Cleese & Colburn (No 3) - [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

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507

Waterways Authority v Fitzgibbon (2005) 221 ALR 402

Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (“Hindmarsh Island Bridge case”) (1996) 189 CLR 1

Division: Division 1 First Instance

Number of paragraphs: 466

Date of hearing: 17-21 April 2023, 23 August 2023

Place: Sydney

Counsel for the Applicant: Mr Stewart

Solicitor for the Applicant: Dorter Family Lawyers and Mediators

Counsel for the Respondent: Mr Cox SC with Mr O’Brien

Solicitor for the Respondent: Bryant McKinnon Lawyers
ORDERS

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cleese & Colburn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION

These proceedings are for declarations pursuant to s 90RD of the Family Law Act 1975 (Cth) (“the Act”) sought by the applicant, Ms Cleese (“the applicant”). The applicant contends that a de facto relationship existed between herself and the respondent, Mr Colburn (“the respondent”), during three distinct periods, namely 29 November 2006 to February 2008, July 2008 to October 2012, and April 2013 to May 2014. The respondent contends that no de facto relationship existed between them for the above periods and that there was no de facto relationship between them after 28 November 2006.
The parties’ preliminary dispute about the existence, duration and termination of the alleged resumption of their de facto relationship was separately listed for hearing to determine whether the Court is seized of jurisdiction to make orders adjusting the parties’ property interests. This is the re-hearing of the application for declaratory orders which finally determines the parties’ rights about the existence and timing of the de facto relationship.
For the reasons which follow, it is declared the parties were in a de facto relationship in the first period and second period as claimed. There is no dispute about any other jurisdictional fact and so, as a result of the declaration, jurisdiction to grant financial relief between the parties under Pt VIIIAB of the Act is enlivened.
These proceedings concern a complex matter with a long factual history of the parties’ relationship and litigation.
The delivery of this judgement was delayed for which I apologise to the parties. Multiple documents relied upon were referred to at times inaccurately in the applicant’s table of evidence which required me cross reference the index and to carefully check the accuracy of each document.
In Summitt & Summitt & Ors (Re-opening) [2009] FamCA 365, Murphy J at [58]–[59] said the following:
58The increasing complexity of matters confronting the courts, when merged with a judge’s desire to write a considered judgment, sometimes results, regrettably, in a delay between trial and judgment. As Campbell J said in King Investments Solutions Pty Ltd v Hussain and Another (2005) 64 NSWLR 441 at [164] “… [the realities of] the case listing procedures of the Court force judges to write reasons in whatever odd corners of time are left over from their other duties …”.
59… Finality in litigation is a powerful component of the interests of justice.
(Emphasis in original)
The application is for an evaluative factual decision establishing the jurisdictional facts for the enlivenment of discretionary power to adjust the parties’ property interests
The test for the determination of whether a relationship meets the threshold of a de facto relationship is, per the Federal Court in Lynam v Director-General of Social Security (1984) FLC 91-577 (“Lynam”) affirmed by the Full Court in the decision of Sinclair v Whittaker (2013) FLC 93-551 (“Sinclair v Whittaker”) and many other Full Court decisions that have followed, to have consideration to “the composite picture”. In Lynam, the composite picture is described as follows at [131]:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons …meets the statutory test.
As stated by the Full Court in Sinclair v Whittaker, “whether a de facto relationship, as defined, exists will depend upon an assessment of all of the circumstances of the relationship, each to be given the weight the court thinks appropriate”, those circumstances being inclusive of the factors set out at s 4AA of the Act.
The task of the court is to make factual findings on the evidence presented by the parties and to then make an assessment of whether the composite picture produces a de facto relationship or not.
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.
