KEENE v HARKNESS [1996] NSWCA 298

KEENE v HARKNESS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, GILES AJA and COHEN AJA 27 November, 16 December 1996

[1996] NSWCA 298

De Facto Relationships Act — appeal from orders made by Master — whether Master should have had regard to appellant's reliance interest and expectation interest — consideration of Dwyer v Kaljo — whether respondent's superannuation entitlements should have been taken into account — necessary for Master to consider whether superannuation entitlements constitute property or a financial resource — significance of appellant's role as homemaker and the length of time of relationship

requirements for maintenance order - De Facto Relationships Act s27 - test to be applied as to whether appellant was unable to support herself because of having care and control of four children under 12 years - whether there were errors of fact made by Master affecting his discretion - application of De Facto Relationships Act s19

question of costs - whether Master wrongly applied provisions of Supreme Court Rules Pt 52 r 24A - rule only applies where proceedings brought in Supreme Court - where proceedings transferred from Family Court under Jurisdiction of Courts (Cross Vesting) Act then rule does not apply

Clarke JA. I agree with the orders proposed by Cohen AJA and, subject to one matter, his reasons for those orders. The one aspect of his Honour's judgment on which I wish to make my own observations relates to the question whether reliance or expectation interests should be taken into account in determining whether an order, and if so what order, should be made under s 20 of the De Facto Relationships Act 1984. Although the parties tendered submissions on the question I do not think that, on the facts of this case, the considerations which moved Handley JA to make the observations in Dwyer v Kaljo (1992) 27 NSWLR 728 which have been regarded as controversial arise. Cohen AJA has explained the factual differences, and their significance, in terms with which I respectfully agree.