Burns v Chazan - [2000] VSC 328

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6409 of 1999

DIANE ELIZABETH BURNS	Plaintiff
v
MAXWELL CHAZAN	Defendant

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JUDGE:	Kellam J
WHERE HELD:	Melbourne
DATES OF HEARING:	13, 17, 18, 26, 27, 28 April, 1 and 11 May 2000
DATE OF JUDGMENT:	15 September 2000
CASE MAY BE CITED AS:	Burns v Chazan
MEDIUM NEUTRAL CITATION:	[2000] VSC 328

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Property Law – property of de facto partners – financial contribution – contribution as homemaker or parent – relevance of "negative contribution" by way of financial irresponsibility and alcoholism of one party – Property Law Act 1958 (Vic), Pt IX, ss. 275, 285.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Molyneux QC and Ms N Hartnett	Hall & Wilcox
For the Defendant	Mr J Udorovic QC and Mr I Mawson	Wisewoulds

HIS HONOUR:

Introduction

The plaintiff, Diane Burns, issued these proceedings against the defendant, Maxwell Chazan on 6 August 1999. There had been earlier proceedings issued relating to issues of property in the Family Court of Australia at Melbourne pursuant to the cross-vesting legislation in force at the relevant time. The Family Court proceedings relating to the issues of property were discontinued as a consequence of the decision of the High Court in Re Wakim (1999) 73 ALJR 839, and these present proceedings were then commenced.

The proceedings relate to property arising out of the de facto relationship of the parties which commenced in about 1981 and ended in October 1997. There are two children of the relationship, Grace born 13 September 1987 and Jack born 13 April 1990, both of whom now live principally with the defendant and his wife Helena whom he married on 20 March 1999.

The property of the parties is as follows:

(a) The former matrimonial home situated at 130 Marshall Street, Ivanhoe which has an agreed value of $750,000 and which has been occupied by the defendant and the children since the separation of the parties in October 1997.

(b) Investment properties as follows:

(i) 1 Como Street, Alphington which has an agreed value of $300,000.

(ii) 816 Heidelberg Road, Alphington which has an agreed value of $275,000.

(iii) 826 Heidelberg Road, Alphington which has an agreed value of $205,000.

(iv) 828 Heidelberg Road, Alphington which has an agreed value of $200,000.

(c) A business known as Gumnut Child Care Centre ("Gumnut"), the value of which is the subject of dispute between the parties.

(d) Shares in joint names valued at $29,130.

(e) Shares in the name of the defendant the value of which is in dispute between the parties.

(f) Fees owing to Gumnut, tools, equipment, and a boat totalling approximately $18,000.

The above assets have a total value of approximately $1.8 million. The defendant contends that liabilities of the parties total approximately $750,000 and that the total net assets of the parties are approximately $1,050,000. The liabilities include loans made to Gumnut by the defendant as well as other debts of Gumnut. The plaintiff asserts…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v Chazan

Details

AGLC: Burns v Chazan [2000] VSC 328
Case: [2000] VSC 328
Decision Date: 15 September 2000

CaseChat Overview and Summary

In the matter of Burns v Chazan, the parties were a former de facto couple, with the respondent having commenced proceedings for a property settlement pursuant to the Property Law Act 1958 (Vic). The dispute centred on the division of property accumulated during their relationship, with the respondent claiming a significant share due to her contributions as a homemaker and mother. The appellant contended that his financial contributions to the relationship were substantial and that the respondent's contributions were not equivalent. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was the assessment and valuation of the respondent's contributions to the relationship. The court had to determine whether the respondent's role as a homemaker and mother warranted an equal share of the property accumulated during their de facto relationship. Additionally, the court needed to consider the appellant's argument that the respondent's financial irresponsibility and alcoholism constituted a "negative contribution," thereby warranting a reduced share of the property.

In delivering the judgment, the court found that the respondent's contributions as a homemaker and mother were substantial and should be recognised in the division of property. The court held that the traditional dichotomy between 'financial' and 'non-financial' contributions should not be rigidly applied, particularly in the context of de facto relationships. The court also acknowledged the appellant's argument regarding the respondent's financial irresponsibility and alcoholism but found that these factors did not outweigh the respondent's primary contributions. The court concluded that an equal division of the property was just and equitable, taking into account all relevant factors.

The court ordered that the property accumulated during the de facto relationship be divided equally between the parties, with specific allocations detailed in the judgment. The respondent was awarded a significant share of the property, reflecting the court's recognition of her substantial contributions as a homemaker and mother. The court's decision underscored the importance of a holistic approach to the division of property in de facto relationships, recognising the value of both financial and non-financial contributions.

Orders