The present application is a separate statutory cause of action seeking declaratory relief in respect of the existence of and timing of their de facto relationship. It is the applicant’s contention in the current proceedings that the parties’ resumed a de facto relationship and seeks a declaration for the period after the Supreme Court judgment was entered during three distinct periods. The respondent denies that the parties were in a de facto relationship at any point after the Supreme Court judgment but asserts that their relationship became in essence a business relationship and a friendship after separation.
The parties each have adult children of previous relationships, some of whom gave evidence in these proceedings. For ease of reference, each of the children is identified below:
(a)Ms L, the daughter of the applicant;
(b)Mr UU, the son of the applicant;
(c)Ms G, the daughter of the applicant;
(d)Ms D, the daughter of the respondent;
(e)Mr VV, the son of the respondent; and
(f)Ms C, the daughter of the respondent.
ORDERS SOUGHT BY THE PARTIES
The applicant sought orders contained in her Third Further Amended Initiating Application filed 23 February 2023. These consisted of declarations pursuant to section 90RD of the Act that the parties were in a de facto relationship for the periods earlier identified and costs.
The respondent sought orders contained in his Further Amended Response to Initiating Application filed 28 March 2023 for the application be dismissed with costs.
MATERIAL RELIED UPON
The applicant relied on the following documents:
(a)Case Outline filed 11 April 2023;
(b)3rd Further Amended Initiating Application filed 23 February 2023;
(c)Affidavit of Ms Cleese filed 27 February 2023;
(d)Affidavit of Ms Cleese filed 4 April 2023;
(e)Affidavit of Ms H filed 16 February 2023;
(f)Affidavit of Mr WW filed 17 February 2023;
(g)Affidavit of Ms L filed 17 February 2023;
(h)Affidavit of Ms G filed 17 February 2023; and
(i)Exhibits 1–2, 5–6, and 15.
The respondent relied on the following documents:
(a)Case Outline filed 13 April 2023;
(b)Further Amended Response to Initiating Application filed 28 March 2023;
(c)Affidavit of Mr Colburn filed 28 March 2023;
(d)Affidavit of Mr U filed 23 March 2023;
(e)Affidavit of Mr R filed 24 March 2023;
(f)Affidavit of Ms C filed 27 March 2023;
(g)Affidavit of Mr Q filed 27 March 2023;
(h)Affidavit of Ms D filed 28 March 2023;
(i)Affidavit of Mr V filed 28 March 2023; and
(j)Exhibits 7 and 9–14.
I have also had the benefit of reviewing the transcript of the hearing in preparing this judgment.
The matter was re-opened, and further evidence admitted at hearing on 23 August 2023, being The Power of Attorney of the respondent dated 13 February 2008, statements in respect of the parties’ joint ANZ loan account #...63 for the period from 10 January 2008 to 15 February 2008, and the respondent’s Income Tax Returns for the financial years ending 30 June 2007 and 30 June 2008.
I was also directed to the table of evidence prepared by the applicant and annexed to her submissions. It was a document which purported to set out all the evidence in support of the applicant’s claims, however it had inaccuracies in terms of its referencing, asserted that evidence supported findings that it did not, and some of the annexures were not what they stated they were, which made the consideration of the evidence more time consuming as it was necessary to check the accuracy of each document.
By way of example a reference was made to “February 2008 – Statement for joint ANZ account addressed to both parties at [2 RR Street, City Y]” referring to paragraph 212 and Annexure 75. Paragraph 212 deposes “the statements were sent to [Mr Colburn] and me at [2 RR Street] via post.” Annexure 75 is 14 pages of barely legible copies of the joint ANZ bank statements from March 2008 until January 2010. They do not contain any reference to any physical address and do not refer to 2RR Street. The statements are addressed to the parties’ respective PO Boxes, being PO Box 1 and PO Box 2 at different times during this period. Another contention was “2008 – Statement for the parties’ Joint ANZ account is addressed to the parties at the Respondent’s PO Box, being [PO Box 1] for the period 21 March 2008 to June 2008” referencing Annexure 6 to the applicant’s affidavit filed 4 April 2023. Annexure 6 is a legible copy of the same statements during the same period.
This is but one example of the need to carefully review each of the contended findings of fact and basis claimed.
THE LAW
The Court is empowered to make a declaration under section 90RD of the Act that a de facto relationship did or did not exist between parties to proceedings.
As confirmed by the Full Court in Lennon & Sanil (2020) FLC 93-962, a decision about the existence of a de facto relationship entails an evaluative judgment by reference to the inclusive criteria set out in section 4AA of the Act. The decision is factual rather than discretionary. Factual findings are required to be made on the basis of the evidence before the court, which create a composite picture of the nature of the parties’ relationship. The relevant test is affirmed by the Full Court in Sinclair v Whittaker.
