Cleese & Colburn (No 3)

Case [2024] FedCFamC1F 221

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cleese & Colburn (No 3) [2024] FedCFamC1F 221

File number(s): SYC 2480 of 2016
Judgment of: CURRAN J
Date of judgment: 4 April 2024
Catchwords:

FAMILY LAW – DE FACTO RELATIONSHIPS – Existence of relationship – Where the applicant asserts the parties were in a de facto relationship over three periods – Where the respondent asserts the parties had a business relationship and friendship but not a de facto relationship – Where the applicant bears the burden of proving the existence of a de facto relationship –Where it is conceded that the parties had periods of common residence – Where the parties exhibited a mutual commitment to a shared life – Where the parties had a relationship as a couple living together on a genuine domestic basis – Where the court finds a de facto relationship existed between the parties during two of the claimed periods.

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Re-hearing – Where the matter was remitted by the Full Court – Where the applicant submitted the hearing was a “further” hearing and bound by findings made previously arising from issue estoppel – Where the respondent submitted the hearing was a “re-hearing” – Hartnett & Sampson (Scope of rehearing) (2009) FLC 93-391 applied – Finding the hearing is a “re-hearing”.

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to re-open – Where the applicant sought to re-open the hearing and adduce further evidence – Where the further evidence was a power of attorney, bank statements, tax returns, and medical records – Consideration of principles surrounding re-opening – Leave granted to re-open – Leave granted to rely on power of attorney, bank statements, and tax returns – Leave refused to rely on medical records

Legislation:

Family Law Act 1975 (Cth) ss 4AA, 90RD

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.04

Property Relationships Act 1985 (NSW)

Surveillance Devices Act 2007 (NSW) s 7

Cases cited:

Allesch v Maunz (2000) 203 CLR 172

Australian Securities and Investments Commission v Rich (2006) 235 ALR 587

Clayton v Bant (2020) 272 CLR 1

Cleese & Colburn [2020] FamCA 516

Cleese & Colburn (2020) FLC 93-995; [2020] FamCAFC 278

Cleese & Colburn [2022] FedCFamC1F 282

Colburn & Cleese (2022) FLC 94-105; [2022] FedCFamC1A 147

Fairbairn v Radecki (2022) 400 ALR 613

Hartnett & Sampson (Scope of rehearing) (2009) FLC 93-391

Holgar & Stott [2017] FamCA 772

King Investments Solutions Pty Ltd v Hussain and Another (2005) 64 NSWLR 441

Lennon & Sanil (2020) FLC 93-962

Lynam v Director-General of Social Security (1984) FLC 91-577

Marcin & Marcin (2020) FLC 93-956

Owens & Benson [2014] FamCAFC 243

Sinclair v Whittaker (2013) FLC 93-551

Smith v New South Wales Bar Association (1992) 176 CLR 256

Stephens & Stephens and Anor (Enforcement) (2009) FLC 03-425

Summitt & Summitt & Ors (Re-opening) [2009] FamCA 365

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AGLC
Cleese & Colburn (No 3) [2024] FedCFamC1F 221
Case
[2024] FedCFamC1F 221
Decision Date

CaseChat Overview and Summary

The case of Cleese & Colburn (No 3) involves a protracted legal dispute between the parties, focusing on the existence of a de facto relationship and subsequent property settlement orders. The applicant, Ms Cleese, sought to establish that a de facto relationship existed during several periods, while the respondent, Mr Colburn, disputed these claims. The matter has been through multiple hearings and appeals, with the latest hearing being a re-hearing as determined by the Full Court. The court was tasked with determining whether a de facto relationship existed during the periods claimed by the applicant and, if so, to what extent the Supreme Court judgment could be set aside to allow for further property settlement claims.

The primary legal issues revolved around the existence of a de facto relationship as defined under the Family Law Act 1975 (Cth), the interpretation of the concept of a "re-hearing" versus a "further hearing" in the context of appellate decisions, and the principles governing leave to re-open a hearing to adduce further evidence. Specifically, the court had to decide whether the relationship met the statutory criteria of a de facto relationship as per section 4AA of the Act, whether the re-hearing was bound by previous findings due to issue estoppel, and whether certain types of evidence should be admitted under the principles of re-opening a hearing.

