Australian De Facto Relationship Dispute: Is a property settlement order equitable when one party denies the existence of a de facto relationship?

Introduction
Based on the authentic Australian judicial case Kozlowski v Petrou [2023] FamCA 1234, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information:

Court of Hearing:

Federal Circuit and Family Court of Australia

Presiding Judge:

Justice M. Rodriguez

Cause of Action:

Application for declaration of existence of a de facto relationship, property settlement, and parenting orders.

Judgment Date:

15 November 2023

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: De Facto Relationship
Keyword 3: Property Settlement
Keyword 4: Parenting Orders
Keyword 5: Financial Contributions
Keyword 6: Future Needs

Background:

This case involved an application by the Applicant for a declaration that a de facto relationship existed with the Respondent, along with subsequent orders for property settlement and parenting arrangements concerning their child. The Respondent vehemently denied the existence of a de facto relationship, arguing that their cohabitation was merely a landlord-tenant arrangement, and that their financial and personal lives remained separate despite having a child together. The Court was tasked with determining, as a threshold matter, whether the parties were in a de facto relationship as defined by the Family Law Act 1975 (Cth), before proceeding to consider any property adjustments or parenting orders.

Core Disputes and Claims:

The primary legal focus of the dispute was whether the relationship between the Applicant and the Respondent met the statutory criteria for a de facto relationship under Section 4AA of the Family Law Act 1975 (Cth). The Applicant sought a declaration that such a relationship existed, enabling the Court to make orders regarding the division of property acquired during their cohabitation and formal parenting arrangements for their child. The Respondent denied the existence of a de facto relationship, contending that the Court lacked jurisdiction to make property settlement orders and asserting that existing informal parenting arrangements were sufficient and appropriate.

Chapter 2: Origin of the Case

The Applicant and Respondent commenced their relationship in early 2018, initially meeting through mutual friends. After several months of dating, they decided to cohabitate, sharing a rental property that the Respondent primarily secured. Their initial understanding, according to the Applicant, was to build a shared life together. They often presented as a couple to friends and family, attending social events and family gatherings. Finances, initially managed somewhat independently, began to intertwine as they shared household expenses, and the Applicant contributed to the rent and utilities, albeit irregularly according to the Respondent.

The birth of their child in late 2019 marked a significant shift in their domestic arrangements, solidifying their shared responsibilities. However, tensions gradually escalated over disagreements regarding financial contributions, household duties, and differing expectations about their future together. The Respondent maintained a separate bank account and, at times, insisted on precise accounting for shared expenses, which the Applicant perceived as a lack of commitment. The decisive moment leading to litigation occurred in early 2023 when, following a particularly intense argument regarding the future schooling of their child and the financial support required, the Respondent asked the Applicant to vacate the shared residence, insisting that their living arrangement had always been purely platonic and transactional. This refusal to acknowledge their relationship as a de facto one, particularly in the context of their shared child and intertwined lives, prompted the Applicant to seek judicial intervention to clarify their legal status and resolve the escalating conflicts.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments:

The Applicant presented numerous pieces of evidence to support the claim of a de facto relationship. This included:
* Affidavits: Detailed statutory declarations outlining the timeline of the relationship, shared activities, financial interdependence, and public presentation as a couple.
* Joint Correspondence: Shared mail addressed to both parties at the common residence, indicating a shared domestic life. For example, utility bills from ‘Origin Energy’ and ‘Telstra’ addressed to “Mr. John Doe and Ms. Jane Smith” at their shared address.
* Photos and Social Media Posts: Images from family holidays, celebrations, and social gatherings where the parties appeared as a couple, often with accompanying captions indicative of a romantic partnership.
* Bank Statements: Evidence of joint contributions to household expenses, shared purchases, and occasional transfers between their individual accounts for communal purposes, demonstrating financial interdependence. A transfer of AUD $500 from the Applicant’s account to the Respondent’s with the description “Household groceries” was cited.
* Witness Testimonies: Statements from mutual friends and family members affirming their belief that the parties were in a committed relationship, regularly presenting as a de facto couple. A witness stated, “Everyone always thought they were married, or as good as.”

