By Juliet Behrens

In a decision with interesting ramifications, the Full Court has recently considered whether a couple were in a de facto relationship, and took into account of the fact that the relationship was dysfunctional and abusive in making that decision.

The Full Court has reminded us again that all the circumstances of each relationship, must be assessed and given such weight as the court thinks appropriate in determining whether or not it is a de facto relationship, and whether or not separation has finally occurred.  The weight to be attached to particular circumstances may be affected by the fact that a relationship was abusive and/or dysfunctional.

In a recent case reported as Onslow and Onslow, the Full Court upheld a judge’s decision that a couple in a de facto relationship had not finally separated at the time when the Family Law Act started to apply to property disputes between de facto couples on the 1st May 2009.  The man (who was trying to avoid property adjustment orders in favour of the woman) argued unsuccessfully that the de facto relationship had ended in 2000.  He then appealed the trial judge’s decision to the Full Court, again unsuccessfully.

The case involved allegations of family violence by the man towards the woman (some of which were not denied) throughout the relationship. It also included her alcohol dependence, the children being taken into care after 2000, the woman being apparently in receipt of Centrelink as a single person during parts of the period when she told the Court the parties were in a de facto relationship, and long periods during which the parties did not live in the same house together.

The man tried to claim that many attributes normally present in a de facto relationship, such as common residence and intermingling of finances, were not present at the relevant time.  In a decision which draws on understanding of the circumstances of the woman, the trial judge found that any absence of sharing could be explained in part by the abusive nature of the relationship.

Absence of more metaphysical aspects generally attributed to de facto relationships, such as commitment to shared goals, mutual trust and respect, were not fatal to a finding that the de facto relationship continued in circumstances where those aspects had never been present in the relationship.

The trial judge found that the man continued to control and intimidate the woman through various behaviours until mid-2009, and that their de facto relationship continued until then.  The Full Court upheld the trial judge’s decision. Ultimately this meant that the trial judge’s decision that the parties’ interests in property should be adjusted in the woman’s favour stood.

Decisions about whether or not a relationship is a de facto relationship are among the most complex that we deal with.  If you have any concerns regarding a de facto relationship or property settlement, please contact DDCS on (02) 6212 7600.  The Domestic Violence Crisis Service has a 24-hour crisis line for those living with domestic violence in the ACT- phone 62800900.