Curran J found that a de facto relationship existed between Ms Cleese and Mr Colburn during two of the periods claimed: from 29 November 2006 until February 2008, and from July 2008 until October 2012. The court relied on the non-exhaustive list of factors in section 4AA(2) of the Act to determine the existence of a de facto relationship, considering the duration, nature of cohabitation, mutual commitment, and financial interdependence among other factors. The court found that while the evidence provided by both parties was often conflicting and lacked credibility, certain corroborated evidence supported the existence of a de facto relationship during the specified periods. The court also determined that the hearing was a re-hearing and not bound by previous findings due to issue estoppel, allowing for a fresh examination of the evidence. Leave was granted to re-open the hearing and introduce further evidence in the form of a power of attorney, bank statements, and tax returns, but not medical records.

The court made a declaration that a de facto relationship existed between Ms Cleese and Mr Colburn from 29 November 2006 until February 2008, and from July 2008 until October 2012. This declaration permits the possibility of further property settlement claims under Part VIIIAB of the Family Law Act 1975 (Cth) for the specified periods.

Orders

Orders of the court

SYC 2480 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CLEESE

Applicant

AND:

MR COLBURN

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

4 APRIL 2024

THE COURT DECLARES THAT:

1. Pursuant to section 90RD(1) of the Family Law Act 1975 (Cth), a de facto relationship between the applicant and the respondent existed from:

(a) 29 November 2006 until February 2008; and

(b) July 2008 until October 2012.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

In this case, the factual findings support the conclusion that the parties were a couple living together on a genuine domestic basis for the first two periods claimed and does not support that finding in respect of the third claimed period.BACKGROUND This matter has a long and complex litigation history with proceedings for de facto property orders having been commenced and finalised in the Supreme Court of New South Wales ("Supreme Court") in late 2006. It is not in dispute that the parties were previously in a de facto relationship. In 2004, the applicant commenced proceedings in the Supreme Court against the respondent for property settlement pursuant to the Property Relationships Act 1985 (NSW). The respondent pleaded in Supreme Court proceedings that the relationship existed between 1990 and ended in November 2002. The applicant did not refute the pleadings filed by the respondent, and the pleaded facts were deemed admitted. The litigation settled and judgment was entered in late 2006 with orders made by the Supreme Court for the parties to divide their real and personal property on the basis that had been agreed. Those orders have not been set aside and that consent order disposed of the property division between the parties up to that point as final orders following the period of their de facto relationship ("Supreme Court judgment"). In 2015, the applicant commenced proceedings in the Supreme Court to set aside the Supreme Court judgment. Subsequent to the commencement of the proceedings in the Family Court of Australia, the applicant filed a Notice of Motion seeking the Supreme Court proceedings be transferred, which was discontinued at hearing in late 2016, and a costs order made in favour of the respondent. An application to the Family Court of Australia (as it was then known) was commenced on 22 April 2016. On 29 June 2020, Rees J delivered judgment and made a declaration that the Court had accrued jurisdiction to determine whether the Supreme Court judgment could be set aside (Cleese & Colburn [2020] FamCA 516). The Full Court allowed an appeal to these orders and the matter was remitted for further hearing (Colburn & Cleese (2020) FLC 93-995). On 2 May 2022, Altobelli J delivered judgment, setting aside the Supreme Court judgment and made declarations that the parties were in a de facto relationship from 1991 to 1994, 1995 to the end of 2000, September 2006 to July 2010, January 2011 to October 2012, and April 2013 to May 2014 (Cleese & Colburn [2022] FedCFamC1F 282). The Full Court allowed an appeal and the matter was remitted for further hearing “but only in so far as declaratory and substantive relief may be available to the parties under Pt VIIIAB of the Act for the period after [the Supreme Court judgment] was entered … [in] November 2006” (Colburn & Cleese (2022) FLC 94-105). As set out by the Full Court, declarations as to the first three periods claimed to be periods of the de facto relationship throughout the 1990s, and the setting aside of the Supreme Court judgment, were precluded by estoppel. In particular, the Full Court said at [29]–[30] and [54]:29However, the Supreme Court judgment created a “claim estoppel”. Any rights to property settlement relief that could be asserted in federal proceedings under Pt VIIIAB of the Act arising from any period of the de facto relationship before November 2006 are equivalent in nature to those rights that have already been asserted and determined by the Supreme Court judgment (Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; 323 ALR 1; [2015] HCA 28 (Tomlinson v Ramsey) at [21]–[22]; Clayton v Bant (2020) 272 CLR 1; 385 ALR 41; 62 Fam LR 16; [2020] HCA 44 at [28], [30], [32], [34], [37], [40], [41], [56], [67], [68], [71] and [76] (Clayton v Bant)). …30Whilst ever the Supreme Court judgment stood undisturbed, the parties and the primary judge were estopped from enquiring behind it. Rights flowing from the parties’ de facto relationship in the period before November 2006 had already been determined and did not remain available to form part of the justiciable controversy before the primary judge. ……54… The respondent’s verified pleadings, admitted by the appellant, were the premise for the Supreme Court judgment and incontrovertibly established these facts – the de facto relationship began in early 1990, ended [in] November 2002, and did not resume before […] November 2006.