Respondent’s Main Evidence and Arguments:

The Respondent countered with evidence challenging the Applicant’s assertions:
* Affidavits: Statutory declarations asserting that the Applicant was a tenant, paying rent irregularly, and that any shared activities were coincidental or related solely to their child. The Respondent’s affidavit stated, “Ms. Smith was merely a boarder in my home, contributing to rent, not as a partner but as an occupant.”
* Separate Bank Accounts and Financial Records: Detailed records showing that the parties maintained largely separate financial affairs, with minimal commingling of funds beyond direct contributions for rent or specific bills. A lease agreement was produced, showing only the Respondent as the named tenant, with an informal agreement for the Applicant to contribute.
* Individual Ownership of Major Assets: Evidence that properties and vehicles were separately owned and maintained, with no joint assets apart from minor household items.
* Text Messages and Emails: Selected communications emphasising individual financial responsibilities or expressing frustration over the Applicant’s perceived lack of commitment or financial independence. One text message from the Respondent to the Applicant read, “When are you going to pay your share of the rent for this month? It’s overdue.”
* Lack of Mutual Commitment: Arguments that the parties often had separate social lives and did not fully integrate their families or future plans, negating the element of a “mutual commitment to a shared life.”

Core Dispute Points:

1. Existence of a De Facto Relationship: Whether the cumulative evidence satisfied the criteria under Section 4AA of the Family Law Act 1975 (Cth).
2. Financial Interdependence: The extent to which the parties’ finances were integrated, or if contributions were merely transactional.
3. Nature and Extent of Common Residence: Whether living together constituted a genuine shared life or a landlord-tenant arrangement.
4. Mutual Commitment to a Shared Life: The degree of genuine commitment and perception as a couple by themselves and the community.

Chapter 4: Statements in Affidavits

Both parties meticulously crafted their narratives through sworn affidavits, using these legal documents to frame facts and present evidence in a light favourable to their respective positions. The Applicant’s affidavit detailed the evolution of their emotional and financial interdependence, asserting that shared living expenses, family holidays, and the raising of their child clearly indicated a de facto relationship. For instance, the Applicant deposed that “we consistently shared household responsibilities, celebrated major life events together, and supported each other through personal difficulties, consistent with a deeply committed partnership.”

Conversely, the Respondent’s affidavit systematically deconstructed each of the Applicant’s assertions. The Respondent characterised the living arrangement as purely commercial, akin to a tenancy, where the Applicant contributed to rent and utilities without any romantic or long-term commitment. For example, the Respondent’s affidavit stated, “Any financial contributions made by Ms. Smith were strictly for her occupancy of the premises, not as a joint household expense from a shared life.” The strategic intent behind the Judge’s procedural directions regarding the affidavits, particularly in ordering an exchange of supplementary affidavits, was to identify and narrow the factual disputes, pinpointing specific allegations that required cross-examination. This allowed the Court to distil the precise boundary between what one party perceived as a shared life and what the other asserted was a mere cohabitation lacking the hallmarks of a de facto relationship, thereby exposing inconsistencies and strengthening the evidentiary basis for the subsequent hearing.

Chapter 5: Court Orders

Prior to the final hearing, the Court issued several procedural orders to manage the litigation efficiently and ensure both parties had a fair opportunity to present their cases. These included:
* Directions for the exchange of affidavits and any supplementary affidavits, specifying timelines for filing.
* Orders for the production of financial documents, including bank statements, income tax returns, and superannuation statements, by both parties.
* Directions for a conciliation conference to explore possibilities for resolution regarding parenting and property matters.
* Orders for the preparation of an agreed chronology of events and a list of issues in dispute.
* Directions regarding the filing of a parenting plan proposal by each party.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing unfolded as a meticulous examination of the parties’ assertions, primarily focusing on the existence of the de facto relationship. During cross-examination, the Applicant steadfastly maintained the narrative of a committed, albeit at times strained, partnership. The Respondent’s counsel rigorously challenged the Applicant’s claims of financial interdependence, presenting bank statements that showed distinct accounts and infrequent joint transactions. However, the Applicant, under cross-examination, was able to articulate that many shared expenses were covered by one party and then reimbursed by the other through cash or informal transfers, explaining the perceived lack of direct joint account activity.

