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De facto relationship of carer not upheld

By September 17, 2020February 23rd, 2024No Comments

De facto: A quadriplegic man’s long-time carer has failed in her bid to have the family courts designate the relationship between them as “de facto”. The woman had hoped to bring a property claim against the now-deceased man’s estate. However, the primary judge in the matter concluded no de facto relationship ever existed between the two people, and when the woman appealed this decision, her appeal was dismissed with the appellate judges finding the primary judge had made no errors. Let’s take a quick look at this case.

In the case of Pilkvist & Coburn (Deceased) recently heard in the family courts (court-appointed pseudonyms), a quadriplegic man had required full-time in home care and had hired the woman to fulfil this role for around two decades. The woman provided him with intimate care, was paid a weekly wage, and also handled the household expenses, for which she was given a budget and allowed to keep whatever was left after purchasing food and household supplies. The arrangement continued until the appellant was evicted from the deceased’s house in 2014 after relatives placed him in a nursing home. The man died in 2019.

The current proceedings were started in 2016 but the woman’s case was hampered the fact that she had already brought a claim against the man in 2009, seeking a division of property under s.90SM of the Act, arguing that she and the man had been in a de facto relationship for a period of 15 years at that time (from 1993 to 2009). She claimed that they then separated but continued to live under the same roof.

In rather a strange set of circumstances, the woman argued “that she had been persuaded to bring the proceedings in 2009 by the deceased’s lawyer as a means of obtaining funds from the deceased to purchase furniture and appliances for the deceased’s home”.

That claim was resolved by consent and the woman received $400,000 by way of settlement. Importantly, however, “a declaration was also made that a de facto relationship had never existed between the appellant and the deceased”. This declaration came back to haunt the woman in the current proceedings:

“The declaration made on 20 October 2009 is of some significance because if the relationship between the deceased and the appellant, whatever its nature, continued in the same way without change after October 2009, it must logically follow that it too was not a de facto relationship.”

And unfortunately for the woman, she was unable to show that there had been any significant change in the nature of their relationship and was unable to prove they were living together on a genuine domestic basis.

How do the courts determine if you are de facto?

Section 4AA of the Family Law Act provides that a person is in a de facto relationship with another person if they are not legally married to each other, the persons are not related by family, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. The section applies to both heterosexual and same-sex couples.

The courts look at the following to get a complete picture of the relationship, in order to work out if the de facto relationship exists:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of any children;
  • the reputation and public aspects of the relationship.

It’s really important to note that no particular one finding is needed to prove a de facto relationship existed, but rather, different weight is attached to each element in order to create a true picture of the relationship.

What kind of evidence is needed to prove a de facto relationship existed?

Determining whether or not people are in a genuine de facto relationship means the courts take a close forensic look at relevant elements of the couple’s lives using evidence as an objective witness. What the courts have shown is the critical importance of having detailed affidavit evidence containing objective data.

Such data may include bank records, telephone records, medical records or even photos at family functions, evidence which can allow a court to draw conclusions about the relationship. This evidence can be telling in how parties split their time between properties, where they were on given days, how frequent their communication was, or how the relationship was described to outsiders.

The problems with the woman’s evidence

While the woman in this case did supply “evidence” in the form of such things like photos showing her celebrating birthdays and such with the deceased, and receiving cards on special occasions from him, the primary judge had noted such actions were “hardly surprising given the longevity of their association”:

“It would be unsurprising to see a level of familiarity or even affection between two people who had shared a home for such a long time and for whom the [appellant] provided the most intimate of care”.

Although the courts will take into account how a relationship is described and perceived by others, such evidence is not of sufficient weight in and of itself. The woman in this case had also tried to bring in evidence from friends of her allegedly “loving” and sexual relationship with the man, but their evidence was deemed to be only their opinion, not backed up by any objective evidence, and therefore ultimately of little weight.

You can read this case here.

You may also like to read our article on what constitutes a de facto relationship in family law.

Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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