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.

100 years of Supporting West Australians

"My family law experience with Mary Roubos has restored my faith in solicitors in general. She not only demonstrated her legal expertise and flair, but also showed a compassionate and understanding nature during the lengthy process. I felt that Mary went above and beyond her obligations as my solicitor, and really listened to me. I would highly recommend Mary and her assistant Debra Wilson, who also demonstrated professionalism and excellence on all levels."

Renee Frangiosa

"Always fast and thorough service. Thank you"

Sitka Pil

"I found Ben most helpful and always prompt to let me know where things were at. Will definately use Ben again and will recommend to others."

Gerrit and Mary Van Bralal

"We wish to express our thanks for your help in attending to our mother/ wife's will - Mrs Grace Margaret Vessey. Aimee was extremely helpful and easy to deal with. We are greatful for your help with our affairs."

Ms Rosalyn Norman, Mr Stephen Vessey

"Thank you ever so much for all your hard work on my case Nicole, I really appreciate everything you did for me."

Workers Compensation Client

"Thank you for such great assistance with the transaction of Flying Domestics on behalf of Lorna Good. It has been such such a pleasure to work with the HHG Legal Group and I look forward to working with you in the future."

Jim Goodwin

"Simon Creek and his team were at all times empathic, professional and confident.  My matter needed to be addressed within a pressing time frame, and their availability at short notice and contact after hours was much appreciated.  It caused me considerable stress, but having such a thoroughly reliable and competent team to call on helped me to feel in control. Although I hope not to need their services again in future, I would be confident in doing so!"

Dr Lana Bell

"A good outcome is what we can expect.  A great outcome is a sign of a company which does the very best for their clients. A very big thank you to Daniel Morris for showing empathy towards my small and much needed legal action.

To HHG Legal Group, thank you for a great outcome.  I would recommend your company to anyone seeking legal services."

Jan Atkinson

"Your support this morning was amazingly kind, not to mention your totally reassuring competence, knowledge and wisdom that you used on my behalf.  It was extremely reassuring to have your knowledgeable support, and I particularly appreciated your real and obvious kindness to me. It means so much at a very difficult time. I'm so grateful to you."

Family Law Client

"I highly recommend the services of HHG Legal Group for both personal and business needs. HHG is very up to date with legal advice and are in tune with the evolution of business."

Robert Forgione

"Sue and myself would like to thank HHG for the way in which our dispute was resolved. It is good to know that people who do not have an understanding of the legal system can rely on people like yourself and the company you represent. Without the assistance of HHG we could not have resolved the problems we were facing, not only have we resolved the issue but the outcome was more favourable then we would have thought possible. Thank-you and please pass on our thanks to all those who worked behind the scenes to achieve this outcome."

Rick and Sue Ashton

"Janene was very professional and we established a good rapport quickly. The subject of death and wills can be quite confronting to deal with, however Janene's approach was soft and accommodating."

Lynette Livesey

"A big thank you to HHG for their professional service, continued support, and wide range of legal knowledge. Our clients have given us nothing but kind words regarding HHG Legal Group and so we have no hesitation in referring and recommending Simon Creek and HHG Legal Group for their outstanding services and legal expertise."

Nigel Plowman, Director at McKinley Plowman & Associates

"Simon is a friendly and practical legal advisor. I have received great feedback from the clients I have referred to him and his team at HHG Legal Group."

Richard Beal, Director at BDO

"Over the last few years, I have been impressed by Simon’s legal ability, management skills, entrepreneurial spirit, personal integrity and people skills. He appears to be that rare breed of lawyer – both knowledgeable and commercial."

Michael Malone, Founder of iiNet

"Our family has been a client of HHG Legal Group over many years and most recently in 2013 and February 2014.  Business has included drawing up of wills for three generations and preparing of probate for my father in law.

I would have no hesitation in recommending HHG Legal Group to anyone requiring such services."

Bernice Climie

"You should be congratulated for the manner in which your staff address clients and we found our dealings with your company, once again a very pleasant experience and we would like to truly thank you for your efforts."

Steve Harvey and Jane Powell

"HHG Legal were absolutely fantastic. Extremely responsive and brought calm to our chaotic family situation through their knowledge and caring attitude. Extremely professional from our very first contact with them and they expertly guided our family though the required legal process over almost a 12 month period."

Amanda Williamson

"Fantastic team! They really care about their client. Tim Colcutt is a 'go that extra mile' guy who gives his client his all. I can't recommend HHG and Tim enough."

Kerry Samson

"Anne Hurley has been such a valuable resource of information and advice, her wealth of knowledge is truly impressive and her ability to explain things in a way that makes them easily understood is very much appreciated. Anne and the wider HHG Legal Group are always a pleasure to work with."

Giorgia Parham

"I had a fantastic lawyer in Anne Hurley. She helped me out a great deal with good, sound advice in a friendly , professional manner. First class, thanks Anne"

Graeme Hammond

"Marine Plant Systems has been working with HHG Legal Group for a few years now and they continually provide first class service. Their professional advice has been invaluable to our company."

Carolin Grimm

"We were kept up to date at all times. Pricing was always updated over the time period so we remained "in budget". Personal access to someone whenever I had questions. All in all a great experience without too much fuss."

Rosslyn Tasker - COO AltusQ Pty Ltd

"Good service you can count on."

Miles Lee

"HHG Legal Group have provided outstanding support as I have taken the journey of buying a business, their professionalism is beyound reproach. Their assistance throughout the Due Diligernce process have been invaluable, I would fully recommend them."

Mark Armitage

"I have experienced how good the HHG Legal Group team are over the last 6 years and highly recommend them."

Lyn Hawkins

"Very friendly and efficient service - what a pleasure working with Anne."

Jacques Taylor

"I highly recommend Daniel from HHG Legal Mandurah. When dealing with a complicated legal property matter recently I was extremely impressed by Daniel's honesty and integrity and the legal advice I received. I am very happy with the service from HHG Legal."

Tony Walker