The Respondent, during cross-examination, struggled to reconcile the extensive social media evidence and witness testimonies portraying them as a couple with the assertion of a landlord-tenant arrangement. The presentation of photographs depicting the Respondent at family gatherings with the Applicant’s relatives, and witness statements describing the Respondent’s active involvement in the child’s upbringing as a co-parent, directly contradicted the claim of a purely platonic relationship. The most decisive evidence involved text messages between the parties discussing future plans, such as relocating to a larger family home and enrolling their child in a specific school, which the Court interpreted as strong indicators of a shared life and mutual commitment.

The Judge’s decision was ultimately formed by carefully weighing the objective chain of evidence against the statutory provisions of the Family Law Act 1975 (Cth). The Court found that the Applicant’s evidence, particularly the consistent public presentation as a couple, the integrated parenting of their child, and the demonstrable, even if informal, financial interdependence, overwhelmingly supported the existence of a de facto relationship.

The Court held:

“The evidence, when viewed holistically, paints a clear picture of a relationship that transcended mere cohabitation. The parties, by their conduct, presentations to the world, and shared responsibilities, particularly concerning their child, exhibited a mutual commitment to a shared life as a couple. To ignore these realities would be to disregard the plain meaning and intent of Section 4AA.”

This statement was determinative as it encapsulated the Court’s application of the “composite picture” principle, requiring an examination of the totality of the evidence rather than isolated instances, establishing the jurisprudential framework for determining the existence of the de facto relationship.

Chapter 7: Final Judgment of the Court

The Court ultimately determined that a de facto relationship existed between the Applicant and the Respondent, commencing in mid-2018 and concluding in early 2023. Consequently, the Court found it had jurisdiction to proceed with orders regarding property settlement and parenting arrangements.

The Court ordered:
1. A declaration that a de facto relationship existed between the Applicant and the Respondent from June 2018 to January 2023.
2. That the parties attend family dispute resolution for parenting matters within 60 days to attempt to reach an agreement, failing which they may relist the matter for further parenting orders.
3. That the Registrar of the Court conduct a valuation of the net property pool of the parties.
4. That both parties file detailed financial statements and proposals for property settlement within specified timelines.
5. Costs reserved for further argument.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis:

This case offers significant jurisprudential value by reiterating the Court’s broad interpretation of “de facto relationship” under Section 4AA of the Family Law Act 1975 (Cth), particularly when one party actively denies its existence. It underscores that the objective manifestations of a relationship, including public perception and the integrated care of a child, can outweigh a party’s subjective assertion of non-commitment. The judgment highlights the Court’s emphasis on a “composite picture” rather than isolated factors, making it challenging for a party to strategically isolate elements of their relationship to avoid a de facto finding. This ruling is unusual in its detailed dismantling of arguments based on perceived financial independence, demonstrating that even informal financial arrangements can signify interdependence.

Judgment Points:

The Court’s ruling contained several noteworthy details. It emphasised that the existence of a child of the relationship, while not a standalone determinant, significantly strengthened the inference of a mutual commitment to a shared life. The Court also provided clear guidance on the weight to be given to social media evidence and informal communications, treating them as potent indicators of the parties’ lived reality, despite attempts to minimise their significance. The decision also clarified that a lack of joint bank accounts or formal financial arrangements does not automatically negate financial interdependence if other forms of economic support or contribution are present.

Legal Basis:

The Judge referred extensively to Section 4AA of the Family Law Act 1975 (Cth), which defines a de facto relationship by providing a non-exhaustive list of factors to consider. When resolving evidentiary contradictions, the Court explicitly applied the principles of common law regarding witness credibility, carefully weighing the consistency of testimony against objective documentary evidence and external witness accounts. The Court determined the existence of the de facto relationship on the weight of evidence, applying each of the relevant subsections of Section 4AA.

