Fairbairn v Radecki [2022] HCATrans 22 (8 March 2022)

Last Updated: 9 March 2022

[2022] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S179 of 2021

B e t w e n -

FAIRBAIRN

Appellant

and

RADECKI

Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 MARCH 2022, AT 10.00 AM

Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR G. LEVICK and MR R. J. MAY, for the appellant. (instructed by Powe & White Family Lawyers)

MR J.T. GLEESON, SC: May it please the Court, I appear with my learned friend, MS D.M. FORRESTER, for the respondent. (instructed by Attwaters Solicitors)

KIEFEL CJ: Thank you. Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, the enactment of Part VIIIAB of the Family Law Act pursuant to referrals by States brought in its train, eventually, today, the need to construe certain of the provisions defining the threshold questions for the exercise of jurisdiction in what might be called proceedings for the alteration of property interests. There are, of course, other and important provisions concerning the position of children and the nature of what might be called maintenance, but today’s argument concerns that aspect of what is called, in the Act, de facto financial cause, which has to do with the possible alteration of property interests.

As your Honours have seen, the manner by which there has been a degree, and I stress, a degree of assimilation by dint of the legislation pursuant to the referrals of de facto relationships and de jure marriage relationships is, of course, dependent upon the particular terms of the provisions, some of which are in question in today’s proceedings. But in our submission, there can be no doubt that there is a fundamental or radical difference between the two kinds of relationships, and that these are reflected in the jurisdictional provisions to which we first turn.

There is a definition critical to the whole of the scheme, as your Honours know, in section 4AA of the Family Law Act. If I could ask your Honours please to go in the joint book of authorities first to page 60. It is a definition that has some analogues elsewhere, to which I will come in a moment, but of course it stands in its own right to be construed in an orthodox fashion. It is of significance, in our submission, that the word “relationship” is used, just as it is significant that the colloquial resort to Latin, de facto as opposed to de jure, is, of course, part of the statutory language and it starts by the radical distinction between de facto and de jure, namely, paragraph 4AA(1)(a):

the persons are not legally married to each other –

And then, a regulation which is the same for de facto as for de jure marriage, namely paragraph (b):

the persons are not related by family –

With specific provisions that need not delay us. And then comes that which is positively descriptive by way of a statutory definition, namely paragraph (c) that:

having regard to all the circumstances of their relationship –

I note the word “relationship”:

they have a relationship –

again I note that word:

as a couple –

a phrase used in analogues as well as these provisions, and then come the two critical words:

living together ‑

and then a description of that nature of cohabitation, namely:

on a genuine domestic basis.

And the:

relationship as a couple living together on a genuine domestic basis –

though positively expressed, of course, will distinguish such a case from the case of many people who might be described in ordinary English as “from time to time living together”.

Subsection (2), permissibly – that is not exhaustively – stipulates for the circumstances, that is all the circumstances of their relationship, to which the Court may have regard in considering and adjudicating the existence and ultimately the duration and particularly end of a de facto relationship.

We, as your Honours know, lay particular emphasis on paragraph 4AA(2)(b), the language of which, in our submission, requires that there be indispensably that which can be fairly described as a matter of fact and conclusion, as a:

common residence ‑

But a common residence of persons putatively having a:

relationship as a couple living together on a genuine domestic basis ‑

is not stipulated to be either sole, exclusive or to require any particular ticking of boxes in a calendar. It is for those reasons that the breadth of the permissive stipulation of the circumstance in 4AA(2)(b) is, in our submission, to be understood as requiring there to be a common residence but accepting that there may be a spectrum of behaviours inter se – that is between the two members of the relationship and perhaps other involved persons – by which that common residence has a nature as well as an extent.

Not too much should be made of a distinction between nature and extent because the two concepts unquestionably blur, particularly when one considers, for example, the number of occasions, the kind of occasions, the company of others, for example, that may mark the putative common residence.

It is to be always recalled that the circumstances that are not exhaustively or illustratively permitted in subsection (2) are circumstances consideration of which may produce a negative answer to the question: is this person in a de facto relationship with that other person? Because the requirement in paragraph 4AA(1)(c) is to have regard to all the circumstances of the relationship in order to adjudicate whether:

they have a relationship as a couple living together on a genuine domestic basis.

Put together, paragraphs 4AA(1)(c) and 4AA(2)(b), particularly with the notion of living together, contemplates that though living together will be essential – or indispensable, as we argue – it may not be enough in any number of cases and a moment’s thought would indicate why that must be so.

GORDON J: Mr Walker, does that argument hold true – I assume you are going to come to it ‑ regardless of subsections (3) and (4) in relation to that aspect?

MR WALKER: The essential or indispensable requirement for living together does, yes.

GORDON J: Yes, thank you.

MR WALKER: Our argument in this regard does depend on that proposition. May I however directly deal – because it is here required under 4AA ‑ subsection (3) is in relatively striking terms not unknown as to some comparable provisions, but it stresses negatively that no particular finding in relation to any circumstance – and I stress they are not confined to the subsection (2) examples – is to be regarded as necessary in deciding whether the persons have a de facto relationship.

One of the reasons for my answer to Justice Gordon is that, as a matter of syntax and as rendering the adjudicable nature of the relationship workable, one has to distinguish between the circumstances to which regard must be paid – 4AA(1)(c) – and the purpose for which that regard is being had to those circumstances, namely, to determine whether the relationship answers the description with its integers in the balance of 4AA(1)(c), namely, whether those persons have a relationship as a couple living together on a genuine domestic basis.

That is why subsection (3) cannot dispense the Court from positively finding that the persons are living together within the meaning of the statute in order for them to be eligible, having considered all the other integers in 4AA(1)(c) and having regard to all the circumstances whether they have the statutory relationship. But if they do not qualify under what, in our submission, is the core concept of de facto as opposed to de jure, a couple living together, then they will not be able, regardless of weight given to other circumstances, be held to have had a de facto relationship.

Subsection (4) is, of course, in a very familiar form and requires for the no doubt individual and nuanced overall factual conclusion – which is at the heart of the adjudication under 4AA(1) – that there be regard as broadly as to the particular court in the particular circumstances of the particular case, regard ought to be had. Nothing there, in our submission, of course, dispenses the Court from nonetheless directing itself in accordance with the descriptive definitional characteristics to be found in 4AA(1)(c). The tail in 4AA(4) does not wag the dog in 4AA(1)(c).

EDELMAN J: Mr Walker, there is a very long history going back to ecclesiastical law of the phrase “living separately and apart”.

MR WALKER: Yes.

EDELMAN J: Is the reference to “living together” the opposite of that or is it intended to be a break from that long tradition and just to bear some ordinary meaning of cohabitation?

MR WALKER: The verbal indications in the statute contain some – I will come to one, at least, in not very long – suggestions that there may have been a thought – query, a fleeting one – by the drafters, that the antonym of “living together” was the very well‑established phrase “living separately and apart”. Of course, as a matter of ordinary plain English, “together and apart” are very often natural opposites.

However, it cannot be as simple as that, in our submission, because unless there is teased out what the combined phrase “separately and apart” – giving emphasis to the first part of it – may mean, then that will not cope with absences which very much mean people are not together and that they are apart but which would be an absurd, not to say offensive, basis upon which to say that their de facto relationship has ceased. I do not want to multiply examples, let alone sentimental ones, but speaking today, obviously enough absence on military service is an obvious example.

So, you are certainly apart, query whether you would be separately and apart, for any of the canon law understandings – almost certainly not. But whether one would be living together on a genuine domestic basis as a couple, while one or other is away on manoeuvres, in our submission, will be fairly readily answered, namely, of course you are, no more difference than when one but not the other goes abroad, say for a work assignment. So living together does not require constant physical attendance – that is in the close physical presence of each other. That would be absurd and, as your Honours have seen, we disavow, as one might expect, any such notion of that being involved in living together.

Your Honours, while in the definitional sections, as you have seen, we respectfully suggest that is the thoughtful consideration in particular by Justice Brereton in Yesilhat v Calokerinos [2021] NSWCA 110, may be of assistance to your Honours. Now, I may be appearing here to be breaching an admonition we have expressed in our written submissions about the care to be exercised in relation to resort to decisions on different statutory regimes, and with all of the caution that that obviously requires, but, bearing in mind that this is federal legislation following State referrals and that the States have had similar provisions – variously, admittedly – could I draw to attention in paragraph 126 of the print of those reasons that we have made available, the New South Wales Interpretation Act provision, section 21C that is quoted by his Honour at paragraph 126 of those reasons.

I just wanted to draw to attention for present purposes that the same expression, “de facto relationship” is found, the same concept of a relationship as a “couple living together” is found, see paragraph 21C(2)(a), and the same reference to “common residence” with the phrase “nature and extent of” or describing it, is seen in paragraph 21C(3)(b).

GORDON J: It does not have subsection ‑ ‑ ‑

MR WALKER: (3).

GORDON J: ‑ ‑ ‑ (1)(c), does it, having regard to “all the circumstances”, or have I misread it.

MR WALKER: I think your Honour has, I am sorry.

GORDON J: Okay. That is fine.

MR WALKER: In subsection (3) of section 21C ‑ ‑ ‑

GORDON J: I see, it is in (3).

MR WALKER: ‑ ‑ ‑ the command is:

In determining whether . . . all the circumstances . . . are to be taken into account ‑

So, a passive voice, but nonetheless unmistakable in the command to the court.

GORDON J: But it does not have this couple living together on a genuine domestic basis – does it have that sort of analysis in it?

MR WALKER: It obviously would have that requirement bearing in mind ‑ ‑ ‑

GORDON J: It may not matter, Mr Walker, I accept it is structured differently, but it does not seem to have that focus upon the (1)(c) identification as:

a couple living together on a genuine domestic basis ‑

or does it?

MR WALKER: I submit it does, but our argument does not depend upon this because I am more focusing – entirely focusing – in relation to the New South Wales authority on the approach taken to the notion of having a relationship as a couple living together. And the statutory relevance to the overall relationship conclusion of what is described as:

the nature and extent of their common residence ‑

Those are matters which are in pari materia to the Commonwealth terms. They obviously have not sprung in such literal verbatim terms by pure coincidence. It is true that the fairly time‑honoured notion of:

a genuine domestic basis ‑

is not contained, as such, in the New South Wales provisions, but as with the Commonwealth provisions, references to the financial matters, using the Commonwealth references 4AA(2)(d), (2)(e), (2)(f), (2)(h), and (2)(i) are references to matters which do not exhaust but would certainly cover the heartland of what one might regard as indicating living together as a couple on a genuine domestic basis.

Your Honours, I will not take your Honours to particular parts of Justice Brereton’s discussion of the authorities and what might be regarded as a purposive understanding for the New South Wales purposes of those provisions, but your Honours will find the culmination at paragraph 152. We respectfully urge that that is both a practical and principled approach to be taken to cases that throw up the question of the basal definition indispensable in its effect as to whether a relationship of this kind exists or not, namely, of living together.

Like all these cases there is then, of course, required to be the appropriately‑inflected factual conclusion on the particular evidence which, of course, has no precedential value at all, but the indispensability of the requirement to be living together in the sense that that phrase itself imports, the elasticity of absences from time to time of a particular kind, for example, that, in our submission, is a useful demonstration to your Honours of how provisions such as 4AA can and should be read.

STEWARD J: Mr Walker, may I ask a question. What then do you say is the work that is done by that phrase “on a genuine domestic basis”? Does it, for example, mean that the living together has to be directed at doing domestic things such as sharing meals, sharing a home, doing jobs on weekends – what is the work that the phrase does, in your view?

MR WALKER: Yes is the answer, that a genuine domestic basis is itself necessarily elastic. With the word “genuine”, one is reminded of the problem of concept such as a fake diamond. Of course, it has to be “genuine” in the sense that nothing simulated or deceptive can be taken into account, so the word “genuine” may not add much except by way of stressing that there has to be a conclusion by the Court concerning what I might describe as the good‑faith reality of that which is presented.

One has to remember that being in a de facto relationship does not merely expose one to the burden or provide one with the benefit of possible property dealings, but is very often as well, of course, the basis of social welfare or even extended provisions such as may be involved in migration decisions and the like. So that the word “genuine” I would not argue imports any particularly substantive quality but emphasises the need for a comfortable satisfaction as to the reality of the position.

But the word “domestic” is obviously, in one sense, difficult, because, for example, the many uses of that word with which one is familiar are quite useless here, such as domestic as opposed to cosmopolitan. None of that matters. It is domestic in a much more direct etymological link to the Latin, it has to do with household and home, and one sees that the non‑exhaustive illustrative circumstances in subsection (2), the ones I have already listed, pick up just such matters.

Now, in answer to Justice Steward’s question, yes, that means that, definitionally, the couple living together on a genuine domestic basis must be able to be concluded by the Court rendering the adjudication to be living together on a basis that has a sufficient connection with the notion of common home, or common household, even if it is not their only one and even if they share a home or household with somebody else as well because you can be – if I may put it this way – polygamously, or polygamously in a de facto relationship – unlike de jure marriage in this country at the moment.

