De Facto Relationships and Separate Houses

Courts are often called on to declare whether parties are in a de facto relationship for purposes of   determining entitlement to property settlement under the Family Law Act.

In deciding whether to make such a declaration, the court has to consider a range of criteria set out in the Family Law Act including, the duration of the relationship;the nature and extent of their common residence;whether a sexual relationship exists; the degree of financial dependence or interdependence,and any arrangements for financial support between them; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life;the care and support of children and the reputation and public aspects of their relationship.

The court has said that the definition of de facto relationship is a very broad one.

An interesting decision on the issue was a recent one of Kazama & Britton handed down on 15 January 2013, where Watts J held that the parties were in a de facto relationship, despite the fact that they maintained separate residences throughout their relationship.His Honour held that although they maintained separate residences, they spent significant time together, mainly at the male's residence and that he visited the female's home from time to time.

The fact that the parties maintained separate residences did not preclude the court finding that they were "living together as a couple on a genuine domestic basis".

The case is also of interest because the male party had made representations to the Department of Immigration that the parties were in a de facto relationship and in the circumstances, the court declined to accept evidence from him that contradicted those representations.

Flexibility in Mediation

The American Bar association has recognised "flexibility" as one of the factors defining high quality mediation practice.

The finding is one of the factors identified by the Association in it's published Final Report-Task Force on Improving Mediation Quality.

While it is good to have some recognizable steps or standardisation in mediation process, the mediator needs to be ever mindful of the range of approaches and tools in his or her skillset and try to identify what may or may not work in a particular dispute.

An example of this arose in an elder law mediation we undertook last week where an 80 plus lady was involved in a family dispute with allegations that one of her children had taken advantage of her to enrich himself.The parties were embroiled in District Court litigation over a jointly owned property of reasonably modest value and the prospect that if not resolved, the dispute would further lessen the net value of the property in dispute and accentuate the divisions in what was already a highly divided family.

During the shuttle discussions it became apparent that the son was prepared to compromise his claim  for compensation for work allegedly undertaken on the property, however his mother had reached a hard nosed position and was intent on taking all,despite the fact that this would involve a costly and messy trial with the possibility of no real winner.

Rather than follow the customary steps, a heavy emphasis and lots of time was spent in listening to and validating elderly mum's concerns and developing a rapport which proved invaluable in gently guiding her to what was clearly a sensible and commonsense solution of  a  complicated fact situation with various allegations and counter allegations many of which would be difficult to prove.

Whilst the path of the process was not clearly apparent when we set out and evolved as we moved through the dispute, I as the mediator, have no doubt that the armchair chat type approach and heavy investment in rapport and trust was the right one for this dispute and resulted in an outcome where the parties not only saved significant costs, but were able to take up the threads of communication in a manner suggesting at least some prospect however small, of family healing so that the elderly mother could possibly have some chance of finding harmony and peace in her twilight years.

PEACE TALKS - Life is for Living, not for Litigating

Are you allowing conflict to dominate your life?

When the wheels fall off our relationships, of course we all need time to adjust and to grieve what might have been as well as the loss of the best aspects of what was.

However, as our parents always told us when we were kids (and most of us didn't have a clue what they meant until we were of 'more mature years'), "Life's very short".

A popular fridge magnet in keeping with this theme states, "Life's too short for bad wine".  How true!

In Queensland we are lucky to live in one of the World's idyllic locations - geographically, socially, culturally and politically - no matter what our beliefs or political bent. 

After separation, the best favour you can do yourself and your children (if you are lucky enough to have them) is to find a timely and user friendly way to resolve issues with your ex so that you can move closer to enjoying the lifestyle you all deserve.

Don't waste a second more than you have to on pointless and expensive escalation of conflict.  Try mediation - with or without your lawyer present.  There is so much to experience in life and no time to lose.