Do I Have a De Facto Relationship?

Baker v Landon

Child E was conceived through assisted reproductive technology. Child E was the biological child of Ms Landon, but not biologically related to Mr Baker. Mr Baker applied to have his parentage of the child legally recognised. This required a consideration of whether Ms Landon and Mr Baker were in a de facto relationship at the time when the child was conceived. This is because if Mr Baker was in a de facto relationship with Ms Landon, he would be recognised as child E’s parent per section 60H of the Family Law Act.

Factors that the court considered in determining that there was in fact a de facto relationship included:

• the parties were together for many years and were even engaged at one point before the conception of the child;
• there is no evidence that they separated at any time before starting the assisted reproductive technology procedures;
• the parties were living together at the time of conception;
• the parties had an ongoing sexual relationship;
• the engagement of the parties and involvement in IVF “show a significant commitment to a shared life”; and
• their relationship and commitment to each other were displayed to the public through, for example, public marriage proposals.

On the basis of these factors (and others), the court held that Ms Landon and Mr Baker were in a de facto relationship and therefore, Mr Baker was found to be the legal parent of child E.

Jonah v White

Ms Jonah and Mr White met through work (Mr White employed Ms Jonah) and soon commenced a relationship. During the relationship, Mr White was married with children and his relationship with Ms Jonah was secret. The parties lived in separate homes and separate states. Ms Jonah sought to have her relationship with Mr White legally declared as de facto; however, she was unsuccessful. In considering the facts of the case, the trial judge held that some factors pointed towards a lack of de facto relationship. These included the facts that:

• the parties lived separately;
• there was no relationship between Ms Jonah and Mr White’s children;
• the parties never had joint bank accounts or investments;
• Mr White had a family household to maintain;
• the relationship was kept secret and not much time was spent together;
• Mr White asserted that if he has to “make a choice”, he would “choose” his wife and not Ms Jonah to be his partner;
• the parties did not socialise with each other’s friends;
• Mr White did not spend much time with Ms Jonah’s family; and
• the parties did not public represent themselves as a couple.

On appeal, the court affirmed there was no de facto relationship between the parties.

Taisha v Peng

Ms Taisha and Ms Peng lived in the same residence for 17 years. Ms Peng was married to Mr Pan before living with Ms Taisha and at the time of this hearing. Ms Peng and Mr Pan had three children of their marriage. Ms Taisha seeks a declaration that she and Ms Peng were in a de facto relationship for 17 years. The court considered various factors of the parties’ relationship and concluded that there was no de facto relationship. This was on the basis of factors including:

• the fact that the relationship was kept secret;
• many changes in living arrangements; and
• insufficient evidence produced by the applicant.

Sofia & Treacy

The respondent (Ms Treacy) gave birth to a child, X. X was conceived through artificial reproductive technology in November 2018. The parties were in a relationship from July 2017 to December 2019. Sofia claimed that this was a de facto relationship, whereas Ms Treacy denies this. Whether the parties were in a de facto relationship is relevant to determining the legal parentage of X under section 60H of the Family Law Act.

In determining that there was no de facto relationship at the time when X was conceived, the court considered section 4AA of the Family Law Act and was influenced by factors including:

• the relationship was relatively new at the time of conception;
• there is no evidence that at the time of conception they were a couple who shared their lives;
• the parties did not appear to have a shared home life or share domestic activities;
• the parties’ finances were independent of each other and they provided no financial support to one another;
• the respondent did not have many possessions in the applicant’s house;
• the parties did not have any conversations about co-parenting or marriage; and
• witnesses provided evidence that when the respondent was in the applicant’s home, the respondent “behaved much like a guest” and completed no domestic chores.