2.3 Of course, the question of how to value the homemaker contribution remains a key concern, especially in the light of the Family Court experience. But s 20 presents further conundrums, beyond those that arise with s 79 of the Family Law Act 1975 (Cth). As the NSW Court has repeatedly stressed, whereas s 79 also requires the court to take into account the matters listed in s 75(2) relating to the parties’ future economic position (age, state of health, care of children, earning capacity, and the like), s 20 does not. So the question then becomes, as Priestley JA has succinctly stated, does the NSW court decide what is a just and equitable division of property by having regard ‘only to’, or by having regard ‘principally to’, the different contributions of the parties (Evans v Marmont (1997) DFC 95-184, at 77,618). In other words, is there some limited scope for the court also to consider things such as the financial circumstances of the parties, their future needs, the length of the relationship, and like matters? This point has caused much discussion, and sometimes heated disagreements and even hostility, among the judges of the NSW Supreme Court and Court of Appeal. Following the High Court’s refusal to become involved in the interpretation of the NSW statute,4 a specially enlarged Court of Appeal convened in 1997 to decide this question, in the case of Evans v Marmont (1997) DFC 95-184.

2.4 Unfortunately, this decision did not end the disagreement. While three of the five judges combined to dispose of the appeal, they did not take the same view about all aspects of the decision. Further, the leading judgment (that of Gleeson CJ and McLelland CJ in Eq) does not contain a simple or single answer to the question posed by Priestley JA. That is to say, by expressing agreement at different parts of their joint judgment with each of two previous authorities, Gleeson CJ and McLelland CJ in Eq appear to have endorsed both a very narrow view5 and a somewhat wider view6 of what else can be taken into account apart from contributions for the purposes of s 20. It was therefore only to be expected, as has in fact occurred, that later decisions would continue to disagree on this important matter. Thus, some judges since the Evans v Marmont case have been adamant that under s 20 the court may take nothing at all into account apart from contributions.7 Other judges, in contrast, have been prepared to consider matters such as the parties’ current needs, their overall financial circumstances, and the like, as part of the process of deciding what is a just and equitable division having regard to the parties’ respective contributions.8

2.5 It would serve little purpose to try and decide what s 20 really means. The real question to be asked is: why are the criteria so narrow? Why not broaden them? This, I imagine, will be a key part of the Law Reform Commission’s enquiry. It is worth pointing out that of the seven Australian jurisdictions which now have legislation dealing with financial adjustment in non-marital relationships, only the first three to introduce the legislation (NSW, Vic, and NT) have limited the specified factors to contributions. The other four jurisdictions which have drafted their legislation more recently (ACT, SA, Queensland and Tasmania) have all widened the criteria that the court can take into account in dividing the property. There is therefore no shortage of examples within the Australian context that the Commission may wish to take into account. What was seen as ground-breaking legislation 15 years ago may now have to be adjusted to take account of the recent NSW experience, as well as developments elsewhere.

2.6 The interpretation of s 20 is by no means the only point of disagreement in property division. Under the Act dates, and time limits, can be very important. By s 6, it is not possible to bring a claim if the relationship has terminated prior to the commencement of operation of the Act (that is, mid-1985 for heterosexual de facto partners, but now mid-1999 for everyone else covered by the new definitions). Further, by s 17, the relationship must have continued for a minimum period of two years, and by s 18, the claim must be brought within two years of the end of the relationship. (There are exceptions to each of the last two time limits, but we can disregard them for now.) Often the court has the complicated task of determining when the relationship began, and for how long did it continue? Once this has been decided, the question arises about contributions which have been made, or other facts or events which have occurred, before the relationship began. Can these earlier contributions be considered? Can earlier events be referred to as part of the process of deciding what is just and equitable? What if the court decides that the same couple have had a series of de facto relationships (that is, on and off and on again, as the years go by) – can it consider all of them together, or does each one of them have to be examined separately to see if it complies with the Act’s time limits and related requirements?

