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“Unusual relationship” that began as a business association declared to be a de facto relationship

In Gissing & Sheffield [2012] FMCAfam 1111 (18 December 2012) O’Sullivan FM described (para 2) as “unusual” the relationship between the 48 year old applicant who alleged a 17 year relationship with the respondent, a 65 year old business proprietor, that began as a business association and became a personal one. After considering substantial evidence called and adduced by both parties (in particular as relevant to the factors set out in s 4AA(2) of the Family Law Act) and reviewing relevant case law, O’Sullivan FM concluded at paras 192-198:

“Considerable emphasis was placed by Counsel for the applicant on what were said to be the intangibles of the parties relationship which when taken together pointed clearly to something beyond a business relationship. It was submitted that over the course of a relationship that spanned almost 17 years there had been a mutual commitment using the business relationship to build up assets which were pooled for their future. It was submitted that such was the degree of financial interdependence over such a long period that the Court should find there was a de facto relationship.

The respondent’s case was she entered into the business relationship with the applicant and they shared accommodation for some of that time but did not co-habit as a de facto couple. The respondent conceded a ‘degree’ of financial interdependence but maintained it was a ‘platonic’ relationship and there was no sexual relationship, no commitment to a shared future and but for their business the parties lived separate lives. The respondent’s case placed considerable emphasis on how the parties held out their relationship publically as somehow decisive of the issue of whether they were in a de facto relationship.

However I am not persuaded the holding out by the parties (or at least the respondent) of the nature of their relationship was consistent with their actual relationship. The parties not only conducted joint enterprises and joint bank accounts but there is considerable evidence of inter mingling of finances from their joint endeavours for their mutual support. The evidence of the respondent as to the nature of the relationship being one of very good friends didn’t ring true. 
This applies particularly to her evidence that she gave the applicant a car as ‘he looked like he needed a Porsche’. When regard was had to the applicant’s knowledge and responsibility for the parties finances over such a long period and the respondent’s dependence on the applicant in relation to that and all financial issues and their joint endeavours I am satisfied the parties relationship was more than that of business partners and definitely more than friendship.
There are a number of indicators that support the claim of a de facto relationship within the meaning of the Act.
They include:

a) the duration and nature of the business and personal relationship/association;
b) the intermingling of finances and interdependence by the respondent and the applicant on finances;
c) the parties lived together for extended periods of time; and
d) evidence of a commitment to a shared life and perception of others.

There are, however, other factors which favour the respondent’s view that the relationship did not take on the characteristics of a de facto relationship. They include:
a) the lack of public recognition of the de facto relationship;
b) lack of children or registration of the relationship; and
c) the dispute over the existence of a sexual relationship.
However I am satisfied that there is evidence that supports the existence of a de facto relationship including:

  • the mutual involvement in the business/es and the length of their association; and
  • that they carried on a mutual enterprise of sharing income from the [businesses], markets and shared payment of expenses for their mutual support and in relation to their homes; and
  • that the parties were conducting a joint bank accounts and inter-mingling of their finances; and
  • the interdependence between the parties and the almost complete reliance by the respondent on the applicant for financial and other advice and administration; and
  •  the perception of other persons; and
  • the common residence/s of the parties for significant periods of time; and
  • that on balance the evidence indicates that the parties had so merged their lives that they were for all practical purposes living together as a couple on a genuine domestic basis.

When all of the considerations discussed above are taken into account 
I am persuaded that the parties were in a relationship that could be described as a de facto relationship for the purposes of the Act.”

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