Delany v Burgess

[2006] NSWSC 1420

CITATION:	Delany v Burgess [2006] NSWSC 1420
HEARING DATE(S):	19 and 20 July 2006
JUDGMENT DATE :	19 December 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice McLaughlin at 1
DECISION:	(1). I order that the proceedings be dismissed. (2). I order that the Plaintiff pay the costs of the Defendant. (3). I direct that the exhibits be retained. (4). I direct the Registrar to furnish a copy of this judgment to the Director of Public Prosecutions and to Centrelink.
CATCHWORDS:	Family Law. De facto relationship. Whether or not such a relationship existed. Whether Plaintiff was only a boarder in Defendant's property. Financial arrangements between parties concerning Plaintiff's residence in Defendant's property. Sexual relationship between parties. Three separate periods of asserted de facto relationship. Claim is out of time in respect to each of those periods. No application for extension of time. Only one of those periods is asserted to have been for not less than two years. Whether Court is precluded from making an order for the adjustment of the interests of the parties in property. Asserted contributions by Plaintiff in capacity of homemaker or parent.
LEGISLATION CITED:	Property (Relationships) Act 1984
PARTIES:	Leanne Delany (Plaintiff) Stephen John Burgess (Defendant)
FILE NUMBER(S):	SC 5716 of 2004
COUNSEL:	Mr. R. Colquhoun (Plaintiff) Mr. P. Campton (Defendant)
SOLICITORS:	Fitzpatrick Solicitors (Plaintiff) Browns Family Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Tuesday, 19 December 2006

5716 of 2004 LEANNE DELANY –v- STEPHEN JOHN BURGESS

JUDGMENT

1 HIS HONOUR: These are proceedings under the Property (Relationships) Act 1984.

2 By statement of claim filed on 20 October 2004, the Plaintiff, Leanne Delany, claims against the Defendant, Stephen John Burgess, relief by way of adjustment of the interests of the parties in property.

3 It was the case for the Plaintiff set forth in that pleading that she and the Defendant lived in a de facto relationship at least from January 1996 to August 2002 and subsequently from October 2002 to January 2004. The Defendant denied the existence of any such de facto relationship.

4 The Plaintiff was born on 5 October 1955 and is presently aged 51. In about August 1995 she met the Defendant, who was born on 11 February 1959 and is presently aged 47. At that time the Plaintiff (who was married to but separated from her husband, Russell Amiet, by whom she had two children, now adults) was residing in rented accommodation at 1A Freda Street, Picnic Point.

5 The Defendant was at that time residing in a house property owned by him at 863 Henry Lawson Drive, Picnic Point (“the Picnic Point property”), which he had owned since July 1985. (Until April 1995 the Defendant was a joint owner of that property with his former wife, Christine Kay Burgess. Thereafter, consequent upon a property settlement in the Family Court of Australia, the Defendant became the sole owner of that property.) It was the practice of the Defendant to accommodate boarders in that property, which contained four bedchambers. (The nature and details of the other accommodation and facilities in the house are described in the valuation of Michael Blight annexed to his affidavit of 28 March 2006). Indeed, the Plaintiff’s son, Peter Amiet, had been a boarder therein, and it was through him that the Plaintiff made the acquaintance of the Defendant.

6 According to the Defendant, he met the Plaintiff in September 1995. He said that in March 1996 the Plaintiff became his boarder, occupying one of the bedrooms in the Picnic Point residence. The Defendant said that he had numerous persons residing as boarders in his residence at various times from 1995. The Plaintiff resided in the Picnic Point property from March 1996 until January 1998, when she left to reside with her son Peter Amiet.

7 According to the Defendant, the financial arrangements with each boarder in the Picnic Point premises in the period 1996 – 2002 were generally that the boarder paid $85 or $90 a week for accommodation, as well as a share of the electricity and telephone, and an agreed amount towards groceries (usually about $25). He said that he kept details of those payments on various wall calendars (copies whereof were annexed to his affidavit of 15 June 2005).

8 About two months after their first meeting the Plaintiff and the Defendant entered into a sexual relationship. No children were born to the Plaintiff and the Defendant of that relationship.

9 It was the case for the Plaintiff that throughout three separate periods she resided with the Defendant in the Picnic Point property and that at least throughout those periods (to the details whereof I shall shortly refer) the parties were living in a de facto relationship. Further, that the parties were in a domestic relationship from about the time when they first engaged in sexual activity in about October 1995 until January 2004, when whatever relationship may have existed between them – be it sexual, residentiary, domestic or de facto – finally came to an end.

