“Presented as a couple” not enough to establish de facto relationship
At the outset it must be said that her Honour’s task in applying this definition to the facts before her was made more difficult by two factors.
- The first is the cursory and conclusive nature of the evidence which was adduced by both parties. For example, the parties agreed that at some point in 2004, after their child was born in late 2003, the appellant began transferring $300 per week into the respondent’s bank account. In 2008 this increased to $500 per week. The respondent described this as a contribution “towards living expenses” whereas the appellant described it as “board”. Neither adduced any relevant material that further illuminated the nature of the payments.
- Another example is that on many occasions the respondent gave evidence that the parties went out to particular events where they “presented as a couple”. The appellant simply denied that they did so. Again, the evidence does not add to those bald descriptions and denials to give any indication of what actually occurred at these events. It is difficult to understand what is meant by the phrase “presented as a couple”. If it meant that the parties arrived at a function or event together and left together, then the phrase adds little to the evidence that was already before the Court. If it is intended to suggest something else, then it is not clear to us what that might be.
- The appellant accepted that the parties attended many family, social and school events with the child but denied that when they were at these events the parties presented as a couple. He did not set out any facts or circumstances that could illuminate his assertion and, as with the respondent’s evidence along similar lines, it is impossible to attribute any probative weight to that evidence.
- This leads to the next difficulty. The primary judge did, in fact, find “that the parties demonstrated they were a couple when they attended together” or that “the parties frequently presented as a couple” (at  and ). That was not entirely surprising because, as we have seen, that was the way the parties had framed their evidence. Further, the parties’ submissions were not always directed to the definition of a de facto relationship contained within s 4AA of the Act but, rather, phrased in terms of them being “a couple” or having a “commitment to a shared life”. For example, at trial the appellant submitted:
…It comes with not a skerrick of evidence from the [respondent] establishing or even deposing to the notion of a commitment of a shared life. Not one single line. There is not one single line of evidence of a discussion between them about their future. There is not a line of evidence about holidays. There’s not a line of evidence about planning for the future as a couple…
(Transcript 1 February 2017, p.96 lines 22–27)
- It was also submitted:
Your Honour, with respect to the mutual commitment of a shared life, there is not one line of evidence from the [respondent] to any degree that they had a mutual commitment to a shared life … There is no evidence of a merging of their lives and the [respondent] is wholly silent.
(Transcript 1 February 2017, p.101 lines 14–20)
- The concept of the merger of two individual lives into life as a couple was first raised in Jonah & White (2012) FLC 93-522 (“Jonah & White”) at  and . The primary judge quoted both of those paragraphs at – of her reasons. Her Honour then noted that an appeal from that decision was dismissed. If the primary judge regarded the dismissal of the appeal as an endorsement of those comments by the Full Court, then, respectfully, her Honour was mistaken. As was pointed out by the Full Court in Sinclair & Whittaker  FamCAFC 129; (2013) FLC 93-551 (“Sinclair”), the Full Court in Jonah & White did not adopt the primary judge’s reasoning. The Court in Sinclair said:
- In both written and oral submissions the appellant submitted that the facts did not demonstrate “the manifestation of coupledom” or that there had been “the merger of two lives”. These phrases emerge from the decision of Murphy J in Jonah v White  Fam LR 460 at 471 where his Honour said:
 In my opinion, the key to that definition is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.
 The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into a life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.
- It is important to note that his Honour’s comments were made in the context of the facts of the matter that was before him. It is clear from reading the judgment as a whole that his Honour had the statutory definition firmly in mind at all times. When dismissing the appeal from his Honour’s decision the Full Court did not disagree with his Honour’s statements of principle but did not apply anything other than the statutory test (Jonah & White (2012) FLC 93 – 522). At 86,682 their Honours said:
It is immediately apparent that the touchstone for the determination of whether a de facto relationship exists is the finding that the parties to it are a “couple living together on a genuine domestic basis”.
- Comments made in the course of discussing facts are not to be elevated to the status of the provisions of the statute or substituted for the statutory test. This is because, taken on their own, they either add nothing to the statutory test or, if they do, they are adding an impermissible gloss. Thus it is not appropriate to consider the facts other than in the light of the statutory test.
- Sinclair itself has been followed by subsequent Full Courts (Cadman & Hallett (2014) Fam CAFC 142; (2014) FLC 93-603 (“Cadman”); Onslow & Onslow  FamCAFC 7; Fleming & Schmidt  FamCAFC 12; Sha & Chan  FamCAFC 161 and Cuan & Kostelac  FamCAFC 188; (2017) FLC 93-801 (“Cuan”)). Accepting that two of these decisions post-date her Honour’s reasons, we do not understand why at least Sinclair was not referred to by the primary judge. Error can arise from referring to first instance judgments which have been overtaken and corrected by subsequent appellate authority.
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