Disputes Over Property 'Gift' and Cohabitation: How to Determine the Existence of a De Facto Relationship?

Australian De Facto Relationship Jurisdiction Dispute: When a “Business Partnership” Claim Collides with a Property Transfer and Intimate Domestic Life

Based on the authentic Australian judicial case Cantu & Galloway [2023] FedCFamC1F 993, 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. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Federal Circuit and Family Court of Australia (Division 1)

Presiding Judge: Austin J

Cause of Action: Application for a declaration of a de facto relationship under s 90RD of the Family Law Act 1975 (Cth) as a jurisdictional gateway to financial relief under Part VIIIAB

Judgment Date: 22 November 2023

Core Keywords:

Keyword 1: Authentic Judgment Case

Keyword 2: De facto relationship declaration

Keyword 3: Jurisdictional fact

Keyword 4: Genuine domestic basis

Keyword 5: Property transfer without consideration

Keyword 6: Credibility and implausibility

Background

A dispute that began as a personal relationship and later turned into a financial and legal crisis came before the Court in an unusually sharp form. The Applicant had long owned a rural property in New South Wales and was under financial pressure from mortgage debt. After meeting the Respondent in mid-2019, the parties’ relationship quickly became intertwined with the property itself. In 2020, the Applicant transferred legal title of the property to the Respondent without money changing hands, while continuing to live there and pay rent. The Respondent refinanced the mortgage in his own name and used additional borrowed funds and later insurance proceeds. When the relationship later fractured, the Applicant commenced proceedings seeking financial relief, but the Respondent denied that a de facto relationship existed at all, contending instead that the parties merely had a “commercial” arrangement.

This jurisdictional contest mattered because, without a qualifying de facto relationship, the Court’s power to make property adjustment orders under Part VIIIAB would not be enlivened.

Core Disputes and Claims

Core legal focus question: Was the parties’ relationship, assessed against s 4AA of the Family Law Act 1975 (Cth), a relationship as a couple living together on a genuine domestic basis, such that the Court could declare a de facto relationship under s 90RD and activate jurisdiction for financial relief under Part VIIIAB?

Applicant’s position and relief sought:

A declaration pursuant to s 90RD(2)(a) that the parties were in a de facto relationship from mid-2019 to late-2022.
Alternatively, if required, a declaration pursuant to s 90RD(2)(c) that the Applicant made substantial contributions, relevant to exceptions where duration thresholds might otherwise be in issue.

Respondent’s position:

Denial of a de facto relationship.
Assertion that the parties were at most engaged in a “business partnership” or “commercial partnership” connected to farming and property use, rather than domestic life.

Chapter 2: Origin of the Case

The litigation did not begin with a single dramatic event. It grew from a pattern that is common in real life but difficult to explain once lawyers and courts get involved: a relationship that mixed affection, living arrangements, property, and informal understandings, without the protection of a clear written agreement.

The parties met in mid-2019. The Applicant already owned a rural property purchased years earlier and encumbered by a mortgage. She was considering selling the property to clear debt. The Respondent accepted that a buyer existed at a particular price point, but the parties pivoted away from sale toward a plan in which the Respondent would take an interest in the property. Early refinancing efforts through third-party lenders did not proceed as the parties hoped. What happened next became the central factual foundation of the later dispute: instead of the Respondent taking a half interest, the Respondent ended up with exclusive legal title.

At the start of 2020, the Applicant wrote a letter confirming she would “gift” an interest in the property to the Respondent, framed around the Applicant’s estimated equity rather than the full market value. By mid-2020, legal title was transferred to the Respondent. Documentation recorded consideration, but both sides accepted that no money actually changed hands. The Respondent refinanced the existing mortgage in his own name for an amount greater than what was required to discharge the Applicant’s existing loan. The extra funds were then used for the Respondent’s personal debts, a vehicle purchase, and work on the property. Later, a weather event resulted in an insurance payout, which the Respondent received and spent.

Living arrangements shifted over time. Initially, the parties lived separately, with the Applicant remaining at the property after transfer and paying rent to the Respondent, while the Respondent lived elsewhere. Then, toward the end of 2020, the Respondent moved onto the property and ultimately shared a bed with the Applicant and maintained an ongoing sexual relationship, on the Respondent’s own eventual admissions, until late-2022.