10 In response, it was the case for the Defendant that, despite the sexual activities in which he and the Plaintiff from time to time participated, they were not in de facto relationship. He said that from January 1998 to October 1998 there was no contact at all between the parties. During the subsequent periods when the Plaintiff was living in the Picnic Point residence she was, according to the Defendant, there only as a boarder.

11 According to the Plaintiff, from the time when she and the Defendant commenced a sexual relationship (which she said was in October 1995) until January 1996 it was her practice to spend from one to four week nights each week at the Defendant’s residence and also to spend every second weekend with him at his residence. The other, alternate, weekends the Defendant spent with his daughters away from Picnic Point. The Defendant denied that it was the practice of the Plaintiff to spend up to four nights each week at the Picnic Point residence, saying that the Plaintiff would visit on no more than two or three nights a week, and that there were weeks when she did not visit at all.

12 The Defendant, who at that time was divorced from his wife, had access on alternate weekends to his two children Ashley and Megan (who at that time were aged eight and almost five respectively). Subsequently the Defendant’s children came to reside with him at his Picnic Point residence in August 2001, as a result of a custody order made in his favour by the Family Court of Australia in consequence of an application in that regard filed by him in the Local Court at Sutherland.

13 According to the Plaintiff, shortly before she moved into residence at the Picnic Point property in late 1995 the Defendant had two boarders residing in that property, being the Plaintiff’s son Peter and another boarder, named Michael [Garner]. It was after Peter Amiet moved out in about November 1995 that, according to the Plaintiff, she had a conversation with the Defendant about her moving into the Picnic Point property, and the financial arrangements regarding her occupancy therein.

14 It was the Plaintiff’s evidence that she then moved into residence in the Picnic Point property in January 1996, and that Michael, the other boarder, moved out in about mid-February of that year. According to the Plaintiff, she and the Defendant agreed that each should then contribute half of the expenses of the property, rather than for the Defendant to advertise for another boarder.

15 In March 1996, according to the Plaintiff, there was a further conversation in which the Defendant said that because he could not make ends meet he was proposing to advertise for another boarder. That was done, and another boarder, Bill [Lemont], arrived about a week later. That boarder remained until about October 1996. After a further conversation it was, according to the Plaintiff, agreed between herself and the Defendant that there should be no further boarders, but that the Plaintiff would have to go back to paying half of all expenses. No boarders were in the Picnic Point residence from October 1996 to August 1997.

16 When, according to her, the Plaintiff left the Picnic Point property in August 1997 she moved into rented accommodation at Bass Hill until March 1998, when she went to live with her sister at Cronulla. She returned to reside at Picnic Point, according to her evidence, in about late July or early August 1998.

17 In August 2000 the Plaintiff removed to Port Macquarie, where she remained, in employment, until May 2001. Before departing Picnic Point in August 2000 the Plaintiff gave to the Defendant written notice of her intention to do. She took with her all her furniture and belongings from Picnic Point. The Plaintiff said that she then returned to Picnic Point in May 2001, residing there until August 2002. When she moved out at that time the Plaintiff again took with her all her belongings.

18 On the crucial issue of whether the Plaintiff and the Defendant were in de facto relationship it is curious that at the relevant time the Plaintiff, who now asserts such a relationship with the Defendant, was denying that she was living in a de facto relationship with anyone, whilst the Defendant, who now denies such a relationship with the Plaintiff, was asserting that he was living in a de facto relationship with the Plaintiff. During the hearing each of the Plaintiff and the Defendant stated that that party had, concerning the existence or non-existence of such a de facto relationship, deliberately lied to, respectively, Centrelink and the Family Court of Australia.

19 Each of the parties is a self-confessed liar who (if that party’s present evidence be accepted) had no hesitation, in the case of the Plaintiff, in lying to Centrelink for personal financial gain from the public purse (by receiving Rent Assistance and Newstart Allowance); and, in the case of the Defendant, in lying under oath to the Family Court (in his affidavit of 3 October 2001, filed in the Local Court at Sutherland) for personal benefit in relation to the custody of his children.