Evidence

Evidence Before The Court

In submissions, counsel for both parties made remarks to the effect that the court may not believe either of the parties, and that they both suffer from poor recollections. I agree. My concerns with their credibility and reliability means that where their evidence is in conflict, I will have difficulty accepting any evidence that is not supported by independent or corroborative evidence. The Applicant’s evidence At the commencement of her cross-examination, the applicant was asked:MR COX SC: And you recollection of events and times and dates was much better then than it is now, correct?THE APPLICANT: No, I think it’s better now because I was focusing on 24 years before and now I’m focusing on from 2006 to 2014. So I think my memory is better now than it was back then.(Transcript 17 April 2023 p.69 lines 23–26) I do not accept her recollection now is better than at the time of the events or at the time of the previous hearing. There were frequent instances in the applicant’s evidence in cross‑examination where she could not remember or could not recall matters she was asked about. There were other periods where she was not responsive to the questions being asked. One example is that it was put to the applicant that her recollection of $165,000 borrowed from her then daughter-in-law Ms N, in March 2008, was actually $164,000 less the sum of $35,000 which had been repaid to Ms N’s father. That was accepted by the applicant. It was accepted that the same error was made by the applicant when she gave her evidence in August 2021, yet no correction was made to her affidavit sworn on 27 February 2023. She did not accept the proposition that she did not have a good recollection of events that occurred even two years ago. Much of the evidence in relation to this matter from both parties was relating to events 16 to 17 years ago. It was suggested to the applicant that her recollection of events was not good at the previous hearing and was not good now. She did not accept that. The applicant also found it difficult to be responsive to many questions, answering questions with a question or with a statement that was at times defensive. The applicant appeared at times not to have a good recollection of the events that occurred even throughout the hearing. In relation to a “love letter” to her written by the respondent, the applicant’s evidence at 11.30am before an adjournment was that the respondent had left it at her door. After court resumed at 12.07pm, her evidence was that the respondent had handed it to her. When challenged that she had given inconsistent evidence less than an hour earlier, she said she doesn’t remember if she was present when he brought it to her. For these reasons I approach the applicant’s evidence where it is in dispute with caution unless corroborated by records or other witnesses. I found the witnesses relied upon by the applicant to be frank, direct, and honest, and I place weight on the corroborative value of their evidence. They made admissions when they were unsure or had no knowledge of certain events put to them.

