the property and maintenance issues (s.77).70
4.38 Claims for maintenance of a child are usually brought by the custodial parent on behalf of the child. The Act contemplates in addition that a child of the marriage may bring maintenance proceedings in his or her own right against one or both of the parties to the marriage.71 The application may be made independently of any divorce proceedings between the parties. Maintenance orders may take the form of a lump sum, periodic payment, transfer of property by way of security, or other arrangement (s.80). A child over the age of 18 years may retain the benefit of a maintenance order if it is “necessary to enable the child to complete his education ... or because he is mentally or physically handicapped” (s.76(3)).
2. De Facto Relationships
4.39 The Family Law Act 1975 (Cth), applies only to a “child of the marriage” as defined in the Act (s.5).72 A claim for the maintenance of a child who does not come within the definition is governed by State legislation. In New South Wales the Maintenance Act 1964 (N.S.W.), allows a children’s court (constituted by a magistrate) to hear a complaint against a parent on behalf of a child under the age of 18 that the child has been left without adequate means of support without “just cause or excuse” (ss.9, 15, 16 ).73 (The Infants’ Custody and Settlement Act 1899 (N.S.W.) also allows a maintenance order to be made, but this is ancillary to a custody application and can be made only in favour of the mother of a child where her custody application is successful (s.5(3)). Similarly, the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (N.S.W.) allows maintenance orders to be made in certain limited circumstances when guardians apply to the court for directions (s.17)).
4.40 It follows that a child born of a de facto union has a right to claim maintenance against each of his or her parents, provided the child has been left without adequate means of support and the parent has no just cause or excuse for so leaving the child. In making a maintenance order the court is directed by the Maintenance Act 1964 (N.S.W.) to take account of the “accustomed condition in life” of the child, the capacity of the parent to pay, and the means and earning capacity (if any) of the claimant parent and of the child (s.10). Maintenance orders generally require weekly or monthly payments. The legislation contemplates the possibility of an order requiring a single payment (s. 109(b), (c)). Such an order is rarely made in contested proceedings. However, a significant proportion of maintenance orders are made by consent of the parties and some of these provide for modest lump sum payments. There is no provision for the court to order a property settlement for the purpose of providing security for the payment of maintenance. Orders generally cease when the child turns 18, but may be extended for limited periods (but not beyond the time the child attains 21) where the adult child is continuing his or her education or training (ss.26, 27).
4.41 If an issue of paternity of the child arises, it may be decided by the children’s court or by the Supreme Court pursuant to the Children (Equality of Status) Act 1976 (N.S.W.). The latter Act provides for presumptions as to parenthood. As has been pointed out in Section 3, the Act provides specifically for cohabiting couples:
“[w]here a woman gives birth to a child and, at any time during the period of 24 weeks commencing with the beginning of the forty-fourth week before the birth of the child, she cohabited with a man to whom she was not married, the child shall, for all purposes, be presumed to be the child of that woman and that man.” (s.10(3))
Thus a child born to a woman living in a de facto relationship will have the benefit of the presumption of paternity in relation to the de facto husband, provided the relationship continued during the relevant period.
3. Children of De Facto Relationships and Marital Relationships: A Comparison
4.42 The Maintenance Act 1964 (N.S.W.), draws a distinction between de facto relationships and marriages in a case where the household includes a child of one of the partners who has been accepted as a member of the household by the other partner. Where the parties are married, the “accepting” spouse becomes liable to support the child who is regarded as a “child of the family” (ss.7(1) and (2),12,13). For example, if a woman who has an ex-nuptial child marries a man other than the father, that man, provided he accepts the child as one of the family, is liable to maintain the child. Indeed, he will be obliged to maintain the child away from home if the child has left because of the conduct of a parent (s.31). If, however, the woman establishes a de facto relationship with a man (other than the father) who accepts the child as one of the family, he is not liable to maintain the child.
