De Facto or No?

In a very recent case called Kristoff & Emerson a judge of the Federal Court decided whether or not two people had lived in a de facto relationship. They met in 1999. The applicant was a sex worker. The respondent was one of her clients. A year later, the court found, the relationship stopped being a commercial one.

Thereafter what the court found about their subsequent relationship from 2003 until 2011 was that they spent at least two nights a week under the one roof, they had a sexual relationship, the applicant helped to clean one of the properties owned by the respondent, and did some of the domestic tasks, but importantly, the court found that there was no financial interrelationship whatsoever, they never shared an economic life, and the applicant made little in the way of contributions to any relationship.

The first question was whether they were in a de facto relationship. The respondent denied it.

The judge had to work out what the standard of proof was. Normally it would be on the balance of probabilities: the judge had to decide whether it was more likely than not that the parties were in a de facto relationship. But there are some cases where a higher standard of proof is required, because of the seriousness of consequences of a possible finding. An appeal court has left it open that there might be a need for a higher standard of proof to establish a de facto relationship and this question has still not been resolved.

That appeal court said "When making a finding as to whether or not a de facto relationship existed there is no 'bright line' test. It is not a case where a certain number of boxes are ticked a de facto relationship will be found to have existed."

In this case, also, the judge did not decide the standard of proof but found that on any standard there was no de facto relationship. The key was lack of any financial relationship. However he went on to say that even if he had found a de facto relationship, he would not have made any order altering the financial relationship of the parties or giving anything to the applicant because of the lack of contributions, the lack of financial interdependence, the lack of children of the relationship, and the lack of any adverse effect on the applicant in any way.

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