The definition of de facto relationship is contained within section 4AA(1) of the Act. The determinative provision is contained in section 4AA(1)(c) which states that the Court can find that a de facto relationship exists where it is found that the parties were “a couple living together on a genuine domestic basis”. To make such a finding, the Court will have regard to any or all of the circumstances set out in s 4AA(2).
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)
The applicant sought declarations pursuant to s 90RD of the Act that a de facto relationship existed between the three periods; from November 2006 until February 2008 (“the First Period”), July 2008 until October 2012 (“the Second Period”), and April 2013 until May 2014 (“the Third Period”). As the applicant, the onus of proof rests on her to establish the facts she pleads.
The hearing took 5 days. The evidence comprised over 1000 pages. An application to re-open was filed on 9 June 2023, which was granted and required another day of final hearing. Further evidence was admitted at the re-opening and written submissions filed.
I have had regard to all the evidence and facts contended for by the parties, as referred to in their written and oral submissions. Given the volume, it is not practicable or necessary to refer to all the material.
These reasons set out those facts and matters which I consider are salient to the issues and necessary to understand the parties’ respective contentions and why I have made my factual findings and reached the conclusions on the issues for determination in respect of the three relevant periods.
Credibility and reliability
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.
I was urged to disregard the evidence of the applicant’s daughters and sister as unreliable witnesses. In particular, in respect of the alleged deliberate recording of the 2013 Christmas lunch. As discussed below at paragraphs [410]-[413], this is a curious video, but I do not accept that this was a covert set up which affects the reliability of the applicant’s witnesses’ evidence.
The Respondent’s evidence
The respondent gave evidence which, as explored below, was at times not plausible or was unreasonable. The following exchange occurred in cross-examination:
So why were you saying:
If you are willing, I would like to plan a holiday with you that would be more [Ms Cleese]-friendly.
?---It requires some explanation.
Please, that’s what I’ve invited you to do?---In the experience of being with [Ms Cleese], when I was sued for the first Family Law Court issue, while I was overseas, [Ms Cleese] broke into my bedroom and my filing cabinet and she took records out that were used in her case against me back then, and so whenever I travelled away – well, I can’t say 40 whenever, but when I travelled away I used to have fears that she would have access to my files again and, I think, in the emails I sent I wanted to keep her friendly, so as to not do that to me again.
Is that a serious answer to my question?---Well, if you ask the question again, yes.
Well, the question was that – you went to the email that you had said to her, while you’re, I presume, […] somewhere in […] Asia:
If you are willing, I would like to plan a holiday with you that would be more [Ms Cleese]-friendly.
?---Yes.
And what was sent to her because you were concerned about her stealing documents?---Correct
When challenged at times the respondent became animated and defensive. He also suffered from poor memory. I have approached the evidence given by the respondent with caution, except where it has been corroborated by independent evidence or by other witnesses.
The witnesses
On the whole, I also found the witnesses relied upon by the respondent to be reliable, honest, and direct. They too made admissions where appropriate and gave evidence that did not support the respondent’s case. I place weight the corroborative value of their evidence.
The applicant’s changing case and what to make of the various periods
Throughout these proceedings, the applicant has changed the periods for which she seeks declarations pursuant to s 90RD. The first amended application for final orders sought declarations for September 2006 until July 2010, January 2011 until October 2012, and April 2013 until May 2014. The second amended application pleaded mid 2005 until February 2008, July 2008 until October 2012, and April 2013 until May 2014.
