Is it a de facto relationship?

Last year I wrote an article on the concept of 'living apart together'. In that article I touched on the case of Sinclair and Whittaker [2013] where the Full Court said that "the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the Court and not a matter for the parties". I had cause to consider the facts of that particular case recently and they caught my attention.

The parties began dating in late 2002. In August 2004 the respondent's flatmate vacated their flat and the appellant moved some personal belongings in. The appellant began to contribute $600 each month towards the respondent's rent.

In December 2005 the parties purchased a unit with the appellant providing the deposit and paying the stamp duty. The unit was put in the name of a corporate entity wholly controlled by the appellant with a 70% interest to the corporation and 30% to the respondent. The respondent and the corporate entity jointly borrowed monies from the appellant's business which was a mortgage provider.

The respondent described herself as single on forms to do with the purchase when an available option was de facto. The parties each contributed $15,000 to a fund which was used for the purchase of furniture and accessories for the apartment and they shopped for those items together.

The appellant stayed at the unit on average three nights per week but left at 4:15 AM each morning to commence work from his own premises.

The parties spent many weeks each year away together and enjoyed time with the respondent's family in Queensland between 2 to 4 times per year.

The respondent described herself as single and not in a de facto relationship on documents provided to the ATO.

On 21 December 2006 the appellant gave the respondent a 2.17 carat diamond ring which was found to have been described by the appellant as a promise ring.

The relationship broke down on 21 September 2010.

The appellant claimed to have had relations with other women during the period of the relationship however the appellants driver gave evidence that was inconsistent with this statement.

Thoughts?

The trial judge concluded, based on those facts, that the parties had been in a de facto relationship. On appeal the Full Court was satisfied that that decision was open to the trial Judge on the facts before him and no error in His Honour's reasoning was identified.

Varying existing parenting Orders - "the rule in Rice and Asplund"

The Family Court and the Federal Circuit Court of Australia have a clear principle that a Court should only hear an application to vary an earlier Order if it is satisfied that there is some changed circumstance which would justify such a serious step. This is known as the "rule in Rice and Aspland".

The rule in Rice and Asplund applies whether the earlier orders were made by consent of the parties or after a contested hearing before the Court.

The principle underpinning the rule in Rice and Asplund is that there should be an end to litigation, that is the avoidance of endless litigation between parents examining again and again the same issues and arrangements.

However, there are instances where it is necessary for a Court to revisit earlier Orders. While there is no exhaustive list of what constitutes a changed circumstance in previous cases this has included psychological and physical changes in the child, evidence of violence towards the child, a parents recovery from former mental health issues, a proposed relocation by one parent and a parents new stable relationship or marriage.

Should one parent bring an application to revisit earlier Orders and a Court be satisfied that there is a changed circumstance than the matter is considered again by the Court and new Orders may be made.