Married couples may no longer be “on a higher plane” than de facto couples, who should have the same rights to property under settlements, says the NSW Law Reform Commission.

Such equality would give de facto spouses women in particular a bigger claim on property, including superannuation, when a relationship ends, and a stronger right to spousal maintenance.

Existing NSW property law is the last bastion of discrimination against de facto couples. Earlier reforms ended differential treatment in matters such as custody of children and disputes over wills.

A commission discussion paper says cohabiting women are disadvantaged in property disputes compared with married women because the state government believed at the time it enacted the Property (Relationships) Act 1984 that “de facto couples were not to be equated with married couples”.

Nearly 20 years on, says the paper, commissioned by the Attorney-General, the number of de facto couples had doubled. “For many, marriage is no longer seen as the yardstick for all close personal relationships.”

Property disputes by married couples are dealt with under the Family Law Act 1975, which takes into account a couple’s financial and non-financial contributions to the marriage (including home-making), and a couple’s future financial needs.

This usually means a 50-50 division of property. A full-time home-maker who cared for children and reduced her earning capacity, can argue for a bigger share, including spousal maintenance, based on future needs.

For de factos, state law takes into account only a couple’s past financial and non-financial contributions. “Future needs” are not considered.

The implication is that marriage gives “rise to an obligation toward the other party’s future welfare, but other relationships do not”, the paper says.

The length of the de facto relationship (besides a required minimum of two years’ co-habitation), how the couple arranged their financial affairs, and how those decisions affected future earning capacity were also not taken into account.

As well, a de facto wife’s contributions as home-maker had been under-valued, the paper says. NSW judges had often offset her contributions against her enjoyment of “free rent” and food.

Tom Altobelli, an associate professor at the University of Western Sydney law school, said de facto couples could rack up huge legal fees simply for the woman to secure an equal division of property.

A woman who had lived in a de facto relationship for 32 years, and was a full-time home-maker and parent, was awarded 16 per cent of the value of the property by the NSW Supreme Court in 1999. Appealing against the decision in 2001, she won 50 per cent.

“But this case would have got nowhere near a court and cost nothing in legal fees under the Family Law Act,” Professor Altobelli said.

He said marriage was different from a de facto union more people entered it with a sense of long-term commitment. “But that is irrelevant; I see people at the end of a relationship mums who have cared for kids and been out of the workforce. We have been getting this wrong and people have been suffering.”

The ACT and Tasmania have adopted the Family Law Act model and Queensland a similar model.

The commission welcomes submissions including on whether the law should require a two-year minimum cohabitation before it makes its final recommendations to the Government.

By Adele Horin. – 613 Words
24 June 2002
The Sydney Morning Herald

Family law experts have warned women’s groups against overplaying the significance of a NSW Supreme Court of Appeal decision on property disputes between de facto couples.

The decision, handed down on Tuesday, involved a couple who had been in and out of a relationship from 1965, but had lived together for only 11 of those years.

Three Court of Appeal judges overturned a decision which saw the woman, Ms Linda Jones, awarded $100,000 from the sale of the couple’s property, worth $610,000, and instead awarded her a half share.

Her former partner, Mr Paul Grech, had paid for the property in about 1985 and put it in both their names as joint tenants. Ms Jones, who made no direct contribution to buy or renovate the house, cared for their child and contributed to household expenses, while her partner worked.

The court decided Mr Grech’s financial contributions did not outweigh Ms Jones’s efforts as a homemaker and parent, entitling her to a half share in the house.

Women’s groups yesterday said the decision was a step forward for women. Ms Catherine Carney, principal solicitor of the Women’s Legal Resources Centre, said in previous decisions, the homemaker contributions of de facto partners who are covered under State law, unlike married couples covered under Federal law were given less weight than financial contributions.

“The Family Court, certainly under the Family Law Act, will give greater weight to those non-financial contributions, and the wife was more likely to be compensated in the Family Court in the past than she was [under] the State legislation.”

However, Mr Garry Watts, a lawyer from family law firm Watts McCray, cautioned people against interpreting it as a “significant change in the law”.

While the decision of the judges to award Ms Jones half the property value was unanimous, they were divided over whether the principles applying to marriage property disputes should apply to unmarried couples.

Mr Watts said only one judge Justice Davies relied on family law principles, while one of the other judges Justice Powell had “referred to previous cases which said caution should be exercised when applying family law authorities to de facto couples”.