2.7 There is widespread confusion here, both at the Supreme Court and the Court of Appeal level. The narrowest view would have it that the court under s 20 can consider nothing but contributions, and only those contributions made during the course of the relationship.9 If there happens to be more than one relationship, they each have to comply with the time limits and other requirements; otherwise they will be disregarded.10 Other judges disagree, being prepared to consider earlier contributions, and earlier events, and earlier relationships between the same couple, because not to do so, in their opinion, would be unjust and inequitable.11 Again, some judges are prepared to ignore periods of non-relationship which are relatively insubstantial given the overall length of the couple’s common history and connection,12 while other judges are much stricter in their approach.13

2.8 A related source of controversy concerns contributions made after the relationship has ended. Can the court consider the fact that the parties separated when the woman was pregnant, and that she has since had and is now caring for the baby?14 Or the fact that the property has increased in value between the date of separation and the date of hearing?15 Or that one of the parties has had a windfall, or some misfortune, since the end of the relationship?16 Here too, some judges say ‘no’,17 others say ‘yes’,18 and there is little unanimity, and therefore little guidance, at the Court of Appeal level.19

2.9 Again, I do not think there is much to be gained in debating the meaning of the present words used in the statute. Rather, we should be thinking about the point of it all. Why shouldn’t the court have a wider discretion to take these matters into account, as indeed the court does in the four jurisdictions mentioned previously (ACT, SA, Queensland and Tasmania)? This is certainly something that the Law Reform Commission should be seriously considering, with a view to clarifying and amending the legislation where necessary.

2.10 There are no doubt other matters which could be mentioned, such as the way in which the court takes into account a party’s expectations of superannuation.20 But that could take a seminar in itself. Judging from the caselaw, it may be beneficial to amend the Act to provide some guidance as to how and why the court should consider superannuation, and also dealing with the mechanics and implementation of orders made as a result, but it is not really possible to say more in this short presentation.

3. PARTNER MAINTENANCE

3.1 Back in 1983, in their Report which led to the introduction of the 1984 legislation, the Law Reform Commission was very concerned to limit the extent to which one de facto partner might have to pay maintenance to the other.21 Reflecting this concern of the Commission, the legislation only allows two grounds for the award of maintenance, and any orders made are strictly limited as to duration. Firstly, maintenance may be sought if a party cannot support himself or herself adequately because of child care responsibilities (s 27(1)(a)), in which case the maximum duration of the order is until the child turns 12, or 16 in the case of a child with disabilities (s 30(1)). Secondly, maintenance may be sought because the relationship has adversely affected the person’s earning capacity and an award of maintenance would increase that capacity by allowing a training or education course to be undertaken (s 27(1)(b)). Here, the maximum duration is a period of three to four years (s 30(2)). In every case, a general prohibition on bringing a claim for maintenance applied if, at the time of the application, the party had entered a new de facto relationship or had married (s 29).

3.2 There are very few cases of maintenance being awarded under the Act.22 There may be a number of reasons for this. But one likely reason, apart from the limitations contained in the Act itself, is the restrictive way in which these provisions have been interpreted. Thus, there are decisions which require the applicant to show that the inability to support oneself flows exclusively from the ground selected, and is not affected by other circumstances as well.23 Again, maintenance has been refused because the nominated training course could not be completed in the time period available for the award of maintenance,24 and would not necessarily lead to full-time employment anyway.25 One judge thought that bringing a claim based partly on care of children, and partly on lost earning capacity, was a contradiction in terms,26 even though the Act specifically contemplates this possibility (see s 30(3)). Finally, maintenance has sometimes been refused on the ground that an award would be inconsistent with s 19, which requires the court to try to finalise matters between the parties and avoid further proceedings between them.27 Faced with judicial interpretations of this sort, none of which, I should add, are mandated by the wording of the relevant provisions, it is hardly surprising that applications for maintenance have not been a popular option in the fifteen years of the Act’s operation.

3.3 Is it necessary to continue to construe the legislation so narrowly? Of course not. On the other hand, rather than wait for more generous interpretations from the court of what was originally hailed as remedial legislation, it may be more sensible to seek changes to the Act. Here, too, help can be gained from other States, especially Tasmania. In its recent legislation, Tasmania allows claims for a variety of reasons arising ‘in whole or in part’ from the circumstances of the relationship, and orders can be made for a more extensive period.28 Whether NSW legislation needs to copy all of these innovations may be debateable, but certainly some changes seem indicated to re-activate the virtually dormant current provisions.

