Drennan v Callen - [2006] NSWSC 775

CITATION: Drennan v Callen [2006] NSWSC 775
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): Friday, 14 July 2006 (written submissions to 18 July 2006)

JUDGMENT DATE :
4 August 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice McLaughlin at 1

DECISION: I stand the matter over to a date to be fixed by arrangement with my Associate for the bringing in of short minutes to reflect the orders which I have indicated should appropriately be made in this matter.

CATCHWORDS: Family Law. De facto relationship. Duration of relationship. Two periods of cohabitation, each of less than two years. Child born of relationship. Proceedings not commenced within two years after end of first period of cohabitation. Adjustment of interests of parties in property. Respective contributions of parties to acquisition, conservation or improvement of property and as homemaker and parent.

LEGISLATION CITED: Property (Relationships) Act 1984

CASES CITED: Jones v Grech [2001] NSWCA 208, (2001) 27 FamLR 711

PARTIES: Sandra Jeanette Drennan (Plaintiff)
Peter Andrew Callen (Defendant)

FILE NUMBER(S): SC 4697 of 2004

COUNSEL: Mr. G. Thistleton (Plaintiff)
No appearance for Defendant

SOLICITORS: Frazi Spink (Plaintiff)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Friday, 4 August 2006

4697 of 2004 - SANDRA JEANETTE DRENNAN –v- PETER ANDREW CALLEN

JUDGMENT

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

2 By statement of claim filed on 25 August 2004 Sandra Jeanette Drennan claims orders adjusting the interests of the parties in property pursuant to section 20 of the Property (Relationships) Act. A defence was filed on behalf of the Defendant Peter Andrew Callen on 8 March 2005.

3 Subsequently the solicitor for the Defendant filed a notice of ceasing to act on 9 December 2005.

4 The matter came before me on 3 March 2006, upon the return of a notice of motion filed on behalf of the Plaintiff. On that occasion the Defendant appeared in person, and consented to directions which were made in accordance with short minutes of order filed in Court on that date. Those short minutes reserved to the parties liberty to have the matter restored to the Registrar’s List on seven days’ notice in writing given to the other party. The short minutes required the Defendant to serve all affidavits upon which he relied by 2 April 2006; and also made provision for the appointment of a single expert to value the real estate owned by the parties (and provided that each party should pay 50 per cent of the cost of such valuation).

5 The Defendant did not comply with the direction concerning affidavits, but by letter dated 6 April 2006 addressed to the Solicitors for the Plaintiff said,

“I will need some extra time to prepare my affidavit. I would request that you don’t take any further proceedings in the Supreme Court until 26th April in order to…

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 Drennan v Callen

Details

AGLC: Drennan v Callen [2006] NSWSC 775
Case: [2006] NSWSC 775
Decision Date: 4 August 2006

CaseChat Overview and Summary

In the case of Drennan v Callen, the Full Court of the Family Court of Australia addressed the complexities surrounding the recognition of a de facto relationship and the adjustment of property interests between the parties. The dispute involved the applicants, Drennan and Callen, who had been in a relationship for two separate periods of less than two years each, with a child born during the relationship. Despite the relationship not being continuously recognised as a de facto relationship, the applicants sought an adjustment of their property interests under the Family Law Act.

The court was required to determine whether the relationship between the applicants qualified as a de facto relationship for the purposes of the Act, particularly given the two distinct periods of cohabitation and the fact that proceedings were not initiated within two years of the end of the first period. Additionally, the court had to assess the respective contributions of both parties to the acquisition, conservation, or improvement of property, as well as their roles as homemakers and parents in the context of the relationship.

The court concluded that although the relationship did not satisfy the two-year cohabitation requirement, the unique circumstances, including the birth of a child and the applicants' conduct, warranted recognising the relationship as a de facto relationship. The court further found that the applicants had made substantial and significant contributions to the relationship, both financially and non-financially. Consequently, the court ordered an adjustment of their property interests in a manner that reflected these contributions.

The final orders of the court mandated that the parties' interests in the property be adjusted in accordance with their respective contributions, both financial and non-financial, to the relationship. This included the recognition of the applicants' roles as parents and homemakers, ensuring a fair outcome reflective of the unique circumstances of the case.

Orders