Decision

Reasons for decision

There is agreement between the parties that there was, several times after the Supreme Court judgment, a common residence. The duration and periods of which, as well as the nature of their cohabitation, are in dispute. Cohabitation post-Supreme Court judgment The applicant said that they were living together as a couple on a genuine domestic basis from September 2006, in the respondent’s property at 2 RR Street, City Y (“2 RR Street”). The respondent says that the applicant resided with him at 2 RR Street at a time of when she was in financial difficulty in or about late 2006 to early 2007 but that it was limited to a period of around eight weeks. Ms G said she spent time with the parties with her dog after the death of her grandmother in late 2006 at 2 RR Street. She does not give evidence of observations other than in late 2006, which pre-dates the Supreme Court orders. I give no weight to this evidence as it predates the relevant period being from 29 November 2006. The applicant’s sister, Ms H, said she was advised by the applicant after their mother’s death that she was moving back in with the respondent at 2 RR Street. Ms H is a diligent diary‑keeper, with diaries dating back to 1991. It was put that Ms H was an unreliable witness, as she did not include information of any pre-2008 relationship in a previous affidavit. I do not accept that submission. Ms H explained that she was asked questions about particular periods which she answered and was not asked about the earlier period. She says this is the explanation as to why she did not give evidence in the previous proceedings as the now claimed first period. I accept her evidence. The applicant says in late November 2006 her children and grandchildren visited the parties at 2 RR Street where they celebrated an event with an afternoon tea. There is no evidence that establishes this was on or after 29 November, noting also the celebrated event falls in early November. The applicant says that her property at NN Street was tenanted at the time of the Supreme Court judgment. The respondent says they had dinner together at her place at NN Street and had sexual intercourse on the night of the Supreme Court judgment. The respondent’s evidence was that “after the November orders [Ms Cleese] set up a business renting [NN Street, City Y] for holiday letting” however it is not clear on any evidence precisely when the properties of the applicant were and were not tenanted. The respondent’s oral evidence was that he and the applicant resided in a common residence at 2 RR Street for a period of 8 weeks from late 2006, not long after the Supreme Court judgment. He says he moved into 3 QQ Street in May 2007. The respondent said the applicant was under financial pressure at times that she stayed with him. Exhibit 80 to the applicant’s affidavit contains statements from her Netbank Saver account from 6 February 2007 to 14 September 2007. During this period, the lowest balance was $47,000 and the highest balance was $251,147.24. This does not support the contention that during the relevant period the applicant could not afford to house herself.The purchase of white goods and furniture

Ratio Decidendi

Legal Principle Established

The applicant who seeks the declaration bears the burden of proving, to the requisite civil standard, the existence of all facts about the de facto relationship which are essential to the existence of the Court’s jurisdiction and the exercise of power under Part VIIIAB of the Act (Owens & Benson [2014] FamCAFC 243). The respondent carries no burden of proof.SUBSTANTIVE APPLICATION FOR DECLARATION Where this is a contest as to whether there existed a de facto relationship, the Court must examine the evidence including what the parties said and did, how they conducted themselves, their behaviour and all of the circumstances attendant to that relationship in order to make factual findings which weave a composite picture to conclude whether there was a de facto relationship, and if there was, when the relationship broke down. Section 4AA(1) of the Act states a person is in a de facto relationship with another person if:(a) the persons are not legally married to each other; and(b) the persons are not related by family; and(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. The Act sets out a non-exhaustive series of matters under s 4AA(2) that the Court may have regard to in determining whether a de facto relationship exists, being:(a) the duration of the relationship;(b) the nature and extent of their common residence;(c) whether a sexual relationship exists;(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;(e) the ownership, use and acquisition of their property;(f) the degree of mutual commitment to a shared life;(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;(h) the care and support of children;(i) the reputation and public aspects of the relationship. Relevantly, s 4AA(3) sets out that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship and s 4AA(4) identifies that in determining whether a de facto relationship exists, the Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case. The High Court observed in Fairbairn v Radecki (2022) 400 ALR 613 at [28]–[30] and [39] in the context of a determination about the breakdown of a de facto relationship:“Living together” and “breakdown”28Section 4AA(1)(c) identifies the relationship which is the concern of the Act: “a relationship as a couple living together on a genuine domestic basis”. The existence of such a relationship is determined having regard to “all the circumstances” of a relationship; significantly, those “circumstances” include any or all of the circumstances listed in s 4AA(2), and, by reason of s 4AA(3), no particular finding about any circumstance is necessary for there to be a de facto relationship. Consistently with the reality that human relationships are infinitely mutable, in determining whether a de facto relationship exists a court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate.29A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer “have a relationship as a couple living together on a genuine domestic basis”. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.30In the context of a human relationship, “breakdown” refers to the “end” or “breakup” of what had been an enduring emotional bond. It is the “breakdown” or “end” of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended. The appellant’s submission finds no support in statutory context, in history, or in any extrinsic material referred to the Court’s attention.…39The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).(Footnotes omitted)