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Property – de facto relationship – trial judge applies wrong test

family law casenotes

In Denys & Kellett [2022] FedCFamC1A 223 (23 December 2022), the Full Court (Austin, Rees & Kari JJ) allowed an appeal from a decision of Judge Harland where the applicant sought the declaration of a de facto relationship.

The respondent argued that while the parties had lived together for five years, the applicant was a “renter” and they were “friends with benefits” ([9]).

The applicant said the parties were in a de facto relationship for seven and a half years, more than five of which they lived together ([8]).

At first instance, the court concluded the applicant had not established a de facto relationship.

On appeal, the Full Court said (from [28]):

“ … [T]he primary judge found that while satisfied the parties lived together for five years, there was a ‘lack of evidence of there being a mutual degree of commitment to a shared life’.

[29] … [T]he test to which the … judge should have had regard, was that prescribed by s4AA(1)(c) [of the Family Law Act 1975 (Cth)] … whether in having regard to all the circumstances of the relationship, the parties were ‘living together on a genuine domestic basis’, of which the mutual degree of commitment to a shared life was but one of the … considerations (s4AA(2)(f)).

[30] While … the … judge addressed the … factors set out in s4AA(2), … [her] focus on only two of those factors … appears to elevate the ‘mutual degree of commitment to a shared life’ to the status of being determinative of the seminal question.

[31] The authorities … make it clear that no single factor prescribed by s4AA(2) is necessarily determinative. (…)

[33] … The solitary finding about the absence of a mutual degree of commitment to a share [sic] life is not only difficult to fathom in the face of the other findings, but also seems to have been used to outflank the other findings made …

[34] … [T]he … judge applied the wrong test in determining whether a de facto relationship existed between the parties. (…)”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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