Cleese and Colburn
[2020] FamCA 516
•29 June 2020
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 | of | 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 interests in various properties between them, requiring the payment of a sum of money by the applicant to the respondent and declaring their interests in various properties, including property owned by a company of which they were both shareholders.
At the time the applicant entered into the Agreement as to Judgment, she was legally represented.
The applicant asserts that she and the respondent resumed their relationship in September 2006 until July 2010; from January 2011 until October 2012 and from April 2013 until May 2014.
On 1 March 2009, the Family Court of Australia (“Family Court”) acquired jurisdiction in relation to de facto relationships then on foot in New South Wales, subject to provisions which permitted de facto couples who had separated before 1 March 2009 to “opt in” to the jurisdiction of the Family Court.
On 15 October 2015, the applicant commenced proceedings in the Supreme Court to set aside the 2006 orders pursuant to s 41 of the Property (Relationships) Act.
On 22 April 2016 the applicant commenced proceedings in the Family Court seeking orders to the effect that the respondent transfer two properties to her and that the respondent pay maintenance of $1,000 per week for an indefinite period.
The proceedings in the Supreme Court were listed for hearing on 26 September 2016. Before submissions were completed on that day, the applicant sought, and was granted, leave to discontinue.
By her Further Amended Application filed on 29 November 2019, the applicant now seeks the following orders:
1. That pursuant to section 90RD of the Family Law Act 1975 (Cth), it is declared that a de facto relationship existed between the applicant and respondent for the following periods:
i. Early 1990 until November 2002; and
ii.September 2006 until July 2010; and
iii.January 2011 until October 2012; and
iv.April 2013 until May 2014.
2. That pursuant to section 90SM of the Family Law Act 1975 (Cth), this Honourable Court alter the property interests of the applicant and respondent so that the respondent pays the applicant $2,000,000.00 within 28 days of this order.
3. That pursuant to section 90SH the respondent shall pay to the applicant lump sum maintenance in the sum of $1,000,000.00.
4. That in the alternative to (3) above, the respondent shall pay to the applicant periodic maintenance in the sum of $2,000 per week for a period of 10 years.
5. That this Honourable Court set aside or vary the Agreement as to Judgment (Orders) entered by the Supreme Court of New South Wales (Case Number … of 2004) on … November 2006 (“Agreement as to Judgment (Orders)”) as it considers appropriate pursuant to s 41 of the Property (Relationships) Act 1984 (NSW).
6. Further or in the alternative to 5 above, a declaration that with respect to the Agreement as to Judgment (Orders):
a. the Agreement as to the Judgment (Orders) did not exhaust the applicant and respondent’s rights with respect to any de facto relationship that existed prior to 28 November 2006;
b. the applicant and respondent both adopted the assumption as to the terms of their legal relationship by entering into the Agreement as to Judgment (Orders), in that they would develop the B Street property together and continue in their de facto relationship, including, inter alia, the resumption of co-habitation;
c. subsequent to, and consequent upon, the making of the Agreement as to Judgment (Orders) the applicant and respondent progressed the development of the B Street property together and continued in their de facto relationship, including, inter alia, resuming co-habitation;
d. both the applicant and respondent knew and/or intended that the other act on the basis of their common assumption;
e. departure from the assumption will occasion detriment to the applicant; and
f. the respondent is estopped from denying the assumption and may not seek to enforce the Agreement as to Judgment (Orders) as the final distribution of the property of the de facto relationship as between the applicant and the respondent prior to 28 November 2006.
7. Costs.
The respondent disputes the applicant’s assertions as to the duration of the de facto relationship.
It is the relief sought in paragraphs 5 and 6 of the application that is the subject of these proceedings.
