Relationship and date of separation

Wylie & Russo [2015] FCCA 3257 (11 December 2015)

Last Updated: 29 January 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

Legislation:  Family Law Act 1975 , ss.4, 4AA, 75, 79, 90SF & 90SM.

75. The definition of a de facto relationship is found in s.4AA of the Act which sets out a number of factors for the Court to consider when determining if the persons have a relationship as a couple.
76. These include:
    1. the duration of the relationship;
    2. the nature and extent of their common residence;
    100. whether a sexual relationship exists;
    4. the degree of financial dependence or interdependence, and any arrangements for the financial support, between them;
    5. the ownership, use and acquisition of their property;
    6. the degree of mutual commitment to a shared life;
    7. whether the relationship is or was registered under a prescribed law of the State or Territory as a prescribed kind of relationship;
    8. the care and support of children; and
    9. the reputation and public aspects of the relationship.
77. No particular finding in relation to any circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship pursuant to s.4AA(3) of the Act.
78. A Court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case, pursuant to s.4AA(4) of the Act.

84. The argument put forward by counsel for the applicant is that during that time, the parties’ relationship disintegrated to the point where it failed to meet the criteria set out in s.4AA(2) of the Act.
85. It is conceded that there is no evidence as to when the intention was formed by the applicant to sever the relationship. The evidence as to when it was communicated was when the applicant left the home in 2013. At the same time, the actions in departing the property constituted the applicant acting upon that intention.
86. The argument is that it is not whether the parties believed they were in a de facto relationship or not, it is what the law says is the position. I do not accept this submission, which amongst other things does not address the authorities requiring the formation of an intention to separate.
87. This argument can mean that a couple who for reasons of employment for example are living separately and apart, and (as a consequence of their living arrangements) are maintaining separate finances, and who considered themselves to be in a de facto relationship may not be. It ignores amongst other things the degree of mutual commitment to a shared life.
88. In Aitken v Deakin [2010] FMCAfam 35, McGuire FM (as he then was) put it succinctly when he stated:
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    The concept of separation in both a legal and emotional sense is sometimes one difficult to isolate in time and definition. In most cases the point of time is determined by physical separation. There is public recognition and mutual acknowledgement of the separation often emphasised by manifestations of behaviour and statement consistent with the breakdown of the relationship. However, in other factual situations such manifestations are not so obvious. The fact is that the parties in a relationship do not always separate in dramatic and defined circumstances. It can be a gradual process towards physical separation. The law assists in requiring the development by one of the parties of a definitive intention to separate. That intention must be communicated to the other party in terms without ambiguity or conditions attached. There would normally be a requirement for a contemporaneous change in the nature of the relationship such as cessation of sexual relations or public socialising as a couple.^[6]

89. The applicant gave evidence that his visits to Adelaide were infrequent. The respondent denied this and said he returned home on a regular basis (and I note the applicant’s statement in his first affidavit, “as often as I could”). Where the parties differ in respect of their evidence of the period that the applicant was transferred to work away from Adelaide and the frequency of his visits back to South Australia, I accept the evidence of the respondent.
90. The applicant:
    1. Failed to satisfactorily explain the discrepancies between his current evidence and that of his first affidavit filed with this Court;
    2. In the face of continuing use of the (employer omitted) married quarters and subsequent purchase of a house in joint names, failed to show anything to suggest that he considered himself a single man; and
    100. Continued to provide significant financial support for the respondent including payment of the rent for the married quarters and the contributions set out in annexure 7 of his affidavit being subsequent expenditure of significant funds (on his evidence) on the property at Property A and household goods and chattels.
91. I accept the respondent’s evidence that she had planned to live with the applicant in Perth when he was posted there in (omitted) 2000, however her mother had her first heart attack that year and a hip replacement and bowel cancer operation followed. As the sole carer, it became too difficult for the respondent to move to Perth.
92. I also accept the respondent’s evidence that the applicant had six weeks reunion leave each year and four weeks at Christmas which the parties spent together.
93. Furthermore, I accept the submission that the applicant fails to explain why if the relationship was over, the parties purchased a house together at Property A, which he subsequently returned to prior to separating in September 2013 amongst other things.
94. I therefore do not consider the parties relationship to have concluded until the applicant left their home in September 2013.