4.43 The major legal differences between children of a marriage and children of de facto relationships, as far as maintenance is concerned, are as follows:
- The claims of nuptial children are usually heard in the Family Court which will deal with the claims in the context of other issues affecting the family, such as custody, property and dissolution of the marriage. The claims of children of de facto relationships may be heard in any one of several courts. In general, however, they are heard in the children’s court, which lacks power to deal with all other issues affecting the family.
- The Family Court’s powers to make financial provision for children are broader than those of the children’s court and other courts in New South Wales.
- There are differences in the criteria applied by the Family Court and (for example) the children’s court in determining claims for maintenance. In particular, the criteria stated in the Maintenance Act 1964 (N.S.W.) bear traces of the emphasis on fault and misconduct that characterised Australian family law before the Family Law Act 1975 (Cth).
C. Adoption
4.44 Under the Adoption of Children Act 1965 (N.S.W.), adoption orders may generally only be made in favour of a husband and wife jointly (s.19(1)). In exceptional circumstances, such orders may be made in favour of one person, but a married person living with his or her spouse may not obtain an adoption order in his or her favour unless the spouse consents (s.19(2), (3)). Persons in a de facto relationship may not jointly adopt a child, even where one partner is the natural parent of the child.
4.45 Under the Children (Equality of Status) Act 1976 (N.S.W.), the relationship between parents and children is to be determined irrespective of whether the father and mother of the child are or have ever been married to each other. As has been noted, the New South Wales Court of Appeal has held that the effect of the Act is to make the natural father of an ex-nuptial child the guardian of that child jointly with the mother.74 Despite this holding, amendments to the Adoption of Children Act 1965 (N.S.W.), passed in 1980 but not yet proclaimed,75 have the effect of diminishing one aspect of guardianship, namely, the right of the father of an ex-nuptial child to withhold consent to the adoption of his child by other persons.
4.46 The Adoption of Children Act 1965 (N.S.W.), in its unamended form, requires the consent of the mother or “guardian” of an ex-nuptial child before an adoption order can be made. The 1980 amendments, however, provide that the putative father of an ex-nuptial child who does not have custody of the child under a court order or who is not the guardian of the child under the laws of the Commonwealth or another State, is not a guardian of the child for the purposes of the Adoption of Children Act.76 Therefore, unlike the father of a nuptial child, his consent is not necessary to the adoption of the child by other persons, although the mother’s consent is required. The father is entitled to be given notice of an application for the adoption of the child. He then has 14 days in which to apply to the Adoption Tribunal for a custody, care and guardianship order. If he is out of time, or unsuccessful in his application to the Tribunal, it appears that he lacks legal standing to oppose the making of the adoption order.77
III. TERMINATION OF RELATIONSHIP BY DEATH
A. Workers’ Compensation
4.47 If the family breadwinner is killed in a work related accident a dependent spouse, legal or de facto may claim compensation under the Workers’ Compensation Act 1926 (N.S.W.). The meaning of the term “dependent” has been discussed earlier.78
B. Testator’s Family Maintenance
4.48 At present in New South Wales the only family members able to apply for a testator’s family maintenance order from the estate of a deceased person are the legal spouse, children and (in some cases) the grandchildren of that person.79 The New South Wales Law Reform Commission has recommended that eligibility to claim an order should be based on a threefold test:
- sometime dependency on the deceased;
- sometime membership of the deceased’s household; and
- failure of the deceased to make adequate provision for the applicant.
This formula would generally permit a surviving de facto spouse to apply for an order. Whether an order actually would be made would depend on a finding by the court that the “deceased person has left the eligible person without adequate provision for his proper maintenance, education or advancement in life” and the exercise of the court’s discretion to make an order in favour of the applicant.80
C. Fatal Accidents Legislation
4.49 The Compensation to Relatives Act 1967 (N.S.W.), permits the legal spouse of a person killed as the result of the negligence of a third party (for example, in a motor vehicle accident) to claim compensation from the third party (ss.4, 7(1)). A de facto spouse cannot claim compensation under the Act, an exclusion which contrasts with the position under the Worker’s Compensation Act.
