Domestic Violence and De-facto Thresholds

15 NOV 2021

 

Parties who are not married but have lived under the same roof for an uninterrupted period of two years are considered to be in a de-facto relationship. The Family Law Act outlines that to satisfy the threshold of a de-facto relationship, the parties must “have a relationship as a couple living together on a genuine domestic basis”.

But what occurs where the parties have been living together for more than the two year period and one party alleges that a majority of cohabitation was not on a “genuine domestic basis?”.

The recent decision of Mayson & Wellard [2021] FamCAFC 115 discussed an appeal from the de-facto wife as to the length of a de-facto relationship with her former partner.

The de-facto husband commenced proceedings on 8 June 2018, and it was his position that the parties were in a de-facto relationship between mid-2009 until 8 November 2015. The de-facto wife’s position was that, despite living together until 8 November 2015, separation occurred in or around late 2011 or early 2012.

The basis for the de-facto wife’s position was that she had remained living with her partner due to the his historical perpetration of domestic violence. The de-facto wife submitted in her evidence that the de-facto husband would threaten her and request payment from her in order to leave the home.

At first instance, the Court found that the wife did not substantiate her intent to leave the relationship and as such, the de-facto relationship existed up until 8 November 2015. However on appeal, it was noted that:

“The perpetration of family violence is entirely antithetical to the element of mutuality which may generally be accepted as an element, at least to some degree, in a genuine relationship as a couple. It follows that family violence will always be highly relevant as one of the circumstances to be considered in determining whether, on review of all of the circumstances of the relationship, the statutory test is met”

On appeal, the Court referred to the decision in H v P [2011] WASCA 78 which explained that “..a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist”.

The Court interpreted this to mean that the requirement of determining the cessation of a de-facto relationship stems from the same criteria needed to classify that a de-facto relationship existed, which in this matter refers to the need to identify when the parties ceased living together on a “genuine domestic basis”.

The Court subsequently found that the decision reached at first instance was incorrect, and that the de-facto relationship ceased to exist at the time the de-facto wife stated, being late 2011 or early 2012.

The Court noted that there was sufficient evidence before the primary judge to find that “the appellant’s intention to cease the de facto relationship was communicated, not only verbally, albeit indirectly, but by her actions in the context of the severe domestic violence and sexual assaults perpetrated by the respondent on the appellant”.

The matter was then re-listed before a different judge.

 

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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