A fracture followed around the end of 2022. The Respondent’s account framed this as the end of a business arrangement, whereas the Applicant framed it as relationship breakdown. The Respondent’s presence at the property became intermittent and ceased in a practical sense by mid-2023. The Applicant remained living at the property. When the Respondent stopped servicing the mortgage, enforcement steps followed, creating urgent pressure on the Applicant to vacate to avoid loss of the property.

This is the kind of factual matrix that courts see repeatedly: a person transfers an asset to a partner in the context of a relationship that is later disputed, and the legal system is then asked to decide whether the relationship was domestic in nature, and whether family law jurisdiction can respond to the financial consequences.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

Affidavit evidence:

The Applicant’s affidavit described the evolution of the relationship, the decision to transfer the property, the absence of monetary consideration, continuing residence, rent payments, and the Respondent’s conduct after separation, including ceasing mortgage payments and the risk of enforcement by the mortgagee.
The affidavit evidence described the parties’ shared life, including attendance at social gatherings as a couple, domestic contributions, and the nature of their intimacy.
Supporting affidavit evidence from the Applicant’s adult son described observations consistent with the parties presenting as a couple and staying overnight with each other before co-residence became permanent.

Documentary exhibits (tendered as exhibits):

Property transfer documentation showing the transfer of title and recorded consideration, alongside evidence that no money was paid in reality.
Communications evidence including text messaging supporting the inference of an intimate relationship inconsistent with a purely commercial association.

Specific evidentiary details that mattered:

The Applicant’s narrative of the “gift” letter and the subsequent title transfer without money changing hands.
Rent payments by the Applicant after the Respondent took title, and the Respondent using rent proceeds to service the mortgage in his name.
The Respondent’s use of refinancing “excess” funds beyond what was needed to discharge the Applicant’s mortgage.
The insurance payout received and expended by the Respondent.
Social presentation evidence: dinners, birthdays, outings, family events, travel, and the Respondent’s participation in intimate family moments.

Respondent’s Main Evidence and Arguments

Affidavit evidence:

The Respondent’s affidavits asserted that the relationship was not romantic or domestic in substance, describing it instead as a commercial arrangement or “verbal agreement” to pursue joint business activities on the property.
The Respondent claimed that he told the Applicant early that he did not want to be in a romantic relationship and attempted to characterise later conduct as inconsistent with a de facto relationship.

Oral evidence at hearing:

Under cross-examination, the Respondent made admissions about sharing a bed and maintaining a sexual relationship until late-2022.
The Respondent accepted facts that made the “purely commercial” description difficult to sustain, including communications of an intimate character.
The Respondent acknowledged spending the refinancing surplus and insurance payout without any distribution to the Applicant.

A key forensic weakness:

The Respondent indicated an intention to rely on another witness, but that witness did not provide sworn evidence and did not attend, leaving the Respondent’s account largely unsupported where it conflicted with documentary and circumstantial material.

Core Dispute Points

Characterisation dispute: domestic partnership versus business partnership.
The significance of cohabitation: whether living separately earlier prevented a de facto finding for that period.
Sexual relationship and intimacy: whether it existed, for how long, and what it revealed about the relationship’s true character.
Financial interdependence: the meaning of the property transfer, rent arrangements, management work performed by the Applicant, and use of funds by the Respondent.
Public aspects and social presentation: whether family and friends viewed the parties as a couple.
Credibility: whether the Respondent’s narrative was consistent with objective evidence and ordinary human experience.

Chapter 4: Statements in Affidavits

Affidavits in family law proceedings often carry dual weight: they set the narrative for the case and they define what is contested. In this matter, both parties filed affidavits, but the Court observed a practical problem seen in many self-represented or lightly-advised cases: the affidavits were prepared with little attention to the Evidence Act 1995 (Cth) concepts of admissibility, relevance, hearsay, opinion, and probative value.

The Applicant’s affidavit strategy was to build a cumulative story: relationship timeline, property transfer, co-residence, domestic contributions, social presentation, and the practical consequences after separation. The Applicant did not rely only on labels such as “we were partners”; she relied on concrete episodes and documents that reflected shared life.

