On 1 March 2009 an amendment to the Family Law Act 1975 came into force, which gave the Family Court jurisdiction to resolve property disputes of persons in de facto relationships. At the time the amendments came through, many commentators suggested that it was possible that a person could be confronted with two actions in the Family Court at the same time, one from a married spouse and the other from a lover from a “casual fling”.

It was contemplated, by the commentators, that in such cases that a real issue would arise for the court to decide whether a de facto relationship existed within the meaning of the Family Law Act. In a recent decision in the Family Court, a Judge was required to consider this issue.

The facts of the case were as follows:

• The Applicant, Ms T lived in the residence of the Respondent, Ms P for 17 years. Ms P was throughout this time and at the time of the trial married to Mr P. Mr and Mrs P had raised three children who were all adults at the time of the trial;

• During the 17 years, at various times, all of these people lived together under the one roof;

• Ms T alleged that she and Ms P were in a de facto relationship for 17 years;

• Ms P denied a de facto relationship and described her association with Ms T as that of like mother and daughter.

The Family Law Act defines a de facto relationship as follows:

A person is in a de facto relationship with another person if:

(a) The persons are not legally married to each other; and

(b) The persons are not related by family: and

(c) Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Ms T met Ms P in 1993. At the time, Ms T was aged 24 and Ms P was aged 44. Ms T told the court that the two women commenced a sexual relationship in a car and then went to Ms P’s home where Ms T met Mr P for the first time. Ms T said that when they arrived at the home, they were welcomed by Mr P and then went into a bedroom containing a bunk bed on which Ms P’s daughter (then aged 16) slept on the top bunk. Ms T said that she and Ms P slept on the bottom bunk and thereafter, she remained in Ms P’s home.

Ms P’s evidence was that in January 1994, Ms T attended at the home in a distressed state complaining of being kicked out of home. Mr and Mrs P agreed that Ms T could stay temporarily but she ended up staying for the next 17 years.

There was some evidence that Ms T and Ms P slept in the same bed and this was admitted by Ms P. However, while Ms T claimed that she was sleeping with Ms P and having a sexual relationship, Ms P denied there was a sexual relationship and said that her relationship with Ms T was one of a mother and daughter while she remained in a loving and romantic relationship with her husband.

There was also some evidence that Ms T had contributed financially to the relationship. However, the court found that the evidence of Ms T was vague and of a general nature and “did not match with the specific nature of the detailed responses of Ms P and her family.”

In finding that Ms T and Ms P were NOT in a de facto relationship the judge said:

“The secretive nature of the asserted relationship, the various circumstances of the living arrangements which changed from time to time and which are as consistent with a mother and daughter relationship as they are of a sexual relationship, the absence of any significant corroborative material to support the major assertions and the absolute denials of the family and the respondent’s other witness, all lead me to doubt the case of Ms T”.

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