SEX WORKER FAILS

This was an application by a Ms Kristoff (not her real name) seeking orders to adjust property division between her and who she alleged was her defacto partner Mr Emerson (not his real name).  Mr Emerson was a paying client of Ms Kristoff, a sex worker. They became friends after finding they had a mutual interest in horses.  Their commercial relationship later became one where Mr Emerson did not have to pay for sexual encounters.  The Court had to decide whether or not a defacto relationship existed within the meaning of the Family Law Act.  Ms Kristoff acted for herself in the proceedings.

The parties never shared a joint bank account, or acquired any property jointly and never shared an economic life.  The Judge found that they were indeed more than just friends.  The Court considered that:

• the question of whether a defacto relationship existed had to be decided on a balance of probabilities (a lower standard of proof than in criminal cases); and
• the court had to balance the various matters set out in the Family Law Act to determine whether a defacto relationship existed (Section 4AA(2) of the Family Law Act sets them out) as follows:

(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.

The judge considered each of the factors and in turn found the following in this particular case:

• “Insofar as paragraph (b) is concerned I will proceed on a basis that is most favourable to the applicant. I will assume that she spent the majority of her time, on average about five nights a week, at the respondent’s home.
• As I have indicated I accept that a sexual relationship existed in this period and I accept the applicant’s version as to the extent of this relationship.
• In relation to paragraph (d) I find there was no financial dependence, or interdependence between the parties. I find that the respondent paid the great majority of the costs of his household (which included the applicant when she was there) but that there was never any arrangement in relation to financial support between them.
• In relation to paragraph (e) the parties never jointly owned any property nor acquired any property. They never jointly used any property except to the extent that the applicant would stay in the respondent’s Property G property.
• In relation to paragraph (f) I find that the parties had a mutual commitment to a shared life except that that did not involve their living together full time and did not involve any financial interdependence.
• In relation to paragraph (g) the relationship was not registered under the ACT Civil Unions Act.
• In relation to paragraph (h) there were no children of the relationship.
• In relation to paragraph (i) the parties did not socialise together to any substantial degree. The applicant attributes this to the respondent’s personality which she says resulted in his having few friends. I do not know and am unable to make a finding as to how other people perceived their relationship.

I am not satisfied that there was a de facto relationship between the parties. Some of the indicia of a de facto relationship were present, some were not. The factor to which I attach most weight is the lack of any financial relationship between the parties.”

OUTCOME

Ultimately the judge found there was not a de facto relationship and the application failed. Additionally the Judge held that even if the Court found there was a defacto relationship then he was not inclined to order a property adjustment based on the principle that it must also be “just and equitable” in the first instance to make an order adjusting property.  The Judge found in this case that the applicant’s contributions were not sufficient to justify the court making orders to alter the property interests of the respondent.

Comment:  It is clear that not in every case where there may be a sexual relationship will it be found to be a defacto relationship.  Each case will be judged on its merits and on the factors set out in the Act. To avoid an outcome such as Ms Kristoff’s you should get the best legal advice before commencing proceedings and then have the best and most experienced family lawyer and barrister that you can get at trial.  Courts act on evidence and evidence is what you need to put before the court if you are going to succeed.

You can read the case here:  Kristoff & Emerson

This was an application by a Ms Kristoff (not her real name) seeking orders to adjust property division between her and who she alleged was her defacto partner Mr Emerson (not his real name).  Mr Emerson was a paying client of Ms Kristoff, a sex worker. They became friends after finding they had a mutual interest in horses.  Their commercial relationship later became one where Mr Emerson did not have to pay for sexual encounters.  The Court had to decide whether or not a defacto relationship existed within the meaning of the Family Law Act.  Ms Kristoff acted for herself in the proceedings.

The parties never shared a joint bank account, or acquired any property jointly and never shared an economic life.  The Judge found that they were indeed more than just friends.  The Court considered that:

• the question of whether a defacto relationship existed had to be decided on a balance of probabilities (a lower standard of proof than in criminal cases); and
• the court had to balance the various matters set out in the Family Law Act to determine whether a defacto relationship existed (Section 4AA(2) of the Family Law Act sets them out) as follows:

(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.

The judge considered each of the factors and in turn found the following in this particular case:

• “Insofar as paragraph (b) is concerned I will proceed on a basis that is most favourable to the applicant. I will assume that she spent the majority of her time, on average about five nights a week, at the respondent’s home.
• As I have indicated I accept that a sexual relationship existed in this period and I accept the applicant’s version as to the extent of this relationship.
• In relation to paragraph (d) I find there was no financial dependence, or interdependence between the parties. I find that the respondent paid the great majority of the costs of his household (which included the applicant when she was there) but that there was never any arrangement in relation to financial support between them.
• In relation to paragraph (e) the parties never jointly owned any property nor acquired any property. They never jointly used any property except to the extent that the applicant would stay in the respondent’s Property G property.
• In relation to paragraph (f) I find that the parties had a mutual commitment to a shared life except that that did not involve their living together full time and did not involve any financial interdependence.
• In relation to paragraph (g) the relationship was not registered under the ACT Civil Unions Act.
• In relation to paragraph (h) there were no children of the relationship.
• In relation to paragraph (i) the parties did not socialise together to any substantial degree. The applicant attributes this to the respondent’s personality which she says resulted in his having few friends. I do not know and am unable to make a finding as to how other people perceived their relationship.

I am not satisfied that there was a de facto relationship between the parties. Some of the indicia of a de facto relationship were present, some were not. The factor to which I attach most weight is the lack of any financial relationship between the parties.”

OUTCOME

Ultimately the judge found there was not a de facto relationship and the application failed. Additionally the Judge held that even if the Court found there was a defacto relationship then he was not inclined to order a property adjustment based on the principle that it must also be “just and equitable” in the first instance to make an order adjusting property.  The Judge found in this case that the applicant’s contributions were not sufficient to justify the court making orders to alter the property interests of the respondent.

Comment:  It is clear that not in every case where there may be a sexual relationship will it be found to be a defacto relationship.  Each case will be judged on its merits and on the factors set out in the Act. To avoid an outcome such as Ms Kristoff’s you should get the best legal advice before commencing proceedings and then have the best and most experienced family lawyer and barrister that you can get at trial.  Courts act on evidence and evidence is what you need to put before the court if you are going to succeed.

You can read the case here:  Kristoff & Emerson