Under s 4AA (1) of the Family Law Act 1975 a person is in a de facto relationship with another person if:

(a)    the persons are not legally married to each other; and

(b)   the persons are not related by family; and

(c)    having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

 

The case of  Kristoff & Emerson [2015] FCCA 13 (13 January 2015) the third consideration above was discussed.  A sex worker in this case alleged that a de facto relationship existed with the respondent.  The Respondent had been previously a client.  It was alleged  by the applicant that the relationship ceased to be a “commercial one” from 2003 until 2011.

Judge Brewster found that in late 2001 or early 2002 the applicant gave up her job as a sex worker. She obtained alternative employment (at [5]), that from 2003 she lived at the respondent’s property up to five nights per week (at[10]), the sexual intercourse was “regular” (at [11]) , the relationship was “more significant than a ‘friendship’ (at [12]). It was found that the parties never shared an economic life.  At no stage did they have a joint bank or other account.  They never jointly acquired property. The great majority of expenses when the parties stayed together were met by the respondent (at [13])

After considering s 4AA(2) of the Act and the evidence, Judge Brewster dismissed the application he said at [40]

“In this case I am not satisfied that there was a de facto relationship between the parties. Some of the indica of a de facto relationship were present, some were not.  The factor to which I attach most weight is the lack of any financial relationship between the parties”.

 

S4AA (2)

Under S4AA (2) of the Family Law Act 1975  to work out if persons are in a genuine domestic relationship the Court may consider any of the following circumstances which may include any or all of the following:

(a)    the duration of the relationship;

(b)   the nature and extent of their common residence;

(c)    whether a sexual relationship exists;

(d)   the degree of financial dependence or interdependence and any arrangements for financial support

(e)    the ownership of property, use and acquisition of property;

(f)    the degree of mutual commitment to a shared life;

(g)   whether the relationship is or was registered under a law of a State or Territory

(h)   the care and support of children;

(i)     the reputation and public aspects of the relationship.