D. Intestacy
4.50 If a married spouse dies without leaving a will (intestate), or without having revoked a will made before the marriage,81 the surviving spouse is automatically entitled to a share of his or her estate. Where there are no children of the marriage, the surviving spouse takes the whole of the estate. Where there are children, the surviving spouse takes the whole of a small estate. If the estate exceeds $50,000, the surviving spouse takes the first $50,000 (together with household chattels) and one half of the surplus value of the estate. The surviving spouse is also entitled to take the benefit of the deceased’s interest, if any, in the matrimonial home.82 In New South Wales, the surviving de facto spouse of a person dying intestate is not entitled to receive a share of the estate. Thus if the deceased person leaves children they will take to the exclusion of the de facto spouse. As previously noted, under the current law a de facto spouse is not entitled to apply for an order under testator’s family maintenance legislation.83
E. Superannuation
4.51 In New South Wales the position of de facto spouses of contributors under superannuation schemes varies according to the terms of each scheme. As noted in Section 3, the New South Wales Anti-Discrimination Board has recommended that the relationship of widow and widower should extend to the surviving de facto spouse of a deceased contributor.84
FOOTNOTES
1. For constitutional reasons the Family Court may currently lack jurisdiction to deal with such disputes until the parties have separated for at least 12 months. See Tansell v. Tansell (1977) 19 S.A. S.R. 165; cf. Sieling and Sieling [1979) F.L.C. 90-627. The Commonwealth Attorney-General has introduced amendments to the Act to overcome this problem. Family Law Amendment Bill 1981, cl.3(d).
2. See para.3.13 above.
3. Wirth v. Wirth (1956) 98 C.L.k 228; Allen v. Snyder [1977] 2 N.S.W.L.R. 685.
4. In New South Wales the application is made under Conveyancing Act 1919 (N.S.W.), s.66G.
5. Gissing v. Gissing [1971] A.C. 886.
6. Bannister v. Bannister [1948] 2 All E.R. 133; Allen v. Snyder [1977] 2 N.S.W.L.R 685, 692-693, per Glass J.A.; Jacobs’ Law of Trusts in Australia (4th ed., 1977), 83-84.
7. In determining the basis on which title is acquired, technical doctrines such as the presumptions of resulting trust and advance-ment are employed. The presumption applies in the following situation:
“Where property is transferred by one person into the name of another without consideration, and where a purchaser pays the vendor and directs him to transfer the property into the name of another person without consideration passing from that person, there is a presumption that the transferee holds the property upon trust for the transferor or the purchaser as the case may be. This proposition is subject to the exception that in the case of transfers to a wife or child (including someone with respect to whom the transferor or purchaser stands in loco parentis) there is a presumption of advancement so that the beneficial as well as the legal interest will pass. Each of the presumptions may be rebutted by evidence. It is, however, well established that no presumption of ad-vancement arises in favour of a de facto wife. “
Napier v. Public Trustee ( W.A.) (1980) 32 A.L.R. 153, 15 8, per Aickin J. The question of the presumption of advancement in favour of a de facto wife may, however, still be open: see (1980) 32 A.L.R. 153, 154, per Gibbs A.C.J.
8. Cooke v. Head [1972] 1 W.L.R.518;[1972]2 All E.R.38; Eves v. Eves [1975] 1 W.L.R 1338; [1975] 3 All E.R. 768.
9. See McMahon v. McMahon [1979] V.R. 239, 244, and the authorities cited there.
10. Hazell v. Hazell [1972] 1 W.L.R. 301, 304.
11. [1977] 2 N.S.W.L.R. 685.
12. [1977] 2 N.S.W.L.R. 685, 689.