In our submission, the overlapping concepts of “couple living together”, “genuine domestic basis” is unmistakeable. They cannot be put into discrete boxes with no overlap and there is a combined or single effect of the collocation of those words and phrases, but it does not mean that there does not need to be, in the adjudication, proper attendance to fulfilment of each of what I have called “the integers”. They must be a couple, they must be living together – subject to the caveats I have expressed concerning temporary absences – and it must be on a basis which attracts the description of being a genuine domestic basis.

The overlap is obvious, for example, with the last, insofar as one considers the existence of a household which is, ultimately, an amalgam of physical – that is, structural – and social matters. In the context of this case, bearing in mind the exigencies of my client’s charge, my client’s ward, so to speak, it is quite impossible to posit that there is any continued existence of a household which will provide one of the ways in which one might discern a genuine domestic basis, but much more plainly, bearing in mind the permanence of the different residences – that is, no longer common residence – there is, in our submission, no possibility in such a relationship of it being described as one of persons living together.

We have drawn to attention proposition 1(b) that, in what might be called in a loose sense “cognate, legislative reforms” to include both same‑sex and what I will call “jurisdictional matters regardless of same or different sex relationships”, to the way in which subsection 2F(4) of the Acts Interpretation Act has provided, possibly – that is, by an option to be exercised by the legislators from time to time in the future – for all manner of legislation which may use such an expression and that, of course, may vary from public service pensions, and the like, to any number of welfare and other contexts.

It is, perhaps, striking that unlike the usual device of the Acts Interpretation Act’s standing there and then to supply the meaning of defined terms unless the contrary intention appears, as we have drawn to attention, subsection 2F(4) requires a specific or explicit pick‑up. Its significance ought not to be overstated in our argument – we draw it to attention for this reason. The poignant circumstance which dominates the facts in this case is one of those which is the specific purpose and effect of 2F(4) to regulate – that is living separately – which I interpolate is by that drafter obviously regarded as not the same as living together:

only because of:

. . .

(b) illness or infirmity ‑

GLEESON J: Infirmity is quite a different thing from incapacity, is it not, Mr Walker?

MR WALKER: Absolutely. But “incapacity”, as your Honours appreciates, is towards the end of a spectrum of consequences both of illness and of infirmity, hence the old‑fashioned but still appropriate expression “infirmity of mind”, which of course can be – or include – out and out incapacity such as exists in this case. Infirmity is much broader than incapacity but unquestionably includes it, as does illness.

Our point is this, that if I am correct that infirmity includes what might be called permanent or hopeless infirmity, and if I am correct that infirmity includes a constitutional decline of mind and/or body so great as to produce legal incapacity ‑ and, with respect, the word does extend easily that far – then, when picked up, when expressly invoked, that definition in 2F(4) would have the effect – an effect Parliament has, as it were, put on the shelf for use as legislators in the future see fit in order to prevent separation by reason of such infirmity – any infirmity but including the kind I have described – from destroying one of the integers of the relationship called a de facto relationship, including its component or integer of living together.

Your Honours know how we use the point – I stress too much ought not to be made of it – it does sit on the shelf, it was not taken off the shelf for these provisions. In our submission, there is an overall schematic legislative history aspect to be derived from that which would counter the notion which, we submit, is truly only sentimental, that of course a de facto relationship endures beyond even the tragedy of such infirmity as to be permanent incapacity of one of the partners.

KEANE J: Mr Walker, would it be the case that for the legislature to have invoked section 2F(4) of the Acts Interpretation Act would have been inconsistent with, or in conflict with, 4AA(2)(f):

the degree of mutual commitment ‑

in cases where the absence of commitment was due to infirmity? I am thinking of a case where, because of infirmity ‑ ‑ ‑

MR WALKER: Yes, it is the word “mutual” in particular ‑ ‑ ‑

KEANE J: Yes, “mutual” – because of infirmity to a particular degree, in one party, that means that there is zero mutual commitment to a shared life.

MR WALKER: I think the answer has to be as follows. They are not dispensable matters – I am avoiding the word circumstance – they are not dispensable matters or factors, which are included in the description:

a relationship as a couple living together on a genuine domestic basis.

That is the first thing. And no doubt, depending upon the facts of a case, one side or the other may say this is not a relationship, it is certainly not a relationship as a couple. It is certainly not a relationship as a couple living together, and such dealings as they have are the opposite of a genuine domestic basis, for example. No doubt, the language of breakdown, to which I am shortly going to come, indicates how complete a demolition of a de facto relationship would be demonstrated by those combination of occurrences and outcomes.

On the other hand, the circumstances in subsection (2), which we know by reason of subsection (3) do not call for any particular finding concerning them in order for it to be necessary to decide whether – so it is yes or no – the persons have a de facto relationship include what Justice Keane has drawn to attention, this degree of mutual commitment to a shared life. The word “degree” rather suggesting, a bit like the phrase:

nature and extent of their common residence –

in paragraph (b), that it is understood by the drafter that there needs to be a:

mutual commitment to a shared life –

but it may be of such a degree, perhaps exiguous, or wildly uneven between the two members, as to be brought into the overall consideration, not requiring any particular finding, but nonetheless the overall consideration of the definitional integers taken both separately and ultimately, of course, as a whole.

And for those reasons, in our submission, it would be really not very helpful had there been the Acts Interpretation Act invocation, it would, as it were, complicate the straightforward, factual, highly case‑specific consideration that 4AA presently concentrates on for its purposes in the Family Law Act which had, as a political aim, obviously, a degree, only a degree, in some aspects, of assimilation by dint of the constitutional settlement through referral of de jure and de facto couples’ relationships.

Now, radical differences still remain, but with respect to the possibility of obtaining what married people can obtain under section 79, the provisions to which I am about to come in our submission ought to be seen as requiring a reading of the definitional provisions that we have attempted.

Your Honours, can I then move to that which is a companion argument. I am doing this in address, as your Honours have seen from my outline, in the reverse order from the way we have written it in our written submissions, but it does not matter what the order is, they are related.

The two aspects of the same overall question, which is the jurisdictional question to which I am about to come with respect to the critical provisions, and could I just take your Honours back, please, to the statutory provisions. We have drawn to attention the unhelpful definition at page 33 of the book of authorities of “breakdown” ‑ when I say “unhelpful”, obviously of great significance in terms of legislation ‑ it removes, relevantly, most post‑mortem requirements. But while still in section 4 I should draw to attention how breakdown is used in one of the relevant definitions, “de facto financial cause” starting at page 36 of the book, here there is that figurative language of breakdown used in paragraph (a), it means:

proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown –

And then paragraph (c):

with respect to the distribution, after the breakdown . . . of the property –

Et cetera. Could I then take your Honours – just going through in order – to page 159.

GORDON J: Mr Walker, I apologise, I am using the hard copy legislation. Could you just tell us what section you are looking at please?

MR WALKER: I do apologise, your Honour. It is section 39A ‑ ‑ ‑

GORDON J: Thank you.

MR WALKER: ‑ ‑ ‑ in Division 2 of Part V of the Act:

Jurisdiction in de facto financial causes

Which is the defined term I have just taken your Honours to. And your Honours see in subsection (5), obviously in terms of the national settlement by federal legislation upon referral of the great significance of these jurisdictional definitions, it forbids a de facto financial cause being “instituted”:

otherwise than under this Act.

Could I then go forward, please, to section 44 ‑ in the book, it is page 171, subsection (5). There is there a reference to provisions, including, your Honours will see, 90SM. And then there is this notion of a:

standard application period

It is a flexible limitation, as your Honours see. And just to make life for the advocate interesting, there is another expression, query different concept, introduced – the notion of the “end” – I stress the word “end” – “of the de facto relationship”. I interpolate, of course, the radical difference between de facto and de jure, is that what might be called the psychological or personal aspects of a marital relationship may wither and die, but the relation of marriage, de jure marriage continue until death or dissolution. The same, obviously, cannot be said of a de facto relationship, at least as defined by the provisions to which we have drawn attention because in order for there to be – and I add, to continue to be – a de facto relationship, the definitional integers must continue to be true.

That is why, no doubt – that is the great difference between the bright line de jure marital relationship so far as being married is concerned, on the one hand, and the not so bright line notion of the end of a de facto relationship, and, if it be different, the breakdown of a de facto relationship leads to the provisions that your Honours have seen by which a court can be tasked with the occasionally invidious purpose – task – of determining whether a de facto relationship has ended, and, if so, when, even to the point of a date.

Your Honours will then – if I could take you then forward, starting with section 48. By way of contrast, your Honours are of course – this is page 180 of the book – familiar with the fundamentally important provisions that one sees in section 48 and the definitional – the important definitional section in 49 of “separation”. In our submission, it is clear from the very terms:

not less than 12 months ‑

that you see in subsection (2) of section 48, that separation is not the same as breakdown, and separation is not the same as breakdown irretrievably – more is needed. And one sees in subsection (3) one of the ways in which that more is stipulated by Parliament, and it is for those reasons, in our submission, that there are the radical differences but also the elements of assimilation that we argue inform the proper approach to the statute that we submit with respect the Full Court got wrong.

Could I then go forward to the new regime – that is, the regime that was introduced and which depends, for its invocation, upon the provisions in question in this case. Perhaps pick it up first at 90SE. I do not need to dwell on it, it is page 471 in the next volume of the book, and just draw to attention that there the language and whatever associated concept is invoked of a breakdown of a de facto relationship, that need not involve – as your Honours have seen us argue – the notion of broken down irretrievably. That echoes, but it cannot be the same as the de jure marriage position to which I have drawn attention. Similarly, a breakdown ought not to be regarded as for all purposes or even, mostly, as requiring separation, though, obviously, separation will often, of its nature, depending upon circumstances, be close to a factually conclusive indication of breakdown.

If I could then take your Honours forward to the provision where this obviously has a foothold in the issues between the parties before your Honours – 90SM, page 483, and following. There the notion of breakdown of a de facto relationship is a jurisdictional prerequisite of the court’s power to make a familiar kind of order. In subsection (3) we draw to attention one of the assimilated provisions of de jure and de facto relationships in these specified regards because, in our submission, against what might be called floodgate aspects of our learned friend’s arguments, we submit that one simply soberly and steadily always recalls that there is also a jurisdictional prerequisite of the exercise of the large power under 90SM, namely, that it is necessary for the Court to be satisfied that in all the circumstances is just and equitable with the same considerations, bearing in mind nonetheless the difference between de jure and de facto relationships as this Court discussed in a passage I do not need to take you to with which your Honours are all familiar in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108, especially at 182, paragraphs 42 and following.

GLEESON J: Mr Walker, there is another provision – there are several – but there is another provision which is mirrored in the property adjustment provisions in the marriage context, which is section 90ST.

MR WALKER: Yes.

GLEESON J: The duty of the court to end financial relations.

MR WALKER: Yes, that is also, in our submission, an unmistakeable indication – not indication, promulgation – of one of these assimilating intentions, yes. It would be quite wrong – and I do not employ it as an argument – for me to press for assimilation as equality that needs to be satisfied by reading in order for the reading to be correct because the two kinds of relationships are fundamentally, radically different.

It is just that in certain aspects, and in certain ways, there have been some – I keep calling it assimilation purposes ‑ evident in the enacted text. One of them, obviously, is different‑sex/same‑sex, which is not relevant to this present case, but which is an indicator of the kind of national scheme which is demonstrated by referrals, albeit not in totally uniform terms, and federal legislation upon those referrals.

GORDON J: Mr Walker, you may very well come to it – you took us to Stanford at 42 and following.

MR WALKER: Yes.

GORDON J: If you read the provisions you have just taken us to, including the maintenance provisions, which recognise as considerations under (3)(a) and (3)(b) of 90SF, that there is to be the health of each of the participants to the relationship to be taken into account, and seemed to recognise the ability or the fact that there will be some mental impairment likely.

MR WALKER: Yes.

GORDON J: When you look at 42 and 43 as a process of analysis, i.e. judicial method as distinct from exact application to the facts here, you will see, I think, at least arguably, that the Court recognises that one starts from, in effect, a recognition of what the relationship once was, subject to adjustment, and recognising that notwithstanding impairment there may be slight adjustment to what we might describe as fundamental change, which is probably not as far as you would have us go, in the sense that one looks to see whether one is in a genuine domestic living relationship by reference to the things that Justice Keane took you to, and one can see, as I understand the facts you put them here, that it is not then what we might describe or the Court describes in Stanford as available adjustments given the circumstances but fundamental change to what was once a relationship which is now no longer existing.

MR WALKER: Let me be clear about how we urge these provisions read as we submit they ought to be, should have been understood and then applied. I do not want to rehearse the facts in this case, they are clear and mundane and tragic, and, in our submission, they belie the notion that this is just another phase. I do not want to repeat my arguments about they are obviously not living together and never will, in any ordinary English, of that expression, even given all the flexibility that one has to make for the very common absences from each other of spouses, be they de jure or de facto, from time to time.

So that is never going to change. So there is no common residence, no common residence, so nature and extent has been left behind, there is no common residence, that is because they are not living together in any sense of that word or that expression, and furthermore, in our submission, it cannot be said they have a relationship as a couple.

But that is not necessary to the way in which we have argued the case, because being a couple, of course ‑ and I do not mean this disrespectfully of anyone ‑ could be a particularly proper and respectful description of a woman of her paramour, a man and his mistress, to use old‑fashioned and now unfashionable language, that is, designedly not a domestic basis. Designedly not living together, et cetera, but nonetheless a couple. So the word “couple” does have a meaning to add to the overall collocation that requires description. We have focused on living together, for obvious reasons.

