Nicola Berkovic writing in The Australian newspaper reports “De facto couples have differences to married counterparts, judge says.” This article refers to the recent decision of BENEDICT & PEAKE [2014] FCCA 642 from the Federal Circuit Court at Parramatta, Sydney; where Judge Harman notably said:

“.. a de facto relationship may be described as ‘marriage like’ but it is not a marriage and has significant differences socially, financially and emotionally.”

There is nothing remarkable in this statement, as one reading of the article might have suggested.

If parties choose not to marry and make alternative arrangements as to the manner they structure their lives, they do so for any number of reasons. His Honour found at par.211:

“The relationship between these parties has, I am satisfied, been somewhat utilitarian and pragmatic. They have shared accommodation and intermingled finances to a very limited extent and for largely individual purposes. They have otherwise lived relatively separate lives, save for their daughter.”

If we look around our community’s this utilitarian and pragmatic approach is self-evident.

Judge Harman in this comment and others like it peppered throughout his judgement was considering a case where there were several curious idiosyncratic facts in evidence before him.

He noted there will be cases which one party regards as “an affair” and it might be a de facto relationship as defined. So, too, a woman who might be described as “a kept woman” might meet the definition of a “de facto relationship”.

The Family Law Act does not prescribe that to qualify as a defacto relationship the relationship should be “marriage like.”

Further, to imply that meaning from the relevant section of the Act does not, I think, follow. Take for example a same-sex relationship. It was these parties’ for whom parliament intended to be a class of beneficiaries from the 2009 defacto reforms. In circumstances where same sex couples are denied the legal status of marriage but who will qualify as defacto’s as defined, an invitation to the Court to imply a requirement of “marriage like” appears problematic. There is a very significant legal definition and social recognition attached to being married. It would appear that if you are proscribed from law from being married then you cannot have a relationship that is ‘marriage like’.

In Benedict’s case Ms Benedict sought a declaration that on 1 March 2009 she and Mr Peake were living together in a defacto relationship as defined by the Family Law Act.

The significance of 1 March 2009 is this is the date when the defacto legislation commences in the Commonwealth jurisdiction having been referred by most states to commence on this date.

If they were not living in a defacto relationship at that date or since then for a period of two years’ duration, the Family or Federal Circuit Court does not have jurisdiction to make property orders under the Family Law Act.

The remedy instead lies under the relevant State legislation and Supreme Court.

The significance of that is that the terms of the state legislation, a least in NSW, is narrower in its compass when balancing what to take account of when arriving at a property settlement. This was the purpose of referring the State powers to the Commonwealth; to give parties the benefit of the remedial parts of the Family Law Act which recognise justice and equity and future needs and a broad net of contributions.

To determine if Ms Benedict and Mr Peake were in a defacto relationship his Honour had to apply the factors listed in section 4AA of the Family Law Act and decide whether the parties ‘had a relationship living together on a bona fide domestic basis.’

There were several curious idiosyncratic facts in evidence in this case, some of which included:

1) They met in 1992 and ended their relationship in 2010. So they had known each other for a long while, plenty of time to talk about marriage, or not. I did not see from his Honour’s judgement any evidence provided by Ms Peake about there ever having been a marriage proposal. Nor had the relationship been registered under the applicable State law.

2) Ms Benedict had represented to Government agencies such as Centrelink, Medicare and the Australian Tax Office that she has been, for the entirety of the period from the birth of the parties’ child (1995) until 2006, a “single parent”. This meant she obtained financial advantage through payment of Centrelink benefits.

3) Ms Benedict asserted to Centrelink that she was single and thus not a member of a couple and not living within a de facto relationship. Thus, for the purposes of section 4 of the Social Security Act, she was not “partnered”. His Honour noted that this act contains a definition of a de facto relationship which is not dissimilar with section 4AA of the Family Law Act.

4) The parties purchased real property and occupied it from about mid-1997. It comprises, a two storey dwelling together with an attached business complex also of two storeys. Mr Peake said that from 1997 he resided within the business portion of the property and that Ms Benedict and their child X resided within the residence. From 2006 the residence portion of the property was permanently tenanted and the parties then until early 2010 both slept within the business portion of the property.

5) The enrolment application by Ms Benedict dated 30 July 1999 for the school of the parties’ child recorded her status as being “single.”