3.4 As to the inability to claim if one has since married or entered another de facto relationship (s 29), it is time to review this section as well. Since the reason for seeking maintenance must flow from the previous relationship, it is not clear to me why the claim should automatically be barred as soon as a new relationship is formed. A better solution would be the follow the ACT example, by abolishing the provision, and instead allow the fact of re-partnering to be taken into consideration, if appropriate, at the time of making the order, or on an application for subsequent variation on the basis of changed circumstances.29 In any event, the recent changes, extending the ambit of the Act, have made the disqualification even more anomalous. Section 29 now prohibits an order if, by the time of the application, the applicant has entered another ‘domestic relationship’. This phrase, it should be remembered, includes the new category of ‘close personal relationship’. Take a situation where a woman separates from her de facto partner, is caring for their young children, and then brings her ailing mother home so that the mother can be cared for. As the woman now has a ‘close personal relationship’ with her mother, she cannot seek maintenance for herself against her former partner. This does not make any sense at all.

4. THE NEW DEFINITIONS

4.1 I would like to finish by making a few observations on the new definitions of who is eligible to claim under the Act. To reiterate, claims for property division or partner maintenance are now possible by anyone who has been in a ‘domestic relationship’. This includes those in a ‘de facto relationship’, that is both same sex and opposite sex adult partners who have lived together ‘as a couple’, and who are not married to one another or related by family (s 4). It also includes those in a ‘close personal relationship’, that is, ‘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’ (s 5). Exactly the same type of claims are available in either case.

4.2 My first query is whether it should be necessary for the pair to live together. There may no doubt be reasons for this, for example to limit the number of possible claimants, and to focus on the situations in which injustice or exploitation are thought more likely to occur, and in which the common law may struggle to provide an adequate remedy. But it would be useful at least to look at the ACT experience on this point. There, no such requirement exists, claims being available to all those in a ‘domestic relationship’, an expression which includes both intimate and non-intimate relationships. The definition used is a ‘personal relationship ... between two adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other ...’ (s 3(1), Domestic Relationships Act 1994 (ACT)).

4.3 My second query is whether the persons concerned should have to be ‘adult’? Apart from ACT, no other Australian jurisdiction with this type of legislation has such a requirement. New South Wales itself did not have this requirement before the amendments of last year. I am not just thinking here of the extensive assistance which underage children might make to a parent’s property and financial resources, but rather the possibility of intimate relationships involving one or more underage partner. Some people may remember the unusual 1989 case of Green v Green (1989) 13 Fam LR 336, where a man died in Sydney, leaving behind (it was then discovered), one wife, two de facto partners, and seven children. One of the de facto partners, the mother of two of his children, had been brought by the man to Australia from Thailand at the age of 13 or 14, and provided by him with accommodation where he used to visit her. Given that the relationship ended on the man’s death, this was not a claim under the 1984 Act. Rather, her claim for a share of the property was resolved under common law (and equitable principles of constructive trust). My point, however, is that had she separated from him before turning 18, she would not satisfy either strand of the current definition of ‘domestic relationship’, and hence she would have no claim under the Act. In the event that she separated from him after the age of 18, some judges would no doubt also have trouble taking account of contributions made or events occurring prior to her becoming ‘adult’.30 I would therefore put this forward as another item for the Law Reform Commission to take on board.

4.4 My third comment concerns the notion of ‘close personal relationship’. Assuming that the two relevant people are adult, and live together, and one or each of them provides the other with domestic support and personal care, there does not seem to be any requirement of ‘exclusivity’. That is, two adult siblings, let us say, who live with their ageing parents may well be involved in close personal relationships with each other and also with each of the parents. This is not really surprising, but it does underline the fact that proving a ‘close personal relationship’ may not be especially difficult, and that it is possible to have multiple ‘close personal relationships’ at the same time. Again, while the current definitions of ‘de facto relationship’ and ‘close personal relationship’ are mutually exclusive, in that the former covers ‘couples’ and the latter does not, there is nothing to stop the same pair from moving from one category to the other. What was once a ‘de facto relationship’ might become a ‘close personal relationship’ (for example, if they have ceased to be an intimate ‘couple’ but still reside together), and the same thing may also occur in reverse. Perhaps, if we can revisit the case I mentioned at the outset, the ‘16% after 32 years’ woman (Ms Jones in Grech v Jones (2000) DFC 95-227) would be able to show that even if the de facto relationship only lasted 11 years, some or even much of the rest of the time was spent in a close personal relationship with him, thereby entitling her to a larger and more realistic share of the property. For similar reasons, it may sometimes be easier for an applicant to forget about trying to establish a de facto relationship, and concentrate instead on the apparently easier task of proving a close personal relationship.