GLEESON J: But if they had been married, then there would be no question ‑ ‑ ‑

MR WALKER: Quite so.

GLEESON J: ‑ ‑ ‑ the issue would just be what orders would be just and equitable, if any.

MR WALKER: Quite so, exactly. Now, just and equitable still stands there, not as a fallback, it is not some kind of safety device, just and equitable is the driving concept of whether the court should exercise the substantive jurisdiction to make an order of this very considerable kind altering, relevantly, property interests.

And so, going back to Justice Gordon’s question to me concerning what may or may not be taken from Stanford – in paragraph 42, at page 122 of the report, it is to be recalled that there is there a reference in the illustration – and, of course, this is only an illustration – of:

the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.

We would ask for our case to be determined not on the notion of being able to see in the findings at trial in the Full Court of a voluntary severance of the mutuality of the marital relationship, but by the brutal interposition of circumstance – medical in its nature, and welfare in its orientation – whereby our client’s ward cannot live together with anybody in a couple, and will not ever again, and does not have capacity to make decisions of a significant personal kind, let alone concerning resort to or sharing of her property, its use or otherwise.

We call in aid the same kind of method as is exemplified by the discussion in 42 of Stanford v Stanford but adjusted to the de facto position – no longer living together, et cetera – and adjusted obviously to the facts which will attain in the no doubt frequent case of one partner to a former couple now being without the capacity of the kind that is true here.

In our submission, that certainly brings to an end the notion – to use the language of paragraph 42 – that there can be any assumption that the adjustment of the approach of the two persons to their joint or several property interests can be effected consensually – to pick up the language at the foot of paragraph 42.

GORDON J: It is really 43 to 44, Mr Walker, which I think is the paragraphs I was referring to where there is a recognition where it is involuntary – one starts from in effect, what were the arrangements prior to the involuntary act, and then recognising there can be necessary adjustments, notwithstanding it is involuntary.

MR WALKER: Quite so.

GORDON J: But leading to a conclusion that because more than the necessary adjustments are taken, there is a breakdown.

MR WALKER: 43, 44, 45 are expressed by their Honours, your Honours, as importantly different from what paragraph 42 is illustrating, hence the two words:

By contrast ‑

at the beginning of 43:

separation –

that is no longer living together when separation really means separate and apart:

when involuntary –

this is for de jure marriages:

does not show that it is just and equitable –

but, in our submission, that would be true with de facto relationships as well – that is the end by separation – when that is how end is brought about – is not, in our submission, sufficient to:

show that it is just and equitable ‑

to alter any property interests.

In 44, which is picked up – sorry, it is continued to be discussed in general terms in 45 – there is specific reference again within the context of de jure marriage of what is called a non‑voluntary – involuntary separation of parties where there would then require to be an examination of what past arrangements, express or implicit, may say concerning the need for the court – the propriety of the court making any orders – and the last sentence of 44 warns that incompetence, or incapacity:

is not to be assumed –

to indicate the lack of the other party’s:

will and ability to make those necessary or desirable adjustments.

The significance of which is signalled in 42 that, if that can be done, then just and equitable may not be made out, and, in our submission, that is how 45 is proceeding as well.

Now, again, too much cannot be made by us of what is said in the leading case concerning these provisions for de jure married couples, but bearing in mind the plainly deliberate textual and conceptual identity of the just and equitable substantive jurisdictional requirement, in our submission, one then turns to the contrasting or specific definitional components of de facto relationship, leading back to the living together argument.

Could I take your Honours also to some verbal indications that your Honours might find useful. In 90UF, pages 508 and following, with respect to this creature, a separation declaration, bearing in mind that it is called a separation declaration, at first sight it might seem there is not much significance in what is stipulated to be a mandatory element of its statement, see paragraph 90UF(5)(b):

have separated and are living separately and apart –

There is that phrase. And one compares that to paragraph 90UF(5)(a), “lived” – past tense:

in a de facto relationship –

But for other matters to which I have drawn attention in address and in written submissions, one might think that there is some kind of conceptual equivalence being signified by these words, that a de facto relationship ends, ceases to exist, upon there being separation and living separately and apart.

Now, unquestionably, that will be in many cases a finding that will produce the conclusion of breakdown and the conclusion of end, but for the reasons we have put, that does not necessarily mean they are interchangeable concepts or words. I need, however – I hope this does not complicate matters, but at the beginning of that same section, 90 UF, in subsection (1) one sees that the financial agreement that can gain statutory force is described there as:

to the extent to which it deals with how, in the event of the breakdown of the de facto relationship, all or any –

and it will not be of any:

force or effect until a separation declaration is made.

Now, it is for those reasons that it is, in our submission, going to be a usual case that upon separation there will be – I should not say “upon” – that the same circumstances that reveal “separation” as a correct description will probably reveal “breakdown” as a correct description, and probably therefore indicate “end” is a complete description, though it must be said that these are not necessarily cataclysmic matters that occur on a day. And because they are processed and retrospective characterisation, after process has continued a particular distance ‑ ‑ ‑

GAGELER J: Mr Walker, does your argument come down to saying that there is a breakdown of a de facto relationship where what was once a de facto relationship no longer meets the definition in section 4AA? Is that all there is to it, really?

MR WALKER: Your Honour, I hesitate for this reason. As we have tried to point out, at least as a matter of ordinary English and knowledge of the world, not all breakdowns are irretrievable. In the de jure position we know that from the provisions to which we have drawn attention. There are not provisions so clear with respect to the use of that expression with respect to de facto relationship, but I do draw to attention the provisions of paragraph 90UF(5)(c) which, by way of yet further verbal variety, introduces the notion of:

no reasonable likelihood of cohabitation being resumed.

It might have escaped your Honours that cohabitation might simply be seen as a Latinate version of the Anglo‑Saxon “living together”, but I am at a loss with respect to submit in any principled way that that etymological difference produces any particular significance of the word cohabitation being used there. Cohabitation also has a more precise meaning that has to do in particular with sexual relations.

Now, for all those reasons, no, I do not think I can simply say that there is breakdown upon a definitional integer ceasing to be true. What can be said is you are no longer in a de facto relationship. As a matter of English, that must be it is at an end. As a matter of knowledge of the world, breakdown cannot occur after end. It either occurred beforehand or at the end.

GAGELER J: So, what is the added content of the notion of a breakdown?

MR WALKER: If your Honour is asking – I am sorry, I do not mean to ask you a question, but as to an added content with respect to the word breakdown, we would simply say this, as we tried to put in our writing ‑ a relationship may breakdown before it comes to an end. In this case, if breakdown is demonstrated – and it need not be – breakdown may be demonstrated by mutual hostility which appears to be inveterate. But they may live together, and it is for those reasons that breakdown may occur in a variety of different ways, when it comes to getting a separation declaration with its significance there needs to be something which appears to be the de facto equivalent of the irretrievability which is necessary for a marriage dissolution. Not for a marriage property application, but breakdown is, in our submission, common to both kinds of relationships that it may or may not be irretrievable, there may or may not be patch up.

But it is therefore significant that cohabitation is used, with its obvious semantic similarity, if not identity, with living together, with respect to important provisions that may alter property resources of a former de facto couple, to which we have drawn attention in 90UF, and you see a similar part of the scheme in 90UG, where the expression is:

unless and until the de facto relationship breaks down.

It is a very long‑winded way of trying to deal with the difficult question – the question I find difficult – that Justice Gageler has asked. We are not saying that there is in these statutory uses an exact correspondence between end, breakdown, and no longer living together within the meaning of the definitional phrase. Although, of course, in many – I could not possibly say most – in many cases that will be the observation that produces affirmative answers to the questions: has there been a breakdown, has it come to an end, are they no longer living together.

GORDON J: In the Full Court, Mr Walker, I think you accepted that no longer living together by reason of illness or infirmity was it not itself a sufficient factor.

MR WALKER: No, it is, in our case.

GORDON J: I understand that is your case.

MR WALKER: I am sorry.

GORDON J: Does it mean, though, that the ultimate position is, is that wherever there is illness or infirmity there is an end or a breakdown?

MR WALKER: No, no. It has to be illness and infirmity which means that there is that permanent end of living – it has to be permanent.

GORDON J: So, that is what I put to you. So, it has to be permanent in the sense that there is an illness or infirmity that leads to permanently not living together ‑ ‑ ‑

MR WALKER: Yes.

GORDON J: ‑ ‑ ‑ is, of itself, a sufficient and necessary – or sufficient to bring the end and the breakdown of the relationship?

MR WALKER: We would not say “breakdown” in all circumstances.

GORDON J: So, what are the circumstances you carve out of it?

MR WALKER: It will certainly bring it to an end.

GORDON J: So, if you have a de facto relationship where there is the infirmity or breakdown but by reference to the other factors in 4AA it might arguably be said there is a continuation of a genuine, cared mutual relationship – “care” in the sense of care for the person who is in the unfortunate situation of being in some form of care. You still say that is the end of the relationship?

MR WALKER: Yes, that it is indispensable that understood – as it always has been understood – the phrase “living together” must be true in order for there to be – in which I include there “to continue to be” – a de facto relationship. It is impossible to read the definitional provisions otherwise. And that makes sense, bearing in mind that it is conduct not ceremony – it is the observance over time of relationship, rather than a record in the register – that distinguishes de facto relationships from de jure marriages. That is why there is such importance given, in our submission, to the notion of separation; to the notion of no reasonable prospect of cohabitation resuming and to the related – though no exactly congruent – notions of end and breakdown.

Mutual commitment, for example, is not something which can fairly be regarded as continuing to be true after one of the couple ceases to have capacity to be committed or, indeed, even to recognise the other partner – former partner – as we would submit it would then sadly be. And that is to recognise the radical or fundamental difference between de facto and de jure relations to which we have referred.

Your Honours, all that remains for me to do is to note the matters that I have already, I think, indicated under our proposition 3 and, in particular, under 3(b), we intend to collect and draw to attention those matters which, if we may say so, scarcely represent a unilateral commitment – let alone the possibility of a mutual commitment if one were to have selected just that possible criterion. But, of course, it is proposition 3(c) which, in our submission, really does put an end to the matter. I do not need to develop proposition 4, which we have there set out
and written in our submissions in anticipation. May it please your Honours, I note the time.

KIEFEL CJ: Yes, thank you.

MR WALKER: I am sorry.

KIEFEL CJ: The Court will adjourn for 15 minutes.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Your Honours will see from our outline we have sought to group our oral argument around four propositions. The first, which enters at an earlier point than the appellant, is the precise basis upon which the Full Court found error in the decision of the primary judge and what consequences that has for this appeal before your Honours. Our second proposition will deal with what was expressed to be the appellant’s alternative argument but now has been given some prominence that, as a matter of fact, the parties no longer shared a common residence and that as a matter of law that was fatal to the continuation of the relationship.

The third matter which is covered in some detail in the outline deals with the question your Honour Justice Gageler asked of Mr Walker, if breakdown can have some content other than the end of the relationship, and prior to the end of the relationship, what is that content that the appellant is contending for, and we submit no such distinction can be identified as a matter of law. And then, finally, to the extent the facts remain in play, I will seek to deal with those matters.

If your Honours have the core appeal book, at page 38, the primary judge at paragraph 161 found there was a breakdown because certain actions of the husband, referred to over six paragraphs, led to a conclusion:

the law should objectively impute to him the requisite intention to separate.

That was the core matter which then came before the appeal court at page 55 at paragraph 25, and it was the first of three questions identified by the Full Court. The trustee abandoned that case, which you can see from page 58, paragraphs 38 to 39, as being wrong in law, and does not seek to resuscitate that point here. The second point from paragraph 55, which was the main focus of the appeal, was the trustee sought to argue that the husband had an intention in fact to separate from the wife, and that he acted upon that intention, and that the evidence supported such findings.

That is what the appeal court dealt with between 40 to 54, and in particular focused, we would submit correctly, at paragraph 42 on the six key matters which the primary judge thought led to an inferred finding in fact of intention to separate. In the course of considering that, and coming to a question your Honour Justice Gordon raised, it is important that at paragraph 52 the trustee quite squarely accepted, consistent with Stanford at paragraphs 42 to 46, that:

the fact that [the wife’s] mental capacity has greatly diminished –

I will come back to that comparative statement of fact:

and she is now living in an aged care facility does not, of itself, demonstrate –

breakdown. Now, almost all of the argument you have heard this morning has focused around those two matters, separately or perhaps together as constituting breakdown, and we submit it is fair to say that the trustee’s argument is an abandonment of the concessions made in the Full Court, and there is no error in the Full Court rejecting the arguments that were made before it, including the basis the trustee chose to run it.

And it is quite important that what now seems to be given most attention, the moment the wife was forced to move into the aged care facility, there was no longer a common residence and, therefore, there was necessarily a breakdown irrespective of any other inquiry, is directly inconsistent with that case that was run, and, as Mr Walker put it this morning, his other strand, which is the brute medical fact, as he described it, of the diminution of the wife’s capacity meant breakdown. Now – so that was the second point, and the Full Court correctly rejected it. The only other point, your Honours, below, was the one dealt with in the heading to paragraph 55 and paragraph 55 itself and the argument there put was that the parties:

were no longer in a de facto relationship on 25 May 2018 –

That is the key date seized upon by the primary judge, and that was an argument that the relationship had ended. The Full Court rejected that argument. As they said:

There is no basis for concluding that the de facto relationship has ended.

