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How to Catch A De Facto

It is not uncommon for family law Courts to consider the status of de facto couples in de facto property proceedings brought under the Family Law Act 1975. Often, a broad range of materials and evidence are provided to the Courts to assist in determining whether or not the relationship can be accurately classified as de facto for the purposes of the Act.


In Jasper & Corrigan (No 2) [2017] FCCA 1467, the Court considered whether or not certain evidence was admissible in the context of de facto property proceedings. The evidence in question comprised recordings of conversations between the parties, which had been made secretly by the Applicant during her relationship with the Respondent without his knowledge or consent.


The Applicant submitted that the Respondent's utterances on the recordings lent credibility to her claim that there was a de facto relationship between the parties. 


Judge Altobelli considered that the Applicant sought to rely on the secret recordings to establish her belief that the relationship 'had a certain status which enjoyed a certain protection at law'. Since the recordings therefore related to the nature of the relationship between the parties, the Court agreed that this was a fundamental matter to be determined under Section 90RD of the Family Law Act 1975.


By framing the Applicant's proposed evidence in this manner, the Court was able to reach a finding that the exception offered by Section 7(3)(b)(i) of the Surveillance Devices Act 2007 (NSW) was applicable.


The Court determined that the use of the recordings in the proceeding was reasonably necessary for the protection of the lawful interests of the Applicant. What is significant here is that the Court was able to identify the link between the proposed evidence and a legal question to be determined in the proceeding, in order to then be able to rely on the Section 7(3)(b)(i) exception; if there was no such link, it would be difficult for a finding to be made that a lawful interest existed and required protection.


It is worth noting that the Court in this instance granted a certificate under Section 128 of the Evidence Act 1995 (NSW).


Whilst the Court ultimately did admit the secret recording, it pointed out that mere admissibility did not impact upon the level of weight that would be attributed to that now-admissible evidence, which would be subject to the usual scrutiny.


This is a useful example of the Court acknowledging the practical difficulties for de facto parties where they are required to properly evidence the actual nature of their relationship. Where the Court is armed with more evidence, it is likely to make a more-informed finding with greater certainty, which can only provide more clarity of the parties in such problematic cases and lead to better outcomes.

Our firm is able to assist and advise in relation to de facto relationships and separation. If you require assistance, or wish to discuss this article, please do not hesitate to contact us.

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