What's A De-Facto Relationship In A Dependency Claim?
In the case of Perry v Killmeir & Anor, the Court of Appeal considered what constituted a de facto relationship in the case of a dependency claim. Mr Perry's partner was fatally injured in a motor vehicle accident in June 2007. Mr Perry and his deceased partner had been residing together however had separate bank accounts and finances.
The Court at first instance also considered that Mr Perry appeared to have little involvement with the children of his deceased partner, as he seemed to be unaware of what the children did, and there was an attitude of "what's mine is mine and what's yours is yours" in the relationship, also indicating a lack of commitment. The Court also considered that the decision to put off their marriage until they first purchased a house, also indicated a lack of commitment to the relationship.
The Court of Appeal had to decide the essential elements of a de facto partnership and whether Mr Perry could recover dependency damages as a result of a less than traditional relationship.
In making their decision, the Court had to consider the provisions of s32DA of the Acts Interpretation Act which sets out numerous indicators of whether or not a couple were, as at the date of the death, living together as a couple “on a genuine domestic basis”.
The Court of Appeal determined that the "primary judge failed to give proper regard to all demonstrated elements of a true domestic relationship". Justice Muir said in the lead judgement that "it is correct that the couple were in no hurry to pool resources... but the deceased and the appellant were of mature age and used to their independence. The appellant had the needs of his mother to consider and the deceased had three children.... What was being postponed was marriage not the continuance of the de facto relationship.".
The court allowed the appeal and ordered that dependency damages assessed by the trial judge at $281,000, be paid by the CTP insurer, Suncorp.
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