H v P

[2011] WASCA 78

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Family Law
2. › De facto relationships
3. › Property settlement
4. › Whether parties living in a 'marriage-like' relationship
5. › Whether relationship ended prior to commencement of Part 5A
6. › Onus of proof on party asserting existence of relationship
7. › Family Court Act 1997 (WA), s 205U(2), s 205Z, s 205ZG
8. › Interpretation Act 1984 (WA), s 13A(2)
1. Family Law
2. › De facto relationships
3. › Characterisation of relationship
4. › Distinction between de facto relationship and legal marriage
5. › No presumption of continuance of de facto relationship
6. › Evaluative determination involving elements of fact, degree and value judgment
1. Appeal
2. › Standard of appellate review
3. › Evaluative determination
4. › Whether determination that parties not in marriage-like relationship involved exercise of discretion
5. › Whether House v The King principles applicable
6. › Demonstration of error required
7. › Tolerance for divergence where matters of impression and judgment concerned
1. Practice and Procedure
2. › Adequacy of reasons
3. › Whether trial judge's reasons adequate
4. › Whether failure to refer to all findings in conclusion constituted error

Quick Take

Under s 205U(2) of the Family Court Act 1997 (WA), the applicant must positively prove the existence of a de facto relationship as at or subsequent to 1 December 2002; there is no presumption of continuance from an earlier period. A de facto relationship is inherently terminable at any time and continues only insofar as its marriage-like indicia persist. The question whether the House v The King standard of review applies to evaluative determinations of de facto relationship status was left open.