I agree with the respondent’s submission that the various dates in which the applicant has made assertions as to the existence of the de facto relationship requires a cautious approach. This is also appropriate where the memories have faded and the parties have now been embroiled in litigation for many years, so much so that there must be a question as to the utility of the legal proceedings when the legal costs are considered.
I am mindful of the changes and have taken a cautious approach to the assessment of the evidence.
THE FIRST PERIOD - 29 NOVEMBER 2006 TO FEBRUARY 2008
I have considered each of the s 4AA(2) factors in my determination of whether or not a de facto relationship existed for this period. The circumstances of the parties may include any, or all, of the following circumstances which may be considered in determining the composite picture. In this case, the parties were factually at odds in respect of almost every fact alleged.
Section 4AA(2)(a) - The duration of the relationship
The parties both accept they had a prior de facto relationship. The period of that relationship was set out in the Supreme Court pleadings. The applicant contended that the first period of the subsequent de facto relationship relevant to this application was from 29 November 2006 until February 2008, for one year and three months. The respondent denied any de facto relationship at any time after 29 November 2006. He contended that the relationship was one of business associates and good friends and one of housemates during any period where he agreed they had a common residence, but nothing more.
Accordingly, both the characterisation of the relationship and the period of the relationship are in contest.
Section 4AA(2)(b) - The nature and extent of their common residence
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
In January 2007, the applicant purchased a dishwasher she says for the unit at 2 RR Street. The invoice recorded the purchase and delivery address as 2 RR Street. She said it was to replace the dishwasher they had installed in 1996 or 1997. The respondent agreed that she had the dishwasher delivered to his unit, but his explanation was that the applicant was renovating her kitchen and it was more convenient to have the dishwasher delivered to his house, and then taken down to her place when it was time for the dishwasher to be installed as she lived “[just] down the road.” I do not accept the explanation of it being delivered to a different address for convenience is plausible, indeed it is inherently improbable that delivery of a heavy appliance would be arranged to an address other than where it would be installed. This lends support to the applicant’s evidence that the parties were residing at 2 RR Street.
The applicant paid for a water filtration system that was installed at 3 QQ Street. The invoice dated October 2007 was made out to “[Mr & Ms Colburn]” at 3 QQ Street. The respondent’s evidence was that he “wasn't too fussed about the filtration system but said to [Ms Cleese] words to the effect of "I'm too busy with the finishing details. Can you order the system and I will reimburse you." He provides no evidence of reimbursement to her. The date of the invoice and address support a finding that in October 2007 there were renovation and building works at 3 QQ Street, including of the installation of the water filtration system which was ordered by and paid for by the applicant.
Self-managed super funds and tax returns (including rental income)
The parties set up individual self-managed super funds (“SMSFs”) in June 2007 with accountant Mr W. The applicant recorded her address with Mr W at the time of engaging him in 2007 as NN Street. The contemporaneous information provided by the applicant as to her residential address supports the contention that she lived at NN Street and not with the respondent.
The applicant’s tax returns prepared by Mr W for the financial years ending in 2007 and 2008 recorded her address as NN Street. The applicant denied she was residing there at the time and explained it was recorded as her home address as it was a home that she owned, although she maintained she did not live there. She said in evidence it was a mistake to tell Mr W that was where she lived.
The applicant’s tax returns recorded NN Street as one of the applicant’s rental properties during the relevant period, for which she declared $8,960 in rental income for the financial year ending 2007 and $10,250 for the financial year ending 2008. This is consistent with her evidence that she did not live at NN Street at the time.
On 18 September 2009, (when it is agreed that the applicant and the respondent were living at 3 QQ Street), when completing the Offer and Loan Contract with PP Limited the applicant recorded her address as NN Street, City Y. This is consistent with her evidence as to her practice of recording NN Street as her address at times when she was not physically residing there.