On 24 January 2020, the following orders were made:
1.That the proceedings are listed for a 1 day hearing on 26 May 2020 at 10am before the Honourable Justice Rees to determine the following separate questions:
a. Whether 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 between the Applicant and the Respondent should be set aside under section 41 of that Act; and
b. As a question of law, and on the facts as asserted by the Applicant at their highest, whether an estoppel may lie against the Respondent in the terms asserted by the Applicant at paragraph 6 of her Further Amended Initiating Application dated 29 November 2018.
Each of the parties has filed extensive written submissions.
The applicant relies on the accrued jurisdiction of the Family Court. The respondent submits that the accrued jurisdiction does not extend to permit the Family Court to set aside the orders of the Supreme Court pursuant to s 41 of the Property (Relationships) Act.
It is settled law that the Family Court can accrue jurisdiction where it is necessary to determine the whole of the dispute raised by the parties. The respondent submits that, in the present case, there is a statutory bar to the accrual of jurisdiction.
Thus, in relation to the first question, the issues to be determined are:
· Is there a single justiciable issue between the parties?
· Is there a statutory bar to the exercise of accrued jurisdiction?
Is there a single justiciable issue?
The majority in the High Court in Fencott v Muller (1983) 152 CLR 570 stated:
The unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. In identifying a s. 76(ii) matter, it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
The Full Court of the Family Court in Camden Pty Ltd & Laue (2018) FLC 93-840 stated:
Where a court exercising jurisdiction under the Act entertains a claim that does not constitute a matrimonial cause, it has been said traditionally to be invoking “accrued jurisdiction”. Writing extra-curially, Allsop CJ has said:
‘Accrued Jurisdiction’ is that part of the matter which is not specifically federal. It is probably a term best avoided. The whole matter is federal if it arises under a federal law. It is apt to mislead if one thinks of State or common law jurisdiction clamping on to federal jurisdiction. It is all federal jurisdiction, if it is one controversy …
Their Honours went on to say:
The parameters of the federal jurisdiction which it possesses are the parameters of the matter, the criterion for which is there being a “single justiciable controversy”. A single justiciable controversy might involve differing causes of action; the search being for issues or claims which “arise out of common transactions and facts or a common substratum of facts” (even if the facts do not wholly coincide) (Rana at [36] citing Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (“Philip Morris”) at 512 and Fencott v Muller (1983) 152 CLR 570 (“Fencott”) at 607).
In the present case, the issue to be determined is the duration and extent of the de facto relationship between the parties. When did it commence? Over what periods did it subsist? When did it come to an end? What contributions were made by each of the parties during the relationship?
If the Family Court is properly seized of that portion of the issue that relates to the de facto relationship that is alleged to have commenced in 2006 and to have continued, albeit over three separate periods, until May 2014, then the Family Court is properly seized of jurisdiction to determine all of the issues between properly joined parties that form part of the single justiciable controversy which is constituted by those issues.
In the present case, absent statutory prohibition, that includes the jurisdiction to consider the application to set aside the orders of the Supreme Court pursuant to s 41 of the Property (Relationships) Act.
Is there a statutory prohibition?
The respondent relied on the provisions of the Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) (“the Referring Act”) in which s 4(1) specifies the referral:
(1) The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 5, as the day on which the references under this Act are to terminate, but no longer:
(a) financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of different sexes,
(b) financial matters relating to de facto partners arising out of the breakdown (other than by reason of death) of de facto relationships between persons of the same sex.
(2) The operation of each paragraph of subsection (1) is not affected by the other paragraph.
The respondent submitted:
…the ordinary meaning of the words “are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences” reflects a clear legislative intention that the powers are not referred to the Commonwealth Parliament retrospectively, and that the Family Court could not utilize the referred powers to set aside an order made prior to those powers being granted.
I do not accept that submission, which ignores the concept of accrued jurisdiction.
Section 3(4) of the Referring Act provides:
This Act extends to de facto relationships that ended before the commencement of this Act.
Thus it is clear that the referral necessarily includes de facto relationships which were in existence before the referral, provided that the relationship came to an end after the referral.