4.5 My final point follows immediately from the last one. Does NSW need a two tier or two category definition of claimant for this particular piece of legislation?31 Does this achieve anything? Would things be more straightforward by introducing a single definition (rather like in ACT) to cover both intimate and non-intimate relationships, where the focus is on giving and receiving ‘domestic support and personal care’ or some similar formulation?

5. CONCLUSION

5.1 In a recent decision, Bryson J in the NSW Supreme Court commented that ‘human relationships vary infinitely and are inherently capable of ambiguity’ (Burden v Cottee, unreported, 31 July 1998, BC 9803512, at 3). This may well be true, but it is also the case that when those relationships break down and end in strife and bitterness, the arguments about financial matters which surface are often very similar and very predictable. It was to deal with those arguments between heterosexual de facto partners that the 1984 legislation was introduced. With the legislative amendments of last year, NSW has now moved to extend that remedial legislation to a much wider range of domestic relationships. What is now needed, and fortunately the Law Reform Commission is now geared to provide, is a close examination of the substantive principles of the legislation, in the light of developments elsewhere, both inside and outside Australia, with a view to making changes, and updating and fine-tuning as may be necessary.

1. Property (Relationships) Legislation Amendment Act 1999 (NSW).

2. See eg Mallet v Mallet (1984) 156 CLR 605, and Marriage of Ferraro (1992) 16 Fam LR 550. For comment, see eg H Charlesworth, ‘Domestic Contributions to Matrimonial Property’, (1989) 3 Aust Jnl of Fam Law 147-60, and L Young, ‘Sissinghurst, Sackville-West and Special Skill’, (1997) 11 Aust Jnl of Fam Law 268-85.

3. Grech v Jones (2000) DFC 95-227, McLaughlin M at 77,272-3.

4. The High Court refused to appeal in Dwyer v Kaljo (1992) DFC 95-127, and in Wallace v Stanford (1995) DFC 95-165.

5. Evans v Marmont (1997) DFC 95-184, Gleeson CJ and McClelland CJ in Eq, agreeing with Mahoney JA in Wallace v Stanford (1995) DFC 95-165.

6. Evans v Marmont (1997) DFC 95-184, Gleeson CJ and McClelland CJ in Eq, agreeing at 77,606-7, and 77,610 with Hodgson J at first instance in Dwyer v Kaljo (DFC 95-053, at 75,599-600).

7. Stroud v Simpson-Phillips (unreported, 1 October 1999, BC 9906334), McLaughlin M at para 26; Wakeford v Ellis (1998) DFC 95-202, McLaughlin M at 77,812-3; Flett v Brough (1999) DFC 95-211, McLaughlin M at 77,107-8; Fuller v Taaffe (1997) DFC 95-198, Rourke J (FC of A) at 77,749; McKean v Page (1999) DFC 95-218, Ellis ACJ, Kay and Mushin JJ (Full FC of A) at 77,190; Theodossiou v Cui (unreported, 3 December 1997, BC 9706888), Young J at 27.

8. Gazzard v Winders (1998) DFC 95-209, Beazley JA at 77,867-8; Stelzer v McDonald (1999) DFC 95-215, Bergin J at 77,155; Richardson v Hough (1998) 24 Fam LR 94, Santow J at 115; and compare Powell JA in Gazzard v Winders (1998) DFC 95-209, at 77,864.

9. For examples, see Roy v Sturgeon (1986) DFC 95-031, Powell J at 75,366-68; Wallace v Stanford (1995) DFC 95-165, Mahoney JA at 77,395; Conn v Martusevicus (1991) DFC 95-109, Vincent J (SC VIC) at 76,399; Fiket v Linco (1998) 23 Fam LR 272, Thomas J (SC NT); Del Gallo v Frederiksen (1999) DFC 95-220, Macready M at 77,222-3.

10. Lipman v Lipman (1989) 13 Fam LR 1, Powell J at 24; Fotheringham v Fotheringham (unreported, 28 August 1998, BC 9804285), Powell JA at 4, 18-21; Stroud v Simpson-Phillips (unreported, 1 October 1999, BC 9906334), McLaughlin M at para 16; and compare McKone v Maretta (1999) DFC 95-213, Macready M at 77,129-133, and 77,135.

