Lee & Hutton

The Family Court of Australia considered an application by Ms. Lee against Mr. Hutton concerning declarations about their de facto relationship. The applicant sought declarations regarding the duration of the relationship, the existence of a child of the relationship, and whether she had made substantial contributions, all of which were relevant to establishing the court's jurisdiction to make property adjustment orders under the *Family Law Act 1975* (Cth). It was conceded by the parties that a de facto relationship had existed between them.

The court was required to determine whether the de facto relationship met the jurisdictional thresholds set out in section 90SB of the *Family Law Act 1975*. Specifically, the court had to ascertain if the relationship lasted for at least two years, if there was a child of the relationship, or if the applicant had made substantial contributions to the welfare of the family and that a failure to make an order would result in serious injustice. The applicant also sought a declaration that the parties were ordinarily resident in New South Wales for more than a third of the relationship's duration.

The court found that the de facto relationship lasted for a period just short of two years, thus not satisfying the first gateway. Regarding the existence of a child, the court held that neither a foetal demise nor a termination of pregnancy constituted a "child" as defined by section 90SB(b) of the Act, and that the gateway requires a child to be living at the date the order is made. However, the court determined that the applicant's contributions to the welfare of the family, particularly in her attempts to have a child with the respondent, were substantial. Consequently, the court found that a failure to make an order would result in serious injustice to the applicant, thereby satisfying the third jurisdictional gateway.

The court made declarations that a de facto relationship existed between the parties from 8 February 2009 to 24 January 2011, and that the applicant had made substantial contributions of a kind referred to in section 90SM(4)(c) of the Act. A declaration was also made that a failure to make an order under section 90SM would result in serious injustice to the applicant, and that each party was ordinarily resident in New South Wales during the de facto relationship. The application for declarations was otherwise dismissed, and the matter was listed for further court events.