· 2021-12-02T15:59:12+0000 · 750 posts

Respondent Opposes Sought Orders by Applicant Adjusting Property Interests

Bahan & Pinder [2021] FedCFamC2F 347 (11 November 2021)

The applicant seeks orders adjusting property interests. On the other hand, the respondent seeks dismissal of application and declaration that parties are never in a de facto relationship. The Court, in determining whether a de facto relationship was established, relied upon relevant jurisprudence and each of the parties' evidence.

Facts:

On 1 July 2020, Ms Bahan (“the Applicant”) filed an Initiating Application seeking final orders for adjustment of property interests with Mr Pinder (“the Respondent”). The application sought to invoke the Court’s jurisdiction pursuant to Part VIIIAB of the Family Law Act 1975 (“the Act”), which concerns financial matters relating to de facto relationships.

On 10 August 2020, the Respondent filed a Response to Initiating Application seeking a declaration that the Applicant and Respondent were never in a de facto relationship and consequently, a dismissal of the Initiating Application. The Applicant’s case is that she and the Respondent were in a de facto relationship within the meaning of section 4AA of the Act, and so the Court has jurisdiction to make orders for adjustment of property interests as sought by her.

The Applicant submitted that they continually co-habited at various residences for over 6 years; maintained a sexual relationship; that the Respondent financially supported the Applicant; and that they presented publicly as a couple. It is the Respondent’s case that he and the Applicant were in a “casual, boyfriend/girlfriend relationship” apart from a period from August 2016 to October 2016, during which they lived together on a genuine domestic basis.

The Respondent seeks a declaration that no de facto relationship existed because the parties retained their own residences; had a “sporadic”, non-exclusive sexual relationship, and each were in relationships with other people; were financially independent; had no commitment to a shared life; and the relationship, as presented to and perceived by other people, “never carried with it public aspects and reputations” of a relationship capable of meeting the level required pursuant to section 4AA of the Act.

Issue:

Whether or not a declaration that the parties were in a de facto relationship between 2014 and 2019 and for a period of at least 4 years and 6 months should be made.

Applicable law:

Evidence Act 1995 (Cth), s 140 - provides that the onus of establishing the fact that parties were in a de facto relationship will be on the party asserting that fact on the balance of probabilities.

Family Law Act 1975 Part VIIIAB - relied upon by the Applicant in seeking to invoke the Court’s jurisdiction as it concerns financial matters relating to de facto relationships.

Family Law Act 1975 s 4AA - provides that person is in a de facto relationship with another person if:

(a) the persons are not legally married to each other; and

(b) the persons are not related by family (see subsection (6)); and

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Baden & Packwood [2021] FedCFamC2F 204 - provides that the fact finding required is somewhat complicated when the parties have different perceptions and their perceptions may be motivated by a desire to achieve particular outcomes.

Crowley & Pappas [2013] FamCA 783 - provides that a de facto relationship does not need to be akin to a marriage although the nature of the association involved in a marriage relationship may be instructive.

Dahl & Hamblin [2011] FamCAFC 202 - relied upon in holding that the two brief separations (during which they remained living at B Street, Town C) do not prevent the conclusion that the parties were in a de facto relationship for the period late 2014 to June 2019.

Jonah & White [2011] FamCA 221 - Murphy J held that the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis”.

Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298 - relied upon by the Counsel for the Respodent in submitting that the Court should draw an adverse inference about the evidence that the Applicant’s brother would have given as to the nature of the relationship between the Applicant and Respondent at various times.

Sinclair & Whitaker [2013] FamCAFC 129; (2013) FLC 93-551 - provides that whether a de facto relationship existed and, if so, when it commenced and ended is a matter for determination on the facts, although the perceptions of the parties may be relevant to the onus of establishing the fact that parties were in a de facto relationship will be on the party asserting that fact on the balance of probabilities.

Analysis:

The Applicant said that in 2014 the Respondent “moved into” her father's property on a permanent basis and did not pay rent or contribute to utilities such as the electricity bill or food. The Applicant’s case is that from at least 2014 when the Respondent moved into B Street, Town C property and until 2016, she and the Respondent lived together on a bona fide domestic basis. The evidence called by the Applicant from her friends is consistent with other evidence before the Court as to how the parties portrayed themselves publicly, including records relating to the wounding proceedings, police prosecution, Magistrates Court restraint order documents and the F Hospital. The Respondent did not call any witnesses to contradict evidence about the public aspect of the parties’ relationship. Instead, he chose to adopt an explanation that “partner” simply meant “girlfriend”.

Although the parties had tumultuous periods involving infidelity and short separations, they persisted together as a couple and cohabited on a bona fide domestic basis at the B Street, Town C property. This persistence in the face of infidelities that each felt and expressed, demonstrated a mutual commitment to a shared life.

Conclusion:

Although it was put to the Applicant that she wished to have a mutual shared life, but the Respondent did not, the manner in which both parties conducted themselves conveyed that even in the face of infidelity and absence due to the Respondent working on a FIFO basis, both parties maintained their commitment to their relationship as a couple residing in a home together on a bone fide domestic basis until the Respondent told the Applicant to leave the B Street, Town C property in 2019. The Court ordered that there be a declaration that the parties were in a de facto relationship between 2014 and 2019 and for a period of at least 4 years and 6 months.

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