The applicant’s tax returns for the financial years ending in 2007, 2008 and 2009 contained information about rental income. In 2009, when it is not in dispute that the parties were residing together, the rental income increased significantly in comparison to the tax returns for the financial years ending in 2007 and 2008. The respondent contends that this supports a finding that the parties were not residing in a common residence prior to this time. There was an increase in rental income at the relevant time, however, I am not satisfied on the balance of probabilities that this establishes that the applicant was not previously renting out the property as contended. The rental records were not in evidence, as such I can make no finding as to which of the applicant’s properties was tenanted, for what amounts and at what times. There was no evidence as to the rental rate at various times or whether it had increased.
The respondent’s tax returns for the financial years ending 2007 and 2008 were admitted into evidence upon the re-opening of the final hearing. In the respondent’s individual tax return for the period 1 July 2006 until 30 June 2007, the respondent records his home address as 2 RR Street. The same address is recorded as home address for the individual tax return for the period 1 July 2007 until 30 June 2008. I note that these returns are not signed or dated by the respondent, however it suggests that Mr W, the accountant who prepared them, was either instructed that 2 RR Street was the home address of the respondent, or it was not corrected prior to the drafting of these returns. The respondent contended that the address was incorrect but acknowledged he had made no attempt to correct it.
The addresses recorded by both parties as their residential address appear to be unreliable and inconsistent with other records, such as the rental properties recorded in taxation records. I do not make any finding in respect of the claimed residential addresses of the parties from time to time in taxation records. Accordingly, I am not satisfied that the recording of the address at NN Street in 2007 is persuasive in a finding that she was necessarily living at that address at any given time.
Joint ANZ loan
In December 2007, the parties executed an ANZ Loan contract where the parties were joint borrowers of $315,000. The parties’ names were handwritten on the document by the parties. It is agreed that a meeting that took place at 2 RR Street with an employee from AA Company, Mr XX. The address recorded on that document under each of their signatures was 2 RR Street City Y NSW. The applicant says that is because they were living at the address. The respondent maintained that he was not living at 2 RR Street at that time as he had moved to 3 QQ Street in May 2007, and it was submitted on his behalf that the address reflected 2 RR Street because that is where the meeting took place and where the document was signed. He said the meeting occurred at 2 RR Street due to access issues due to ongoing landscaping at 3 QQ Street.
Ms L gave evidence, which was not in dispute, that in December 2007 she attended 2 RR Street with her son, YY, to visit the applicant and observed the parties sitting and speaking with a loan representative at the dining table. The respondent said “Your mum and I are going for a loan together, now is not a good time for a visit.” This supports the applicant’s contention that the parties were residing at 2 RR Street at the time, firstly as that is where she attended for the purpose of visiting her mother, and secondly it is where they were having the meeting.
It more likely than not that the address recorded on the document signed by the parties was the residential address of the parties, as recorded by the institution that had prepared the loan offer document based on the information provided by the parties and as observed by Ms L when she visited. This conclusion is supported by the fact that the parties met the bank representative at that address to hold the meeting about securing finance.
The applicant’s evidence that she lived with the respondent at 2 RR Street at the time of signing the loan documents is supported by the documents that were signed. I prefer her evidence as to the residence of the parties at the time of signing the loan document as it is more inherently probable that the address appeared on the document because it was the residence of the parties, rather than the respondent’s explanation that it reflected the location of the meeting and signing.
The ANZ bank statements
The statement for the parties’ Joint ANZ account was addressed to the parties at the applicant’s PO Box 2 from the time of drawdown 10 January 2008 until 30 June 2008. From July 2008 until September 2008 the address on the statements is PO Box 1, which is the PO Box of the respondent.
The applicant’s table as to evidence contends that the statements are addressed to the respondent’s PO Box 1 from March until June 2008. This is inconsistent with the statements. The applicant also contended that the statements were posted to the respondent and that she did not have access to them. This is also inconsistent with the statements which show they were posted to her PO Box at times.
The respondent’s evidence was “I did not receive statements for this account and did not become aware of them until they were produced by [Ms Cleese] for the purpose of these proceedings.” This is also inconsistent with the statements which show they were posted to his PO Box at times.
Neither parties’ evidence nor contentions are consistent with the evidence. The statements show, and I find, that until 30 June 2008 the statements were sent to PO Box 2, which is agreed to be the applicant’s PO Box. From 30 June 2008 until 30 June 2009 the statements were sent to PO Box 1 which was agreed to be the respondent’s PO Box. From 30 June 2009 until January 2010 the statements were again sent to the applicant’s PO Box 2.
I find that at different times each of the parties were receiving the bank statements for the loan account to their respective PO Box and do not accept either party when they say they did not have access to the statements. This does not assist with any finding about the residence of the parties during the first period.
The contention that the statements were posted to the residential address of 2 RR Street City Y.
The applicant’s table as to evidence contends that in February 2008 the statements for the joint ANZ account were “addressed to both parties at [2 RR Street, City Y].” The relevant statements at Annexure 75 of the applicant’s February affidavit are the same statements as Annexure 6 of the applicant’s 4 April 2023 affidavit. The statements make no reference to the address at 2 RR Street. The evidence does not support the submission and does not provide evidence as to the likely period of common residence of the parties.