6) Mr Peake’s details were not included on the child’s birth certificate.

7) Ms Benedict, had not included Mr Peake’s details as an emergency contact person with the child’s school.

8) Ms Benedict had registered herself and the child with Medicare separate and distinct from Mr Peake and again, as a single parent.

9) Mr Peake’s evidence was that the parties maintained joint Christmas’s and family gatherings for the benefit of their child.

10) Mr Peake acknowledged that a de facto relationship existed between himself and the Ms Benedict from about May 2002 until January 2006.

11) Ms Benedict moved to reside permanently in Sydney in January 2010. Mr Peake remained in Darwin.

His Honour therefore focused on what was the nature of the relationship from January 2006 until January 2010, and in so doing he looked at the following section 4AA factors:

The nature and extent of their common residence

His Honour found that after January 2006 it was difficult to find evidence of a common residence. They did stay for short periods of time in each other’s residence and holidayed on occasions together. Ultimately, the Court found that after 2006 there was no identifiable common residence; rather there were ‘itinerant circumstances’; Ms Benedict lived and worked in Sydney and Mr Peake lived and worked in Darwin

Whether a sexual relationship exists

After 2006 there was a sexual relationship between them. His Honour held that “the relevance of this circumstance must be tempered by fractured nature of the relationship in terms of time and distance.” He noted the ‘non-normative fashion’ and it was “brief, sporadic and far from reflective of mutual commitment between them. In all probability for these parties and especially Mr Peake, engaging in sex with each other has met a need and has not imported or implied anything else be it emotion or commitment.”

The degree of financial dependence or interdependence, and any arrangements for financial support, between them

They led separate financial lives. Mr Peake invested in various properties over the years without regard to Ms Benedict.

His Honour noted that the parties’ held real property as joint tenant’s such that Ms Benedict will be able to enforce her rights in the Supreme Court and have her contributions appropriately recognised there. The significance of this finding is that it did not produce a serious injustice per s.90SB.

The degree of mutual commitment to a shared life

This was present until 2006. In circumstances where Mr Peake said that he regarded Darwin as his home, visiting Ms Benedict in Sydney from time to time and she visiting him from time to time; the Court found “little evidence of any degree of mutual commitment to a shared life together.”

The reputation and public aspects of the relationship

The evidence was that Ms Benedict’s daughter is the goddaughter of Mr Peake and she refers to him as “uncle”.

His Honour found that:

a) “The relationship can be seen after 2006 as a relationship between two people who were previously in a committed and common residence relationship to one where following their physical separation in January 2006 they remained good friends, seeing each other from time to time, the respondent providing some financial assistance, occasionally travelling together and engaging in a sexual relationship when they were together.”

b) As at 1 March 2009 the parties were not residing in a de facto relationship.

c) The parties were not at any time subsequent to 1 March 2009 residing in a de facto relationship.

d) Mr Peake attended to his own needs. This included attending to his:

-Making his own meals (or more often than not taking meals outside of the home or buying takeaway meals); and

– By and large living and maintaining his own life and lifestyle.

Degree of mutual commitment to a shared life

His Honour was not satisfied the parties held or acted upon any desire, mutual or otherwise, for a committed shared life. Ms Benedict’s representations to government agencies suggested an absence of such commitment.

Care and support of children

His Honour found that a motivating fear held by Mr Peake was that the parties’ child would, without the continuation of the arrangements in place, cease to be an integral part of his life.

The reputation and public aspects of the relationship

His Honour at par 228:

“..the parties have not, to any significant extent, if at all, held themselves out as a couple on a committed basis such as to cause, allow or permit anyone to reasonably or objectively form the belief that they were in a committed, monogamous de facto relationship with each other.”


His Honour held that the parties were not, as at 1 March 2009 or any subsequent date, in a de facto relationship with each other.

What about your relationship?

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Subscribers to The Australian newspaper can read the full text of Ms Berkovic’s article here:

N.B: If you are a parent to a child who is aged less than 18 years, and your relationship status is uncertain, and you separate from your partner, note that the Family Court has jurisdiction to make orders in relation to a child. That is, the status of your relationship is not relevant to the question of jurisdiction. Rather, what is relevant is that you are a parent, who has parental responsibility. A child has rights in relation to each parent and these are enshrined in section 60B of the Family law Act.