20 It will be appreciated, however, that there is no particular reason why the present evidence of the Plaintiff should be preferred over that which she gave at the earlier time, or why the present evidence of the Defendant should be preferred over that which he gave at the earlier time. The Plaintiff has a motive to give false evidence in the present proceedings, that motive being the making of an order in her favour, awarding to her an interest in the Defendant’s property (or the monetary equivalent thereof), whilst the Defendant also has a motive to give false evidence in the present proceedings, that motive being the resistance to such an order against him.

21 All that clearly emerges from the total inconsistency between the statements made by each party during the relevant period and the evidence given by that party in the present proceedings is that each party is a witness devoid of credibility, whose uncorroborated evidence on any issue in dispute between them the Court should be most reluctant to accept.

22 It was not in dispute that there were three separate periods during which the Plaintiff resided in the Defendant’s Picnic Point property, although the parties were not in agreement as to the precise dates of commencement and of termination of each of those three periods. According to the Plaintiff those periods were;

· January 1996 until August 1997 (19 months)

· August 1998 until August 2000 (24 months)

· May 2001 until August 2002 (15 months)

23 That is, the Plaintiff asserts that in totality she and the Defendant resided together for a period of 58 months.

24 It should also be recorded that the Plaintiff asserted that from August 2002 she was in the habit of staying in the Picnic Point property for between two and five nights a week and that that arrangement continued until January 2004, when the relationship between the parties finally broke down. Although she asserted the existence of a domestic relationship between the parties from August 2002 to January 2004, I do not understand it ultimately to be the case for the Plaintiff that the de facto relationship which she asserted between them obtained after August 2002.

25 According to the Defendant the Plaintiff resided in the Picnic Point property for the following periods:

· March 1996 until January 1998 (21 months)

· January 1999 until August 2000 (19 months)

· May 2001 until August 2002 (15 months)

26 That is, the Defendant asserts that the Plaintiff resided in his property for a total period of 55 months.

27 The commencement date and the termination date of the first period were in dispute. The parties did not agree upon the commencement date of the second period, but were in agreement on the termination date (which was when the Plaintiff removed to Port Macquarie). The parties were in agreement on both the commencement date and the termination date of the third period.

28 Each of the three separate periods of the asserted relationship had come to an end more than two years before the institution of the present proceedings on 20 October 2004. Accordingly, in respect to each of those three periods the Plaintiff is out of time (section 18(1) of the Property (Relationships) Act). No application has been made by the Plaintiff for extension of time, pursuant to section 18(2) of the Act.

29 Further, it will be appreciated that, even accepting the periods asserted by the Plaintiff, the Court is precluded by section 17(1) from making an order for the adjustment of the interests of the parties in property in respect to the first and third periods asserted by the Plaintiff (since each of those periods was a period of less than two years) unless the Plaintiff can invoke the discretion vested in the Court under subsection (2) of section 17. Since there is no child of the parties, it will be necessary for the Plaintiff to satisfy the prerequisite set forth in paragraph (b)(i) of that subsection before the discretion of the Court can be invoked. That prerequisite is that the Plaintiff has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which she would otherwise not be adequately compensated if the order were not made.

30 If, however, ultimately it be established (as the Defendant contends) that each of the three periods was of less than two years, then in respect to each of those three periods, it would still be necessary for the Plaintiff to satisfy the requirement set forth in section 17(2)(b) of the Act.

31 At the time of the commencement of the first period of the asserted relationship the Plaintiff was employed as a customer service supervisor receiving a salary of about $30,000 (gross) a year. At that time she had no significant assets, other than a 1983 Mazda motor car (which she subsequently sold for $300). The Plaintiff continued in that, and subsequent, employment until about October 2001. From then until April 2002 the Plaintiff was not in employment. She continued in employment until the end of the third period of the asserted relationship.

32 During the third period of the asserted relationship the Plaintiff was on 18 December 2001 declared bankrupt on her own petition, and, indeed, appears to have still been an undischarged bankrupt at the time of the institution of the present proceedings. (The Plaintiff had previously been bankrupt for a period of three years in the early or mid-1990s.) It was the assertion of the Defendant (but denied by the Plaintiff) that the reason for the Plaintiff’s resignation from her employment in October 2001 was to enable her to receive all her leave entitlements before she filed for bankruptcy in December 2001, and not (as asserted by the Plaintiff) to embark upon a change of lifestyle by removing to Port Macquarie.