The convenor of the Women’s Electoral Lobby, Ms Sarah Maddison, said it was “good to see judicial decisions catching up with the way many people are choosing to live [their] lives, and recognising that the traditional heterosexual married nuclear family is not the only way that people organise their families or contribute to bringing up children”.

Cynthia Banham – 437 Words
12 July 2001
Sydney Morning Herald

A SYDNEY woman has won a $500,000 payout from her ex-husband’s estate because he cheated her in their divorce settlement 14 years ago.

The Supreme Court last week found that millionaire businessman William Lance Dolman might have understated his assets by $300,000, or about 30 per cent, when he divorced in 1991.

“I think it is reasonable to infer that (Mr Dolman) had access to other funds which he did not disclose to the Family Court,” the court’s Master Richard Macready said.

Mr Dolman retained ownership of the couple’s waterfront Drummoyne home when he divorced his then wife, Pamella, in 1991.

The businessman declared his assets to be worth just under $1 million at the time, including the marital home and an apartment in the Philippines.

But when he died, aged 71, in 2003, his estate was estimated at almost $5 million.

He had also paid off a $200,000 mortgage and accumulated more than $240,000 in savings, even though he retired only six years after the divorce, the court heard.

Mr Dolman paid his ex-wife $500,000 as her share of their estate in 1991 after more than 20 years of marriage.

Master Macready said Mrs Dolman bought a home with the money, but was now a pensioner dependent on her daughter paying board.

WARREN OWENS – MATP – 238 Words
05 June 2005
Sunday Telegraph

OPERA superstar Dame Kiri Te Kanawa is being sued for $300,000 by a promoter for refusing to perform with John Farnham earlier this year.

Leading Edge Events is suing the New Zealand-born superstar in the NSW Supreme Court tomorrow for failing to perform with Farnham in February.

Farnham and Dame Kiri were scheduled to perform in a series of “unique” concerts at the Domain in Sydney and historic Werribee Park Mansion in Victoria.

The pairing of Australia’s most famous rocker with the world’s most famous opera diva was expected to attract sellout crowds to the three concerts.

But Dame Kiri, 61, pulled out after the concerts were announced in 2004 and after corporations rushed to buy tables at the concerts for $9500 each.

“Kiri is obviously a dame and I mean that with great respect,” said Farnham in an interview after the tour was cancelled.

“She is probably not used to an audience being so demonstrative and demands absolute silence when she works.”

Dame Kiri also apparently thought Farnham was too chatty on stage. “There’s truth to that,” confirmed Farnham.

The three series were promoted as “Two Great Voices” with the naming rights alone being offered for $900,000 and a range of six-figure sponsorship deals.

“We would like to invite you to join us at the launch of this most exciting, original and memorable entertainment event,” Dame Kiri and Farnham said in a joint personal invitation to the corporate sponsorship launch in
March, 2004.

“We have long wished for the opportunity to celebrate our music together and now we can, in three magical evenings in February 2005.

“For the first time ever we will perform, both together and individually, across an extraordinarily wide repertoire of opera and rock’n’roll, creating an evening we hope you will never forget.

“Imagine the perfect pitch and enormous range of John’s voice with my bel canto soprano, blending together with Orchestra Victoria’s 85 piece orchestra and the fabulous John Farnham Band.” But Dame Kiri will be singing a different tune in the NSW Supreme Court tomorrow when Frank Williams and Eileen Newbury of Leading Edge

Events start proceedings to recover money lost in the failed concerts.

Dame Kiri gained legendary status overnight after a sensational debut as the Countess in Le Nozze di Figaro at the Royal Opera House, Covent Garden, in 1971.

Since then she has performed on the world’s grandest stages, including Chicago Lyric Opera, Vienna State, the San Francisco, Munich, Cologne and Sydney Opera House.

She sang at the wedding for Prince Charles and Princess Diana in 1981 and has performed with such conductors as Zubin Mehta and Sir Colin Davis.

A keen golfer, angler and shooter, Dame Kiri is rumoured to have paid ex-husband Des Paris a $21 million settlement after receiving a telegram from him requesting a divorce in 1997.

PHILLIP KOCH MATP – 508 Words
03 July 2005
Sunday Telegraph

Trainer Gai Waterhouse and the Australian Jockey Club have been ordered by the Supreme Court to answer questions about how four horses bolted from inside the racecourse out onto busy Alison Road, Randwick.

