Cleese and Colburn - [2020] FamCA 516

FAMILY COURT OF AUSTRALIA

CLEESE & COLBURN

[2020] FamCA 516

FAMILY LAW – JURISDICTION – Whether the Family Court has the jurisdiction to determine whether an Agreement as to Judgment at the Supreme Court, made pursuant to Property (Relationships) Act(NSW) should be set aside – Where there is no statutory bar to the accrual of jurisdiction – Where the Family Court has the accrued jurisdiction to determine whether the Agreement as to Judgment should be set aside.

Commonwealth Powers (De Facto Relationships) Act 2003 (Cth) s 4
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Property (Relationships) Act 1984 (NSW) s 41

Camden Pty Ltd & Laue (2018) FLC 93-840
Dahl & Hamblin (2011) FLC 93-480
Fencott v Muller (1983) 152 CLR 570

APPLICANT:

Ms Cleese

RESPONDENT:

Mr Colburn

FILE NUMBER:

SYC

2480

2016

DATE DELIVERED:

29 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

26 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams QC with Mr Stewart

SOLICITOR FOR THE APPLICANT:	Dorter Family Lawyers and Mediators
COUNSEL FOR THE RESPONDENT:	Mr Coleman SC with Mr O’Brien

SOLICITOR FOR THE RESPONDENT:

Bryant McKinnon Lawyers

Orders

IT IS DECLARED

That the Family Court of Australia has accrued jurisdiction to determine whether an Agreement as to Judgment at the Supreme Court of NSW pursuant to the Property (Relationships) Act 1984 (NSW) in respect of a de facto relationship should be set aside under section 41 of that act.

IT IS ORDERED

That the matter be referred to the registrar for directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cleese & Colburn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2480 of 2016

Ms Cleese

Applicant

And

Mr Colburn

Respondent

REASONS FOR JUDGMENT

Ms Cleese (“the applicant”) and Mr Colburn (“the respondent”) lived in a de facto relationship for a number of years. Exactly when the relationship commenced and when it ended are issues to be determined.
On 28 November 2006, the parties entered into an Agreement as to Judgment in proceedings between them in the Supreme Court of New South Wales (“the Supreme Court”).
Those proceedings had been commenced by the applicant in November 2004 by the filing of a Statement of Claim seeking an adjustment of property pursuant to the provisions of the Property (Relationships) Act 1984 (NSW) (“Property (Relationships) Act”).
The Agreement as to Judgment had the effect of distributing their…

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 Cleese and Colburn

Details

AGLC: Cleese and Colburn [2020] FamCA 516
Case: [2020] FamCA 516
Decision Date: 29 June 2020

CaseChat Overview and Summary

In the matter of *Cleese and Colburn*, heard by Rees J of the Family Court of Australia, the central dispute concerned the Family Court's jurisdiction to set aside an Agreement as to Judgment made in the Supreme Court of New South Wales. This agreement, entered into under the *Property (Relationships) Act 1984* (NSW), related to a de facto relationship.

The primary legal issue before the court was whether the Family Court of Australia possessed accrued jurisdiction to entertain an application to set aside the Supreme Court of NSW's Agreement as to Judgment pursuant to section 41 of the *Property (Relationships) Act 1984* (NSW).

Rees J determined that the Family Court of Australia does indeed have accrued jurisdiction to consider whether an Agreement as to Judgment, made in the Supreme Court of NSW concerning a de facto relationship, should be set aside under section 41 of the *Property (Relationships) Act 1984* (NSW). The court declared its jurisdiction to make such a determination.

Consequently, the matter was referred to the registrar for directions.

Orders

Orders of the court

IT IS DECLARED

That the Family Court of Australia has accrued jurisdiction to determine whether an Agreement as to Judgment at the Supreme Court of NSW pursuant to the Property (Relationships) Act 1984 (NSW) in respect of a de facto relationship should be set aside under section 41 of that act.

IT IS ORDERED

That the matter be referred to the registrar for directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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