The Respondent’s affidavit strategy, by contrast, centred on a reframing exercise: taking the same events and describing them as business arrangements. That approach can succeed when supported by consistent documentation, credible third-party evidence, or a coherent commercial structure. The difficulty here was that the Respondent’s own admissions and the surrounding circumstances undercut the plausibility of a purely commercial description.

A key comparison point illustrates the affidavit boundary between fact and assertion:

Both sides accepted that the Respondent eventually lived on the property.
The Respondent attempted to present this as consistent with operating as a “primary producer”.
The Applicant presented the co-residence alongside evidence of shared bed and ongoing sexual relationship, social presentation, and household dynamics, making the “primary producer” label insufficient to explain the totality.

Strategic Intent Behind Procedural Directions

The Court separated the jurisdictional question and determined it first. That procedural choice reflects a disciplined judicial approach: before the Court invests significant resources into property settlement or other financial orders, it must be satisfied that the jurisdictional facts exist.

The Court also addressed the constraints on cross-examination where family violence orders and statutory prohibitions were engaged. This is strategically significant: in relationship cases, the ability to test credibility through cross-examination is often decisive. When cross-examination is limited or structured, the Court must be alert to the risk of unfairness while still ensuring the evidence is tested to the extent the law allows.

Chapter 5: Court Orders

Prior to final determination, the Court made or applied procedural arrangements that shaped the hearing:

The preliminary question of whether a de facto relationship existed, and its duration, was listed for separate hearing as a jurisdictional issue.
The Respondent was not legally represented and, due to statutory constraints connected with family violence protections, could not personally cross-examine the Applicant.
The Court proceeded on the basis that the Respondent had notice of those constraints through pre-trial orders and did not establish procedural unfairness.
After determination, the Court directed that remaining issues be case managed toward a future hearing concerning financial relief under Part VIIIAB.

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

The hearing exposed the difference between a narrative that is merely asserted and a narrative that survives confrontation with detail.

Process Reconstruction: Live Restoration

The Respondent’s central claim was that the parties were not a couple in any real sense, but “commercial partners”. That characterisation faced pressure as the Applicant’s case forced the Respondent to answer direct questions about daily life, intimacy, and communications.

A critical moment occurred when the Respondent, in cross-examination, conceded that the parties shared a bed and maintained a sexual relationship until late-2022. This admission did not operate in isolation. It interacted with:

The timeline of the Respondent moving onto the property.
The social and family evidence of the parties presenting as a couple.
A text message of a highly sexually explicit nature sent by the Respondent to the Applicant, which could not sensibly be explained as a business communication.

The Respondent was also confronted on financial matters: the refinancing amount, the use of surplus funds, the insurance payout, and the absence of any payment to the Applicant. While these financial facts were not, by themselves, the legal test for a de facto relationship, they made it easier to understand why the Applicant said this was a relationship, not an arms-length commercial venture.

Core Evidence Confrontation

The most decisive evidence clusters were:

Intimacy evidence: admissions of a sexual relationship and shared bed, reinforced by intimate communications.
Domestic life evidence: co-residence at the property from late-2020 to late-2022.
Social presentation evidence: joint attendance at gatherings, travel, and family events, including the Respondent being presented as a partner to the Applicant’s family.
Financial interdependence evidence: the transfer of property title without payment, the Applicant’s continued residence coupled with rent, the Respondent’s mortgage refinancing, and the Respondent’s expenditure of funds.

Judicial Reasoning with Determinative Quotation

The Court’s reasoning turned on a statutory test expressed in plain but demanding language. In substance, the Court approached the question as an evaluative finding of fact rather than an exercise of discretion.

“The key test is whether the parties had a relationship as a couple living together on a genuine domestic basis.”

This statement was determinative because it focused the analysis on the reality of the parties’ life, not on labels the parties applied after the relationship ended. Once the Court anchored the inquiry in the statutory concept of “genuine domestic basis”, it became necessary to weigh the totality of evidence across the s 4AA factors, rather than allowing one contested characterisation such as “business partnership” to dominate.

Chapter 7: Final Judgment of the Court

The Court made orders declaring that the parties were in a de facto relationship from mid-2019 to late-2022 pursuant to s 90RD of the Family Law Act 1975 (Cth).

