Burgess v Moss

Burgess v Moss - [2010] NSWCA 139 - NSWCA 2010 case summary — Zoe

[21]

10 The appellant focused on what was said in Sharpless v McKibbin (2007) NSWSC 1498, (2008) DFC ¶ 95-414, particularly at [71]: The inclusion within the Act of "close personal relationships" has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a "close personal relationship" not amounting to a de facto relationship. "Close personal relationships" within the definition cover a wide range of relationships, and typically do not involve "a practical union of lives and property". In the case of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, the rationale for the approach authorised by Mallet is much weakened, if not entirely removed. 11 The point of that passage was that the contributions in a de facto relationship occur in the context that the parties are by definition living together as a couple, whereas contributions in a close personal relationship do not necessarily have that feature. In the case of a de facto relationship there will usually, if not inevitably, be a social and economic partnership, whereas in a close personal relationship there will not necessarily be so. Sharpless was a case in which after the de facto relationship had ceased there was no such social and economic partnership. But the range of close personal relationships is wide, from those that are quasi marriages, to those that bear no similarity to a marriage at all (for example, where the relationship might be one much more akin to one between a parent and a daughter-housekeeper, in which the approach typically adopted in a de facto relationship case might not be appropriate). In each such case, the approach to the assessment of the respective contributions of the parties will depend on the facts, and in particular the specific contributions in that case. Sharpless does not state that a close personal relationship could never involve those characteristics of a social and economic partnership which make what was described in that case as the approach in Mallet v Mallett (1984) 156 CLR 605 an appropriate one.

[33]

Order that the appeal be dismissed with costs. 24 BEAZLEY JA: I agree with the orders proposed by Brereton J and with his Honour's reasons. I would make the following and more general remarks. As finally formulated in this Court, the appellant's principal challenge to her Honour's judgment was that she gave inadequate reasons for her determination that the respondent was entitled to an adjustment with respect to the property of the parties to the relationship in an amount of $195,000 after having given credit for monies already received by the respondent. The amount of the adjustment, if expressed as a proportion, was in the order of 22 per cent of the divisible pool of assets. 25 Although the challenge was to her Honour's reasons, the underlying complaint was that the order made by her Honour was simply too much and, as Brereton J has indicated, the adjustment ordered by her Honour was outside the range of orders made in such cases. Care must be taken in deciding cases under this legislation in referring to "ranges" or "tariffs" for two reasons. First, the assessment required under the legislation is an evaluative one. Secondly, and this feeds back into the first, the evaluative judgment is made in a diverse range of circumstances including the relationships that fall within the Act, the pool of assets that are available for adjustment and the nature and quality of the contributions that are made by the parties. 26 It would be wrong given those wide range of circumstances that fall to be determined to have a "tariff" reflecting the contribution of particular types of claimants, such as homemaker claimants. In other words, the legislation does not authorise the adoption of a tariff in the evaluation of what is just and equitable in a particular case. 27 The adoption of a "tariff" not only has the tendency to ossify the just and equitable compensation payable to claimants under the Act (which of itself may adversely affect the interest of one or other of the parties in a way that is not authorised by the legislation), it also has the tendency to distract attention from the evaluative judgment that is required by the legislation. That is not to say that guidance cannot be obtained from the approaches of other judges in other cases. However, such cases may only be used as a guide and not as a replacement for the Court's own discretionary judgment in a particular case.

[34]

28 TOBIAS JA: I agree with the orders proposed by Brereton J and, subject to one matter, with his reasons. However, like Beazley JA and for the reasons she has stated with which I respectfully agree, I do not find much assistance in the use of other cases of the nature of those referred to at [94] of Brereton J's judgment in Sharpless v McKibbin as providing any reliable "tariff" in what is an inexact and non-scientific evaluative process or task dependent on its own facts and circumstances. This is particularly so in a case such as the present where one is assessing a wholly non-financial homemaker contribution of the respondent. 29 The relevant principles in relation to the evaluative task required under s 20 of the Act are summarised by McColl JA, with whom in this respect Beazley JA agreed, at [106] and [108] of Hayes v Marquis (2008) NSWCA 10, as well as in the judgment of Einstein J in the same case at [195] to [197]. As Einstein J noted at [197] in Howlett v Neilsen, Hodgson JA observed that the task of identifying and evaluating the respective contributions of the parties for the purpose of s 20 was not a narrow or purely mathematical process. It is, indeed, an exercise of a discretionary power of a very general kind and referred to in the authorities as a "holistic value judgment". Those factors in my view support the proposition advanced by Beazley JA in this case that it is misleading and unhelpful for reference to be made to the decisions in other cases on entirely different fact situations as providing some some sort of tariff let alone an appropriate upper and lower end of the range of orders which may be made under s 20 founded, as they are required to be, on no more precise a test that what is "fair and equitable". 30 I appreciate that Brereton J in the reasons that he has just given is generally of a similar view but I do not think that a citation of the authorities in the manner which his Honour adopted at [94] of his judgment in Sharpless is going to be of any assistance to the evaluative task in which the Court is engaged by s 20 of the Act. Subject to the foregoing remarks, I agree with the orders proposed.

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Judgment (36 paragraphs)

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Cases Cited (5)