So, what is apparent from that is the distinction between breakdown and end – which the appellant is alluding to, without precision – was never put below either.

So, what you therefore have are legal arguments and factual arguments never put below and, in terms of the grant of special leave, which your Honours will find in the book of further materials, what occurred on that occasion was that Mr Walker accepted at page 69, about line 570, that – after certain observation about my demeanour – he accepted that his seven proposed grounds were not in good shape, and he proposed to articulate a point around:

the removal of the substrate of the relationship from being living together on a bona fide domestic basis with a clear understanding as to the separation of property to the removal of all of those elements of the substrate and, in particular and tellingly, the last of them.

Now, the last, which is apparently the most telling one – you have not really heard much about in the new argument, and your Honour Justice Keane, when you confirmed the grant of leave said it was in relation to that ground in reply.

Now, the error may be mine but the argument that common residence is a necessary feature to avoid breakdown I do not believe has ever gone through the special leave filter. The argument that breakdown may not equal end certainly was referred to in some terms by Mr Walker, but whether your Honours consider that what is on page 69 really reflects the case you have heard, we would submit, raises real questions.

Your Honours, apart from the fact that it now has a constitutional dimension, because of the referrals, and if the Court proceeds with the appeal, we will put our submissions as best we can on that, there are at least arguably evidentiary implications for this reason. On page 61 of the core book, at paragraph 57, the court did not find the need to reach the husband’s application to adduce further evidence. That application, and that evidence, proposed as it was in fact bears directly upon the arguments of fact that Mr Walker now makes and can I explain why that is?

If your Honours just go first to the primary judge’s decision, and I could pick up some key findings. The first set of findings between paragraphs 52 and 54, page 20 explain how the relationship came together and why it did constitute a de facto relationship over an extensive period of at least 13 years. And, in answer to your Honour Justice Steward’s question about what does “genuine domestic relationship” add, some of the examples your Honour gave – which do not cover the full field of domestic, but they are certainly within domestic – and they are the very types of features of this relationship, including that the husband was doing the maintenance and repairs because the wife was unable to do that – assisting her with various other matters and so on.

So, when your Honour Justice Gordon asked questions about what was the relationship and then one looks at what has changed, and whether the change can constitute breakdown, the starting point we submit is, a lengthy 13‑year relationship with these features, which satisfied section 4AA.

Next, if I could refer to 59, that is the first evidence of the wife suffering cognitive decline. At paragraph 61, there is reference to her 2016 will. That is what left – or would have left – the husband a six‑month life estate. If your Honours could note there, by way of cross‑reference, page 60, paragraph 47, when the Full Court considered the facts about the first will, it concluded:

(there appears to be no suggestion that this will was affected by any lack of capacity).

Therefore, there was some evidence that as late as 2016, the wife’s views towards what had been the common residence for 13 years – albeit her property – were that the husband should have that limited opportunity to live in it after her death – perhaps a not surprising matter that might occur in the course of a relationship.

Next, at paragraph 72, when the husband was away, he arranged for the daughter to move in and care for the wife. From 80, the wife’s health is in steep decline. I would draw attention to paragraph 85, that, in June 2017 – this is now eight months before – or, perhaps, 10 months before what the judge thought was the critical date – the treating specialist noted that despite the wife’s deficits, that:

(at times she has the capacity to appear lucid and unaffected) –

That theme that – if I could put it in very common speak – good days and bad days – is, of course, reflective of what we know about dementia and the types of conditions we are dealing with. To the extent – and I do not think Mr Walker put this when he spoke about brute medical reality – he was suggesting that the wife’s incapacity to make major financial decisions – which is what NCAT has found – constitutes a total incapacity to carry on any of the forms of human interaction which were characteristic of that relationship. If he were suggesting that – I do not think he is – it is not consistent with the evidence.

So, what we have – he described it as tragic – we agree – we have a situation which many, many couples – whether de facto or legally married – will increasingly face, and are facing, where one partner declines quicker than the other and the relationship continues, as the Full Court found at page 61, paragraph 55, as best it could in those circumstances. The notion that when the difficult decision is taken that one partner must move to the nursing home for better care, the de facto relationship has ended or a consequence of Mr Walker’s argument would be that there would be a ground for irretrievable breakdown if 12 months were to pass, is a consequence, we submit, the Court should be very slow to accept.

At paragraph 92, the description is “moderate dementia”. Can I come to 99 – because this leads into the additional evidence? What happened in December 2017 – that is, around the time the wife was likely to move into the home – was the husband, using her funds, purchased a van which has a wheelchair lift. He began using it to transport her, and her daughter agreed it was beneficial. In terms of what sort of transport occurred, you will see at paragraph 125, page 32, that the husband’s evidence to NCAT – so this is now in 2019 – so this is a year after the date when the relationship has supposedly broken down – the husband was:

bringing the Wife home to [the] property each week in the interests of her general wellbeing.

Now, what that would indicate, we submit, fairly strongly, is that the common residence continues to be a common residence even though its nature and extent has changed. It is now a residence where one partner can be brought to weekly to enjoy their common home. And it also indicates that the wife was capable of that degree of human interaction in the course of the relationship.

Now, that finding at 125, whatever else may be said about certain aspects of the husband’s conduct, it is fairly clear by 131 he is offering to pay the aged care fees, and 134 and 135 he is paying the wife’s care fees, and then at 136 [Ms S] for the trustee:

conceded that the Husband continues to regularly visit the Wife –

at the aged care home and assist at meals as:

the Wife has feeding issues.

So the living together as a couple on a genuine domestic basis, accommodating these very difficult circumstances, has now seen changes within the context of an ongoing relationship, the wife being brought back to the home weekly, and the husband regularly visiting and providing care to the wife that many couples, married or de facto, would do at this very difficult stage of life.

Now, those factors, we submit, underpin why, if you go back to that concession by the trustee at paragraph 52, page 61, it was a proper concession and it was a correct concession, and the attempt to withdraw the concession today really does not sit comfortably with the way the case was run and with those facts.

Now, if your Honour’s have that book of further materials, the extra evidence that was sought to be led – it is at page 5 and following – which the Full Court said it did not need because it had already resolved the case on the grounds before it, the evidence of the applicant that he sought to lead, at paragraph 3, was about updating the court on what happened since 5 March 2020.

Now, unfortunately for this relationship, as for many, and for all of our lives, Covid hit this relationship. The trial was on 5 March 2020, the updating evidence explained in paragraph 4 that he had continued to visit her in the nursing home, and what he then did between paragraphs 5 to 8 was explain how her visits to the common residence changed before and after Covid.

So, in paragraph 5 he affirmed, as we have seen from the findings, that there were weekly visits up until 10 March, that is some five days after the evidence closed. And then, as we all know from common experience with lockdowns, he was told by the relevant officer he could not bring his wife to their common residence because if she did there would be 14 days isolation on return. She would then be denied all visitors, including not just her husband but her daughter, and at 6 he refers to the lockdown rules applying to everyone.

At 8 he gives evidence of what appears to be the last time that he brought the wife to the common residence, collecting her in the wheelchair accessible van. She was there for about six hours. They prepared lunch and they ate it together. He assisted her with feeding. He used lifting gear to assist her toileting on that day but that was the last occasion that he was permitted to bring her home. And what you just see in the following paragraphs then, 9 through to 12, is that during Covid in 2020 when he was allowed to, he regularly visited her at the nursing home. But you will see from paragraph 12, he did it in cooperation with the daughter. And at paragraph 17, the length of the visits:

depends on how she is on the particular day. On some days she is bright and alert and tries to communicate. On other days she is drowsy or appears sad.

Now, I draw your Honours’ attention to that material because it would tend to indicate that, had the trustee for some reason not made the proper concession at paragraph 52 and tried to advance the sorts of issues you have heard today, it would have been proper for the Full Court to receive that material, and if your Honours were to proceed with the full appeal we would urge you to take the course the Full Court should have taken in that event, which is receive the material.

Now, your Honours, that is what I wanted to say on the first proposition. Could I come to the second proposition, which is that common residence is a necessary condition for a continuing de facto relationship. From the factual survey I have just given you, our first answer to this is at a pure fact level, that this was a case where [the] property properly remained a common residence within section 4AA(2)(b), but with its nature and extent adapting to the circumstances of the parties, and if that is right, then this argument could be dismissed on the facts.

Could I then deal with it on the law, in any event? If your Honours have page 60 or section 4AA.

EDELMAN J: Just before you do, Mr Gleeson, could you just remind us, what was the status of the proposed further evidence? Was it considered at all, or was it just left by the Full Court?

MR GLEESON: It is the latter, your Honour.

GORDON J: I am sorry, I did not hear the answer to that question.

MR GLEESON: It is the latter of those.

GORDON J: Thank you.

MR GLEESON: As in, the court has said we do not need to reach the application, because in a case where you are trying to defend an order about breakdown on 25 May 2018 and where you are not saying that the move into the aged care home is fatal, you are not saying diminished capacity is fatal, what you are trying to do is say that the conduct of the husband somehow created the breakdown, we do not need to go any further.

EDELMAN J: So if it has not been admitted in the courts below, how can this Court take it into account other than by admitting it as new evidence?

MR GLEESON: Your Honours can take it into account in the sense that I have put proposition 1, which is the case simply should not be allowed to be run, because that is material that answered it. We do not seek to reopen the section 73 case, but you can inform yourself to that adjectival extent of the difficulty with the new case.

Now, your Honours, could I deal with the legal argument on common residence, and take up some of the questions of the Court? And I will show that the federal position, the federal statute is different in important respects to what Justice Brereton was considering. In section 4AA, once the negatives in paragraph (1)(a) and (b) are satisfied, it is a single question having regard to all the circumstances of the relationship, whether they have a relationship as a couple living together on a genuine domestic basis. We contend, consistent with how the authorities in the Full Family Court, which I will come to, have read this, it is a compendium concept, relationship as a couple living together on a genuine domestic basis and one looks at all the circumstances to answer whether that exists. Now, under subsection (2), the:

circumstances may include any or all of the following –

Now, it is difficult to see how the trustee’s argument sits with the words “any or all”, because “any” suggests that one looks at each of the factors to see whether they are present or absent, and then evaluates that in the context of the multifactorial inquiry. It does not suggest that you must have any of the factors. It does not suggest you must have paragraph (b) in some form. Mr Walker put the bold submission that you must have (b) – you must have a common residence – and then you can have an inquiry into a spectrum of its nature and extent.

We would submit that (b), as with every other factor, is to be examined to the extent it exists and is relevant to the multifactorial inquiry. So, in addition to the word “any”, another guide to that conclusion is that a number of the factors used the language starting with the preposition “the”. So, for instance, paragraph (h):

the care and support of children –

Obviously, there do not have to be children – there may be children – if there are, one takes it into account.

The next guide are the sections your Honour Justice Gordon raised, subsections (3) and (4), which are not in the New South Wales statute and, in our submission, they are tolerably clear:

No particular finding in relation to any circumstance is to be regarded as necessary ‑

Mr Walker seeks a particular finding in relation to circumstance (b) – there must be a common residence, irrespective of its nature and extent. And his argument also seems to run contrary to paragraph (4) and, because of paragraph (5), you can be in a de facto relationship even if one of the persons is legally married or in another de facto relationship – once one contemplates those possibilities, it would seem you may not have necessarily a common residence because the person may be carrying on one of the relationships in a common residence and carrying on the other in a different fashion.

So, all of the authorities on section 4AA have emphasised the fairly obvious point that one inquires into all these circumstances and gives them such relevance as they deserve in the particular case. That, we submit, is inconsistent with elevating common residence to this status.

Your Honours, in terms of some of those authorities in the Full Family Court, at volume 6, you have first a case ‑ or item 14 is Clarence v Crisp, a decision of the Full Court in 2016 – it is often cited in this area. And, after quite a bit of discussion, particularly between paragraphs 23 to 32, there is some discussion of the nature of the inquiry.

I do want to draw attention to paragraph 39 for this reason, that an argument was put in the case, which is the type of argument Justice Brereton accepted under the different New South Wales statute, that the checklist is only directed to determining whether you are a couple as per the heading to subsection (2), but not directed to the overall compendious inquiry under subsection (1)(c). The Full Court correctly, with respect, rejected that argument at paragraph 40 and one looks at all the circumstances – if they exist – as to how they bear upon the composite expression. The other authority that I was going to draw brief attention to is the next decision of Jonah v White from 2012 in the Full Court, particularly the discussion from paragraphs 30 and following.