33 At the time of the commencement of the first period the Defendant was employed by Qantas as an electrician, receiving a salary of about $28,000 a year. He has remained in that employment to the present time.

34 The Defendant’s chief asset was the Picnic Point property, which it was agreed between the parties has a present value of $450,000. According to the Defendant, it had a value of about $350,000 in early 1996. During Family Court proceedings between the Defendant and his wife in February 1995 that property had an agreed value of $190,000.

35 In addition to the Picnic Point property the Defendant had other assets, including a superannuation entitlement (having a preserved benefit of $2,377) and shares in Qantas, as well as a 1975 Holden station wagon (having an estimated value of $900). The value of the Defendant’s shares in Qantas did not emerge from the evidence.

36 The Defendant’s liabilities at that time consisted of an outstanding housing loan (secured by mortgage) owing to Aussie Home Loans in an amount of $120,000, a Visa credit card indebtedness in an amount of $247 and a Westpac Bankcard indebtedness of $2,587.

37 When the Plaintiff ceased to reside at the Picnic Point property in August 2002 at the termination of the third of the asserted periods of the relationship, she was employed as a clerical officer by Allalong Tasmania Sea Roads. When she commenced that employment some four months earlier her earnings were at the rate of $29,000 a year. Her assets consisted of:

Some household furniture, of no commercial value


1995 Hyundai Excel motor car - $5,000

Superannuation – CBA Super Fund (in an unquantified amount)

38 The Plaintiff said that at the time when she ceased co-habitation in the Picnic Point residence (be that time in August 2002 or in January 2004) she had a liability in an amount of about $5,000, being a debt due by her to her sister.

39 The assets of the Defendant at that time were substantially the same as at the time when the Plaintiff first commenced to reside in the Picnic Point property in early 1996. It was estimated, however, that the value of the Picnic Point residence had increased, from about $350,000 to about $450,000. In addition, the Defendant owned 944 IAG shares (which he had acquired as a result of the floatation of NRMA Insurance, and which he sold for $3,400 in November 2003.) The shareholding in Qantas had increased from 531 shares to 1888 shares. (The Defendant acquired shares in Qantas as part of the Qantas employees bonus profit sharing scheme.) The preserved benefit in the Defendant’s superannuation entitlement had increased to $51,050. The liabilities of the Defendant at that time consisted of the mortgage debt owing to Aussie Home Loans, which had diminished to $98,500; a line of credit with the Qantas Credit Union, $5,900; and a Visa card indebtedness of $6,104.

40 According to the Plaintiff, during the periods whilst she was in residence at the Picnic Point property she performed all household activities for herself and the Defendant, and they occupied the same bedchamber. The Defendant disputed the extent of the household activities performed by the Plaintiff. The Plaintiff asserted that during the periods while she was residing in the Picnic Point residence, and while she was working, she paid at least half the household expenses, including half of the mortgage payments in respect to that residence.

41 The Plaintiff said that from the commencement of her employment with Allalong Tasmania Sea Roads in April 2002 her salary was paid into a Qantas Credit Union account which had been opened for her by the Defendant. She said that the Defendant took possession of the key card for that account, and that it was not until August 2002 that the Plaintiff became aware of the personal identification number for that account. Further, that the Defendant made many cash withdrawals (using automatic teller machines) from that Credit Union account.

42 The Defendant denied the financial contributions alleged to have been made by the Plaintiff, asserting that the Plaintiff spent a very considerable part of her income on gambling. Indeed, it was part of the case for the Defendant that the Plaintiff suffered from a serious gambling addiction. The Plaintiff denied any such addiction, despite the fact that in May 2002 she had attended counselling sessions in respect to her gambling activities. The frequent and substantial cash withdrawals made by the Plaintiff for gambling on poker machines support the existence of such an addiction.

43 According to the Defendant, it was a requirement of the boarding arrangements at the Picnic Point residence that all boarders cleaned up after themselves, and that it was the responsibility of all persons residing in the premises to keep the house clean and tidy. The Defendant said that he maintained and kept in order the external areas of the property; that his daughters, whilst residing with him, shared some duties, and that on many occasions Ashley cooked meals. The Plaintiff’s sister, Sandra Louise Delany-Abbott, agreed under cross-examination that the Defendant did the mowing, vacuuming and cooking at the Picnic Point property.