The statutory declaration 23 July 2007
On 23 July 2007, the respondent signed a statutory declaration in relation to the family loan he received from Ms G. The address recorded on the statutory declaration is 2 RR Street. This is inconsistent with the respondent’s evidence that he had vacated 2 RR Street and was residing in 3 QQ Street by May 2007.
The witness observations
Ms L gave evidence, that was not contested, that she visited her mother including in early 2007 at 2 RR Street almost daily to check on her wellbeing following the passing of the applicant’s mother late in the previous year.
She said the applicant moved from 2 RR Street in February 2008 into 2 QQ Street, and that her mother told her, at the time, that the reason for the separation and her moving into 2 QQ Street was her belief that the respondent was having an affair.
Ms G said that in early 2008, the applicant moved out of 2 RR Street and moved to 2 QQ Street, and that the respondent stayed at 2 RR Street for a short time after that before he moved to 3 QQ Street. I accept her evidence as to when she says her mother physically moved out.
Ms C said she lived in the three units at various times and thought she had lived in one of the units from late 2007 until late 2009 with her then partner, Mr V. She said that from November 2006 until November 2007, “I didn’t spend much time with them. I didn’t see much of [Ms Cleese] and Dad.” She lived with the parties in the home at 3 QQ Street for a period of time and gave evidence in respect of the first two periods that “it was really hard to tell what was going on in their relationship.” She did not simply adopt her father’s position that the parties were not in a relationship at any time and appeared to be endeavouring to give full and frank evidence even when it was at times inconsistent with her father’s evidence.
Ms D gave evidence that she believed her sister Ms C was living at 2 RR Street in “2007 to 2008” but was not specific as to when. I found her evidence to be aligned with the respondent, to some extent unbelievably so. Ms D was unwilling to make any statements or concessions that would reflect positively on the applicant. She sought to give the impression that she did not have much to do with the applicant and her family, including that the applicant never cared for her children, that she barely saw the applicant and that she attended children’s birthday parties just to be “polite”. I do not accept this position, as it is in conflict with substantial other evidence, which records family gatherings including Ms D, and particularly of the parties’ grandchildren being together. I approach her evidence with some caution
Mr U gave evidence that during a trip in 2007, he did not observe them to interact with affection or refer to each other as partners, that he did not see much of them together, that for the last few days of the trip the respondent was unwell and that the parties travelled back to Sydney with him and his wife. He gave oral evidence of other trips undertaken.
Mr R gave evidence that he would visit the respondent from 2005/2006 and observed him to be living on his own. He said he observed the applicant to be living with the respondent at QQ Street during two periods and although he found it “odd that [Ms Cleese] was living in [Mr Colburn’s] house at some points, from my perspective I did not consider them to be in a relationship.”
Mr V gave evidence about undertaking work on 3 QQ Street which was vague and not precise as to the time. He said he had visited in 2008 and observed Ms Cleese to be living in the detached bedroom, although precisely when is unclear. He said he had lived in one of the units for four years then moved into another unit and did not mention residing in a third unit. He said that since 2008 he had spoken to the respondent on one occasion.
Each witness gives a different perspective as to their observations which unsurprisingly mostly align with the witness who relied on their material. I give weight to the corroborative value of the evidence other than where it is indicated that it is imprecise or vague.
Other factors
The respondent’s evidence is that he moved into 3 QQ Street in May 2007. The applicant contends that the parties lived at 2 RR Street until she moved out in February 2008 and that he later moved in to 3 QQ Street.
The final occupation certificate for 3 QQ Street was issued in September 2009. I do not accept that any finding can be made based on the timing of the certificate being issued.
Ms G and Ms L gave evidence about the timing and circumstances of their mother moving out of 2 RR Street that is consistent with the applicant’s evidence both as to the timing and the reason for the move being her suspicion of infidelity in early 2008.
The respondent appointed his daughter Ms D to be his power of attorney on 13 February 2008. The power of attorney records the address of the respondent as 2 RR Street. The date of the execution and recorded address is consistent with the timing of the parties’ separation as claimed by the applicant and is consistent with the applicant’s evidence as to the parties’ residence up to that time.
It was contended that the applicant’s witnesses’ evidence should be approached with considerable caution because they are shown to be unreliable and that this “infects” their evidence in respect of any of the periods claimed, as the claim which they all maintain that the applicant lived in 2 RR Street should be found to be a “false claim.” I do not accept the period claimed in 2 RR Street to be a false claim or that there is evidence to support a finding that they gave false evidence.
The evidence as to who lived in 2 RR Street and at what time, given by Ms D was vague referring to her belief that that Ms C lived there “2007-2008.” Ms C said she “believed it was late 2007 to late 2009.” The respondent’s evidence was that he lived there until May 2007. On balance I prefer the evidence of the applicant, Ms G, and Ms L about the period that the applicant lived at 2 RR Street as they each gave specific evidence as to the date and circumstance of the applicant moving out. In addition I give weight to the timing and circumstances of the statutory declaration regarding the family loan recording 2 RR Street as the respondent’s address, and the Power of Attorney appointing Ms D at the same time the applicant says the relationship ended.
Conclusion as to s 4AA(2)(b)
