De Facto relationship matters can often become contentious when one party suggests that the relationship was not that of a de facto relationship.
Why is this important? Because if you were not married, or in a de facto relationship with the other party, you don’t have an entitlement to make an application seeking property alteration orders.
When a client comes in, from their perspective their relationship was committed, they shared a life together, and in their mind “of course we were in a de facto relationship”.
But the legal definition of a de facto relationship is not met by the simple act of living together. Living together all of the time is not a requirement of a de facto relationship, nor is living together on its own, sufficient to meet the definition of being in a de facto relationship. Rather, the Court looks at all circumstances of the relationship holistically to determine whether a particular relationship involves a couple living together on a genuine domestic basis. The length of the relationship must also be for a period of at least two (2) years, unless certain exceptions apply. Only if the relationship meets that criteria, will the court make a declaration that the parties were in a de facto relationship for a specific period.
There is an exception to the two-year rule where the couple have a child together or where one party has made a substantial contribution to the other person’s property such that failure to make an order would cause a serious injustice to the first party.
For more information on the elements the court considers when determining whether you are in a de facto relationship, read our article on “Am I in a De Facto Relationship?”
Case Study: Chin & Bao
The case of Chin & Bao reminds us of the important principle that trial judges decide the facts, not the parties. Appeals are filed, and they are won and lost based on errors of law. An appeal can’t be run on the basis of an error relating to a fact finding, unless there was a legal error in evaluating the evidence (e.g. refusing to admit it), or failing to properly evaluate the evidence.
The facts of this case were that there was a relationship but it was disputed whether it was a de facto relationship.
According to the appellant, the parties were in a de facto relationship from December 2013 to February 2017. According to the respondent, the parties were never in a de facto relationship, but were engaged in a personal relationship from October 2013 to mid-2014 and thereafter were friends and business partners until their friendship ended in February 2017.
The parties owned one property jointly. The agreed facts were that the property was purchased for the primary purpose of a failed joint venture, but where one party was left with the financial obligation of the property when the other party did not live up to the bargain.
At the trial, the Judge held that given the primary purpose of purchase of the property was a joint venture, it was not a circumstance tending to show a commitment to a shared life or any other circumstance leading to identification of the relationship as a de facto relationship.
The original trial judge made very firm findings that there was no de facto relationship, stating “I am not satisfied that the parties at any time shared a common residence….or a sexual relationship beyond mid 2014….there was no financial dependence or interdependence between the parties or any arrangements between them for financial support of one by the other.”
The Trial judge held that the evidence did not demonstrate that either party had a such a degree of commitment to a shared life or was there sufficient evidence of the parties having a reputation amongst family or friends that they were a couple living together on a genuine domestic basis.
The Trial Judge and Appeal Judge made clear in this case that messages of endearment on social media and passive joint ownership of real estate that they did not live in, joint holidays, and operating a business together were not accepted as sufficient evidence in this case, of a de facto relationship. What is clear from reading the judgment is that evidence of messages of endearment on social media and passive joint ownership of real estate (that they did not live in), joint holidays, attending an IVF clinic together and receiving treatment, including transfer of an embryo which did not result in a pregnancy, recording in that documentation that the parties were in a de facto relationship, and operating a business together, were not accepted either at first instance or on appeal as sufficient evidence of a de facto relationship.
What is most interesting in this case to the writer is that the IVF treatment was not considered pertinent evidence in this case, that the parties had a degree of mutual commitment to a shared life, at least in 2014. The context of this finding was based on the appellant lying in documentation to the IVF clinic, including about the length of time they had been trying to fall pregnant
The appeal was dismissed and costs ordered against the appellant, in the amount of $27,996.
Case Study: Piovene & Muhlfeld
The case of Piovene & Muhlfeld is another case where the parties lived in two different worlds.
Ultimately, the Appeal Court agreed with the Trial Judge that the parties were in a business relationship, not a de facto relationship.
The facts of this case were that there was a relationship between 1998 and 2000, and then the parties resumed contact in 2010. It was disputed whether it was a de facto relationship.
According to the appellant, the parties were in a de facto relationship from 2010 until 26 October 2022. According to the respondent, the parties were never in a de facto relationship. She argued that the appellant was her best friend.