The Court noted that there was no contest about other jurisdictional facts. Accordingly, once the declaration was made, jurisdiction to consider financial relief under Part VIIIAB was enlivened.

The Court also indicated procedural case management steps would follow so that the remaining financial issues could be prepared for hearing.

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

Special Analysis

This decision is jurisprudentially valuable because it demonstrates how Australian family law treats the de facto relationship question as an evaluative synthesis of facts, not as a contest of slogans. It also shows how courts react when a party attempts to retrofit a relationship narrative into a commercial story after the breakdown, particularly where the objective evidence points strongly in the opposite direction.

The decision also illustrates a practical truth for litigants: a relationship can be found to be de facto even where there is a period of separate residences, because cohabitation is not an absolute prerequisite. This is a frequent misconception in the community and even among self-represented litigants.

Judgment Points

The Court treated the s 90RD declaration as a jurisdictional fact-finding exercise rather than a discretionary decision, aligning with established authority.
The Court applied the “composite picture” approach mandated by s 4AA, considering the factors collectively rather than mechanically.
The Court accepted that a de facto relationship can include a period where the parties maintained separate residences, where the overall relationship still answers the statutory description.
The Court placed significant weight on admissions made under cross-examination, particularly where those admissions contradicted earlier framing.
The Court assessed credibility using ordinary human experience, finding the “business partnership only” explanation untenable in light of intimate communications and conduct.

Legal Basis

The Court’s reasoning was grounded in these statutory provisions and legal principles:

Family Law Act 1975 (Cth) s 90RD: power to declare the existence, duration, and other aspects of a de facto relationship for jurisdictional purposes.
Family Law Act 1975 (Cth) s 4AA: definition of a de facto relationship and the factors the Court may consider in determining whether parties had a relationship as a couple living together on a genuine domestic basis.
Family Law Act 1975 (Cth) Part VIIIAB: jurisdiction for property and financial relief once jurisdictional facts are established.
Family Law Act 1975 (Cth) s 90SB: threshold and exceptions for when de facto financial causes of action may be brought, relevant where duration is disputed.
Family Law Act 1975 (Cth) s 102NA: restrictions on cross-examination in certain circumstances, shaping the hearing procedure and fairness assessment.
Family Law Act 1975 (Cth) s 121: restrictions on publication of identifying information in family law proceedings, explaining anonymisation and pseudonym usage.

Comparable authorities expressly referenced and how they operate:

Jonah & White (2011) 45 Fam LR 460: s 90RD declaration characterised as not involving a discretionary power, but an evaluative factual determination.
Lennon & Sanil (2020) FLC 93-962: the s 4AA inquiry involves evaluative fact finding against the statutory criteria.
Owens & Benson [2014] FamCAFC 243: the applicant bears the onus of establishing the jurisdictional facts on the civil standard.
Fairbairn & Radecki (2022) 400 ALR 613: cohabitation is not necessary in every case; the Court may find a de facto relationship even if parties do not live together at all times.

Evidence Chain

The Court’s logic can be expressed as: Conclusion = Evidence + Statutory Provisions.

Victory Point 1: The Court anchored the inquiry in s 4AA(1) rather than in party labels.

Evidence: The Respondent’s attempt to label the relationship “commercial” was treated as a claim requiring coherence with objective facts. Intimate communications, shared bed admissions, and social presentation evidence undermined the label.

Statutory provision: s 4AA(1) requires assessment of whether the parties had a relationship as a couple living together on a genuine domestic basis.

Why it mattered: Courts decide on the substance of life, not the rebranding of it.

Victory Point 2: Early separate residences did not defeat the Applicant’s case.

Evidence: The parties spent nights together and later co-resided on the property for a substantial period.

Statutory provision: s 4AA(2) permits the Court to consider residence arrangements, but does not make cohabitation a mandatory element.

Authority: Fairbairn & Radecki supports the proposition that maintaining separate residences does not necessarily prevent a de facto finding.

Why it mattered: The Court could include the earlier period within the overall relationship assessment and avoid an overly rigid approach.

Victory Point 3: Admissions under cross-examination became the credibility fulcrum.

Evidence: The Respondent admitted ongoing sexual relationship and shared bed, and conceded the oddity of intimate communications being directed to a mere “business partner”.

