A central question in family property law in Australia is how to place a value on the homemaker contribution in comparison with other kinds of contribution. The problem is especially difficult where the property largely consists of assets owned before marriage, acquired by inheritance, or received after separation. This article explores the relevance of the homemaker contribution to property division both in marriages and de facto relationships, challenging the popular assumption that living together per se justifies significant wealth transfers. It is argued that parenthood provides the most important justification for property alteration, and that withdrawal from workforce participation due to the care of children or other family members is the primary concern in evaluating the homemaker contribution. The article then goes on to explore what the homemaker contribution meant when the Family Law Act 1975 (Cth) (‘the Family Law Act’) was enacted, and how that conceptual coherence has become lost over time. There are now two different approaches which have emerged to the quantification of the homemaker contribution in the context of pre-marital property, inheritances, damages awards and property acquired after separation. These approaches are irreconcilable. The approach which is now finding favour in the Full Court of the Family Court is one which makes it impossible for the Court to explain how it has reached its decision on the quantification of the parties' proportionate shares. Furthermore, it is founded on an interpretation of the homemaker contribution that Parliament never intended and has not since authorised. This raises important questions about the legitimacy of the Court's approach to property division under s 79 of the Family Law Act. The article concludes by offering a new interpretation of the role which the homemaker contribution should play in the division of property on relationship breakdown which is consistent with the overall framework of s 79. It involves two distinct considerations of the homemaker contribution. The first is to examine how homemaker contributions should be rewarded. The second is to consider how they should be compensated.

The separation of judicial power from executive and legislative power has long been recognised as an important measure for guaranteeing individual liberty and for safeguarding against tyranny. As Winterton has noted, '[d]ividing governmental power is the oldest device for restraining it, and thereby protecting liberty'. However, it has also been widely recognised, particularly in recent years, that by entrenching the separation of federal judicial power, Chapter III of the Australian Constitution may offer individual guarantees beyond the arbitrary exercise of executive or legislative power. Consideration of exactly what these guarantees may include has significantly contributed to the recent interest in Chapter III of the Constitution. As one commentator proclaimed in 2001, the move of Chapter III to centre stage has been 'one of the defining features of the last decade of Australian constitutional law'. This trend has raised many questions relating to the nature of judicial power and judicial independence, and the extent to which it does, and can, protect individual liberties.

Probably the most basic contemporary controversy over the interpretation of the Australian Constitution is that between the methodologies of originalism (or intentionalism) and progressivism. According to the first, the fundamental task of the Courts (and especially the High Court) usually is regarded as being to interpret the Constitution so as to give effect to the intentions of those who framed it at the great Conventions of the 1890s, commonly referred to as 'the Founding Fathers' or (as here) 'the Founders'. Progressivists, on the other hand, believe that a search for historical intention is at best incidental in the process of constitutional interpretation, and that the Court should construe the Constitution so as to bring it into accord with modern needs and exigencies. Between the two sides in this fiercely contested debate stretches a vast chasm both of theoretical approach and rhetoric. A third approach, literalism, despite a hallowed history in Australian constitutional law and its routine deployment in virtually all important cases concerning federal legislative power, today largely is overshadowed in the minds of constitutional lawyers by the fascinations of its two rivals.

What is the influence of the Australian Constitution ('Constitution') on the common law of Australia? In Lange v Australian Broadcasting Corporation, a unanimous High Court stated:

Applying this principle, Lange developed the common law of defamation consistently with the implied freedom of political communication. Subsequently, in John Pfeiffer Pty Ltd v Rogerson, the High Court held that the common law of choice of law in tort 'should be developed to take into account various matters arising from the Australian constitutional text and structure.'

Imagine this scenario. A court composed of an even number of judges is deciding the constitutionality of national legislation critical to the efficient administration of justice in a federal state. In argument, the chief law officers of all representative governments ask that the legislation be upheld as it was reached through a lengthy negotiated compromise of all the parties. By virtue of an equal split of opinion between the six judges hearing the case, a legislative 'sleight of hand' is triggered and the scheme is found to be constitutional. Twelve months on, the same court agrees to reconsider its previous decision. Things are generally unchanged, the same arguments are presented. The matter, however, is heard by a differently-composed, odd-numbered bench. If ever the combined desire of all governments was that a court should heed the ancient maxim 'stare decisis et non quieta movere–stand by the thing decided and do not disturb the calm'–it would be now. Instead, a majority finds that the same scheme is unconstitutional; it therefore collapses.