13. [1977] 2 N.S.W.L.R. 685, 690.
14. For a critical assessment of Allen v. Snyder by the Chief Judge in Equity of the Supreme Court of New South Wales, see M.M. Helsham, “Comment: De Facto Relationship and the Imputed Trust” (1979) 8 Syd. L. Rev. 571.
15. Hohol v. Hohol [1981] V.R. 221.
16. Blanchji’eld v. Public Trustee, 10 April 198 1, Wootten J.
17. Murray v. Heggs (1980) 6 Fam. L.R. 781.
18. Muschinski v. Dodds, 1 July 1981, Waddell J.
19. Tanner v. Tanner [1975] 1 W.L.R 1346; [1975] 3 All E.R 776. Compare Horrocks v. Forray [1976] 1 W.L.R. 230; [1976] 1 All E.R- 737; see also Chandler v. Kerley [1978] 1 W.L.R. 693; [1978] 2 All E.R- 942.
20. R.J. Bailey, “Legal Recognition of De Facto Relationships” (1978) 52 A.L.J. 174, 184.
21. Another approach used in cases involving de facto spouses is the doctrine of proprietary estoppel: Pascoe v. Turner [1979] 2 All E.R. 945. For an example of the application of this doctrine to a claim by a de facto spouse to a half share of the net value of a house and land, see Jackson v. Crosby (No. 2) (1979) 21 S.A.S.R. 280.
22. Cf. Jones v. Maynard [1951] 1 All E.R. 802 (a husband and wife case). See also Paul v. Constance [1977] 1 W.L.R. 527; [1977] 1 All E.R. 195, where an account established in the man’s name, but operated jointly, was declared to be held on trust for the man and his de facto spouse jointly.
23. Jardany v. Brown, 1 July 1981, Powell J. (transcript, 2-3).
24. See S. Poulter, “Cohabitation Contracts and Public Policy” (1974) 124 New L.J. 999, 1034.
25. For an example of a pre-marriage contract which was held to have been revoked by the later conduct of the (married) couple, see Sykes and Sykes [1979] F.L.C. 90-652.
26. Many of the criteria overlap with those governing claims to property. See text at n.2 above.
27. Eliades and Eliades [1981] F.L.C. 90-022.
28. See para.3.6 above.
29. See para. 3.59 above. As noted there, the Tasmanian Law Reform Commission recommended extending to de facto husbands the same rights to claim maintenance as are given to de facto wives.
30. Family Law Amendment Bill 1981, cll.48, 49. See para.3.31 above.
31. Report of New South Wales Task Force on Domestic Violence (1981), 65.
32. Cf. In the Marriage of C and B, 10 April 198 1, Family Court of Western Australia (Barblett J.).
33. See Domestic Violence and Matrimonial Proceedings Act 1976 (U.K.), s. 1; Davis v. Johnson [1979] A.C. 264.
34. Fitzwilliam v. Beckman [1978] Qd.R. 398, holding that the Queensland Supreme Court had no powers to grant an injunction against a man to restrain him from molesting his former de facto wife. Cf. Zimitat v. Douglas [1979] Qd.R 454, holding that the court did have such powers.
35. Pany v. Crooks (1981) 6 Fam. L.R- 824, per King C.J.
36. Mohr J. agreed with King C.J. Zelling J. preferred the broader view.
37. Task Force, n.31 above, 51-53.
38. See para.3.30 above.
39. Task Force, n.31 above, 63.
40. See generally N.S.W. Law Reform Commission, Competence and Compellability (Discussion Paper, 1980).
41. Ibid., App.A.
42. The Task Force on Domestic Violence regarded the non-compellability of spouses as a burden for a battered wife, since the choice whether or not to give evidence rested with her and she would be subject to pressure from her husband. The Task Force therefore recommended that a spouse should be a compellable witness in a case involving an allegation of assault between husband and wife: Report, 57. This recommendation is consistent with the tentative suggestion of the Commission: Competence and Compellability, 44-46.
