PIKE & HOWLETT - [2010] FMCAfam 802

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PIKE & HOWLETT

[2010] FMCAfam 802

FAMILY LAW – Declaration of de facto relationship – what constitutes a de facto relationship.

Family Law Act 1975 (Cth), ss.4AA, 39B, 60EA, 90RD & 90SM

Roy & Sturgeon (1986) 11 FLR
Moby & Schulter (2009) FamCA 1285

Applicant:

MR PIKE

Respondent:

MS HOWLETT

File Number:

DNC 251 of 2009

Judgment of:

Turner FM

Hearing dates:

8 & 9 July 2010

Date of Last Submission:

9 July 2010

Delivered at:

Darwin

Delivered on:

9 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Peters

Solicitors for the Applicant:

Maleys Barristers & Solicitors

Counsel for the Respondent:

Ms Holtham

Solicitors for the Respondent:

Holtham & Associates

ORDERS

It is declared pursuant to section 90RD Family Law Act 1975 that for the purposes of an order under section 90SM Family Law Act 1975, that the applicant and respondent were in a de facto relationship which commenced at the end of 2002 and ended in March 2009.
That the costs of the respondent for these proceedings be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Pike & Howlett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DARWIN

DNC 251 of 2009

MR PIKE

Applicant

And

MS HOWLETT

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I have before me today for determination an oral application that has been made on behalf of the applicant, Mr Pike, for the Court to make a declaration pursuant to s.90RD Family Law Act1975, as to the existence of a de facto relationship between Mr Pike and Ms Howlett. It is an unusual case in that I am not required to determine the date of separation, which the parties agree is March 2009, but the date of the commencement of the relationship.
The applicant in this matter, for the purposes of this oral application, Mr Pike maintains that the relationship commenced some time in 2007, when Ms Howlett’s mother and father were invited to move into the property. Ms Howlett, however, states that the relationship commenced in March 2002, which was the date of commencement of cohabitation. The reason the declaration is required is for the purposes of property proceedings, which are before the Court, pursuant to s.90SM.
I will turn briefly to the law. The jurisdiction of the Federal Magistrates Court to hear and determine issues regarding de facto partners is conferred by s.39B of the Family Law Act1975. What is a de facto partner is defined in s.60EA, which reads:
“For the purposes of the subdivision, a person is a de facto of another person if the person is in a de facto relationship with the other person. What constitutes a de facto relationship is set out extensively in section 4AA of the Family Law Act 1975. The power to make a declaration as to the existence of a de facto relationship and when it existed is contained in section 90RD”.
The first thing I am going to do is refer to the witnesses. I found all the witnesses to be credible in their evidence, although I felt at times that Mr Pike was selective in his recollection of some events when he answered “I don’t know” to several questions. But having said that, though, I have taken into account everything that the witnesses have said, together with the affidavits that had been provided. Much of the argument yesterday and today has centred on the date of cohabitation, whether the relationship was one of convenience, or whether it was only a sexually based relationship, that there had been no intermingling of financial arrangements, and a lot was made as to terminology as to whether the parties referred to themselves as boyfriend/girlfriend or partners.
Whilst all of these are factors that may be taken into account, the true meaning of a de facto relationship is that as set out in s.4AA(1)(c) which reads:
“The meaning of a de facto relationship, having regard to all the circumstances of their relationship, they have a relationship as a couple, living together on a genuine domestic basis”.
There is no set formula as to what constitutes a genuine domestic basis, and the danger in trying to have a set of rules to follow is addressed by Powell J in leading authority of Roy & Sturgeon (1986) 11 FLR, whereas at page 274 he states:
“With respect, it seems to me, to attempt to dissect the phrase “living together as a husband and wife on a bona fide basis domestic basis” into discrete elements, and then to test the facts of a particular case by reference to a set of a priori rules in order to establish whether a particular element is or is not present, is to ignore the fact that just as human personalities and needs vary remarkably, so too were the various aspects of their relationship, which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis, which will vary from case to case.”
Powell J further states on page 275:
“The application of the basis definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relationships differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a legal significance.”
Mr Peters, in his submission, was quick to point out that it is at the discretion of the Court in making this determination, and I am required to do so on the balance of probabilities.
It is an onerous task, as it is a wide discretion, and this was not lost on Cronin J in the matter that I spoke to you about yesterday of Moby & Schulter (2009) FamCA 1285, where Cronin J states:
“A finding as to the relationship is at least open on the untested evidence, because both parties have acknowledged they have some sort of relationship, bearing in mind that section 4AA gives the court a very wide discretion to define what a relationship really means.”
Cronin J further then goes onto say that when referring to the definition that:
“It is very vague.”
I have taken into account all the evidence that has been before me today and yesterday.
I do find that the de facto relationship did not commence at the date of cohabitation in March 2002. I am satisfied, however, that by the end of 2002 the parties had a level of interdependence which had taken their relationship to a level of being more than just a girlfriend/boyfriend relationship, but to a genuine domestic basis.
By this time the parties had met their respective families, were sharing each other’s company, involved in each other’s day to day life.
On that basis, the declaration that I am going to make for the purposes of today is that pursuant to s.90RD, the Family Law Act1975 it is declared that for the purposes of an order under s.90SM, that the applicant and respondent were in a de facto relationship which commenced at the end of 2002 and ended in March 2009.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Turner FM

Associate:

Date: 30 July 2010