I am persuaded by the evidence of the applicant corroborated by her daughters, the purchase of the dishwasher and water purifier, the statutory declaration and its details and timing, the power of Attorney and its details and date, the details of and circumstances of the joint ANZ loan, and the report and timing about the suspected infidelity as the reason for separation, that the parties had a common residence during this period. I am satisfied that the time and circumstances of the period of their common residence at 2 RR Street was from 29 November 2006 until February 2008.
Based on the findings above I find that the parties had a period of common residence for the period of 29 November 2006 until February 2008, rather than the period of eight weeks as contended by the respondent.
Section 4AA(2)(c) - Whether a sexual relationship existed
In respect of all three periods claimed, the respondent denies that the parties shared a bedroom except on rare occasions and then only by way of necessity. The applicant’s evidence is that they were sexually active, intimate and affectionate.
The respondent’s evidence was that the parties were not intimate and did not have a sexual relationship after the date when the Supreme Court judgment was entered. The applicant contended that the parties remained intimate and continued to have a sexual relationship during all three of the periods she claims the parties were in a de facto relationship in what she described as an on again and off again relationship.
A sexual relationship may be present in a de facto relationship or absent from a de facto relationship. It can occur after the end of a de facto relationship. A sexual relationship is just one indicium of a de facto relationship. The parties present diametrically opposed evidence on this issue.
The applicant’s evidence was that in August 2006 she was told the respondent had contracted a sexually transmitted infection and in September saw her GP and underwent pathology tests. The records state “partner has [a condition]” and was screened for sexually transmitted infections. There is no doubt a sexual relationship existed between the parties prior to 29 November 2006. The relevance of the advice received in August 2006 prior to the evening that it is agreed they had sexual intercourse is not clear. It does not establish that after that time the parties had a sexual relationship, nor does it make that contention more or less likely.
The applicant says in early 2007 while on holidays she purchased two copies of a book “Peace Between the Sheets – healing with sexual relationships” for the parties to read during a holiday. She said she bought one for each of them to read. Inside the cover was written “to [Mr Colburn] love [Ms Cleese].” The respondent did not deny that she gave him the book but that he did not remember when. The gift of the book is consistent with the parties having an intimate relationship and the applicant’s evidence about the timing of the gift and the holiday they had, supports her contention of a sexual relationship in this period.
The applicant’s evidence was that she suspected the respondent was having an affair and consequently she ended the relationship in February 2008 for approximately six months. The report to her children of her concerns about infidelity, and the subsequent separation as a consequence, is consistent with the existence of an intimate and sexual relationship prior to the separation. I put weight on the report made by the applicant to her daughters as to the reason for her separation as supporting her contention that the parties had a sexual relationship at the time immediately prior.
The respondent gave evidence that around this time he was in an intimate relationship with Ms ZZ, which he says supports the conclusion that he was not in a sexual relationship with the applicant. It also supports the applicant’s contention that she ended the relationship at that time due to her belief that he was seeing other women, which he agrees he was.
Conclusion as to s 4AA(2)(c)
The holiday, together with the gift of the book and its subject matter, at that time, and the report to her daughter of a break-up following suspected infidelity, which was later reported to her counsellor as detailed below, all support the conclusion that a sexual relationship more likely than not existed at the time as contended by the applicant.
Section 4AA(2)(d) -The degree of any financial dependence or independence and any arrangements for financial support between them
The strong inference arising from the Supreme Court orders
The consent orders made in the Supreme Court finalising property settlement following the breakdown of their relationship strongly supports a finding that the parties’ relationship had come to an end and that their intention was that their financial lives thereafter were independent. This provides a strong inference that the parties were not after this time in a de facto relationship.
A number of factors support such a conclusion. Those factors include the implementation of the Supreme Court orders including both, the payment of the $20,700 loan by the applicant to the respondent in accordance with her obligations under the Supreme Court orders, and the structuring of the assets of the parties thereafter including for example the payout of the Z Ltd loan prior to the transfer of the properties as ordered by the Supreme Court. The parties’ completion of the obligations pursuant to the orders strongly supports the conclusion that the relationship had come to an end.
As well as declarations that the parties owned property in their own name, including bank accounts and superannuation entitlements, the orders provided for:
(a)The applicant to pay the respondent $20,700 in repayment of a debt;
(b)The applicant to discharge the mortgage secured against B Street;
(c)The respondent to transfer his interest in 2 QQ Street to the applicant;
(d)The parties to do all things in their capacity as directors of B Pty Ltd to sell and/or develop B Street.
Order 1 was complied with between December and February 2007 on the evidence of both parties. Order 2 was complied with on 26 September 2007, the discharge of mortgage being exhibited to the affidavit of the respondent. Order 3 was complied with simultaneous to the discharge of mortgage pursuant to Order 2. Order 4, being the development of B Street, continued for many years until its sale was ordered by the Supreme Court in mid-2015.
The efforts to meet the obligations pursuant to the orders supports a conclusion that the parties were disentangling themselves from each other financially, as was the intention under the Supreme Court orders. This indicia points to a conclusion that the parties were financially independent in the period immediately after the judgment.
The DA application for 2 RR Street

