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Another ‘were they in a de facto relationship?’

Last time I looked at the case of Caughy & Peckham – where the Court had to determine whether there was a de facto relationship and therefore an entitlement to a property division. I am back with another case where the Court is again tasked with that consideration.

In the case of Berrell & Tily (No 3) [2023] the Applicant alleged that the parties were in a de facto relationship whereas the Respondent argued that they were never in a de facto relationship but instead had a commercial relationship only.

The matter came to the Court by way of an accrued jurisdiction referral; the Respondent had proceedings in the Supreme Court alleging a breakdown of a commercial relationship between the parties.

Justice Christie referred straight to Section 4AA(1) of the Family Law Act 1975 and set out the test:

  • The persons are not legally married to each other; and
  • The persons are not related by family; and
  • Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Her Honour then set out the factors that the Court may take into account under section 4AA(2) of the Act; but cited Nord v Van [2018] and stated “it is important therefore to approach the existence of a de facto relationship with an appreciation of the entirety of the facts and circumstances relevant to the relationship”.

Justice Christie canvassed the inconsistent evidence provided by the Applicant in relation to where and for how long the parties had lived together. Her Honour relied on examples such as:

  • The Respondent’s then girlfriend gave credible evidence that whilst the Applicant visited the home she lived in with the Respondent the Applicant did not live there;
  • The evidence of the Landlord of that property (a friend of the Respondent) was that he attended the property from time to time (occasionally without notice) and did not see the Applicant living there;
  • There were bank account statements showing that the Applicant was staying in a motel at the time he claimed to later be living with the Respondent in a home owned by the Respondent’s sister;
  • When the parties travelled to another country they stayed in a twin room “more indicative of the arrangements as between best friends than an arrangement made between two men in a sexual relationship”; and
  • There was email correspondence between the parties referencing the Applicant staying in a motel when visiting the other country that the Respondent lived in for a period of time.

Her Honour concluded that the parties did not share a common residence.

The Applicant claimed that the parties had a sexual relationship; the Respondent said that they did not.

Her Honour found the evidence of the Applicant to be inconsistent and lacking; but relying on contemporaneous email correspondence between the parties found “it is inherently unbelievable that, if they were having a sexual relationship with one another, their communications would be so overtly and consistently dealing with each man’s heterosexual relationship or encounter with unrelated female third party”.

Justice Christie then looked at the degree of financial dependence or interdependence.

The Applicant alleged that he was named as a beneficiary in the Respondent’s Will; however this was not the case. The Applicant claimed that the Respondent paid rent for a property that they allegedly shared but as the Court had found that they did not share that property such alleged rent was not financial support. The Applicant claimed that the Respondent provided him with gifts but the Court found that the gifts (dinners, a necklace, scuba lessons) were in the nature of gifts from a generous friend. The Applicant alleged that the Respondent granted him Power of Attorney but the purported document was an authority on business letter head relating to shared business expenses – and the Court found this related to their business relationship not any personal relationship. The Applicant claimed that the Respondent paid his expenses; but the Court found that the Applicant utilised business monies to pay for some expenses (and could not always point to the Respondent’s awareness of this) and again concluded that this was reflective of their business relationship.

The Court then looked at whether there was a mutual commitment to a shared life. Her Honour concluded that the uncontested facts about the parties’ relationships with third parties was such that the Applicant’s claim of any mutual commitment to a shared life could not be reconciled.

Finally Justice Christie looked at the public aspect of the alleged relationship.

The Applicant’s case was that the relationship was kept secret; except perhaps from his parents. However, Her Honour noted that the Applicant was trying to argue that their ‘relationship’ was clandestine but, for example, the Applicant’s children were visitors to the Respondent’s home and the Respondent had mail delivered to the Applicant’s home from time to time; “all of which are easily explicable in a context where the men were close friends and business partners but highly unlikely if they were engaged in a deliberately clandestine de facto relationship.”

Of interest, the Applicant’s mother gave evidence – purportedly in support of the Applicant’s case that the parties were in a de facto relationship. Whilst the Court was not critical of the witness as she had been candid under cross examination that her memory was not great (due in part to her age) – however, Justice Christie found that her evidence was at best likely to have been directly or indirectly arrived at with the benefit of undoubted shared conversations with her son over the period of the dispute.

Her Honour held that the parties were not in a de facto relationship. The matter was referred back to the Supreme Court for lack of accrued jurisdiction in the Family Court.

Liability limited by a scheme approved under Professional Standards Legislation

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