11. See for example Griffiths v Brodigan (1995) 20 Fam LR 822, Chisholm J (FC of A) at 834-35; W v W (1997) 21 Fam LR 343, Nicholson CJ, Finn and Maxwell JJ (Full FC of A), at 352; Stelzer v McDonald (1999) DFC 95-215, Bergin J at 77,154-55; Campbell v Campbell (unreported, Court of Appeal, 16 April 1997, BC 9703070), Brownie AJA at 13-14. For a discussion of some of these cases, and a comparison with the approach under the Family Law Act 1975 (Cth), see D Sandor, ‘Accounting for Care Contributions before Cohabitation in Property Settlements’, (1997) 11 Aust Jnl of Fam Law 223-30.

12. See for example Burrowes v Chan (unreported, 31 October 1997, BC 9705749), Macready M at 10-11; Fotheringham v Fotheringham (unreported, 28 August 1998, BC 9804285), Stein JA at 2; Gazzard v Winders (1998) DFC 95-209, Stein JA at 77,870, and Beazley JA at 77,868.

13. See for example Fotheringham v Fotheringham (unreported, 28 August 1998, BC 9804285), Powell JA at 4, 18-21.

14. Foster v Evans (1997) DFC 95-193, Bryson J at 77,681.

15. Wallace v Stanford (1995) DFC 95-165, Mahoney JA at 77,395; Miglietta v Biesiada (2000) DFC 95-226, McLaughlin M at 77,267; Wakeford v Ellis (1998) DFC 95-202, McLaughlin M at 77,812-3.

16. Wallace v Stanford (1995) DFC 95-165, Mahoney JA at 77,395; Theodoropoulos v Theodosiou (1996) DFC 95-169, compare Priestley JA at 77,447-8, and Powell JA at 77,454.

17. Roy v Sturgeon (1986) DFC 95-031, Powell J at 75,366-68; Theodoropoulos v Theodosiou (1996) DFC 95-169, Powell JA at 77,454; Wallace v Stanford (1995) DFC 95-165, Mahoney JA at 77,395 and 77,401; Miglietta v Biesiada (2000) DFC 95-226, McLaughlin M at 77,267; Flett v Brough (1999) DFC 95-211, McLaughlin M at 77,107-8; and Howland v Ellis (unreported, 26 November 1999, BC 9907769), at para 58.

18. See for example Foster v Evans (1997) DFC 95-193, Bryson J at 77,681; Theodoropoulos v Theodosiou (1996) DFC 95-169, Priestley JA at 77,447-8; Griffiths v Brodigan (1995) 20 Fam LR 822, Chisholm J (FC of A) at 834-35; Fuller v Taaffe (1997) DFC 95-198, Rourke J (FC of A) at 77,747-99.

19. See for example the judgments in Theodoropoulos v Theodosiou (1996) DFC 95-169.

20. See for example Green v Robinson (1995) 18 Fam LR 594; and Gazzard v Winders (1998) DFC 95-209.

21. NSW Law Reform Commission, Report No 36, ‘De Facto Relationships’ (Sydney 1983), Ch 8, pp 161-65.

22. For successful claims, see for example, D v McA (1986) DFC 95-030, Powell J at 75,358-9; Foster v Evans (1997) DFC 95-193, Bryson J at 77,681 (lump sum maintenance); and Keene v Harkness (1997) DFC 95-179 at 77,558 (lump sum maintenance).

23. See Todoric v Todoric (1990) DFC 95-096, Powell J at 76,241-2; Parker v Parker (1993) DFC 95-139, Young J at 76,719.

24. Todoric v Todoric (1990) DFC 95-096, Powell J at 76,242.

25. Todoric v Todoric (1990) DFC 95-096, Powell J at 76,241.

26. Todoric v Todoric (1990) DFC 95-096, Powell J at 76,241.

27. The Court of Appeal rejected this argument in Keene v Harkness (1997) DFC 95-179, Cohen AJA at 77,555, but it was nevertheless accepted by McLaughlin M in Howland v Ellis (unreported, 26 November 1999, BC 9907769), at para 84.

28. See De Facto Relationship Act 1999 (Tas), ss 23, 26.

29. See Domestic Relationships Act 1994 (ACT), ss 19(2), 23(2).

30. See for example the cases mentioned at note 9 above.

31. The difference is of course important for other legislation – see the Schedules to Property (Relationships) Legislation Amendment Act 1999 (NSW).