Drennan v Callen [2006] NSWSC 775

New South Wales Supreme Court

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)

- 11 - 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 limit costs. I will commit 100% to this deadline." 6 The letter also referred to property valuations and said, "I will get back to you by Monday with some names [of valuers] and further information." 7 There was no further communication from the Defendant. In consequence, the Plaintiff had the matter listed before the Registrar on 6 June 2006. On that occasion there was no appearance for the Defendant (although the evidence is silent as to whether that the Defendant was, in fact, notified of the listing of the matter on 6 June). However, on that occasion the Registrar made the following directions: (a). Noted that the Plaintiff intends to proceed on an undefended basis on the next appearance. (b). Noted that the Plaintiff is to notify the Defendant. (c). Matter to be relisted on 14 July 2006. (d). Costs 8 By letter dated 7 June 2006 the Solicitors for the Plaintiff communicated to the Defendant the foregoing directions. That letter included the following, Please therefore note that this matter is again returnable in the Supreme Court of New South Wales on 14 July 2006 when we intend to proceed on an undefended basis. 9 The matter came before me by way of referral from the Registrar on 14 July 2006. The Plaintiff was represented by Counsel; there was no appearance for the Defendant. The Plaintiff sought to proceed ex parte upon the hearing of the proceedings. I acceded to that course, and made the following directions: (1). I direct that the Plaintiff lodge a written outline of submissions on or before Tuesday, 18 July 2006. (2). Upon the lodgement of the foregoing written outline of submissions my judgment herein will stand reserved. 10 A written outline of submissions of the nature contemplated in the foregoing directions was lodged on 18 July 2006. 11 I am satisfied that the Defendant received adequate notice of the intention of the Plaintiff to proceed to a hearing on 14 July 2006. 12 The Plaintiff (who was born on 30 April 1962 and is presently aged 44) met the Defendant (whose age is not disclosed in the evidence) in November 1998. 13 At the time when they met the Plaintiff, who is a qualified graphic designer, was working as such on a full-time basis. The Defendant, who is a qualified engineer, was also at that time working as such on a full-time basis. 14 It was admitted on the pleadings that the Plaintiff and the Defendant lived together as man and wife on a bona fide domestic basis for a period of not less than two years: (a) from January 1999 to November 2000; (b) from June 2001 to 2 September 2002. 15 Throughout the first period of cohabitation the parties resided in the Plaintiff's residence at Caringbah. Throughout most of the second period of cohabitation they resided in rented accommodation at Engadine. After the final separation the Plaintiff returned to her residence at Caringbah. 16 One child was born to the relationship between the parties, namely Giaan Rachael Drennan Callen, who was born on 19 August 2001 (and who is presently aged 4). 17 At the commencement of the relationship the Plaintiff had the following assets: