Federal Circuit Court of Australia Orders: De Facto Husband to Receive No Adjustment

In the recent case of Newland & Rankin [2017] FCCA 210 (9 February 2017) the applicant alleged that he was in a de facto relationship with the respondent for over 8 years, while the respondent said that their relationship was barely 2 years. The parties commenced a sexual relationship in April 2003, one month after meeting. The applicant argues that the de facto relationship commenced at that time.  The respondent argued, however, that they were friends who enjoyed a casual sexual relationship until the middle of 2008 when their de facto relationship commenced.

The Court considered the evidence of any relationship and noted that the respondent was living with her former husband and children of that relationship until early 2005.  The Court challenged the applicant’s evidence that he moved into the respondent’s home in September 2003. During the cross-examination, the applicant agreed that in September 2003 he was dating a woman named Ms G but it was not serious.

The Court heard that the Family Law Act does permit that a person can be in several de facto relationships at once. The applicant regarded his relationship with the respondent as his ‘primary relationship’.

The applicant’s affidavit provided evidence to prove that he moved in the respondent’s address from September 2003. However, the earliest documentation indicates that he moved in May 2004, which is consistent with the respondent’s evidence about when he moved in.  The Court accepted that the respondent’s evidence of the applicant moving in as of May 2014.

The parties resumed their sexual relationship when the applicant stayed with the respondent in September 2007. The respondent became pregnant and was hoping that this would be a start of a more serious relationship between the parties. The applicant, however, told her that he was not ready for commitment. Additionally, the applicant told her that he had met another woman. The respondent felt heart broken and terminated the pregnancy.

During the cross-examination the applicant agreed that he was in a sexual relationship with another woman and that he was quiet open about it to the respondent. The applicant asserted that this did not mean that he was not in a de facto relationship with the respondent.

In March 2008, the respondent had a surgery to remove an ovarian cyst. The respondent became very unwell after the surgery. The applicant said that the illness of the respondent made  him to realise how important she was to him and that he wanted to commit to the relationship. In March 2008, the parties went on a holiday together and after the holiday the applicant asked if he could move back into her home. The respondent agreed and they started living together. The only independent evidence which supports that there was a de facto relationship between the parties before 2008 was the applicant’s nomination of the respondent as the sole beneficiary of his interest in early 2006.

The Court accepted that the de facto relationship of the parties began in May 2008 and ended in April 2010. From March 2003 to the beginning of their de facto relationship in 2008 they enjoyed an intermittent casual sexual relationship and lived together in the respondent’s house for about two months in early 2003. This did not amount to a de facto relationship pursuant to s 4AA of the Family Law Act 1975 as until mid-2008. The Court was satisfied that the parties separated in April 2010.

The Court found there to be a net pool of $2, 789, 338. From this pool there were joint assets of only $9,487 (net – being sale proceeds of $203, 000 and a bank loan of $193, 514).

The de facto relationship was of very short duration, being barely two years. The parties had no shared finances, acquired no property together and there was no mutual commitment to a shared life. During the relationship the parties inter-mingled their financial affairs only to the extent that they entered into a joint loan. Otherwise they kept their finances separate.

The Court declined to make any adjustments to each party’s property under the Family Law Act. The Court ordered that each party retain the property in their respective names and  declared that the joint sale proceeds belonged to the respondent.

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