15 Dec 2015

In the recent decision of Harbrow & Boston, the Federal Court found that the parties were not in a de facto relationship, even though they had a child together.

 

The Facts

The parties met in 2005. In June 2006, Ms Harbrow moved her belongings into Mr Boston’s home. The parties had different views about whether Ms Harbrow was moving in, or merely storing her personal items at Mr Boston’s property.

 

In July 2006, the parties travelled to Ethiopia on the same flight. Mr Boston gave evidence that Ms Harbrow found a travel agent that offered cheap flights, but that he planned and paid for his holiday independently. Each party had a relative to collect them from the airport separately.

 

According to Ms Harbrow, the parties became engaged in Australia, and were travelling to Ethiopia to get married. They stayed with their respective families in Ethiopia, because it was not culturally acceptable for them to stay together while unmarried.

 

A ceremony took pace in August 2006. Ms Harbrow remembers Mr Boston saying that they would have a civil ceremony in Australia upon their return. Mr Boston’s recollection of events was that Ms Harbrow was travelling to Ethiopia to marry her fiancé. When her fiancé did not follow through, Mr Boston agreed to help Ms Harbrow as a friend, and to stand in at the ceremony so that Ms Harbrow would not lose face in front of her family.

 

Ms Harbrow gave evidence that relatives from both sides attended the reception. Conversely, Mr Boston said that none of his family attended – but that Ms Harbrow arranged for a woman and her son to pretend to be Mr Boston’s mother and brother respectively.

 

The parties went to a resort for the week after the ceremony. Ms Harbrow called this their honeymoon. Mr Boston claims that he was at the resort for a family holiday, and that it was a coincidence that Ms Harbrow was staying at the same resort. The parties had a “one night stand” at the resort, and Ms Harbrow became pregnant.

 

The parties flew back to Australia on the same flight. Each party was collected from the airport separately by a friend or relative.

 

The parties’ child was born in 2007. Mr Boston purchased a second home for Ms Harbrow and the child to live in. This was an alternative arrangement to Mr Boston paying child support. Mr Boston paid the deposit and the mortgage instalments without any contribution from Ms Harbrow. The property was in Mr Boston’s name.

 

Ms Harbrow applied for a single parent benefit from Centrelink, she said at Mr Boston’s insistence. Mr Boston denied this.

 

The parties travelled to the USA with the child in 2010. They all went to Disneyland together, but then went to separate parts of the USA to visit their respective families and friends.

 

Ms Harbrow travelled to Ethiopia with the child on two occasions, in 2010 and in 2013. Ms Harbrow married in August 2013 in Ethiopia. She also travelled to Canada with the child in 2012. Mr Boston travelled to the UK on his own in 2012.

 

Ms Harbrow applied to the Family Court for a property division in 2014. The first test that the Court applied was whether the parties were in a de facto relationship.

 

Section 4AA of the Family Law Act 1975

The Court uses the following factors to help determine whether a de facto relationship exists between two people, under s 4AA of the Family Law Act 1975 (WA):

1. The length of the relationship between them;

2. Whether they lived in the same residence;

3. The nature and extent of their common residence;

4. Whether there is, or has been, a sexual relationship between them;

5. The degree of financial dependence or interdependence, and any arrangements for financial support, between them;

6. The ownership, use and purchase of their property (including property they own individually);

7. The degree of mutual commitment by them to a shared life;

8. Whether they care for and support children; and

9. How their relationship as a couple is presented to, and perceived by, others.

 

The Decision

The Court made a declaration, under s 90RD of the Family Court Act 1975 (Cth), that Ms Harbrow had not discharged her obligation, as the Applicant, to prove the existence of a de facto relationship.  As a result of this finding, it flowed that the Court did not have the jurisdiction to make any financial orders.  In reaching her decision Judge Harland noted that there were aspects of both parties cases that were unsatisfactory and that both parties lacked credibility in various respects.  Mr Boston, for example, had not referred in his trial affidavit to the fact that the parties had an intimate relationship on at least one occasion, when clearly such evidence was relevant.  Similarly, Ms Harbrow was found to be an unreliable witness who could “not keep her story straight”.

 

Interestingly, the fact that the parties had a child together did not carry significant weight.  Her Honour found that it was likely that the parties had sex on more than one occasion, but that it was not an ongoing sexual relationship.  She noted that Mr Boston respected and supported Ms Harbrow, as the mother of his child, but found that he was not committed to a mutual shared life with Ms Harbrow, even if she was.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.

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