Your Honours, could I then come to Justice Brereton’s observations in the recent New South Wales Court of Appeal’s decision, which is Yesilhat v Calokerinos [2021] NSWCA 110, and first make clear it is a case about a different statute and different facts. It was a case concerning whether, for the purpose of the New South Wales Family Provision Act legislation, the relevant definition of de facto relationship was attracted on the facts – the definition is set out at paragraph 34. It is different from the Commonwealth scheme in this respect, that in paragraph (2)(a), the question is whether:

they have a relationship as a couple living together ‑

and there is no express reference to one of “genuine domestic basis”. It is different perhaps in subsection (3), because it says:

In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2) –

here are a list of circumstances you can take into account. So it, on one argument, has tied the multifactorial inquiry to whether the persons have a relationship as a couple. I hesitate to embrace that argument because one can clearly see the counterargument. Significantly after subsection (3), it does not have the equivalence of subsections (4) and (5) of the Family Law Act.

Now, in the approach of Justice Brereton that the appellant commends at least for your consideration, if the Court could go to paragraph 131, his Honour’s analysis is based upon this view that, because of this particular wording, a multifactorial analysis ties back to:

“relationship as a couple” –

but does not tie back to:

living together ‑

and his Honour says:

In distinction to s 4 of the –

New South Wales Act that does deal with de facto financial causes:

the statutory language now contemplates that a relationship might qualify as a “relationship as a couple”, yet not as a “de facto relationship”, because the couple are not “living together”.

Now, his Honour may, with respect, be wrong, but even if he is right, he is right because of different statutory language.

So, what his Honour then goes on to discuss, we submit, should be read in that light and finding on the facts Yesilhat was a case where the court found that there was never a de facto relationship. That point is made fairly clearly by Justice Macfarlan, paragraph 87. But going through the multifactorial list, virtually none had been established, there was never a common residence. So, it was simply not a case like the present where there was a common residence for 13 years which continued as such but in a changed form.

Your Honour Justice Edelman asked a question whether the expression in 4AA(1)(c) might be viewed, or perhaps assisted by thinking about, the time‑honoured expression in marriage of living separately and apart. We would submit there are significant indications in provisions of the Act that I will come to that there may well be such a relationship and that this language represents the opposite of separation – living separately and apart – and no reasonable likelihood of resuming cohabitation.

EDELMAN J: So that just as two people can cohabit and still live separately and apart, they may not cohabit and live together.

MR GLEESON: That is possible. Now, the case for marriage that we have provided to the Court recently because we thought it is relevant, whether it helps us or not, is Main v Main [1949] HCA 39; (1949) 78 CLR 636. You will see from the asterisk in the headnote that it was under the Western Australian provision, which is a forerunner to section 48 of the Family Law Act, with some slight reworking, because it has in it the factors:

lived separately and apart ‑

in this case for five years, and unlikely that cohabitation would be resumed. Now, the facts of this case, that is Main v Main, are different to the present, but perhaps raise the most extreme example, were that the husband was completely paralysed and hospitalised, institutionalised, and never likely to be otherwise, and you can see that at the top of page 638.

The wife wished to divorce after five years had passed, with the husband so institutionalised in the Home of Peace, Subiaco. This Court held that the wife had made out the ground, and the relevant discussion is from the foot of 641 over to the top of 643. And we would commend that to the Court, there is some discussion picking up some of the English authorities, about the words “separately and apart”, and apart seems to connote physical separation, whereas the separately – living separately and apart – carries with it:

that there has been a destruction of the consortium vitae or matrimonial relationship while the spouses dwell under the same roof.

Or, as it is put at the top of 642:

the conjugal relation no longer exists ‑

And the middle paragraph which cites from Justice Cussen in Tulk v Tulk probably gives us a guide to where the types of factors we see in section 4AA have come from in the marriage jurisprudence, and parties will not necessarily be living separately and apart even if, as the example there is given:

in search of health ‑

There may be a degree of physical apartness. So, even looking at the marriage jurisprudence, on Mr Walker’s alternative argument, the notion that common residence is a necessary condition for an intact relationship would not be supported.

But what it does seem to suggest, possibly consistent with Stanford v Stanford, and with your Honour Justice Gordon’s question, is one is looking to see whether the “conjugal relation” or, in this case, the de facto relation “no longer exists” – that is line 3 on the page, or at about point 7 – whether there is a negation of the matrimonial relationship. And so, the types of changes one is looking at have to be so fundamental as to destroy the essence of the relationship having regard to the particular shape it took. Justice McTiernan also made some observations on the topic. So, we would suggest that is of some assistance in understanding paragraph (c).

Your Honours, there is only one other point on this second proposition, which is Mr Walker has invoked a provision in a different Commonwealth statute, which you will find in volume 3 in the statute commencing at page 1051, the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008, which is Act No. 134 of 2008.

Now, the chronology of the passing of the statutes in that year is that the Act which introduced the provision we are concerned with, it commences at page 926 and that is Act No. 115 of 2008, it does appear that they were under consideration by the Parliament together, but there was a fundamental difference in their history that, as I will come to under the next proposition, the process of State referrals and the formulation of Act No. 115 had extended over at least five years, and potentially far longer. So that when 4AA was put into the Family Law Act, capturing what it considered to be the appropriate definition of the de facto relationship for the purposes of that Act, it is understandable that it would not necessarily accommodate or be amended to match a provision in a later statute which served a different purpose.

So the later statute commences at 1051, and the relevant provision is at 1071. And Mr Walker is correct that this provision is there, sitting on the shelf, ready to be picked up if other particular Acts wish to do so, but we would submit that the fact that subsection (4) says what it says does not tell you anything about the scope of 4AA of the Family Law Act. It simply tells you, within this definition, this provision is inserted for the avoidance of doubt.

Your Honour Justice Keane raised a question about whether there would be a mismatch if subsection (4) had been included in the other Act. You will see from subsection (2) that that list of factors is essentially the same list of factors as in the other Act, so within the context of this Act it was not considered to be inconsistent to introduce subsection (4) as well as have a factor about the degree of mutual commitment to a shared life. They can sit together, as it were, and they could sit together in both statutes. What subsection (4) is doing is really there for the avoidance of doubt. The language of it is, persons are taken to be living together on a genuine domestic basis if they are not living together on a genuine domestic basis only because of (a) and (b).

So what it seems to be saying is, if you have carried out the multifactorial exercise and if your provisional conclusion is it is no longer a de facto relationship, but the only reason for that conclusion is one of (a) and (b), then disregard the provisional conclusion. We would submit that that concept is already implicit in the provision in the Family Law Act, namely, you would reach the same conclusion that if the only reason you are denied status of de facto is temporary absence, illness or infirmity, then that is not a reason to deny the relationship its continuing character.

GLEESON J: Mr Gleeson, can I ask a question about that. The lack of capacity of the applicant has several corollaries in terms of the nature of the relationship, one of which is the incapacity to negotiate for herself the use of her own assets. Are you saying that this provision operates with all of the consequences of her infirmity that make her vulnerable and unable to look after her financial affairs?

MR GLEESON: Could I take up the first part of your Honour’s question, that the lack of capacity has several aspects. We would agree with that. What I have tried to distinguish is the possible suggestion of a lack of any ability to engage in any form of human interaction. That is not where the evidence sits. On the other extreme, the findings of NCAT were accepted as findings of facts by the judge, that she had reached the point where she was incapable of making important financial decisions about her own assets, so we have to accept that is there as well.

GLEESON J: Or having – what I think was referred to in Stanford – as that aspect of a domestic relationship which is the argy‑bargy of how do we spend our money and what assets do we buy or sell?

MR GLEESON: Or, perhaps, on the facts here, at least for much of this period, of having an argy‑bargy but not necessarily with the full capacity one would like a person to have had. That is part of the unfortunate aspect of the facts, that the husband was taking one view of how he regarded the assets should be marshalled; the children and the trustee took the opposite view; it appeared at times the wife was swaying between one and the other and it may be – consistent with the medical findings – she did not have the complete capacity.

But, to come to your Honour’s ultimate question, I am not sure we agree with what Mr Walker has put, that you can simply plug the extreme form of incapacity into infirmity and say, therefore, that can never be a reason to deny the continuity of the relationship because it is only there in a context where you are meant to look at the other nine factors and the matters your Honour raises could bear upon some of the factors in paragraph (2) in their own right, including paragraph (d), possibly (e) and possibly (f).

So, we cannot say that that ends the case in our favour. But what we would say is that the pure legal argument Mr Walker has sought to run – that because you do not find that provision in the Family Law Act he must win, we would suggest that is wrong. There is clear reason why the Parliament has not necessarily created complete symmetry between different acts at different points in time. So, in the end, we would be asking your Honours to close page 1072 and re‑open page 60 and answer the case based on the statute that we have.

If it is convenient, your Honours, I was going to move to the third proposition. It is in aid of the ultimate, we hope, simple proposition that you would reject the arguments of the trustee that we have sought to summarise in paragraph 3(a). The arguments create the slippery jurisdiction where breakdown is the gateway. Sometimes it means end, sometimes it does not. Sometimes it will occur before end. Sometimes it will occur without a party intending to separate or communicating a desire to end it.

The result would be – if it were correct – that a very important aspect of federal jurisdiction will sometimes be engaged over intact de facto relationships whereas, in other cases, it will only be engaged in relationships after their end. That instability, that radical uncertainty, we would submit, the Court would reject unless there were some very clear indication in the text or the extrinsic material that that is what was intended. Instead, we offer the criteria in paragraph (b) that one is looking at the end, the termination to the point of failure of the relationship.

Your Honours, can I explain where the referrals came from because they do eliminate this question? The problem of trying to get uniform Australian jurisdiction over aspects of property disputes for de facto couples took many years and one of the leaders, in trying to get a uniform jurisdiction, was Queensland. The model we have now got is, in its essential aspects, the Queensland model, as I will show in a moment. The Queensland model equated breakdown with end. That is, a deliberate decision was taken that the Court, whether it be State or federal, should not be given jurisdiction over intact de facto relationships for property disputes. The rival model was the New South Wales model, which was the court would be given jurisdiction over property disputes for de facto couples, whether the relationships were intact or broken down.

That is, the New South Wales provision modelled the jurisdictional gateway of the Family Law Act for married couples which, under section 74 and 79, do not require breakdown. The result in the referrals was the Queensland model was adopted. Can I show your Honours how that came about? For this exercise, your Honours will need volumes 4 and 7, please. If your Honours have volume 7 commencing at 1653 ‑ ‑ ‑

GORDON J: Could you just tell me what that is, please, Mr Gleeson?

MR GLEESON: It is item number 19, which is the Bills Digest for the 2008 Family Law Amendment Act.

GORDON J: I am very grateful.

MR GLEESON: So in that document, the history starts at page 1656, about three pages into the document, under the heading:

Referral of powers by the States

And there is a reference there to the matter being raised as early as 1976, 1988, and:

In 1994, the Queensland Government announced that it would refer its power . . . urged other States to follow suit.

And Mr Williams said he needed a common position from the States. And over the page, it is indicated that, of course, Re Wakim was something which had magnified the perceived problem, the problem being that de facto couples would have to go to different courts. They would have to go to the Federal Court system for disputes over children, because that had been referred, but for property disputes they would have to go to State courts, even though they might be in a situation of breakdown.

Now, as that page indicates, it was 2002 that the in‑principle agreement was reached to refer powers, and that is the agreement we have referred to in our written submissions, which described it as a referral in respect to separated couples, and then over the page there is a reference to the State referral legislation. So that is one part of the puzzle.

The next part is to look at the Queensland extrinsic material, which will be in the same volume at – I will just identify the document first, it is document 27, it is the Queensland Parliamentary Library Digest from 2003 concerning the Queensland Referrals Act, but the relevant page is 1853. And section 3.2 records that Queensland, in 1999, because uniform referrals could not be achieved at that point in time, had:

enacted its own de facto relationships legislation.

It is the Part 19 of the Property Law Act 1974, and it is described as a scheme:

to provide a legislative mechanism for de facto partners, including same‑sex couples, to resolve property disputes following the breakdown of their relationships.

And to a greater extent than other such legislation, it:

is modelled on the Family Law Act –

So, Queensland went on its own, modelled the provision around breakdown, using the word “end”, as I will show, but had in mind the terms of the Family Law Act in terms of the whole scheme, including how the court would deal with contributions and needs, et cetera. So, when the other States could then eventually come on board, it was broadly this model that prevailed.

So, then, if the Court goes back to the preceding document, 26, which is the explanatory notes to the Queensland Bill in 2003, one can see the interchangeable use of the expressions “breakdown” and “end”. So, on the first page “breakdown” is in the second‑last paragraph. Over the page, in the second paragraph, in the third paragraphs, it is “breakdown”. Then, two paragraphs down, we see the essential purpose of avoiding duplication. Then on the next page, page 3, the fourth and fifth paragraphs refer to “end” and “breakdown” – we would submit, interchangeably. One of the reasons “breakdown” had to have a clear meaning of “end”, was that there was a timing problem of what would happen to people whose cases had been in the State courts before the federal scheme took over and that required crystal clarity.

If your Honours then have volume 4 to see the text of Part 19 of the Property Law Act (Qld), it is document number 12, and it starts at page 1375, in section 255.

KIEFEL CJ: I am sorry, what was that page?

MR GLEESON: Page 1375, section 255. The purposes are all about “end”. Section 257, the application is to those which – all except those that ended before commencement. Section 265, the separation agreement. It is about “end”. Section 269, the purpose is about resolving matters at the end. Section 282, 283 likewise. Provisions like 287 and 288 are, one can infer, the genesis of key provisions in the federal scheme we now have. So, 287, you need to have lived together for two years. That is now section 90SB. Section 288, the two‑year time limit after the relationship ended for bringing proceedings, is section 44(5) that Mr Walker took you to. So, that was the Queensland model.