44 At the time when they came to reside with the Defendant Ashley was aged 14 and Megan was aged 11. The Defendant denied the assertions of the Plaintiff concerning her involvement in the care of the Defendant’s daughters. He denied the Plaintiff’s asserted role in collecting and dropping off his daughters at their place of education, saying that the children were at the outset attending school at Cronulla, and that on most occasions they caught public transport to and from school. The Defendant said that sometimes he would leave work in order to pick up his children. Subsequently Megan transferred to Panania Public School, whilst Ashley completed Year 7 at Cronulla High School before attending East Hills Girls Technology High School.

45 According to the Defendant, the Plaintiff paid an agreed amount for board and contributed towards the shared cost of food, as well as making some contribution to telephone expenses, but the Defendant otherwise paid the household expenses in respect to the Picnic Point residence. Those payments by the Plaintiff were in amounts equivalent to those paid by the various boarders who resided in the Picnic Point property throughout the relevant period.

46 The Defendant said that it was the Plaintiff who opened an account with the Qantas Credit Union in April 2002, that it was she who operated that account and that the Defendant had no access to it or control over it. According to the Defendant, the Plaintiff removed the Defendant’s key card from his wallet in March 2002 without the Defendant’s consent, and the Plaintiff accessed the Defendant’s account at the Panania East Hills RSL, withdrawing the sum of $500 for poker machine gambling. The Defendant said that the Plaintiff repaid to him of that amount only the sum of $370, leaving him financially embarrassed when the next home loan repayment fell due very shortly thereafter.

47 It was the case for the Defendant that the relationship between the Plaintiff and the Defendant, as well as being a sexual relationship, was a commercial relationship within strictly defined limits, relating to the Plaintiff’s payment for accommodation, household expenses and food, and that their arrangements in that regard were no different from his arrangements with the various other persons who boarded in the Picnic Point property at various times during the relevant period. Evidence was given by a number of those persons, supporting the evidence of the arrangements asserted by the Defendant. The Defendant denied that the nature of the relationship was such that it could properly be categorised as a de facto relationship of the kind recognised by section 4 of the Property (Relationships) Act.

48 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff.

49 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file.

50 At the outset it should be emphasised that it is the Plaintiff who bears the burden of establishing that she and the Defendant were in a de facto relationship during one or more of the three asserted periods during which she resided in the Picnic Point property.

51 The phrase “de facto relationship” is defined by section 4(1) of the Property (Relationships) Act as follows,

For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related to one another or related by family.

52 Subsection (2) of that section provides,

In determining whether two persons are in a defacto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.

53 In the instant case the parties shared a common residence during three separate periods. Throughout each of those periods a bedchamber was available for the exclusive occupation of the Plaintiff, in which she maintained her clothing and personal effects. Nevertheless, she said that she slept most nights in the Defendant’s bedchamber. Throughout the major part of those periods (and throughout other periods) a sexual relationship existed between the parties. During the weekends whilst the Defendant had custody of his children at the Picnic Point residence the Plaintiff was involved, albeit to a very limited extent, in the care of those children.

54 There was no commingling of the finances of the Plaintiff and the Defendant, and there was certainly no financial dependence or interdependence between the parties. Indeed, the financial relationship between the parties was very clearly spelled out by the Defendant to the Plaintiff, regarding the Plaintiff’s contribution towards her accommodation and towards her board at the Picnic Point residence. Those arrangements were very similar to the arrangements which were clearly imposed by the Defendant upon other boarders who resided at the property at about the same time as the Plaintiff resided therein. I am satisfied that throughout the three periods whilst the Plaintiff resided with the Defendant neither of the parties regarded that co-residential status as constituting a de facto relationship, even though whilst the Plaintiff was a boarder at the Picnic Point residence she had a continuing sexual involvement with the proprietor of that residence.

55 I am not satisfied that the relationship between the parties was essentially more than a commercial arrangement which was convenient for the Plaintiff in that it provided her with a residence and which was convenient for the Defendant in that it provided him with income. The fact that they were enjoying each other’s sexual favours throughout the periods of the Plaintiff’s residence at Picnic Point (and throughout other periods) does not alter the essentially business nature of the relationship. A sexual relationship does not of itself constitute a de facto relationship.