One of the horses attempted to jump a stationary car, but instead landed on its roof, with its legs flailing through the windscreen.

The two women in the car, mother and daughter Ruzica and Natalie Petrovic, are suing Gai Waterhouse and her company, and the AJC.

Peter Semmler QC, for the Petrovics, said the “horrific” experience had caused both women to suffer post traumatic stress disorder, one of them to the extent of being suicidal. On the day – January 22, 2001 – the women were taken to hospital for minor injuries.

According to witness reports tendered to court in a pre-trial hearing yesterday, the horse, Honour And Strength, was badly injured. It had cuts through to the bone on its knees, and head injuries including all teeth on the left side being knocked out. It was put down the following day. In an expert witness report tendered in court, Paul McGreevy, from the University of Sydney veterinary faculty, said that since the accident, a 1.3-metre gate had been replaced by a 2m-high gate, and another gate had been installed.

“The appropriateness of measures taken by the AJC to contain horses within their grounds in contexts other than racing appears to have been inadequate and reactionary rather than well planned,” he said.

“In my opinion, the AJC provided facilities and environments that were unsafe, while Gai Waterhouse Pty Ltd had in place a series of substandard practices.

“In these ways, the conduct of the AJC and Gai Waterhouse Pty Ltd materially contributed to the escape of a number of horses.”

The AJC’s finance department, in a memo to the AJC Committee following the accident, recommended several safety initiatives. These included one strapper per horse, that strappers should undergo compulsory training, and that only approved leads and bits be used.

It also asked for all trainers to submit their OH&S policies and procedures.

The memo noted that, while there were cost implications, “these need to be considered against the cost of further incidents and injury”.

Dennis Ronzani, for Waterhouse and her company, noted that the case had earlier been before a District Court judge, who had dismissed it. The court case is not expected to begin until the middle of next year.

Geesche Jacobsen – 386 Words
19 April 2005

Natalie Petrovic, now 24, and her mother, Ruzica Petrovic, now 59, had sued Gai Waterhouse Racing and the Australian Jockey Club for more than $3 million for physical and “catastrophic psychological injuries”.

Justice Peter Hidden found the women had suffered enduring psychological and physical effects from the collision in Alison Road, Randwick, in the early afternoon of January 22, 2001.

Honour And Strength, weighing 500 kilograms, was one of several horses, apparently startled by the noise of a car, that escaped from their strappers and kicked down a gate.

Honour And Strength left the racecourse and galloped across the road. It tried to jump the Petrovics’ car but landed on the roof and windscreen. The horse crushed the roof, and its hooves went through the windscreen.

The horse was badly injured and had to be put down, and the women were injured by the crushed roof. In April 2005 Waterhouse and the club admitted negligence.

Waterhouse is in England, so did not attend the brief hearing yesterday at which Justice Hidden rejected the claim by her and the club that any physical or psychological injury the two women had suffered had not been serious. He did find the women might have exaggerated their conditions.

Of Natalie Petrovic, Justice Hidden said: “I am satisfied that, as a result of the accident, she has suffered serious and enduring psychological injury. I am also satisfied that she suffers from the physical disabilities of which she complains, even though not all of them might have an organic basis.

“The defendants assert that she has fabricated or exaggerated her symptoms, physical and psychological, for financial gain … I reject that assertion.

“The very fact that she went to university for as long as she did, and returned to part-time work for a period, demonstrates that she tried to put the experience of the accident behind her to get on with her life. Unfortunately, she was unsuccessful.”

Ruzica Petrovic had gone through “a terrifying experience in which she feared for both their lives”. She had suffered “a major psychological injury, from which she may receive a measure of relief over time but from which she will never recover”.

Justice Hidden accepted that injuries to her knee, right leg and back were attributable to the accident, although he accepted she might have exaggerated them.

“I reject the defendants’ case, put against Mrs Petrovic as against her daughter, that she is malingering and that she is entitled to no more than a modest award of damages … This woman’s life has been gravely affected by the accident.”

Justice Hidden allowed $119,000 for Natalie Petrovic and $115,000 for her mother. He invited submissions on the final amount of damages. This is expected to be decided next month.

English
2007 Copyright John Fairfax Holdings Limited. www.smh.com.au
Malcolm Brown – 513 Words
20 June 2007
The Sydney Morning Herald