The New South Wales model, which was not accepted, the Court will have in – it is called the supplementary book, volume 1. Document 32 is the Property (Relationships) Act 1984. Page 21 of the book, section 14, the jurisdictional requirement is not limited to breakdown, so it covers intact relationships. Section 17, it does have the requirement of living together for two years. Section 18 is the two‑year statute of limitations but, otherwise, it is irrespective of breakdown. The other critical policy choice that was made is, if the Court looks at section 20, New South Wales had taken a narrow view of the factors that could be taken into account in the adjustment, being, essentially, contributions whereas Queensland, consistent with the Family Law Act and the current scheme, allowed for future needs and requirements. So, when the referrals chose that language of breakdown, we would submit that it is tolerably clear breakdown means end.

Now, in answer to your Honour Justice Gageler’s question, does that mean anything other than you ask whether the relationship still has the factors in 4AA, probably that is the question you are asking, has the relationship, assuming it was once a de facto relationship by reason of such changes as are proven in the multifactorial analysis, still qualify as a relationship satisfying 4AA. So, the short answer is, probably, yes. The slightly longer answer is that there are a number of provisions in the Act which, as I said earlier, point in the direction that the concepts which underpin the breakdown of a legal marriage, which are essentially three, they are in section 48, if your Honours have volume 1 at page 180. Under the 1975 no‑fault reforms, as is too well‑known, we have a single ground which is:

broken down irretrievably.

The ground must be made out and the order must be made, so there is no discretion. If the court is satisfied of two matters, “separated” and living “separately and apart” for, relevantly, 12 months. And then there is a reverse onus point:

not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.

So, in the context of legal marriage, to bring the relationship to an end, these three concepts of separation, living separately and apart for the relevant period, and no reasonable likelihood of cohabitation, are what constitutes irretrievable breakdown. The difference with de facto relationships, because it all rests in fact not in law, is that if the parties are separated, living separately and apart for any period ‑ it does not need to be 12 months – and if there is no:

reasonable likelihood of cohabitation being resumed ‑

then the de facto relationship will have ceased, and, of definition, the factors in section 4AA will no longer lead to a relationship which is in force.

Now, at that point, your Honours, I wanted to come to our outline at paragraph 3(d), which is to deal with the detailed provisions of the Act which we submit indicate breakdown equals end, and in the course of this I wish to draw some contrasts and similarities with the provisions over legal marriages which is proposition 3(e), because while it may have appeared from this morning’s argument that the Court is only deciding the case about de facto relationships, the concept of breakdown in fact is used in respect to marriages, not just as irretrievable breakdown in section 48, but it is used in two other key parts of the Act in a manner which must surely parallel how it is used for de facto relationships, and so it ought to have a common meaning in both of those cases, and so I will need to serve both of those provisions if I might.

So, without repeating any provisions that Mr Walker has been to, unless we have a different or additional submission, the first provision I wanted to go to was section 44(5) on page 171. This is the provision which, as I have submitted, it would appear has come from the Queensland model, and it creates the limitation period. You cannot apply for the order under any of those sections, relevantly 90SM, unless you make it within two years of the end of the de facto relationship.

Now, if breakdown equals end, it is tolerably clear how this works and what it achieves. If breakdown is something that can occur prior to the end, or perhaps, on Mr Walker’s argument, without there ever being an end, it is extremely difficult to see how this provision is intended to have sensible operation.

So 44(5), it is the parallel to 44(3), a page earlier, and that is the equivalent limitation period where there is a marriage, and in that case it is a limitation period of 12 months after the date upon which the divorce order took effect, the section 48 order, and the symmetry one can see that with the divorce order, you will need to have been separated already for 12 months before you get it, so effectively it is 24 months from the separation that you have to bring the proceedings, and that 24 months mirrors what is in subsection (5)(a). So that provision suggests breakdown equals end.

I have referred to section 48 already. The next provision, just very briefly, is section 72 and following on page 378, and again it is almost too well‑known to be noted, but section 72 in the case of legal marriages imposes a positive duty to provide maintenance to the spouse subject to certain conditions, and because that duty exists throughout the whole of the marriage under section 74, the court has powers to make orders in respect to maintenance over marriages, including intact marriages.

And then, coming to section 79, the manner in which property settlement proceedings have been defined means that, as a matter of jurisdiction, the court can make orders altering property over intact marriages, but as a matter of power, it will not do so unless it is just and equitable, as has been discussed. As to section 81 on page 403, your Honour Justice Gleeson raised a question about the equivalent provision in the de facto provisions, this is the equivalent in the marriage in terms of finality.

So then, continuing from there in the next volume, provisions that you have not heard much about this morning commence with Part VIIIA on page 446, and these are the provisions for financial agreements in respect to marriages. And I will show the very close symmetry between this provision and the equivalent provisions for de facto relationships and the way in which “breakdown” is used. So, 90B deals with agreements before marriage, 90C agreements during marriage, 90D agreements after the divorce order is made. In 90B(2) the financial agreement can only operate:

in the event of the breakdown of the marriage –

And it can then govern property of the parties before the agreement or property acquired during the marriage, but it cannot deal with property acquired after the marriage has ended.

GORDON J: Was that 90D(b), did you say, Mr Gleeson?

MR GLEESON: Section 90B.

GORDON J: Section 90B, sorry.

MR GLEESON: So, although the general property jurisdiction under section 79 for marriages is not limited to breakdown, financial agreements are, to the extent they deal with property, but they are not so limited to the extent they deal with maintenance – and that is perhaps because of the general duty to maintain. So, this concept of breakdown has to have a meaning within marriage, and one asks what would that meaning be so as to enable the financial agreement to do its work. That is the role of 90DA, which says that the financial agreement, to the extent it deals with property:

is of no force or effect until a separation declaration is made -

and the separation declaration must, subsection (4), deal with the types of factors that would be relevant under section 48. The parties have separated – number one – that is a question of fact; number two:

are living separately and apart at the declaration time -

and, number three, in the opinion of one of the parties:

no reasonable likelihood of cohabitation being resumed.

So, this would tend to give us a strong pointer that when breakdown is the necessary matter for the financial agreement to be able to deal with property, the Parliament has imposed an extra evidence or proof requirement – or a discipline, that one or other party has turned their mind to the three critical questions: separation, living separately and apart, no reasonable likelihood of cohabitation and the very same provisions would then appear when we come to the de facto financial agreements. So, my longer ‑ ‑ ‑

GAGELER J: I am sorry. I was going to ask what is probably an obvious question, but does the expression “living separately and apart” express the opposite of “living together as a couple”? I am just trying to match up the statutory language.

MR GLEESON: Not quite, but the match‑up that I am suggesting is these three things - “have separated”, “are living separately and apart”, and “no reasonable likelihood of cohabitation being resumed” - that is the opposite of the statutory language.

GAGELER J: Yes.

MR GLEESON: So, the test would be – without being too colloquial – I suppose it is not unheard of that people might be in a de facto relationship – they have chosen not to be legally married, because they do not want the legal status – and parties could say, for example, because one of us is going to be overseas for a year, we will simply put our relationship on hold.

Now, in that type of case where there is a pause, you may not be able to say there is no reasonable likelihood of cohabitation being resumed – it is simply a pause. If, change the facts, one of them says, I am going overseas and, let us be clear, that is it, then that would be breakdown.

So, we think and we submit that these three concepts that are built into the separation declaration do give you a very good guide to what breakdown is and therefore to the opposite under section 4AA. Conversely, if one tests Mr Walker’s argument against this provision, it is a little hard to see how it works because on his case you can have a breakdown even though the relationship has not ended, but you cannot - - -

GORDON J: It depends what you are talking about – which relationship. If you are talking about a de facto relationship then that might be a different answer to a different kind of relationship.

MR GLEESON: Yes. With respect, your Honour is correct. I am traversing two different schemes. What has happened in the drafting is that this scheme, which was the way of dealing with marriages became the model with almost no alteration to de facto financial agreements, which is what commences at 90UA on page 503. So, you see the same structure of “Financial agreements before” – 90UB – “during de facto relationship” – 90UC - and perhaps critically – this is page 505 – “Financial agreements after breakdown of a de facto relationship” and we place a lot of reliance on 90UD that it is telling us that a financial agreement after the breakdown is what subsection (1):

after the breakdown . . . the parties to the former de facto relationship make a written agreement –

and so on. So, within 90UD, you see the concept that if there is breakdown, the relationship has ended, it is now a former relationship. The separation declaration which Mr Walker referred you to at 90UF is the parallel to 90DA. Your Honours see that section 90UF(5) is the very close analogue of 90DA(4). Apart from saying we lived in a de facto relationship, that is necessary because there is not a certificate of marriage, one must say, we have separated, we are living separately and apart and, in the opinion of one:

there is no reasonable likelihood of cohabitation being resumed.

So, although they are different universes – one of law and one of fact – they have approached “breakdown” in the same way. Is that a convenient time, your Honours?

KIEFEL CJ: Yes, thank you, Mr Gleeson. The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. Just to complete our propositions at 4(d) and (e), these are the other provisions I wish to go to in the statute in volume 2, starting at page 463, section 90RC(2).

KIEFEL CJ: Thank you.

MR GLEESON: As Mr Walker indicated, that is the critical provision which, drawing upon the referrals as a matter of power, then creates the exclusivity which will operate under section 109 of the Constitution. The matter which will operate is that in relation to, for instance, the Queensland provision, it will render that provision wholly inoperative because breakdown equals end, whereas with the New South Wales provision, if people are in an intact de facto relationship but seek property adjustment, they could do so under the State law in the State jurisdiction. Now that need for certainty around the operation of section 109, we submit, confirms that “breakdown” has the stable meaning of end.

Next, your Honours, section 90RD, over the page, this is a declaration of power which facilitates the resolution of disputes, including jurisdictional disputes, because the court can declare the existence of the de facto relationship, subsection (2), and also in the following five matters, in particular paragraph (d):

when the de facto relationship ended –

which will be the point of breakdown, and that might be relevant for the two‑year limitation period. Paragraph (a):

the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a) –

section 90SB being the provision:

that the period, or total of the periods –

must be:

at least 2 years –

before the court has power to make an order. That seems to contemplate that a single de facto relationship may have one or more periods to it, perhaps consistent with a consensual pause, but at the end of the relationship, the breakdown, then one would be able to add up the periods to see if it lasted the necessary two years.

Section 90SM itself, the key provision, the Court has been taken to, on page 483. Under the jurisdictional limb, the court must be satisfied breakdown has occurred before it has power to make orders, and then subsection (3) is about the conditions upon which the court may exercise that power.

One of the fundamental differences between 90SM and section 48 for a divorce order can be illustrated if the Court has volume 2 of the supplementary authorities. Document 34 is the second reading speech in 1973 for the Family Law Act, where Senator Murphy outlined what lay behind the concept of irretrievable breakdown. It is pages 58 and 59 of the second volume of the supplementary book, and what he said at the foot of 58 and the top of 59 was that following the model of the English Law Commission, a good divorce law would:

buttress, rather than undermine, the stability of marriage and, when a marriage has irretrievably broken down, it should enable the empty legal shell to be destroyed with the maximum fairness and the minimum bitterness, distress –

and in that paragraph at the end, there is an explanation of why section 48 takes the form it does, that the three criteria I mentioned this morning, separated, living separately and apart, no reasonable likelihood of resuming cohabitation, are regarded as proof of breakdown.

GORDON J: Where are you reading, sorry, Mr Gleeson?

MR GLEESON: Page 49 at the end of the first paragraph. Within section 48 the court directs its mind to those three questions and that answers the question of breakdown. There is no separate inquiry into breakdown, whereas in section 90SM and like provisions, that jurisdictional question the court must enquire into, although we submit informed by these same underlying concepts.

Your Honours, the final provision that I wanted to go to, apart from 90ST, is in the superannuation‑splitting provisions which came in in the same Act at page 532. Section 90XJ(1) indicates that the section applies to certain superannuation interests if – and then (da):

the marriage is broken down at the operative time -

or (db):

the de facto relationship is broken down at the operative time -

So, it is another part in the Act, like the financial agreements provision, where the concept of breakdown is applied in the same sense to both marriages and de facto relationship and the complementary provisions at page 538, section 90XO, which limit the powers under 79 or 90SM, and then we suddenly see under 90XP, the concept of a separation declaration coming back, and subsection (3) governs marriage and subsection (8) governs de facto relationships and they are in the same terms. So, again, breakdown evidenced by these features of separation is being used, we would submit, in the same manner across marriage and de facto relationships in this part.

Your Honours, if I could move to the last proposition or sub‑proposition under (3). It concerns the second reason that section 109 is relevant to this appeal. The first reason I mentioned a few moments ago. The second reason is that there is longstanding State law in New South Wales and of course the other States which deals with the vey problem this trustee asserted and that is the law of guardianship.