43. Duchess of Argyll v. Duke of Argyll [1967] 1 Ch. 302. See also Gibb and Gibb [1978] F.L.C. 90-405; Simpson and Simpson [1978] F.L.C. 90-497.
44. Family Law Amendment Bill 1981, cll.40, 56.
45. Child Welfare Act 1939 (N.S.W.), ss.12, 16.
46. Supreme Court Act 1970 (N.S.W.), s.80(c). It appears that under s.80 the Court may order that the proceedings or names of the parties not be published. See Ritchie’s Supreme Court Procedure New South Wales, 50.1.
47. Supreme Court Act 1970 (N.S.W.), s.80(f).
48. The Act also may apply to custody disputes involving third parties, such as grandparents (see, e.g., ss.61(4), 64(2)). As to the definition of “child of the marriage” see s.5. (This definition has been affected by the Family Law Amendment Bill 198 1, cl.4.) The jurisdictional questions arising in custody disputes are often very complex indeed. See Vitzdamm-Jones v. Vitzdamm-Jones, St. Clair v. Nicholson (1981) 55 A.L.J.R. 192.
49. Newbery and Newbery [1977] F.L.C. 90-205.
50. Family Law Amendment Bill 1981, cl.21.
51. Courts of summary jurisdiction retain jurisdiction under the Family Law Act to hear custody disputes, but only if the parties agree that the case should be determined by the magistrate (ss.39(6), 46(1)). These courts also retain jurisdiction to deal with uncontested custody applications.
52. Joint Select Committee on the Family Law Act, Family Law in Australia, vol.1 (1980), citing evidence of witnesses, p.44.
53. J. Goldstein, A. Freud and A.J. Solnit, Beyond the Best Interests of the Child (1973) Ch. 4.
54. Depending on the circumstances, the Act may apply to certain children within the de facto household. Thus the child of a former marriage of one of the partners may be subject to an order of the Family Court by virtue of the fact that the child is a “child of the marriage” within the Family Law Act. See J. H. Wade, De Facto Marriages in Australia (1981), Chs 7-8. When the 1981 amendments become law the Family Law Act will apply to a child of one party to a marriage who is ordinarily a member of the household of the husband and wife. Such a child may be the child of a former de facto spouse of that party.
55. See paras.1.15-1.24 above.
56. See Gorey v. Griffin [1978] 1 N.S.W.L.R. 739, 747-748, per Mahoney J.A., for a history of the legislation. Note that the Maintenance Act 1964 (N.S.W.), s.22, permits orders for custody and access to be made where a maintenance order is in force against the parent. This section appears to be limited to a “child of the family”, meaning a child of the parties to a marriage or a child of either of them accepted within their household (s.7(1)).
57. The principles are discussed at length in Chignola v. Chignola (1974) 9 S.A.S.R. 479,
58. Chignola v. Chignola (1974) 9 S.A.S.R- 479, 485, per Bray, C.J.
59. Dtuglas v. Longano (1981) 55 A.VJ ‘ R- 352, a case concerned with the Status of Children Act 1974 (Vic.), S.3(1).
60. For the terms of s.6, see para.3.23 above.
61. Youngman v. Lawson, 20 May 1981, not yet reported, transcript, 7-8.
62. Douglas v. Longano (1981) 55 A.L.J.R. 352.
63. Holland v. Cobcroft [1980] 2 N.S.W.L.R. 483.
64. Gorey v. Griffin [1978] 1 N.S.W.L.R. 739, held that the effect of the Children (Equality of Status) Act 1976 (N.S.W.) was to allow certain provisions of the Infants’ Custody and Settlements Act 1899 (N.S.W.) to apply to ex-nuptial children of a marriage before the Family Law Act 1975 (Cth) took over the field. In McM. v. C [1980] 1 N.S.W.L.R. 1, it was decided that the Children (E quality of S tatus) Act 1 97 6 (N. S. W.) prevented the mother of an ex-nuptial child unilaterally changing the ordinary residence of the child. Such a decision required the acquiescence of the father.
