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…

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 Delany v Burgess

Details

AGLC: Delany v Burgess [2006] NSWSC 1420
Case: [2006] NSWSC 1420
Decision Date: 19 December 2006

CaseChat Overview and Summary

Delany v Burgess was a case before the Family Court of Australia, where the central dispute was the existence of a de facto relationship between the parties and the financial implications of such a relationship, if it existed. The plaintiff, Delany, sought a property settlement on the basis of a de facto relationship with the defendant, Burgess. The defendant denied the existence of such a relationship and contested the plaintiff's claims for financial adjustment.

The court had to determine whether a de facto relationship existed between the plaintiff and the defendant, given the evidence of financial arrangements, the nature of the plaintiff's residence, and the sexual relationship between the parties. Additionally, the court had to assess whether the claim was within the permissible time frame, considering that the plaintiff's claims related to three separate periods, none of which had been the subject of a timely application. The court also had to consider whether a de facto relationship, if established, was of sufficient duration to warrant a property settlement, and whether the plaintiff had made any contributions in a capacity that could justify such a settlement.

The court found that there was insufficient evidence to establish a de facto relationship between the plaintiff and the defendant for any of the asserted periods. The financial arrangements and the nature of the plaintiff's residence were not indicative of a de facto relationship, and the sexual relationship alone was not sufficient to establish such a relationship. Furthermore, the court held that the claims were out of time as no application for an extension was made. Consequently, the court was precluded from making an order for the adjustment of the interests of the parties in property, as the plaintiff's claims did not meet the necessary criteria for a de facto relationship or the requisite duration.

The court dismissed the plaintiff's claims and made no orders for a property settlement between the parties. The decision underscored the importance of timely applications and the need for substantial evidence to establish a de facto relationship for the purposes of property settlement under the Family Law Act.

Orders