According to the appellant, they shared residences, weekly sexual intercourse, attended social functions together which he claimed the parties hosted together as a couple, travelled extensively together and shared frequent flyer points. The appellant asserted the relationship ended in 2022 when he had an affair.
According to the Respondent, the parties were in a business relationship and friendship in 2010, while she was in a de facto relationship with Mr N which ended in 2014, they started a casual sexual relationship in 2015 until 2019, with intercourse between 5 and 10 times during that period. The Respondent’s evidence of BFA’s with Mr N evidencing their relationship, was accepted by the Court.
The Appellant’s assertion of a shared residence was by virtue of the fact that the appellant moved into an apartment owned by the Respondent in 2013 where the parties lived together for 2 – 3 days each week and where the respondent stored clothes and personal items.
The Respondent denied this, stating she did not stay at the apartment until 2014, after she ended her relationship with Mr N and only on 5 – 10 occasions thereafter.
The Appellant asserted that their relationship ended abruptly after he had an affair, and the Respondent’s furious reaction demonstrated the strength of their romantic attachment to that point. The Respondent gave a more staggered disintegration of the relationship having regard to problems at the appellant’s work and a warning by her children to her that the appellant was greedy.
The Respondent also said at trial that the appellant had intended to marry Ms NN and this evidence was accepted by the Court.
What is interesting for legal practitioners is that this case is not a discretionary judgement but an evaluative factual determination. In other words, there are only two possible answers the Court can give – Yes there was a de facto relationship (and for what period), or No, there was no a de facto relationship.
On appeal therefore, the Court was simply required to determine the correctness of the decision and for the appellant to succeed he must demonstrate a legal or factual error (not discretionary error) which is material to the outcome.
This means that just because a different judge may have come to a different conclusion on the basis of the evidence, this is insufficient to warrant a successful appeal, unless the finding in relation to that evidence, which was an error, was material to the outcome.
The Appellant was represented at Trial but self represented on appeal.
One of the grounds of appeal related to the incompetence of his counsel at trial, arising from an asserted failure to tender telecommunication records to prove the text messages the subject of his application in an appeal were not authentic. Importantly, the test for incompetence of counsel is not that decisions of counsel were wrong or incompetent but they would have brought a different result to the likely result if they had not been made. It is a different standard to criminal trials. Ultimately, the court refused to grant his application in an appeal where he sought to tender fresh evidence of the text messages on the basis that tendering that document would not have shown the text messages were inauthentic or could have led to any different result.
Otherwise, the appeal grounds predominantly related to the appellant’s argument about the weight the primary judge gave to parts of the appellant’s evidence, and his argument was that the court should have given his evidence greater weight.
The Appeal court, comprising of three Appellate Judges, concluded:
“appellate challenges to the weight a judge at first instance attaches to various pieces of evidence are difficult to sustain.. As pointed out earlier, the appellant must persuade this Court that the primary Judge’s conclusions were glaringly improbable, contrary to compelling inferences, or demonstrably wrong int eh face of incontrovertible facts or uncontested testimony. Arguing greater weight could or should have been attached to specific pieces of evidence will not achieve this.”
The Appeal was dismissed with costs of $35,000.
Lessons when running a case seeking a declaration of a de facto relationship
- All the circumstances of the relationship as a whole must be considered by the Court when making a finding about the existence or otherwise of a de facto relationship;
- Some factors which on their own may seem to point to the existence of a de facto relationship, e.g. sharing a common residence at times, owning real estate together, attending holidays together, running a business together or participating in IVF treatment, may not be sufficient for the court to determine a de facto relationship existed, when considering the full context and circumstances of the relationship between the parties;
- Evidence is important in de facto relationship cases rather than running a case solely on the credibility of witnesses. Have as much evidence as possible. For example, where was the person’s mail delivered, what did they declare on their tax return? What did they report to centrelink, what did they put in their will? What did they put in emails and cards to family and friends? Did they update their electoral enrolment address? What address was on their driver’s licence? What did they declare to third party entities (e.g. the IVF clinic or a government agency).
Contact us
Are you unsure whether your relationship qualifies as a de facto relationship? Contact us to book a reduced rate consultation with one of our experienced family law practitioners and we will provide you with advice about your individual circumstances, a list of options, the pros and cons of each option, and a strategic plan to assist you in achieving your desired outcome.
