Our Senior Associate, Dianne Caruso discusses eligibility when making a family law claim in a de facto relationship.
If you are in a de facto relationship and are considering making an application to the Family Court of Western Australia in relation to financial matters, there are a number of requirements that must be satisfied in order for you to be eligible to make the application.
1) One party must be a resident in Western Australia on the day the application is made (s 205X(a) Family Court Act 1997 (WA) (“FCA”)). In the recent decision of Gear and Laufer  FCWA 219, Justice O’Brien stated at paragraph 77:
“In my view, the requirement imposed by s 205X(a) will be met when, on the day the proceedings are commenced, one party “eats, sleeps and lives” in Western Australia, with only that degree of permanency necessary to distinguish that presence in this State from a “mere sojourn or transient presence”. Physical presence in Western Australia on the relevant day will be required, unless an absence from the State on that day is itself properly construed as a mere sojourn elsewhere.”
2) Both parties must have resided in WA for at least one-third of their de facto relationship, or substantial contributions have been made in WA by the applicant (section 205X(b) FCA). Section 205ZG of the FCA sets out the kind of contributions to be taken into account.
These include both financial and non-financial contributions made by the parties, directly or indirectly, towards the acquisition, conservation and improvement of the property of the parties. It also includes the parties’ contributions as homemaker and parent.
In the Full Court of the Family Court of Australia decision of Harriott & Arena  FamCAFC 69, the Court unanimously held at paragraph 64 in respect of the meaning of substantial contributions:
“Clearly the “substantial contributions” test is a subjective one. Any effort to elucidate its meaning by use of other words or phrases will simply replace one subjective test with another. It will remain a matter of impression whether the contributions are considered to be “substantial”. While recognising that the test is subjective, we are nevertheless inclined to agree with Thackray J, who said in Thorburn and Oswald  FCWA 43 at  that a trial judge would need to interpret the word “substantial” in the context of the financial position of the parties. What might appear to be a “substantial contribution” for people of limited financial resources, might not be substantial in a case involving very wealthy parties.”[i]
3) The parties must have been in a relationship for at least two years, or there is a child of the relationship who is not 18 years old and serious injustice would result to that child or the partner caring for them, or the applicant made substantial contributions and serious injustice would result to the applicant (s 205Z FCA).
In the decision of L and C  FCWA 23, Justice Thackray, as he then was, found that the two-year requirement could be satisfied by aggregating separate periods during which the parties lived together.
4) The applicant must make an application within two years of the relationship ending (s 205ZB FCA). If the applicant is out of time they can make an application to the Court for an order granting leave to apply out of time on the basis that hardship would be caused to a de facto partner if leave were not granted.
In the decision of Jones & Hill  FCWA 87, Justice O’Brien stated (obiter dicta) that the Court cannot grant leave to proceed out of time simply on the basis that the parties consent to the Order being made, the Court must be satisfied that hardship would be caused if leave were refused.
In the Full Court of the Family Court of Australia decision of Edmunds & Edmunds  FamCAFC 121, the Court stated with respect to the meaning of “hardship” (para 47):
“As the Full Court pointed out in Sharp at , “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.”[ii]
In some circumstances, it may not be easy to ascertain whether or not you are eligible to make a family law claim in respect of financial matters. If you require any assistance or advice please contact us at HHG Legal Group and one of our family law specialists will be able to assist you with your enquiries.
If you would like further information, contact us on 1800 609 945 or visit our Family and De Facto Law page.
[i]It is important to note that this decision considers section 90SK of the Family Law Act 1975 (Cth) (“FLA”) and is not binding on Courts considering sections of the Western Australian legislation. Notwithstanding, in the writer’s opinion, this decision is likely to be persuasive as section 90SK(1) of the FLA is in similar terms to section 205X of the FCA.
[ii] It is important to note that this decision considers section 44(3) of the FLA and is not binding on Courts considering sections of the Western Australian legislation. Notwithstanding, in the writer’s opinion, this decision is likely to be persuasive as section 44(3) of the FLA is in similar terms to section 205ZB of the FCA.