Parties in Dispute Over Declaration of De Facto Relationship

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

The applicant seeks orders adjusting property interests.  The respondent seeks dismissal of application and declaration that parties were never in a de facto relationship.  The Court, in resolving this dispute, assessed how the parties in a relationship as a couple were living together on a genuine domestic basis. 

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 contends that she is a defacto-wife as the parties continually co-habited at various residences for over 6 years; maintained a sexual relationship; were in paid employment, the Respondent earned more and financially supported the Applicant; “there was a degree of financial interdependence” in that they shared expenses such as groceries, the electricity bill and expenses relating to their animals; that they were committed to a shared life together; presented publically as a couple and would socialise together, including with each other’s families and friends.  

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.  He contends that the parties retained their own residences, save for the period August 2016 to October 2016; the parties had a “sporadic”, non-exclusive sexual relationship, and each were in relationships with other people; the parties were financially independent, earning their own income and paying their own expenses; there was no mutual commitment to a shared life, either expressed or demonstrated; 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 the parties were in a de facto relationship.

Applicable law:

 Analysis:

The substance of the Applicant's evidence was that she commenced her relationship with the Respondent in 2012 and they began cohabiting as a couple in April 2013.  She said they lived sometimes at her family home, being the B Street, Town C property, and at other times at the Respondent’s parents’ home in Suburb E.  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 gave evidence that the Respondent commenced fly in fly out (“FIFO”) work in Queensland in about 2014.  The Applicant agreed that the parties always had separate bank accounts, but maintained that they shared day-to-day expenses. 

The Respondent paid for some of the Applicant’s personal expenses when she was not able to afford these and the Applicant lived at the B Street, Town C property making very modest contribution to the outgoings related to the property right up until 2019.  There was evidence of payments to and from the parties’ bank accounts and this appears to have continued after the time that the Respondent alleges that the parties separated.  The Applicant was very open and unreserved in answering questions put to her, conceding matters even where they were contrary to her case.  For example, the evidence she gave about her attitude to how the Respondent had the come to own the B Street, Town C property.

By contrast, the Respondent was at times quite hesitant in answering questions and his answers under cross-examination were guarded and appeared somewhat rehearsed.   The most obvious example was, when questioned by the Court as to the apparent continuity of the features common to a de facto relationship after the period of time at which the Respondent asserted there was separation in 2016, the Respondent was unable to answer for a very lengthy period of time. 

Conclusion:

The Court ordered 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 pursuant to section 90RD(2).