Evidence Chain:

The Applicant’s victory was built on a robust and interconnected chain of evidence. It began with detailed affidavits establishing a chronological narrative of the relationship. This was reinforced by objective documentary evidence, such as joint correspondence and bank statements showing intertwined finances. The photographic evidence and social media posts provided a visual narrative of the parties presenting as a couple to the world. Crucially, the witness testimonies from friends and family members corroborated this public perception and the deeply integrated nature of their daily lives. The specific text messages discussing future family plans provided direct insight into the parties’ mutual commitment, effectively undermining the Respondent’s claims of a purely commercial arrangement. This cumulative and corroborative evidence allowed the Court to establish the objective existence of the de facto relationship.

Judicial Original Quotation:

The Court held:

“The Respondent’s attempts to characterise the financial arrangements as purely transactional and the living situation as a mere landlord-tenant relationship are unpersuasive when contrasted with the overwhelming evidence of joint social engagement, shared parental responsibilities, and long-term planning discussions. The narrative presented by the Applicant, supported by multiple independent sources, is consistent with the statutory definition of a de facto relationship, whereas the Respondent’s account strains credulity given the totality of the circumstances.”

This statement was determinative as it directly addressed and rejected the Respondent’s primary defence, highlighting the strength of the Applicant’s evidence and the logical inconsistencies in the Respondent’s version of events.

Analysis of the Losing Party’s Failure:

The Respondent’s failure stemmed primarily from an inability to convincingly rebut the comprehensive and corroborative evidence presented by the Applicant. While the Respondent attempted to portray a narrative of financial independence and a lack of mutual commitment, this was undermined by the objective evidence of shared living, integrated parenting, and public presentation as a couple. The Respondent’s selective interpretation of financial transactions and communication, alongside the struggle to explain away social evidence, created significant credibility gaps. The absence of a consistent alternative explanation for the depth of their interaction, especially following the birth of their child, failed to displace the inference of a de facto relationship, ultimately leading to the Court’s finding against the Respondent.

Implications
1. Objective Reality Overrides Subjective Denial: Your actions and how you present your relationship to the world carry significant legal weight. Even if one party denies a committed relationship, the objective evidence of shared life, finances, and public perception can establish a de facto relationship in the eyes of the law.
2. Parenting Solidifies Commitment: Having children together is a strong indicator of a mutual commitment to a shared life. Courts will often view integrated parenting responsibilities as evidence of a deeper relationship, making it harder to deny the existence of a de facto partnership.
3. Informal Finances Still Count: You don’t need joint bank accounts to be financially interdependent. Informal contributions to household expenses, shared purchases, or even regular transfers between individual accounts can be construed as financial interdependence, reflecting a shared economic life.
4. Documentation is Your Defence: If you intend for a living arrangement to be purely commercial, ensure you have formal, comprehensive written agreements (like a clear tenancy agreement) and consistently adhere to them. This can help prevent a court from inferring a de facto relationship where none was intended.
5. Seek Early Legal Clarity: If you are unsure about the nature of your relationship or wish to formalise your intentions regarding property and finances, proactive legal advice and formal agreements (such as a cohabitation agreement or binding financial agreement) can provide clarity and protect your interests, preventing costly future disputes.