Now, your Honours will recall in the first instance judgment at paragraph 9, the trustee said to the court, having indicated its objective, it wishes to sell the wife’s home and the husband was opposing that. The trustee’s objective was to sell the property and evict the husband and necessarily extinguish the six‑month life estate under the first will – the 2016 will. The trustee said to the court that if the relationship was still on foot it could achieve this in the State courts, but because there was a breakdown it had to be in the federal courts.

Now, we have submitted, with respect to the trustee, that that misunderstands the relevant intersection with the State law of guardianship which gives the trustee any and every power to do what it wants to do, that is, it can sell today, it can evict the husband today, but it will be subject to State law and to review before the New South Wales Administrative Tribunal, NCAT.

KIEFEL CJ: How is this relevant to these proceedings, Mr Gleeson?

MR GLEESON: The relevance, your Honour, is, in terms of the referrals, what we submit was referred was a confined topic which is the power over breakdown of relationships.

KIEFEL CJ: I see.

MR GLEESON: Where the subject matter of a dispute is a person who is under incapacity and the objective is to sell that person’s property, all of that can be done today in the New South Wales tribunals and reviewed by the New South Wales court. The trustee’s argument is, somehow, that because of the referrals and the language of “breakdown”, all of this can be done – or must be done – in the Federal Court. Our proposition is, once one understands all that former and existing State law – of which there is no intention expressed to render it inoperative – one would not prefer the broader view of breakdown that the trustee urges. One would simply say, to the extent the problem is how to deal with the assets of a person under incapacity – that is, solved by State law. So, if I can just show your Honours the State law provisions? They are in volume 3 ‑ ‑ ‑

GORDON J: Mr Gleeson, can I just understand that submission? Is it the position if the view is taken that this relationship has broken down and ended that these provisions are not applicable?

MR GLEESON: If the view is taken that it has broken down then, because of the exclusivity, any State law provision which purports to deal with de facto relationships and property settlements is inoperative. What is left is the question of the State law provisions which the trustee can resort to today to achieve the objective, namely, the ‑ ‑ ‑

GORDON J: But that is an objective on the assumption that the relationship is on foot. The whole issue here is whether or not the relationship is on foot or whether it has ended and that cannot be addressed in the court below and the State court.

MR GLEESON: With respect, your Honour is correct. The way I am seeking to put it is that, ultimately, the question is construction of the scope of the referral ‑ ‑ ‑

GORDON J: I see.

MR GLEESON: ‑ ‑ ‑ how broad is breakdown, does it extend to events before end, before intact relationships. That, in turn, informs the federal statute. A relevant fact is that it is unlikely the States intended to override – even by way of operational inconsistency – the existing law for persons with incapacity.

So, I can simply give your Honours those provisions. They are in volume 3, commencing in the statute at item 8, which is page 1109, section 25E. That is the provision under which the trustee was appointed as the financial manager for the appellant’s affairs. That enlivened the provisions under the act of item 10 – the NSW Trustee and Guardian Act where, under section 16(1)(g) – page 1124 - the trustee can sell the property if it wishes. Page 1139, sections 55, and following, the trustee manages the estate of the appellant and has all the necessary powers. Section 62 is subject to NCAT review at the suit of, inter alia, the husband.

The Court appreciates, in the present case, the trustee is playing two roles. The trustee is the financial manager with all these powers under these two State statutes. The trustee is also appointed as the litigation guardian under the wills of the Federal Circuit Court. So, when Mr Walker says his client is acting for a ward – or by analogy, a person who needs protection – those two senses must be kept separate. His instructions to run this case are from the litigation guardian but his powers, under State law, fully exist today under these State Acts. The entire objective, as I say, can be achieved under those Acts.

GLEESON J: What would be the position under the State legislation if the appellant and the respondent were married?

MR GLEESON: Exactly the same, your Honour – which is part of the point I am seeking to make of what were these referrals – what problem were they trying to solve by way of an insufficiency of Commonwealth power. The problem was that if you were married you could go fully to the Family Court, but if you were in a de facto relationship you could not, and in particular if it had broken down, and you also had a child dispute, you would go to two different courts.

We have a separate layer over the top of all this, that if we are dealing with people with incapacity, the way in which the problem is solved is under this State law, so the question is, should one construe the referrals and ultimately the federal law, including in its 109 operation, as in any way interfering with this established body of State law and our answer is no, the law is there, and if there is incapacity and there is a desire to sell, you can sell, but you subject yourself to NCAT review.

Now, we have never understood why the trustee has been shoehorning this matter into this federal jurisdiction when there is the State jurisdiction which deals directly with the objective it seeks to achieve and if, on the other hand, you read “breakdown” as allowing the trustee to do this in federal jurisdiction, as I have indicated that has consequences in marriages as well, and that is why it all circles back to section 48.

EDELMAN J: The problem, Mr Gleeson, might be, if the trustee brought the matter to the State jurisdiction and it was then met with an argument that the relationship had broken down, NCAT would not have any jurisdiction.

MR GLEESON: NCAT would not have jurisdiction over that dispute, but the manner in which the exclusivity provision is worded will nevertheless give you the point of intersection. But what we are seeking to say is, which is why it relates to marriage as well, if Mr Walker is correct, if one person has lost all capacity, it is not this case, but if they had lost all capacity, if they are necessarily moved into a nursing home, he would say, after 12 months, separated, living separately apart, no reasonable likelihood of cohabitation, and if a trustee has been appointed to the affairs of that person, the trustee can get a divorce order as of right under section 48.

Now, our submission is that that would be a very large invasion, in fact, of what State law was meant to, and does, preserve for the affairs of persons who are incapacitated. But the logic of his argument is, in a marriage context, as he views the facts, we disagree with his facts, he could get a divorce order. We submit that is wrong, and it can be seen that that is deploying the notion of breakdown, and a notion of section 109 inconsistency which this scheme never contemplated. So that is an additional reason, we would submit, why one would avoid the consequences of his argument, if it is textually available.

EDELMAN J: Is it not the case, though, that even if one were to accept your submission that “breakdown” means end of a relationship, a call still needs to be made by the person in the position of the trustee as to whether the relationship has ended, and that call might be one which is not, on the facts, crystal clear, but needs to be made to determine whether or not one is going to – the trustee is going to commence in the tribunal or in the federal jurisdiction?

MR GLEESON: Well, it may, but we would submit the anterior call is the trustee is sitting there with the suite of powers to solve this problem, and why we are here.

GORDON J: The difficulty may very well be that the powers at the tribunal level and in the Federal Courts are different. When one looks at what is happening here in terms of property, in effect, resolution of property interest, there is a finality about it. It may very well be that the view the trustee takes, having obtained orders in the federal jurisdiction, which are arguably more extensive, may therefore assist them in the future.

MR GLEESON: That may well be ‑ ‑ ‑

GORDON J: Well, it may be the reality of why it is brought here in order to determine the questions so that they are dealing with the whole pool rather than making a piecemeal decision.

MR GLEESON: Yes. I think what I am trying to say is, to the extent the argument in writing and today has circled very much around where a person suffers incapacity and moves into a home, that is breakdown. I am urging the Court to pull back from that step, and one of the reasons from pulling back from it is the necessary consequence it will be - it will have 109 inconsistency operational effects upon a whole body of State law which has long dealt with this issue. So the mischief is not there, we would submit.

Your Honours, can I just deal with the final point, much of which I covered in the opening remarks, which is a stage of application – which is our fourth proposition. The first sub-proposition is that, as the trustee does not make out a case that the relationship ended by the critical date of 25 May 2018, it should fail, if it has failed on the law. The second proposition concerns that date of 25 May 2018, which the primary judge regarded as a bridge too far.

EDELMAN J: The first proposition is, as you understand the appellant’s submissions, the appellant is accepting that if the relationship had ended and that that equals breakdown, therefore there is no factual contest. Is that what the first proposition is?

MR GLEESON: It meant to mean this, that they accept that if the relationship had not ended then there is no breakdown. If they are wrong in the law, and breakdown equals end, that they have not made out a case of “end” – they do not have findings of “end” in the court below – they have not made out that case here – and that should be the end of their argument.

But the second proposition takes 25 May, the critical date for the primary judge – which was dealt with squarely by the Full Court and, we submit, correctly – so your Honours that is page 59 of the core book, at paragraph 43, and over the page at 47 and 48. The Full Court said what happened on that day was no more than the husband put a proposal to the trustee as to how he believed the wife’s assets should be marshalled in order to meet the costs of care. As the Court says at the end of 43, this was:

a legitimate consideration for a couple, when one goes into care, to consider whether their home should be sold to provide that care, or whether the home should be retained for the benefit of the person not in care and instead another source of funds . . . be used. The same can be said about the appellant’s suggestion that he pay the DAP himself and be reimbursed later.

That was a later suggestion by the husband. The court further dealt with those matters at 47 and 48. So, a dispute or a difference with the trustee, as the person managing her affairs, as to the order in which assets might be marshalled, we would submit does not constitute breakdown, whether on its own, or taking into account any other matters up to that point in time and, if that is right, the Full Court’s decision ought to be affirmed.

Your Honours, the third proposition is that, if one goes any further to the facts, what you have in the appellant’s submissions at paragraph 51 – and none of this has been identified in a ground of appeal – but you have a rewriting of the facts in a manner which the courts below simply did not accept. If I could just respond to them in bullet form, the proposition:

the parties no longer maintained a common residence -

I have submitted it remained the common residence used in a different manner and extent; the proposition:

the parties had ceased having a sexual relationship –

one can assume that to be true. There is no direct finding, nor any finding of the date upon which that occurred. The proposition that:

the parties were financially independent –

and the husband had been unwilling to support the wife financially ignores the findings which the primary judge made of the succession of offers which the husband made to contribute to the care in the home. If I could just give the paragraph numbers in summary – I referred to them this morning – 107, 110, 113, 121, 123, 131, 134, 135 - - -

GLEESON J: Mr Gleeson, is not one of the strongest indicators of their financial interdependence that your client was living in the appellant’s house?

MR GLEESON: Yes, living in it. One may infer continuing to maintain it and bringing her to the house when possible each week and that the 2016 will – about which the Full Court says there is no issue – conveyed her intention that he be able to remain there for up to six months after her death.

GLEESON J: But that is a matter that would be taken into account on the just and equitable basis, is it not? Can I just add a second question? The definition of “de facto relationship” carves out breakdown by death. Is it fair to say that that is an indicator that the States were to maintain their jurisdiction in relation to probate matters? Is it not then significant that the legislation did not take the opportunity of including a similar provision in relation to incapacity?

MR GLEESON: On your Honour’s second question, yes, to the first part. That clearly is an indication that those matters were to be preserved at State level. There is not an express indication that incapacity was to be preserved. I accept that. That is not the end of the argument for the reason that all of the extrinsic material – I have not burdened the Court with it today, but we referenced it fully in writing – is in every State that we have put in the materials, is the effect of we are solving this particular, relatively narrow problem of breakdown and avoiding duplication – not that we are buying into incapacity.

In any event, that is proposition (c). As to proposition (d), I have submitted there was continuing common use – properly understood - and there was the intention that he continue in it for six months. Proposition (e) may come back to your Honour Justice Keane’s question about mutual commitment – we would certainly submit that he remained committed to a shared life. So that is part of the equation and that is no longer challenged here even though that was challenged below and, for her part, there were shows of mutual commitment consistent with the capacity which she had at that period of time.

To find otherwise, in the face of that evidence that there were weekly visits over a period up to two years after 25 May 2018, in the house, sharing lunch – the husband tending to the wife’s needs – we would submit that it would be a large step for the appellant to be asking this Court to find a total absence of any form of responsive commitment on the wife’s side. That would really illustrate why this appeal should not be allowed if it is an attempt to seek those sort of fact‑findings which had not been obtained
below and were not sought below because this is one of the issues that was never run.

I do remind your Honours – I think it is known that the trial proceeded in a relatively informal way. The husband represented himself – that is his own responsibility – but he was not cross‑examined on any matter – that is page 19 of the core appeal book, paragraph 46. That was a deliberate decision by the trustee’s counsel. So, one does have to keep in mind Browne v Dunn if one is seeking new findings – particularly in this Court.

Just finishing the list in paragraph 51, if to say it remained unregistered – it was always unregistered. So that is an irrelevant matter. To say they each had adult children and separate arrangements – that was always the case. So, there is no change there. Paragraph (h) is an attempt to leverage one aspect of the public aspects of the relationship – namely the NCAT decision – that cannot be denied as a decision. But the findings are that Centrelink continued to treat them as a couple, and the nursing home continued to treat them as a couple because he was allowed to come and visit as his wife and take her out weekly, which would not have been permitted if he were a stranger.

So, if one looks at 51, and then if the Court is considering what really is now a fact challenge – we would submit it falls far short of making good those propositions. Your Honour, our final proposition, 4(d), I think I have already sought to make. May it please the Court.

KIEFEL CJ: Yes, thank you, Mr Gleeson. Mr Walker, reply?

MR WALKER: Thank you, your Honours. Briefly, just some matters remaining not already covered by the exchanges between the parties. It is of course our client’s interest to establish whether or not and if so with what practical operation the various concepts which may or may not converge conveyed by the different terms such as “end” and “breakdown”, and, for that matter, “living together” or “living separately and apart”, that may provide means by which persons in the care of the trustee can have their interests looked after in relation to matters flowing from de facto relationships.

