Sex worker refused property settlement failed to establish defacto relationship

Property – De facto thresholds – Standard of proof – Sex worker who began relationship with client failed to establish the existence of a de facto relationship – Had she done so a property order would not have been just and equitable per Stanford – No financial interdependence or children, nor evidence that she gave up her sex work for him

In Kristoff & Emerson [2015] FCCA 13 (13 January 2015) Judge Brewster heard a case where the applicant alleged that she lived in a de facto relationship with the respondent from 2003 until 2011. The parties met in 1999 when the applicant “was employed as a sex worker and the respondent was one of her clients”, their relationship evolving to a point where the “applicant began to involve the respondent with her family” and from “2000 onwards the sexual relationship between the parties ceased to be a commercial one” (para 2).

The Court also said of the relationship that the applicant accompanied the respondent to a renovation project (para 4); that in “late 2001 or early 2002 the applicant gave up her job as a sex worker” and obtained employment elsewhere (para 5); and that in 2003 the respondent acquired a property, the Court finding that the applicant lived at this property “at least two nights a week … but it would not on average have exceeded five nights per week” (para 10). The Court also accepted “that sexual intercourse was a regular feature of their relationship” (para 11) but the parties “never shared an economic life” (para 13). The Court also found that “[w]hatever the extent of the respondent’s feelings towards the applicant they were definitely more significant than a ‘friendship’” (para 12).

Judge Brewster said (from para 21):

“The extent to which the applicant must satisfy me that a de facto relationship existed between the parties is specified in section 140 of the Evidence Act. This section reads as follows:

1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

a) The nature of the cause of action or defence; and

b) The nature of the subject-matter of the proceedings; and

c) The gravity of the matters alleged.

[22] The reference to ‘the gravity of the matters alleged’ appears to be a reference to the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336 …

[23] The issue of whether a Briginshaw standard of proof should be required in a case involving a dispute as to a de facto relationship has not been definitively determined. In the recent case of Owens & Bensom [[2014] FamCAFC 243], a decision of the Full Court of the Family Court delivered on 22 December 2014 Austin J said as follows [at para 29]:

“However, the respondent (the party contending that there was a de facto relationship such that the court’s powers to make property orders were enlivened) only needed to discharge his burden on the balance of probabilities. The ultimate issues about when the de facto relationship ended and for how long it endured were not issues of such nature or gravity as to enliven the application of s 140(2) of the Evidence Act. The provisions of s 140(1) of the Evidence Act capably accommodated the issues at hand and the evidence adduced by the parties in respect of those issues.”

[24] The issue in that case was not whether or not there had ever been a de facto relationship but rather the date on which it ended. The issue of the application of the Evidence Act however seems to me to be the same.

[25] The remaining members of the Full Court, Finn and Strickland JJ left that question open. They said that they agreed with Austin J’s judgment ‘save that we are not necessarily persuaded that the application of s 140(2) of the Evidence Act 1995 (Cth) was not enlivened in relation to the issue of the jurisdictional fact as to whether the de facto relationship in this case existed beyond 1 March 2009’.

[26] It is not necessary in this case for me to form a conclusion as to this issue. I will adopt the test most favourable to the applicant. I require that she merely prove her case simply on the balance of probabilities without requiring her to satisfy the Briginshaw criteria.”

After considering s 4AA(2) of the Act and aspects of the relationship, including a finding that the parties “had a mutual commitment to a shared life except that did not involve their living together full time and did not involve any financial interdependence” (para 35) the Court said (from para 39):

“When making a finding as to whether or not a de facto relationship existed there is no ‘bright line’ test. It is not a case where if a certain number of boxes are ticked a de facto relationship will be found to have existed. ( … )

[40] In this case I am not satisfied that there was a de facto relationship between the parties. Some of the indicia 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.

[41] For completeness however I add that even if I had found there was a de facto relationship between the parties I would not have made an order altering their property interests. I will explain why.

[42] Section 90SM(3) gives the court the power to alter the interests of parties to a de facto relationship in their property. Section 90SF(3) however provides that the court must not make an order under that section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. There is no doubt that the respondent is the sole legal and beneficial owner of the property to which I have referred … Before I can alter those interests in favour of the applicant she must satisfy the criteria set out in Section 90SF(3).

[43] Satisfying those criteria is not a formality. …”

After referring to Stanford (2012) 247 CLR 108 and Bevan (2013) FLC 93-545 the Court said (at para 47):

“In this case I am not satisfied that there are sufficiently cogent reasons to alter the interests of the respondent in his property in favour of the applicant had I found that the parties had been in a de facto relationship. The applicant made some contributions to the relationship. She helped to clean the respondent’s Property B … after he moved out. She helped with Property M. I assume that when she stayed at the Property G property she helped with domestic tasks just as I imagine she did when she lived in (omitted). She made no significant financial contribution. Her contributions were not such as to justify the court making orders altering the interest of the respondent in his property in her favour. As I have indicated there was no financial interdependence between the parties. There are no children of the relationship. I am not satisfied that the respondent was responsible for the applicant giving up her employment as a sex worker or giving up, or being dismissed from, her subsequent jobs. I am not satisfied that the applicant has been adversely affected financially in any way by the relationship.”

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