The case of Locke & Norton [2014] FamCA 811 demonstrates how the Family Court determines a relationship to be a de facto relationship. This then dictates if the Court can make property orders following the breakdown of a relationship.

In 2014, Ms Locke appeared before the Court, seeking a declaration that her five-year relationship with Mr Norton was a de facto relationship, whilst Mr Norton denied that they were anything more than just boyfriend and girlfriend. Why? After the relationship went sour, Mr Norton tried to evict Ms Locke from the apartment he had rented for her.

Whilst some criteria for a de facto relationship under Section 4AA of the Family Law Act 1975 (Cth) are more straightforward (the parties live together on a genuine domestic basis and are not related or already legally married), the Court must also assess all aspects of the relationship, including the:

  • Duration
  • Nature and extent of the common residence
  • Existence of a sexual relationship
  • Degree of financial (in)dependence and arrangements for financial support
  • Ownership, use, and acquisition of property
  • Degree of mutual commitment to a shared life
  • Whether the relationship was registered
  • Care and support of children, and
  • The reputation and public aspects of the relationship (including if it’s “Facebook official”!)

As every relationship is different, there is no magic formula and the “ideal” de facto relationship does not have to contain all of the above. However, the Court was unconvinced by Ms Locke’s exaggerated evidence. Some of their findings included:

  • No common residence. Ms Locke only stayed over at Mr Norton’s home 1-3 nights a week. He lent her his house keys on occasion, but she always returned them when she left. She also referred to Mr Norton’s home as “his”, rather than “ours”
  • No financial interdependence. There was a financial arrangement whereby Mr Norton paid Ms Locke’s rent and gave her an allowance, but urged her to find employment. He did not (contrary to Ms Locke’s evidence) tell her that she never needed to work because he would take care of her.
  • No mutual commitment to a shared life. Ms Locke was convinced they would live together after they married; Mr Norton had no intention to marry or live with her, but saw the relationship as a casual sexual and social one in which he financially supported her.
  • No mutual perception of the relationship’s public reputation. The parties’ family and friends were aware of the relationship. But, based on what Mr Norton and Ms Locke told them, Mr Norton’s side perceived the relationship to be more casual than Ms Locke side’s, who viewed it as a permanent relationship.

The long and the short of it was that it became apparent to the Court that when Ms Locke applied for Centrelink benefits, she declared on two occasions that she was not in a de facto relationship. Yet, now she was seeking a declaration by a court of the opposite.

In the end, the Court considered the parties to be merely boyfriend and girlfriend, and dismissed Ms Locke’s application.

The lesson? Be consistent and don’t lie to Centrelink – they will find out.


As an alumnus of Sydney University, James was admitted in 2006 in the Supreme Court of NSW, Supreme Court of Victoria and High Court of Australia. In his profession, James is a commercial lawyer from strong Sydney firm where he worked on a wide range of disputes. His clients have included high net worth individuals, mid-sized corporates, SME’s and large listed entities.

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