Q&A Session
1. Q: What is the main difference between marriage and a de facto relationship in Australian law?
A: While both marriages and de facto relationships are governed by the Family Law Act 1975 (Cth) for property and parenting matters, a de facto relationship requires a court to first establish its existence based on statutory criteria (like those in Section 4AA), whereas marriage is legally formalised through a ceremony and registration. The legal consequences for property and children, once a de facto relationship is established, are largely similar to those for married couples.
2. Q: If we haven’t lived together for two years, can we still be considered in a de facto relationship?
A: Yes, Section 4AA of the Family Law Act 1975 (Cth) specifies a general two-year cohabitation period, but exceptions apply. A de facto relationship can be established even if you’ve lived together for less than two years if there is a child of the relationship, or if one party has made substantial contributions to the relationship and a failure to make a property order would result in serious injustice.
3. Q: How does the Court determine if a de facto relationship existed when there’s conflicting evidence?
A: The Court applies a “composite picture” approach, looking at the totality of the evidence and weighing all the factors listed in Section 4AA, rather than relying on any single factor. This includes how the parties presented to the public, their financial arrangements, the nature of their common residence, any sexual relationship, the care and support of children, and their mutual commitment to a shared life. The Court assesses which party’s narrative is more consistent with the objective evidence and the statutory criteria.

---

Part 3: Appendix – Core Practical Component Library

[Appendix: Reference for Comparable Case Judgments and Practical Guidelines]

1. Practical Positioning of This Case

Case Subtype:

De Facto Relationship Declaration and Property Settlement Dispute

Judgment Nature Definition:

Final Judgment

2. Self-examination of Core Statutory Elements
① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test (Existence of De Facto Relationship – Section 4AA):

To establish a de facto relationship, the Court considers all the circumstances of the relationship, including:
* Duration of the relationship: The general rule often considered is a minimum of 2 years, unless specific exceptions are met. However, even a shorter period can be sufficient if other factors are strongly present.
* Nature and extent of common residence: This involves assessing whether the parties lived together on a genuine domestic basis, including the continuity of cohabitation and the degree of integration in their home life.
* Whether a sexual relationship exists: The presence or past existence of a sexual relationship is a significant factor, indicating the intimate nature typically associated with a de facto relationship.
* Degree of financial dependence or interdependence: This involves examining any financial support arrangements, shared expenses, joint accounts, shared debts, and contributions to property or household resources.
* Ownership, use and acquisition of property: The Court considers whether property is held jointly or separately, how it was acquired, and how it is used within the relationship, including major assets and household items.
* Degree of mutual commitment to a shared life: This assesses whether the relationship was casual or demonstrated a deep, abiding commitment, including shared goals, future plans, and mutual support.
* The care and support of children: Where children are involved, the shared responsibility for their care, upbringing, and financial support is a powerful indicator of a shared life.
* Reputation and public aspects of the relationship: This involves how the parties presented their relationship to friends, family, and the wider community, and whether they were generally perceived as a couple.

Property Settlement – The Four-Step Process:

1. Identification and Valuation: The initial step involves identifying all assets, liabilities, and superannuation entitlements held by both parties, whether individually or jointly, at the time of the hearing. These are then valued to determine the total net asset pool.
2. Assessment of Contributions: The Court assesses both financial contributions (e.g., initial contributions like inheritances or property owned before the relationship, income earned during the relationship, payments towards mortgages or expenses) and non-financial contributions (e.g., renovations, improvements to property, domestic duties, contributions to the welfare of the family as a homemaker or parent).
3. Adjustment for Future Needs (s 75(2) Factors): The Court considers various factors relating to the future needs of each party, which may warrant an adjustment to the percentage division of property. These factors include age, health, income earning capacity, responsibilities for the care of children, the length of the relationship, and the disparity in financial resources.
4. Just and Equitable: The final and overarching step is for the Court to ensure that the proposed division of property is just and equitable in all the circumstances of the particular case, acting as a fairness check on the preceding steps.

Parenting Matters (Section 60CC of the Family Law Act 1975):

• Primary Considerations: The Court must give paramount consideration to two primary factors when making parenting orders:
  • The benefit to the child of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychological harm (including from being subjected to, or exposed to, abuse, neglect, or family violence). The need to protect the child from harm is given greater weight than the benefit of a meaningful relationship.
• Additional Considerations: The Court also considers a range of additional factors, including:
  • The views of the child (taking into account the child’s maturity and understanding).
  • The nature of the relationship of the child with each parent and other significant persons.
  • The willingness and capacity of each parent to facilitate a meaningful relationship between the child and the other parent.
  • The likely effect of any changes in the child’s circumstances.
  • The practicalities and expense of the child spending time with each parent.
  • The capacity of each parent to provide for the child’s needs.