56 There was no mutual commitment of the parties to a shared life. In this regard I do not overlook the emotional attachment of the Defendant for the Plaintiff manifested in the various Christmas cards, birthday cards and Valentines which he sent to the Plaintiff. The Defendant’s assertion that he deliberately deceived the Plaintiff regarding his feelings for her is difficult to accept, and certainly reflects most discreditably upon him.

57 Throughout a period of about six and a half years the parties lived together, on the Plaintiff’s evidence, for a total of 58 months, or, on the Defendant’s evidence, for a total of 55 months.

58 The performance of household duties was strictly in accordance with the arrangements made by the Plaintiff in his capacity as proprietor of the residence with the various boarders who from time to time occupied accommodation therein. The parties had a reputation (among the boarders and various friends and other persons, including the Plaintiff’s sister) of being in a sexual relationship. The public aspects of their relationship included their attendance together on various social occasions.

59 In summary, I am not satisfied that the Plaintiff has established (and I emphasise that it is for her to do so) that during any of the three separate periods she was in a de facto relationship with the Defendant.

60 The conclusion which I have just expressed is sufficient to dispose of the proceedings. If, however, contrary to that conclusion, I were to be satisfied that during any or all of the asserted periods the parties were in a de facto relationship, it will be appreciated that the Plaintiff is out of time in respect to the first two periods. She has not made any application for an extension of time in regard to those two periods. Accordingly, only the third period need be considered. That was a period during which the parties were in agreement that the Plaintiff resided in the Picnic Point residence from May 2001 until August 2002.

61 Section 20(1) of the Property (Relationships) Act provides, in respect to a domestic relationship (which phrase is by section 5(1) of the Act defined to include a de facto relationhip),

On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to:
(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and
(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:
(i) a child of the parties,
(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

62 During that period from May 2001 until August 2002 (a short period of only fifteen months) the only contributions asserted by the Plaintiff were in respect to the performance of housework and other domestic activities, and the occasional care of the Defendant’s daughters. The performance of housework and other domestic activities was in accordance with the specific arrangements made between the parties regarding the Plaintiff’s occupancy of the Picnic Point residence.

63 As I have already observed the foregoing period from May 2001 to August 2002 was a period of less than two years. Unless the Plaintiff can satisfy the prerequisite set forth in paragraph (b)(i) of section 17(2) of the Act (that she has made substantial contributions of the kind referred to in section 20(1)(a) or (b) for which she would otherwise not be adequately compensated if the order were not made), the Court is precluded from exercising its discretion to make an order in her favour for the adjustment of the interests of the parties in the Picnic Point property.

64 I am not satisfied that the housework and other activities which the Plaintiff asserts that she performed during that period of fifteen months constituted substantial contributions of the kind referred to in section 20(1)(a) or (b). Indeed, in my conclusion, those activities were part of a contractual arrangement between the parties under which the Plaintiff, in return for those activities and for the payment of agreed sums of money, received accommodation and food in the Picnic Point residence. Certainly, they were not contributions of the nature contemplated by paragraph (b)(i).

65 It follows, therefore, that, even if (contrary to my earlier conclusion) the Plaintiff were to have established the existence of a de facto relationship during that last period, the Court would be precluded, by section 17(1), from exercising its discretion to make an order in favour of the Plaintiff.

66 For completeness, I would observe that even if I were not so precluded, I would not be disposed, in the exercise of the Court’s discretion, to make such an order where, as here, the contributions of the Plaintiff were essentially provided in accordance with a commercial arrangement between the parties of the nature which I have just outlined.

67 The Plaintiff did nothing towards the acquisition, conservation or improvement of the Picnic Point property. She made no contribution towards the mortgage repayments. She ultimately conceded under cross-examination that her evidence that she had done so was untrue.

68 I should also here record that it is not asserted by the Plaintiff that in the period after August 2002 until the final cessation of any contact between them any meaningful contributions were made by her of the nature identified in section 20(1) of the Act. The Plaintiff agreed that she had made no monetary payments to the Defendant in that period.

69 However, as I have already stated, I am not satisfied that for any of the three asserted periods the parties were in a de facto relationship.

70 It follows, therefore, that the proceedings must be dismissed.

71 Accordingly, I make the following orders,

(1). I order that the proceedings be dismissed.

(2). I order that the Plaintiff pay the costs of the Defendant.

(3). I direct that the exhibits be retained.

(4). I direct the Registrar to furnish a copy of this judgment to the Director of Public Prosecutions and to Centrelink.

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