APPLICANT ASSERTS DE FACTO RELATIONSHIP, RESPONDENT DENIES IT
Bava & Chaudry [2021] FCCA 6 (13 January 2021)
This is a property settlement case where the applicant claims that she and the respondent were in a de facto relationship. The respondent denied such fact and sought the dismissal of the application.
Facts:
Ms Bava (“the Applicant”) filed an application for a de facto property settlement. She claimed that she and Mr Chaudry (“the Respondent”) were in a de facto relationship between September 2014 and 23 June 2017. The Respondent filed a Response in which he denied that the parties were ever in a de facto relationship and sought dismissal of the application.
She asked the court to take into account that not only were the parties in a sexual and sometimes romantic relationship and shared a dwelling but that she contributed financially to the relationship by purchasing an expensive dining setting and most importantly by making a contribution to the renovations to the Respondent’s home, something she would not have done if she had not believed that the parties were a couple who were committed to each other and had a future together.
Issue: Were the parties in a de facto relationship between September 2014 and 23 June 2017?
Law:
- Family Law Act 1975 SS.4AA, 90RD, 90SB, 90SM
Analysis:
The Applicant has the onus of proving on the balance of probabilities that a de facto relationship existed.
There is no doubt that the parties were in a relationship between September 2014 and June 2017, and that it was a different relationship to the one they presented to the world, which was of two people who were friends, were related by marriage and were living under the same roof.
There is however another missing element and that is that there is no evidence of the parties ever having a mutual commitment to a shared life.
There is abundant evidence of the Applicant seeking from the Respondent more than he was willing to give. None of the text messages or reported conversations between the parties refer to any plans for the future. The Respondent often asked the Applicant to move out, intermittently at first and frequently in the last six months that they lived under one roof.
The fact that they did not tell anyone that they were a couple becomes significant. In theory, people could be in a de facto relationship which they kept secret from the world, but this is not the case here.
The parties did live in the same house and have a sexual relationship but there was no financial dependence or interdependence between them, no joint acquisition of property and most importantly there was no mutual commitment to a shared life, rather there was an endless struggle by the Applicant to get the Respondent to commit to such a life and a refusal by the Respondent to do so.
Conclusion: The Court declared that a de facto relationship never existed between Ms Bava and Mr Chaudry.