It is for that purpose that it is the provisions to which we have already drawn attention upon which my learned friend has put argument, to be found particularly in 90SB, 90SM and 44(5), that in our submission necessarily, bearing in mind the definitional provisions upon which we have both addressed, brings to a point that there must be a concern with the fact, understood according to the evidence of particular case of living together, so that a relationship in order to have a duration required as the primary rule of two years, must have a relation to living together in the relevant sense for two years.

Similarly, with respect, the jurisdictional, and it is jurisdictional consequence, of the timing provision in 44(5), means that it is only after the end that there may be application brought – 44(5) stipulates that the application under 90SM may be brought during the period commencing with end and expiring, as the primary rule, two years later. That, in our submission, focusses on the various ways in which end may come about, and, without repeating what has already been exchanged in writing and in addresses between the parties, we remind your Honours that in the ancillary provisions that include, for example, the notion of a separation declaration, that there needs to be, for de facto relationships, the equivalent of the irretrievability which is provided for in relation to marriage.

Thus, for example, in provisions recently gone to by my learned friend, section 90XP(8) and (12) provide an illustration of that. It is for those reasons, in our submission, that one need not go to what may well be an historical precursor, a positive precedent supplied by the Property Law Act 1974 (Qld) and, for example, sections 283 and 288, which do, as my learned friend points out, make the policy choice concerning the end of relation.

None of that, in our submission, tells against the indispensability of living together, so long as one understands that as being probably the antonym of living separately and apart subject to the kind of enforced and hoped for temporary absences of which the authorities in the argument have already sufficiently spoken.

It follows then that textually we challenge the proposition that my friend developed at the outset, that by reason of paragraph (d) of section 4AA(2), we have made the error of supposing that there is anything indispensable about living together when it is found in subsection (1) of 4AA. We challenge that by saying, for the reasons we put in‑chief, of course living together is indispensable, but the nature and extent of the common residence, the common residence and its nature and extent, not its existence, which is indispensable, we say, in order for there to be living together, can nonetheless and must nonetheless be considered in an appropriate case, because it may well be that as a couple and on a genuine domestic basis, will be defeated by a consideration of the way in which they might be said to be living together. That is, not so as to make out the whole of the combined single – combined component to produce a single concept of de facto relationship.

Your Honours, with respect to the so‑called concession, we have supplied, by way of assistance, what, on our researches, is probably, and I cannot put it any higher than that, the source of the recorded concession in the Full Court in their paragraph 52. In the transcript that we have handed up it is 107, and it is really the exchange between about lines 32 and 45. The next page is there just to ensure that your Honours can see the context then move to a different subject matter.

Now, be that as it may, in our submission the concession is not such as to justify revoking special leave or regarding this as in some way an inappropriate case to determine the matter which is of concern to the trustee, for reasons I have already put. That is because the concession does not say that going into care is the end of it, it cannot be seen as the end of it, and that does not dispose of our argument, because it is not simpliciter going into care that brings an end to a relationship which previously existed.

All the circumstances of the case need to be considered, just as they would be if these parties, or one of them, had been looking to make a separation declaration where the reasonable prospects of cohabitation resuming, being, that is, coming back to living together, would be at the heart of the inquiry. In some cases the provisions we have drawn to attention would give that jurisdictional effect.

GAGELER J: But, Mr Walker, does that mean that going permanently into care would sever the relationship?

MR WALKER: Yes, it does. I think I gave an answer similar to that to Justice Gordon in‑chief - that is the point that we seek to have considered by the Court.

GLEESON J: You say that despite capacity - so that, a person who goes into care but has no loss of capacity ‑ ‑ ‑

MR WALKER: Justice Gageler’s question is about permanent separation ‑ ‑ ‑

GLEESON J: Yes, but regardless of the capacity of the individual?

MR WALKER: There are two parts to my answer. Our case, and as you might appreciate given my client’s institutional duties, is very much focused on questions of reduced or virtually non‑existent capacity, so my client’s concern is in a question - in cases where capacity is really the driving feature, maybe both cause and consequence, of the living separately and apart.

The second part of the answer is, not essential to the answer being favourable to us in cases of incapacity, but in our submission living together has only so much elasticity in the face of harsh facts, and just as a person committed to imprisonment in those rare but possible cases of forever could be seen to be permanently living separately and apart from a spouse, thus bringing to an end – and I use the word “end” advisedly – a pre‑existing de facto relationship, so the same would be true for all those institutions, to use an old word in an old‑fashioned sense, that provide asylum, bearing in mind either incapacity, physical or mental, or other aspects of a life that means there can no longer be cohabitation in the sense of living together.

So, whether it be specialist care, whether it be sequestered care – whether it be care with or without visits, in our submission those are matters that every individual case will call for as a factual conclusion, but once the factual conclusion is reached, that they are no longer living together in the statutory sense, then yes, that relationship is brought to an end as a de facto relationship, and that last answer – the second part of my answer to Justice Gleeson would, we submit, be in principle true regardless of what I will call the separated partner being sui juris.

EDELMAN J: Is that ‑ ‑ ‑

MR WALKER: It is difficult to imagine, I must say, factually being sui juris and being in such a plight ‑ ‑ ‑

GORDON J: I do not think that is right at all, Mr Walker. There are many people who go into care for a whole range of reasons who are of full capacity.

MR WALKER: We are talking about de facto relationships ‑ ‑ ‑

GORDON J: I am talking about de facto relationships ‑ ‑ ‑

MR WALKER: I appreciate that, your Honour. In this case we are arguing de facto relationships where the definition requires you be living together.

GORDON J: So, just so I am clear about that, when you talk about living together, you mean in the one house?

MR WALKER: No, I mean ‑ ‑ ‑

GORDON J: Well then, if it is living together is encompassing all of the factors set out in 4AA(2) ‑ ‑ ‑

MR WALKER: It will not necessarily encompass all of those factors. Public reputation would not affect whether you are in fact living together ‑ ‑ ‑

GORDON J: Well, it might. It might be that if people see you having been brought home, or if they see you visiting the house because arrangements have been made, there may be a whole range of facts and matters ‑ ‑ ‑

MR WALKER: That would be evidence of living together. Public reputation will mostly go directly to the couple.

GORDON J: But I think what you just put to me illustrates that all of those factors – the multifactorial, I hate that word, but let us adopt it for the moment ‑ ‑ ‑

MR WALKER: That is right, yes.

GORDON J: Goes to, in effect, to determination of that first question.

MR WALKER: Unquestionably.

GORDON J: One cannot compartmentalise it because it is a human endeavour involving humans. Human relationships are so varied.

MR WALKER: Your Honour, I could not succeed with an argument that compartmentalises, not least because we have repeatedly said though there are components to the definition of the relationship they are one combined concept. However, all those components must be present for the relationship to continue. They must continue to be present.

GORDON J: Is that right, given subsections (3) and (4)?

MR WALKER: Yes.

GORDON J: I know I am taking you back to where you started in your opening, I understand that argument.

MR WALKER: Textually there can be no doubt that subsections (3) and (4) do nothing to dispense from any of the integers in the description of the relationship. They, however, do explicitly refer to the consideration given and the weight to be accorded to the circumstances which include, of course, unnamed circumstances that seem appropriate in any particular case. They certainly do not get rid of the definition. You need to have the definition in order that there be something to which those circumstances are relevant for adjudication. There is no role for the Court to shift the notion of what a de facto relationship is, rather to consider the particular facts of the case to see whether a particular case fits within the statutorily enacted definition.

GAGELER J: Mr Walker, can I just put to you a scenario that simplifies the facts of the present case but happens all the time, that is, where a couple are living in a de facto relationship, one of them becomes extremely ill – say it is the wife – the husband cares for the wife with assistance at home for as long as possible, it becomes apparent that the wife can no longer ever continue living at home, she goes into full‑time care, the husband visits her daily and maintains what most people would regard as a loving relationship with her. Nevertheless, I think it follows from your submission that there has been a breakdown in the de facto relationship.

MR WALKER: Your Honour – I am sorry, I may have interrupted, I apologise.

GAGELER J: And the relationship is therefore at an end. I just wanted to be clear about where it all heads.

MR WALKER: Your Honour has, with respect, put your finger on one of the reasons I found in‑chief difficult an answer from your Honour as to what I am going to call the congruence between “breakdown” and “end”. I said then, I think I should repeat, if I may, that “breakdown” cannot possibly come after “end”. It may come before “end”, it may coincide and be “end”.

It is revolting to senses of social decency that that is a relationship that has broken down, bearing in mind that idiomatic colloquial English understandably regards a broken‑down relationship as one which would lack all the human qualities that your Honour has described and which we fully accept, bearing in mind for whom I appear, we fully accept will be true, as a matter of the knowledge of the world we all have, of many couples, and I use that word advisedly.

One need only add the existence of accommodation which alas is temporary, not in the sense that you return from it, but in the sense that you die in it, being palliative care, to realise that this is a phenomenon of great significance to the understanding of the relevant law and its application, in the administration by my client of its duties, which is why we are here.

Now, what we have offered in the adversarial argument is the contention which has, if it has virtue, the virtue of greater certainty of looking at the notion of living together, accepting the necessary elasticity that circumstances lend it, observing that there still is a difference between de facto and de jure relationships, seeing that Parliament has captured at least part of the essence, defining essence of that as being living together, and then dealing with these hard cases that need to be dealt with and certainly, as a matter of felt social need, require the kind of stewardship of assets and other matters of concern to individuals such as arose in this case.

Against all of that, in our submission, one can then draw the strings together to say that the notion of the end of a relationship, as we can see from the requirements, save that separation declarations include a statement that there is no reasonable prospect, et cetera, of cohabitation resuming, one can see that all and any of the vicissitudes of life which will produce no hope of cohabitation resuming, must be regarded as within Parliament’s intention as contributing to this drastic outcome that a relationship still characterised by love, for example, connubial love, if you like, is nonetheless at an end within the meaning of the statute so as to provide for certain jurisdiction.

Now, of course, the Stanford v Stanford proposition is still true - there are no floodgates to be opened or feared with respect to there being some unjustified exercise of judicial power with respect to property. “Just and equitable” is the jurisdictional condition, as the parties combine in emphasising. But with respect to the jurisdictional question of “end” and, I have to say, therefore “breakdown” that you see in 90SM, just as you see “end” in 44(5), and, we would submit, one sees the same notion of duration in 90SB, to use duration that must include living together, for all of those there have to be cases where, notwithstanding continued love, there is, unlike for marriage that still has the register, for de facto you no longer have the fact, you no longer have the actuality.

KEANE J: We ordinarily do not strain against a construction that simply vests jurisdiction in a court to do just and equitable things.

MR WALKER: Exactly so. Your Honour anticipates me, I was about to return, I am afraid, to the refrain of Stanford v Stanford, and this is not the destroyer of relations, it says nothing about love and devotion, it says nothing about nursing attendance at all. It provides a gateway to a jurisdiction which, in the kind of case that Justice Gageler has asked me to consider, is most unlikely to be exercised in ever the slightest alarming way, because of just and equitable.

EDELMAN J: Your submission does require rejection of the proposition, does it not, that in section 4AA the expression “living together” means sharing lives, rather than cohabiting or cohabiting ‑ ‑ ‑

MR WALKER: Yes it does, it does. I confess I have not given consideration to that, that other idiomatic phrase. It is not only members of a couple who can share lives, the same can be true of intimate friends, so it is a broader concept which will certainly include any vaguely happy couple. Your Honours, I have tried not to stray too much from the words of the statute, but I accept that from time to time argument about words requires other words, but we would, with respect, not seek to treat “sharing lives” as
significant in its different or, perhaps, overlapping meaning with “living together” as being of any assistance in interpreting these provisions.

EDELMAN J: Well, I raise that because, in a way, that is almost the answer to living separately and apart. The historical interpretation of living separately and apart has effectively been living separate lives or living unshared lives.

MR WALKER: Yes. Even in the once upon a time intuitively startling notion of being in the same house. Yes. I accept all of that, however I would still urge that there is no solid benefit to be obtained from comparing “living together” with “sharing lives”. “Sharing lives”, I accept, is an appropriate summary not intended to be interpretive at all, of many, perhaps all, of the combined effect of what comes from 4AA(1) and from 4AA(2) and from the various case‑specific indications that come from 4AA(3) and (4), that is, it will depend upon the case.

KEANE J: It is sharing lives on a domestic basis.

MR WALKER: Yes.

KEANE J: It is about maintaining a household together.

MR WALKER: Yes, yes. In our submission, it just cannot be said that there is a continued domestic basis when one farewells one’s de facto spouse into the palliative care. Parliament’s concern has not been with regulating what may be said about the human qualities of a loving or caring or both relationship, it has to do with carefully expressed jurisdictional conditions in a federalising approach by referral, where there are both assimilated and continued contrasting treatments of de jure marriage and de facto marriage, and at the heart of de facto is an actuality of conduct and, in our submission, there is nothing in the text of these provisions which permits of living together to describe a situation where you wish you could, but you cannot.

EDELMAN J: If you are wrong about that, do you have any other argument, or is that the four corners of your submission?

MR WALKER: That is the argument upon which we seek this Court’s ruling and reasoning. May it please the Court.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 3.09 PM THE MATTER WAS ADJOURNED