Statutory provision: s 4AA(2)(c) permits consideration of whether a sexual relationship exists.

Why it mattered: A late admission, made when denial is no longer sustainable, often persuades the Court that the earlier narrative was strategic rather than truthful.

Victory Point 4: Financial interdependence was assessed realistically, not formally.

Evidence: The Applicant transferred legal title without payment; the Applicant continued living there while paying rent; the Respondent refinanced and used surplus funds and insurance proceeds without distributing any money to the Applicant; the Applicant performed management work without remuneration.

Statutory provisions: s 4AA(2)(d) and s 4AA(2)(e) permit consideration of financial dependence or interdependence and ownership, use and acquisition of property.

Why it mattered: The transaction structure was inconsistent with an ordinary commercial partnership that would normally document contributions and profit allocation, and it sat naturally with a relationship dynamic where trust replaces formal safeguards.

Victory Point 5: The “public aspects” factor helped the Court cut through private denials.

Evidence: Social events attended as a couple, family events, travel, the Respondent being introduced as a partner, and family members’ perception.

Statutory provision: s 4AA(2)(i) permits consideration of the reputation and public aspects of the relationship.

Why it mattered: Public presentation is difficult to fabricate consistently over time and often reveals how a relationship functioned in reality.

Victory Point 6: The Court used ordinary human experience to assess plausibility.

Evidence: The intimate nature of communications and conduct, combined with shared domestic life, made the purely commercial story implausible.

Statutory framework: The s 4AA assessment is evaluative and holistic, allowing the Court to draw common sense inferences.

Why it mattered: In close factual cases, plausibility can be decisive when direct evidence is imperfect.

Victory Point 7: The Respondent’s failure to produce supporting sworn evidence weakened his narrative.

Evidence: The Respondent identified a potential witness but did not produce sworn evidence or attendance.

Practical litigation principle: Where a party asserts a contested account, the absence of corroboration can reduce weight, particularly where the account is inherently unlikely.

Why it mattered: The Court was left with admissions, documents, and the Applicant’s cumulative narrative as the more reliable basis for findings.

Victory Point 8: The Court maintained jurisdictional discipline.

Evidence: The Court treated the de facto declaration as a threshold issue and did not drift prematurely into property adjustment merits.

Statutory provisions: s 90RD and Part VIIIAB require jurisdictional facts before substantive financial relief.

Why it mattered: This approach protects both parties from unnecessary litigation cost where jurisdiction might fail, and it prevents a court from deciding merits without power.

Judicial Original Quotation

The judgment emphasised the nature of the task and the statutory lens.

“A declaration under s 90RD does not involve the exercise of judicial discretion. It is an evaluative finding of fact, taking account of the criteria in s 4AA.”

This statement was determinative because it framed the hearing as a fact-finding exercise to be resolved by evidence and statutory criteria, rather than by fairness impressions or sympathy. It signalled that the Court would measure the parties’ lived reality against s 4AA, and would not accept a post-breakdown re-characterisation that could not withstand evidentiary testing.

Analysis of the Losing Party’s Failure

The Respondent’s failure was not simply that he lost a factual contest. It was that his chosen framing strategy collapsed under his own admissions and the surrounding circumstances.

Over-reliance on labels: The “business partnership” label was not supported by typical commercial indicators such as written terms, profit allocation, structured accounts, or consistent third-party corroboration.
Contradictory admissions: Admissions regarding shared bed and ongoing sexual relationship made the denial of a de facto relationship difficult to sustain.
Implausibility: The attempt to explain intimate communications and conduct as commercial was inconsistent with ordinary human experience, and the Court expressly treated the suggestion as untenable.
Weak corroboration: The absence of the additional witness left the Respondent exposed where his account conflicted with documents and admissions.
Failure to confront the composite picture: The Respondent’s case did not adequately address how multiple s 4AA factors, viewed together, could be reconciled with a non-domestic characterisation.

