Parties Dispute Existence of a De Facto Relationship Between Them

Sampson & Sampson [2021] FCCA 1471 (29 June 2021)

Parties who were married for ten years and then divorced recommenced living together a year later. The Wife alleges that they resumed a de facto relationship, having bought additional property, raised their children together, travelled, and lived together for 14 years. The father denies the same and claims that they merely lived as companions. 

Facts:

The parties married in 1993 and separated in 2003 having had three children B,C, and D.  A divorce application was filed on 2004 and their divorce order became final on 2005.  The Wife alleged that she moved out at separation from the matrimonial home in 2003.  The Wife lived in a women’s shelter and with friends thereafter but agreed to move back in 2004 for what was a temporary arrangement until they could finalise their property settlement.  She slept in a separate area under the same roof with her Husband. 

The Wife says that after a period of time their relationship had gradually changed back to a genuine domestic relationship or a  de facto relationship where they got to raise their three children together.  She further alleges that they travelled on at least ten holidays together in that time mostly without their children.  The Husband says that whilst he agrees the Wife moved back into the former matrimonial home initially temporarily for all the reasons given by the Wife, that the parties did not ever resume living together in a relationship as a de facto couple.  The Husband says this living together as companions continued from the time the Wife moved back in around April 2004, until the Wife moved out in May 2018, a period of around 14 years.

The former matrimonial home is in both names and the mortgage is in both names.  A property acquired while they lived together in 2014 at City E was purchased in the names of the Husband, Wife and the Husband’s father and they had a shared mortgage.  No formal property division or settlement was concluded by way of Orders or Financial Agreement.

Issue:

Whether or not the parties were in a de facto relationship. 

Applicable law:

Family Law Act 1975 (Cth), ss. 4AA (1) - provides that a person is in a de facto relationship with another person if the persons are not legally married to each other, the persons are not related by family, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Family Law Act 1975 (Cth), s 90RD - provides for the requisites before a declaration can be made about the existence of de facto relationships. 

Analysis:

In giving her evidence, the Wife’s very strong position and palpable frustration and insult arising from (on her case), the Husband now maintaining that that the relationship they were in never changed back to that of a couple in a genuine domestic relationship at any time over the 14 years that they lived together, was obvious.  It is undisputed that the parties have been raising their children, sharing expenses in an agreed fashion to ensure that all of their mortgage obligations are paid, their health insurance for the family is paid, and the children’s schooling is paid for and completed. 

While the Husband denies the de facto relationship, he says that if it looked like they were in a de facto relationship to the children it was because he wanted to save the children from the distress of finding out that their parents were divorced.  However, there is no evidence of any conversation or agreement taking place between the Husband and Wife agreeing to live “as mum and dad”. 

Conclusion:

The Court declared that pursuant to section 90RD of the Family Law Act 1975 (Cth), the parties were in a de facto relationship from 2006 until 3 May 2018.  The Application by the Respondent for a declaration that the parties did not live in a de facto relationship following separation in 2003 is dismissed.  The Application by the Respondent for a declaration that the parties concluded their relationship at the date of separation on 31 July 2003 is dismissed.