65. The courts recognise the difficulties of overlapping jurisdiction. The Supreme Court in Holland v. Cohcroft [1980] 2 N.S.W.L.R. 483, was strongly of the view that custody applications under the Infants’ Custody and Settlements Act 1899 (N.S.W.) were more appropriately brought in either the District Court or children’s court, on grounds of speed, convenience and cost. Legal aid funding is now, but was not then, available for custody applications in the children’s courts. The court also took the view that a writ of habeas corpus is not an appropriate remedy for one parent of an ex-nuptial child to seek against the other, in the absence of a subsisting order vesting custody in the application. [1980] 2 N.S.W.L.R 483, 486.
66. The equivalent legislation in other States is as follows: Marriage Act 1958 (Vic.); The Children’s Services Act of 1965 (Qld); Guardianship of Infants Act 1940-1979 (S.A.); Family Court Act 1975-1979 (W.A.); Guardianship and Custody of Infants Act 1934 (Tas.).
67. Park and Park [1978] F.L.C. 90-509.
68. Koch and Koch [1977] F.L.C. 90-312, at 76, 662.
69. Koch and Koch [1977] F.L.C. 90-312, at 76, 663.
70. See Chapman and Chapman [1979] F.L.C. 90-671.
71. See para.(cb) of the definition of “matrimonial cause” in s.4. See, further, H. Gamble, The Law Relating to Parents and Children (1981), 107-108.
72. The Family Law Act 1975 (Cth), when originally enacted, included in the definition of a “child of the marriage” a child of either parent, including an ex-nuptial child, who was ordinarily resident within the family. After the High Court’s decision in Russell v. Russell (1976) 134 C.L.R. 495, was thought to cast doubt on the constitutionality of this provision, the Act was amended in 1976 to exclude such a child. The Attorney-General has introduced amendments to return to the earlier definition. See Family Law Amendment Bill 1981, cl.4.
73. The legislation in other States is as follows: Maintenance Act 1965 (Vic.); Maintenance Act 1965 (Qld); Community Welfare Act 1972-1979 (S.A.); Family Court Act 1975-1979 (W.A.); Maintenance Act 1967 (Tas.); Maintenance Ordinance 1968 (A.C.T.); Maintenance Act 1978 (N.T.).
74. Youngman v. Lawson, 20 May 1981, not yet reported. See para.4.34 above.
75. Adoption of Children (Amendment) Act 1980 (N.S.W.).
76. Adoption of Children Act 1965 (N.S.W.), s.26(3A) (as inserted in 1980). R. Chisholm “Unmarried Fathers: Are they Recognised by the Law?” (1980) 5 Leg. Serv. Bull. 279, points out that this provision has the remarkable effect that even an order of the New South Wales Supreme Court appointing the putative father a guardian would not make his consent essential, unless he actually had custody pursuant to the order.
77. Adoption of Children Act 1965 (N.S.W.), ss.31A-31E. If the father is not given the prescribed notice, he may apply to the Tribunal to be joined as a party to the adoption proceedings in order to oppose the adoption: s.23(2).
78. See para.3.26 above.
79. See para.3.27 above.
80. N.S.W. Law Reform Commission, Report on the Testator’s Family Maintenance and Guardianship of Infants Act, 1916 (L.RC.28 1977) 3 1, 34 (Draft Family Provision Bill, cl.9(1)).
81. Wills, Probate and Administration Act 1898 (N.S.W.), s. 15 provides that subsequent marriage revokes a will, unless the will is expressly made in contemplation of that marriage.
82. Wills, Probate and Administration Act 1898 (N.S.W.), ss.61B, 61D.
83. See para.3.27 above.
84. See para.3.42 above.
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