Implications

A relationship is judged by how it is lived, not how it is renamed after it ends. If your daily life looks like a couple’s life, courts tend to treat it as such.
Separate houses do not automatically mean separate lives. A de facto relationship can still exist even when people live apart for a period, if the overall relationship is domestic in substance.
Property transfers made in trust can become legal traps. If you transfer legal title without a clear written financial agreement, you may be forced to fight later to explain what you believed the transfer meant.
Evidence is not only documents; it is also consistency. Photos, messages, social presentation, and admissions can form a chain that is stronger than a single dramatic piece of proof.
Litigation is not only about what happened; it is also about what you can prove. A story that cannot survive cross-examination or cannot be corroborated tends to unravel quickly.

Q&A Session

Q1: Why did the Court treat the de facto question as a separate hearing issue?

Because the existence and duration of a de facto relationship can be a jurisdictional fact. If it is not established, the Court may not have power to make property adjustment orders under Part VIIIAB. Determining jurisdiction first prevents wasted cost and procedural unfairness.

Q2: Does the transfer of property title automatically prove a de facto relationship?

No. A property transfer can occur for many reasons. But in this case, the transfer interacted with other evidence: co-residence, intimacy, social presentation, and financial interdependence. The Court assessed the composite picture, not a single transaction.

Q3: What evidence tends to be most persuasive in disputes about whether a relationship was domestic?

Admissions under cross-examination, contemporaneous communications, and consistent third-party observations often carry strong weight. Courts also draw inferences from ordinary human experience where a party’s explanation is inherently implausible.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype

Family Law: De facto relationship jurisdiction dispute as a gateway to property settlement under Part VIIIAB, with a contested characterisation of the relationship as commercial rather than domestic.

Judgment Nature Definition

Final Judgment on a preliminary jurisdictional question, with procedural directions for the remaining financial dispute.

2. Self-examination of Core Statutory Elements

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

Core Test: Existence of De Facto Relationship under s 4AA

The Court must determine whether the parties had a relationship as a couple living together on a genuine domestic basis. The following factors may be considered, and none is necessarily decisive on its own:

Duration of the relationship: A longer period tends to support a de facto finding, but a shorter period may still qualify depending on the overall domestic reality.
Nature and extent of common residence: Continuous co-residence can support a domestic finding, but separate residences do not necessarily prevent it if the relationship otherwise operates domestically.
Whether a sexual relationship exists: The presence, duration, and context of intimacy can support the inference of a couple relationship.
Degree of financial dependence or interdependence, and any arrangements for financial support: Look for how bills were paid, whether one supported the other, and whether finances were functionally intertwined even without joint accounts.
Ownership, use and acquisition of property: Consider whether assets were acquired or used in a way consistent with shared life, including transfers of title and the practical benefit derived from assets.
Degree of mutual commitment to a shared life: Examine whether the parties planned life together, provided emotional support, and behaved as a unit over time.
Care and support of children: Where relevant, look to parental roles, caregiving, and support, even if children are from earlier relationships.
Reputation and public aspects of the relationship: Consider whether family, friends, and community regarded them as a couple and how the parties presented themselves publicly.
Whether the relationship is or was registered under a prescribed law of a State or Territory: Registration can support a de facto finding, but absence of registration does not preclude one.

Property Settlement: The Four-Step Process

If jurisdiction is established and a property settlement is pursued, the Court generally undertakes a structured approach:

Step 1: Identification and valuation

Identify all assets, liabilities, superannuation interests, and financial resources of both parties and determine the net asset pool. Valuation disputes can be significant, and independent evidence tends to be important.

Step 2: Assessment of contributions

Assess contributions across the relationship, including:

Financial contributions at commencement, during the relationship, and after separation.
Non-financial contributions, such as improvements to property, unpaid labour, and business management.
Contributions to the welfare of the family, including homemaking and caregiving, which may be significant even where the relationship is short.

Step 3: Adjustment for future needs

Consider future needs factors, including but not limited to age, health, income earning capacity, care of children, and standard of living. Adjustments are discretionary and depend on evidence.

Step 4: Just and equitable

Conduct the final check: whether the proposed division is just and equitable in all the circumstances. Even where contributions are assessed, the outcome must still be fair and appropriate.

Parenting Matters under s 60CC

Even where there are no children of the relationship, understanding the statutory framework is valuable:

Primary considerations:

The benefit to the child of having a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm, with protection from harm given greater weight.

