Benedict and Peake: De facto Couples Different to Married Couples

Thursday 24 April 2014 @ 10.17 a.m. | Legal Research

In a recent Federal Circuit Court Case, Benedict & Peake [2014]FCCA 642 (11 April 2014) his honour Judge Harman, in a matter involving the division of the property of an alleged de facto relationship, has found that even where a couple have had a child, have lived together for 13 years, they may still have significant social, financial and emotional “differences” to married couples such as would prevent the relationship being defined as a "de facto" relationship for the purposes of the Family Law Act 1975 (Cth) (the FLA) section 4AA (definition) and section 90RD.

Background

The proceedings were commenced under Part VIIIAB of the FLA which deals with superannuation interests and requires the precondition to the exercise of discretion under Part VIIIAB to be established, namely, the determination of jurisdiction, or in other words, a declaration as to the existence of a de facto relationship under section 90RD (which defines the child of a de facto relationship). Such a declaration (whether by consent or by determination made by the Court) is required to establish the courts jurisdiction in the matter.

The jurisdiction created by Part VIIIAB of the FLA came into being on and from 1 March 2009 (by way of amendments in the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth)). A finding as to the existence of a de facto relationship at or following that date was essential to establishing the court's jurisdiction.

The proceedings were commenced by Ms Benedict (the Applicant) who alleged the existence of a relationship sufficient to found jurisdiction, asserting that a relationship occurred and should be found to exist between herself and Mr Peake (the Respondent). The Applicant claimed the relationship commenced in 1992 and concluded 18 February 2010.

The Respondent, opposed the granting of relief and sought in the alternative that, pursuant to section 90RD of the FLA ". . .  a declaration be made that a de facto relationship has never existed between the parties; or in the alternative, pursuant to section 90RD a declaration be made that the de facto relationship between the parties ceased in 2006".

In her evidence the Applicant told the court that she and the Respondent had been sharing a bed and were in "a marriage-like relationship", even though she had been claiming Centrelink benefits and filing her tax returns as a single parent. In response the Respondent, said they’d never been in a de facto relationship and simply lived together with their daughter for convenience, in separate bedrooms.

The Result

Judge Harman concluded that pursuant to section 90RD the parties were not in a de facto relationship within the meaning of section 4AA of the FLA, at or at any date subsequent to 1 March 2009, and that the Court did not have jurisdiction to entertain any application under Part VIIIAB of the FLA.

In reaching his decision, Judge Harman took into account that the respondent mostly “attended to his own needs” which included:

“. . . attending to his washing at laundromats or at other premises, making his own meals (or more often than not taking meals outside of the home or buying takeaway) and by and large living and maintaining his own life and lifestyle, . . . ”

Further, Judge Harmam said the Applicant and the Respondent had not maintained a relationship that was able to be described “in normative terms” as "marriage like", commenting also that:

“Indeed, a de facto relationship may be described as ‘marriage like’ but it is not a marriage and has significant differences socially, financially and emotionally, . . .”

Judge Harman accepted the Respondent’s evidence that he and the Applicant had not held themselves out to others as being a couple and that their sexual relationship was “brief, sporadic and far from reflective of mutual commitment”.

His honour considered that, factors such as:

  • the couple kept different hours,
  • the couple were largely financially independent, even though the respondent had taken care of the mortgage,
  • the Applicant paid some of the bills, helped to maintain and improve the home and had cared for their daughter,
  • the couple had also been involved in a business together and took overseas trips with their daughter,

were not sufficient factors to establish a de facto relationship.

Comment

In its report on the case the Australian quotes Forte Family Lawyer's partner Jacky Campbell:

“The Family Law Act has been changing over many years to give de facto couples the same rights and responsibilities with respect to parenting and financial matters as married couples, . . . Judge Harman seems to be saying that de facto relationships are different. I don’t know what these differences are. His comments appear to be contrary to the law and the general views of society.”

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