defacto-relationships-doolan-callaghan

While many of us use the phrase “de facto relationship” in conversation when describing our friends or peers, when asked what this phrase means in the family law setting, the answer is not as simple as you think.

A recent case in the Federal Circuit Court of Australia at Melbourne considered this very issue and the steps required pursuant to the Family Law Act (Commonwealth) 1975 (“the Act”) to establish the existence of a de facto relationship.

He says De Facto – She says “boyfriend/girlfriend”

In this case, the facts or evidence presented by both parties was vastly different in an effort for the Applicant to prove the existence of a relationship and for the Respondent to argue that no de facto relationship pursuant to the Act ever existed and that the parties were instead at times simply in a relationship akin to being “boyfriend/girlfriend”. According to the Respondent’s evidence, the parties only lived together on a few occasions during the time the parties knew each other, being approximately 16 years.

The Applicant filed his application seeking a declaration pursuant to Section 90RD of the Act that a de facto relationship existed from approximately 2001 to November 2014. The Respondent sought the reverse, being that pursuant to this section, no de facto relationship existed.

When does “Boyfriend & Girlfriend” become De Facto?

To make a declaration that a de facto relationship existed, the Court needs to be satisfied that the relationship falls under the definition of Section 4AA of the Act.

The Court may then make Orders to divide the parties’ property, which can include real property, monies in bank accounts, superannuation and chattels. For the Court to make Orders the Court must also be satisfied that pursuant to Section 90SB of the Act that the parties were either in a relationship for 2 years, that there was a child born of the relationship, that there would be hardship for one of the parties in the event Orders were not made or if the relationship was registered with a State or Territory.

The Court must also be satisfied that the separation occurred after 1 March 2009 to evoke its jurisdiction. The Respondent in this case argued that as there was no de facto relationship, then logically separation didn’t occur post this date.

Court Rules “intermittent intimate relationship”

In this case, the Applicant argued that not only did the relationship last for (on his evidence) approximately 12 years, but also that the Court should make Orders because there were 2 children born of the relationship. The Respondent’s position was that although there were two children of the relationship, they were born out of a (as described by the Court) an “intermittent intimate relationship” and not representative of the parties being in a relationship at the time, nor was there a relationship for more than two years in circumstances where the Respondent argued the parties only lived together on a few occasions.

The Court was satisfied on the Respondent’s evidence that no de facto relationship existed.

The Court agreed that the relationship between the parties was such that it was one comparable to a boyfriend/girlfriend relationship, whereby the parties would, on an ad hoc basis, spend limited time together.

How did the court come to this conclusion?

The Court made these findings by considering the various elements outlined in Section 4AA, including, that the nature and extent of the common residence of the parties was such that the Applicant, despite his evidence, did not live with the Applicant save for on a few occasions. The parties did not have any joint bank accounts or mix their finances, nor were any bills or invoices addressed to both parties. There was no “mutual commitment to a shared life” in circumstances where the Court was satisfied that the Applicant had only lived with the Respondent on a few occasions and that on some of these occasions, the Respondent had in fact sought an Intervention Order for her protection to protect herself from the Applicant committing family violence. There was a total of 4 Intervention Orders applied for either by the Respondent or Victoria Police on behalf of the Respondent against the Applicant.

The Court was also satisfied that the existence of two children of the relationship and in circumstances where the parties had recently obtained parenting Orders in Court in 2016, was not enough to establish that a de facto relationship existed pursuant to the Act. As the history of the parenting relationship between the parties, was such that the Respondent had been the primary carer of the children and the children had limited involvement with the Applicant, this did not indicate a continuing relationship between the parties.

The Court was satisfied that although the parties had a sexual relationship, it was such that it occurred on an ad hoc basis casually and akin to a relationship between a boyfriend and girlfriend. The Court also formed the view that the parties only occasionally socialised together, including a holiday in 2013.

There was also no evidence of the parties jointly purchasing property including real property, whereby the Respondent had inherited real property and had gone on to sell and purchase real property without any financial contribution by the Applicant or registering the property in the Applicant’s name.

Lastly, the Court was not convinced that in the event the Respondent had defrauded the Department of Human Services in relation to the payment of child support, or Centrelink, whereby the Respondent received Centrelink benefits during the time the parties knew each other, that this would be fatal in proving or disproving the existence of a de facto relationship.

This is contrary to the case of Elias (1977) which established the principle that in the event a party defrauds a government department by communicating they are or not in a de facto relationship, then this can be used as evidence to prove or disprove same.

The Court referred to a more recent case of Sinclair v Whitaker (2013), whereby the primary Judge found that a de facto relationship existed despite one of the parties making statements to government authorities alleging she was single.

Why this case is interesting…

Overall, this case is an interesting case in circumstances where the parties knew each other for approximately 16 years and certainly spent significant time with each other over this period, however given that the Court was convinced that pursuant to the Respondent’s evidence that the parties had only lived together on an ad hoc basis, which did not even total a two year period, and in circumstances where the Respondent made numerous attempts to move away and protect herself from the Applicant by seeking Intervention Orders, that despite there being 2 children of the relationship, there was no de facto relationship and therefore the jurisdiction of the Court was not enlivened.

The most notable reference in this case is the reference to there being a relationship comparable to a boyfriend/girlfriend relationship. As with the phrase referred to in many de facto cases, being “coupledom” the reference to a relationship akin to “boyfriend/girlfriend” is likely to be a raised in future cases.