De facto relationship found to exist between 2001 and 2012, where de facto husband alleged that separation occurred in 2002 – No common residence or joint bank accounts – Parties engaged in a mock wedding reception and had a child together
In Clark & Ors  FCCA 234 (11 March 2014) Judge Burchardt considered a case where the parties had by 31 July 2001 commenced a de facto relationship (para 10), where the de facto husband alleged that the relationship ended in 2002 while the de facto wife alleged that it ended in 2012 (para 2).
The de facto wife’s case as to common residence during the disputed period included that the de facto husband “invariably [spent] Friday to Monday with her” (para 26) and that she and her three children of a previous relationship “travel[led] extensively and regularly with [the de facto husband] overseas” (para 12). She also alleged “that a sexual relationship with the respondent continued throughout all the years to 2012” (para 26).
The de facto husband filed an affidavit sworn by his ex-wife deposing that “she and the [de facto husband] stayed at each other’s homes on a regular basis and regularly shared meals … they usually spent two or three nights per week together and weekends usually on a Saturday or Sunday [and that they] had resumed their relationship in 2002 until final separation in February 2012” (para 46).
The parties had a child together in 2006, the de facto husband alleging that “the parties had ‘a fling’” at this time (para 14). The Court said (from para 21):
“The [de facto husband’s] case was that following [the] birth, he agreed to conduct a mock wedding reception in order to ensure that persons within his and the [de facto wife’s] community would not attach the stigma of illegitimacy to [their child] … [He] denied having exchanged rings … on the day of the mock wedding reception.
( … )
 I … saw a number of DVDs in the presence of the parties and their representatives.
 First shown to the Court was the elaborate charade … in January 2008. If this was an attempt to convince the world that the parties were in a permanent relationship and married and that their daughter was not born out of wedlock it was certainly a very elaborate one. The DVD is expertly taken and produced. It shows the parties arriving to meet numerous guests and having what one would describe as normal happy reactions one would ordinarily see at a wedding feast. … They are announced as Mr and Mrs Clark. … The parties sing a love song to one another in it. At one point, the [de facto wife] says, “My soul mate is my husband now”, at a point where the [de facto husband] is beaming approvingly in the background. At another stage, the [de facto husband] says, “Thank you for coming to celebrate our marriage. I am going to spend the rest of my life with my soul mate”.
( … )
 … the DVD of the parties mock wedding reception in 2008 sits, at best, exceptionally uneasily with the [de facto husband’s] assertion that the parties were not in a relationship and that [their child] was merely conceived as a result of a fling in late 2006. …”
The Court also noted evidence including “photographs … redolent of a relationship of something more than ordinary friendship”, a “Valentine’s Day note (undated) which asserts, ‘Love you now and forever, my valentine and my wife’”, “a wedding invitation … addressed to the [the parties] as Mr and Mrs Clark in 2010” (para 48); a draft Financial Agreement (para 53); “a Medicare card with the names of the [de facto husband], the [de facto wife] and the [de facto wife’s] three daughters which was valid until 07/2008” (para 54).
As to common residence, the Court said (at para 89):
“The [de facto husband] continued to maintain an intimate relationship with the [de facto wife] … While it is immediately apparent that he cannot have spent every single weekend between 2002 and 2012 that he was not overseas with the [de facto wife] I accept the general thrust of the evidence of the [de facto wife] and her children that the [de facto husband] was a routine attendee throughout.”
As to the evidence of the de facto husband’s former wife, the Court said (at para 100):
“Her evidence has not been tested by cross-examination and I have not had the advantage of assessing her evidence accordingly. It should be noted that in any event, [the ex-wife’s] affidavit only asserts a relationship between her and the [de facto husband] between 2002 and February 2012. It gives no details of the nature of that relationship and does not touch at all upon the matters asserted as to the relationship between the [de facto husband] and the [de facto wife] … (scarcely surprisingly perhaps). … I find that the [de facto husband’s] assertion that he continued his relationship with [his ex-wife] in secret unacceptable. …”
The Court concluded (at para 115):
“ … The materials point overwhelmingly to a view that the parties were in a de facto relationship within the meaning of the Act between 2002 and 2012. While there are clearly some indicia that would point against this, such as the lack of permanent joint residence, the non- intermingling of bank accounts and other financial resources, and the fact of whatever relationship the applicant continued with [the husband’s ex-wife] these are all vastly outweighed by all the other numerous [s 4AA] factors to which I have referred.”
The Court declared that a de facto relationship existed between 2001 and 2012.