Does a de facto relationship exist if you live apart?

Jonathan Statham

31 May 2022

Topics

  • Family Law

In Bahan & Pinder [2021] FEdCFamC2F (11 November 2021), Judge Taglieri considered whether a de facto relationship existed despite the parties living apart for extended periods of time and engaging in sexual encounters with other people.

The applicant in this case was an administrative assistant, who lived in Tasmania, and the respondent a fly-in fly-out (FIFO) worker, who worked four weeks on and one week off. They shared an apartment and lived together for around seven years. Each party had a different take on the relationship. He thought it was casual relationship whereas she thought it was a committed relationship.

Her evidence

On 11 November 2021, the Court was asked to determine whether a de facto relationship existed. In summary, the administrative assistant gave evidence about:

  • their shared living arrangements and finances from March 2012 to June 2019.
  • the fact that her father transferred title in their shared residence to the FIFO worker, so that she could benefit from a future government grant to purchase more property
  • the FIFO worker’s reference to her as his ‘partner’ in court documents relating to a criminal matter in which he was charged with assaulting a man that she had an affair with during the relationship. He also described this as ‘cheating’ in texts to her
  • their text messages throughout the relationship, including when he worked interstate, showing intent for a shared life together.

His evidence

In support of his response, the FIFO worker gave evidence about:

  • having separate finances for ‘most things’
  • the fact that she stopped accessing his accounts and credit cards in 2016
  • living apart for extended periods of time due to his work
  • having multiple affairs while working interstate
  • their agreement not to reconcile after 2016 despite continuing to live together in the same residence, sharing a room, and continuing to have a sexual relationship.

Cross-examination

Under cross-examination, it was put to her that she ceased having a shared life with him in 2016 due to his infidelity, extended absences from work, and the decision to separate their finances.

In response, she stated that the relationship continued as they slept in the same bed, had sex, and contributed to shared expenses. She also said that she was unaware of his various affairs with other women at the time.

Under cross-examination, it was put to him that he was committed to a shared life, noting his reference to her as his ‘partner’ in various court documents. He said that his solicitor wrote the affidavit, and that he had instructed his solicitor to refer to the applicant as his ‘girlfriend’ not ‘partner’.

It was also put to him that his commitment to a shared life with the applicant was also evidenced by his text in which he accused her of ‘cheating’ on him. He rejected this statement.

Decision

Judge Taglieri preferred the administrative assistant’s evidence. In reaching this view, he referred to the number of documents before the Court in which the FIFO worker referred to her as his ‘partner’.

His Honour categorised the FIFO worker’s classification of the relationship as ‘girlfriend/boyfriend’ to be a ‘subjective perception’, which held little weight. He felt that the ‘hallmark features’ of a de facto relationship were evident, noting the following:

  • the parties were in a relationship and shared all facets of day-to-day life from 2014 to 2018 despite short periods of separation and reconciliation
  • the parties lived together at their property, which was owned by her father initially and subsequently by him for their joint use as a home
  • while working interstate, he still maintained the residence as their home while she undertook chores and housework for his benefit
  • they had a sexual relationship from 2014 to 2018, although not exclusively at times, as they each had sexual encounters with others
  • he provided financial support to her as she was financially dependent on him
  • they expressed love for each other at various times from 2014 to 2018
  • they referred to each other as partners
  • they socialised as a couple and were regarded as such by her friends, who appeared as witnesses
  • he did not call friends or associates to rebut evidence given by her friends about their status as a couple
  • despite the infidelity and short periods of separation from 2014 to 2018, they persisted as a couple and lived together on a domestic basis
  • their persistence in the face of infidelities demonstrated a mutual commitment to a shared life.

The court, therefore, declared that a relationship existed between 2014 and 2018 for a period of at least four years and six months.

Comment

People often have conflicting interpretations of the status of their relationship when matters become subject to litigation, especially when it plays a part in the assessment of a property settlement.

When in doubt, it is always worth referring to the key considerations of what constitutes a de facto relationship in Section 4AA (2)of the Family Law Act 1975.

How Can We Help?

Should you require legal advice in relation to the status of your relationship, or legal representation in relation to parenting and/or property matters following the breakdown of your de facto relationship, we can assist with guiding the matter to mediation or to Court. Please do not hesitate to contact our family law team at Snedden Hall & Gallop by email or call us on (02) 6285 8000.