Additional considerations include the child’s views depending on maturity, each parent’s capacity to provide for the child’s needs, and the practicalities and expense of spending time with each parent.

3. Equitable Remedies and Alternative Claims

Where statutory pathways are uncertain, parties sometimes consider alternative principles. These pathways carry relatively high litigation risk and are highly fact-dependent, but they may be relevant in disputes involving property transfers, reliance, and informal understandings.

Promissory Estoppel and Proprietary Estoppel

Key questions:

Was there a clear and unequivocal promise or representation about property ownership or benefit?
Did the other party rely on that promise in a way that caused detriment, such as transferring legal title, investing labour, or foregoing opportunities?
Would it be unconscionable for the promisor to depart from the promise?

Practical relevance to cases like this:

A transfer of legal title without payment can sometimes be argued to have been made in reliance on a shared-life understanding. Where the domestic relationship is disputed, the evidentiary task is harder, but contemporaneous writings and conduct may support an estoppel-based argument.

Unjust Enrichment and Constructive Trust

Key questions:

Did one party receive a benefit at the other’s expense, such as an asset transfer, debt reduction, or unpaid labour?
Is it against conscience for the recipient to retain that benefit without compensating the other?
Is there a basis for restitution or for recognising a beneficial interest through a constructive trust?

Practical relevance:

Where one party takes legal title and later denies the relationship, the claimant may argue that retention of the benefit is unconscionable. Courts will be cautious and will focus on clear evidence of contributions, reliance, and the circumstances of transfer.

Procedural Fairness

In family law, procedural fairness issues can arise where cross-examination is restricted or structured due to protective provisions. Parties should be alert to:

Whether they had a meaningful opportunity to present their case within lawful constraints.
Whether they understood pre-trial directions and complied with evidence requirements.

Even where a party is self-represented, the Court is not required to accept inadmissible or low-probative evidence, and a party’s lack of preparation can have practical consequences.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

Duration threshold: Many de facto financial claims require that the relationship lasted at least 2 years, subject to statutory exceptions.
Jurisdictional fact requirement: The Court must first find the relationship meets the s 4AA definition before Part VIIIAB powers can be exercised.
Evidence burden: The applicant bears the onus of proving the jurisdictional facts on the civil standard, and credibility findings can be decisive.

Exceptional Channels

Shorter relationship exceptions: Where the relationship is less than 2 years, exceptions may be available in circumstances such as the presence of a child, registration, substantial contributions, or serious injustice if orders are not made.
Protective orders and cross-examination constraints: Where family violence protections apply, cross-examination restrictions may shape how evidence is tested. Parties must adapt strategically, often by ensuring documentary corroboration is strong.

Suggestion:

Do not abandon a potential claim simply because a standard threshold appears difficult. Carefully compare your circumstances with the statutory exceptions and focus on building a coherent evidence chain. In many matters, the decisive issue is not whether a relationship was imperfect, but whether the overall domestic reality can be proved.

5. Guidelines for Judicial and Legal Citation

Citation Angle

This authority can be useful where submissions involve:

The correct approach to determining whether a de facto relationship existed under s 4AA.
The principle that a s 90RD declaration involves evaluative fact finding rather than discretion.
The proposition that separate residences do not necessarily preclude a de facto finding.
Credibility reasoning where a party claims a domestic relationship was only commercial.

Citation Method

As positive support:

Where your matter involves contested characterisation of a relationship, and the objective evidence shows co-residence, intimacy, social presentation, and financial interdependence, citing this authority can support the argument that the Court should prefer the composite picture over labels.

As a distinguishing reference:

If an opponent cites this case, you may distinguish it by pointing to differences such as the absence of co-residence, absence of intimacy evidence, absence of public presentation as a couple, or clear commercial documentation supporting a genuine business partnership.

Anonymisation rule:

Do not use real names of parties in publication. Use Applicant and Respondent, and comply with Family Law Act 1975 (Cth) s 121 requirements.

Conclusion

This judgment shows how the Court separates the noise of post-breakdown storytelling from the reality of lived experience, and how a coherent evidence chain can transform a relationship dispute into a clear jurisdictional finding. The golden sentence: Everyone needs to understand the law and see the world through the lens of law.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Cantu & Galloway [2023] FedCFamC1F 993), 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.

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