As the Full Court in In Dahl & Hamblin (2011) FLC 93-480, stated:
The question is therefore whether one of the parties, who is now the respondent to the appeal, should be able to rely on a period prior to the commencement of Part VIIIAB to obtain what she must presumably see as the benefits of that Part when she could not have done so had the relationship not resumed?
Their Honours stated:
Again no answer is to be found to this question in the Act, in the relevant Explanatory Memorandum, or in the Second Reading Speech. Nor has this question been expressly decided in any other case to which we have been referred, or been able to find for ourselves.
Their Honours stated:
...the amending legislation, which inserted Part VIIIAB, expressly states that the Part should not apply to a de facto relationship which “broke down” before the Part commenced (Item 86 in Part 2 of Schedule 1). However, in relation to the two year qualifying period required for a relationship to exist before it can be the subject of financial proceedings under Part VIIIAB, no limiting description of when that period, or periods, might, or should, have occurred, has been imposed by the legislature. Nevertheless, we understand it to be well accepted that parties whose de facto relationship was in existence on 1 March 2009, but which subsequently broke down, have been able to avail of the new provisions provided their relationship extended over a period of at least two years where that period extended over that date. (See for example Cronin J’s decision in Vaughan & Bele [2011] FamCA 436.)
We therefore find it difficult to accept, at least in the absence of any clear statement to the contrary in the legislation, that the periods of a relationship which can be aggregated (under s 90RD(2)(a) and s 90SB(a)) for the purpose of establishing the required two year period cannot include periods prior to the commencement of Part VIIIAB on 1 March 2009, provided, of course, that the relationship existed for a period, or periods, after that date.
Their Honours concluded:
Thus our overall conclusion is that if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. It matters not at least for the purposes of establishing jurisdiction under s 90SB, how long ago the other period, or periods occurred, or what were the circumstances of any breakdown in the relationship (although as we have said, the circumstances of their periods together and of their periods apart will, of course, be important in the determination of a “proper” maintenance order or a “just and equitable” order for alteration of property interests).
It will be appreciated that the answers which we have given to the questions raised in this appeal concerning the intended meaning of the word “periods” in s 90RD(2)(a) and s 90SB(a), may well be categorised as representing a “beneficial” interpretation of those legislative provisions. But we consider that this approach is justified given the Attorney-General’s explanation in his second reading speech of the beneficial or remedial nature of the legislation, being that it was intended to “provide greater protection for separating de facto couples and simplify the laws governing them”. (See the discussion in Pearce & Geddes, Statutory Interpretation in Australia, 7th ed, LexisNexis Butterworths, Australia, 2011 at [9.2].)
As a matter of logic, if the Family Court has jurisdiction to consider the contributions made to a de facto relationship which were made before the referral of jurisdiction, then it also has power to consider any other matters which arise out of the common substratum of facts.
Further, the respondent relies on the terms of the acceptance of the referred jurisdiction in the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) which amended the Family Law Act to provide a definition of “de facto financial cause” relevantly in the following terms:
De facto financial cause means:
(a) proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or
(b) proceedings between:
(i) a party to a de facto relationship; and
(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the maintenance of the first‑mentioned party after the breakdown of the de facto relationship; or
(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or
(d) proceedings between:
(i) a party to a de facto relationship; and
(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or
(e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); or
(f) third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or
(g) any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.
I do not accept that the effect of subsection (g) is to exclude from the jurisdiction of the Family Court, any consideration of “completed proceedings” in the Supreme Court, provided that the Family Court is properly seized of jurisdiction by virtue of a controversy about a de facto relationship that ended after the referral date.
CONCLUSION
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 whether a de facto relationship between the applicant and the respondent should be set aside under s 41 of that Act.
It is not necessary to determine the second question. I accept the submissions on behalf of both parties that jurisdiction cannot be determined by estoppel.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 June 2020.
Associate:
Date: 29/06/2020
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