The Gloss of Presenting as a Couple: what is a de facto relationship?

The recent decision of Crick & Bennett [2018] FamCAFC 68 concerned an appeal against the finding of the primary judge and included a discussion on the parties “presenting as a couple”.

The primary judge dealt with the issue of whether and for what period a de facto relationship existed between Ms Bennett and Mr Crick.

Ms Bennett contended that the de facto relationship commenced in mid-2001 when Mr Crick moved into her property and continued until 9 June 2014 when he left that property.

Mr Crick contended that the parties were in a de facto relationship from 2002 until February 2004. He accepted that he continued to reside in the property until 9 June 2014 but noted that the parties lived separately and apart under one roof during that time.

Was there a de facto relationship? If so, did the de facto relationship end in February 2004 or on 9 June 2014?

A person is considered to be in a de facto relationship with another person if “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis” pursuant to section 4AA(1) of the Family Law Act 1975 (Cth). Those circumstances may include:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children; or
  • the reputation and public aspects of the relationship.

The primary judge found that a de facto relationship existed between Mr Crick and Ms Bennett from late 2001 until 9 June 2014.

The primary judge found that the parties frequently “presented as a couple”. The evidence was that:

  • The parties started to sleep in separate bedrooms in February 2004. A sexual relationship existed until then (according to Mr Crick) or 2005 (according to Ms Bennett).
  • Mr Crick provided financial support after February 2004. He transferred $300 per week into Ms Bennett’s bank account. Mr Crick described this as board whereas Ms Bennett described this as a contribution towards living expenses.
  • The parties did not acquire any joint property, acquired no joint liabilities and had no joint bank accounts. They each retained their respective property and were responsible for the outgoings in relation to it.
  • The parties demonstrated a degree of mutual commitment to a shared life. The parties continued to provide mutual support for each other with Ms Bennett undertaking the majority of domestic tasks and Mr Crick providing financial support. Their relationship continued in that manner until Mr Crick left the home in June 2014.
  • The parties had a child born in late 2003.
  • The parties attended many social and family events and school functions with the child. These events included family Christmases and birthdays, which were celebrated at the home of the parties as well as the homes of other relatives.

Mr Crick appealed. He sought to argue, among other things, that the finding that the parties “presented as a couple” introduced an impermissible gloss to the terms of section 4AA of the Family Law Act 1975 (Cth). He submitted that the notion of a “couple” itself is not a relevant consideration for the purposes of section 4AA(2) of the Family Law Act 1975 (Cth).

The Court found that that it not entirely correct. “The ultimate task of the Court is to determine whether the parties had ‘a relationship as a couple living together on a genuine domestic basis’. The concept of a couple is thus part of the test. How that test is met is determined by the considerations required by section 4AA(2). None of those directly refers to ‘couple’. It is here that care needs to be taken not to add a gloss to the words of the section.”

The Court noted that “shorn of the gloss of ‘presenting as a couple” the primary judge found significant evidence of the public aspects of the relationship and supported a finding that there was a de facto relationship. The expression “presented as a couple” was intended to refer to the conduct to which the evidence referred.

If you would like to know about separation and de facto couples, click here.

This article was written by Emario Welgampola & Brooke Nickerson.

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