Barry & Dalrymple

[2010] FamCA 1271

FAMILY COURT OF AUSTRALIA

BARRY & DALRYMPLE [2010] FamCA 1271

FAMILY LAW - DE FACTO RELATIONSHIP – whether the Court is satisfied on the balance of probabilities that a de facto relationship within the meaning of s 4AA of the Act existed - whether one party was a personal assistant and/or carer

Family Law Act 1975 (Cth) s 4AA, s 90RD
De Facto Relationships Act 1984 (NSW)

Baker v Landon [2010] FMCAfam 280
Delany v Burgess [2007] NSWCA 360
Lynam v Director- General of Social Security (1983) 52 ALR 128
MW v Director-General, Department of Community Services (2008) 82 ALJR 629
Roy v Sturgeon (1986) 11 Fam LR 271
S v B(No 2) (2004) 32 Fam LR 429
Truman and Clifton (2010) FCWA 91

APPLICANT: Mr Barry

RESPONDENT: Mr Dalrymple

FILE NUMBER: PAC 2365 of 2010

DATE DELIVERED: 15 December 2010

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 15-19 November 2010 and 22 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Michael Brown

SOLICITOR FOR THE APPLICANT: Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr David Brown SC

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

Orders

1. That the application filed 20 May 2010 be dismissed.

2. That costs be reserved.

3. That any party to the application seeking an order for costs of and incidental to the application file and serve written submissions in support of such claim within 7 days and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

IT IS NOTED that publication of this judgment under the pseudonym Barry & Dalrymple is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2365 of 2010

Mr Barry

Applicant

And

Mr Dalrymple

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 20 May 2010 Mr Barry (“the applicant”) sought a declaration “pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) or otherwise that a de facto relationship existed” between the applicant and Mr Dalrymple (“the respondent”).

2. The application further sought declarations that such de facto relationship “existed between late 2005/early 2006 and 11 March 2010” and that the “applicant and respondent were ordinarily resident in the states of NSW and Queensland or either of them during the de facto relationship”. It is reasonably apparent that the reference to “NSW” should be a reference to Victoria. Nothing turns on that. The applicant sought that the respondent pay his costs of the proceedings.

3. The respondent, by response filed 28 June 2010, resisted the applicant’s claim and sought its dismissal, with costs.

4. For reasons which are not entirely clear, and do not matter in any event, the proceedings before the Court have been confined to the issue of whether or not a de facto relationship within s 4AA of the Act existed, thereby enlivening the provisions of s 90RD of the Act.