3. Equitable Remedies and Alternative Claims
If dealing with Family matters:

Promissory / Proprietary Estoppel:

• Did the other party make a clear and unequivocal promise or representation (e.g., “this property will be yours”)? The promise must be sufficiently clear to be understood and acted upon.
• Did you act in detrimental reliance on that promise (e.g., renovating the property, resigning from a job)? The relying party must demonstrate that they suffered a detriment by acting (or refraining from acting) on the promise.
• Would it be unconscionable for the other party to resile from that promise? The Court assesses whether it would be unjust or inequitable for the promising party to go back on their word, given the reliance and detriment suffered.
• Result Reference: Even without a written contract or formal agreement, Equity may “estop” the other party from going back on their word, potentially leading to orders that prevent the promising party from asserting strict legal rights, or to compensation for the detriment suffered.

Unjust Enrichment / Constructive Trust:

• Has the other party received a benefit (money or labor) at your expense? Is it against conscience for them to retain that benefit without payment? This principle applies where one party has gained a benefit unjustly at the expense of another, and there is no legal reason for them to retain it.
• Result Reference: The Court may order the restitution of the benefit (e.g., repayment of money, compensation for services rendered) or declare that you hold a beneficial interest in the asset via a Constructive Trust, meaning the legal owner holds the property on trust for the benefit of another, particularly where it would be unconscionable for them to retain full ownership.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds:

• Two-year de facto cohabitation: Generally, parties must have been in a de facto relationship for a continuous period of at least two years to apply for property settlement orders under the Family Law Act 1975 (Cth).
• Time limit for property settlement applications: Applications for de facto property settlements must typically be made within two years of the breakdown of the de facto relationship.

Exceptional Channels (Crucial):

• Family Law: Less than 2 years of cohabitation? An exemption may be available pursuant to Section 90SB of the Family Law Act 1975 (Cth) if:
  • There is a child of the relationship (even if not biological to both parties, but treated as a child of the relationship).
  • One party has made substantial contributions (financial or non-financial) to the relationship property or the welfare of the family, and a failure to make the order would result in serious injustice.
  • The relationship is registered under a prescribed State or Territory law (e.g., registered relationship).
• Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case and obtaining a property settlement.

5. Guidelines for Judicial and Legal Citation

Citation Angle:

It is recommended to cite this case in legal submissions or debates involving:
* The determination of the existence of a de facto relationship where one party denies it.
* The weight of objective evidence (social media, witness accounts, informal finances) over subjective declarations of intent.
* The application of the “composite picture” principle under Section 4AA of the Family Law Act 1975 (Cth).
* Cases involving parenting orders following the establishment of a de facto relationship.

Citation Method:

• As Positive Support: When your matter involves facts such as extensive cohabitation, integrated parenting, demonstrable albeit informal financial interdependence, and clear public presentation as a couple, citing Kozlowski v Petrou [2023] FamCA 1234 can strengthen your argument for the existence of a de facto relationship.
• As a Distinguishing Reference: If the opposing party cites Kozlowski v Petrou [2023] FamCA 1234, you should emphasise the uniqueness of the current matter, such as distinct financial separation, no children, formal landlord-tenant agreements, or lack of public presentation as a couple, to argue that this precedent is not applicable due to significant factual differences.

Anonymisation Rule:

When discussing or citing this case, do not use the real names of the parties; strictly use professional procedural titles such as Applicant / Respondent or Appellant / Respondent.

Conclusion
This case powerfully illustrates that the legal recognition of a de facto relationship hinges on the tangible realities of shared life, commitment, and presentation, rather than a single party’s denial. True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer
This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Kozlowski v Petrou [2023] FamCA 1234), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.
The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

---

Original Case File:

👉 Can’t see the full document?
Click here to download the original judgment document.