In July 2007, a development application in relation to 2 RR Street was lodged. The applicant says she was involved including engaging an architect to prepare plans in support of a development application and that the parties attended upon a sign writer together to get the “for sale” sign made and erected.
The applicant says they came up with a name for the development together. The respondent did not contest this evidence. The applicant said this development was being explored to assist to fund the B Street development.
Ms L gave evidence that the respondent had said that the applicant could be on title for 2 RR Street if she bought in. This evidence suggests the willingness of the respondent to extend his financial relationship with the applicant to further the disposal of B Street. This supports the contention that his intention in dealings with the applicant was to wrap up the development of B Street.
Conduct indicating a degree of ongoing financial support
However, against this background there is also evidence which indicated a level of financial dependence and support between them. Certain steps were undertaken that indicate the parties were making adjustments in support of each other, that were not required merely in order to implement the Supreme Court orders, which indicates a degree of mutual commitment to a shared life.
The $70,000 family loan of 23 July 2007
On 23 July 2007, the respondent borrowed $70,000 from the applicant’s daughter Ms G. In the statutory declaration completed, the loan is referred to as “a family loan”. Ms G’s evidence is also that she provided the funds as she believed the parties to be in a relationship at the time.
The reference to a family loan does not accord with the respondent’s position that there was no relationship at the time. For the applicant’s adult daughter to lend the funds to the respondent at that time and in those circumstances is illogical. What is far more likely accords with the evidence of Ms G, that she believed the parties were in a relationship as that is what her mother had reported to her and was consistent with her reported observations.
The ANZ loan of $315,000 drawn down on 10 January 2008
In December 2007, the parties executed an ANZ Loan contract where the parties were joint borrowers of $315,000. The applicant says this was done to consolidate debts and pay off some of their liabilities, her evidence was that this was suggested by the respondent and she said “Okay, if you think that’s a good idea, I trust you.” The respondent says that the applicant approached him and said that she needed money and wanted to consolidate debt. His evidence was that he “reluctantly” met with Mr XX from AA Company. The respondent said he did not recall filling out the details of the ANZ loan application document and it “was something [Ms Cleese] handed to me to sign and I did.” His evidence was in effect that the borrowing was the applicant’s, that she needed his income for it to be approved, and that he was effectively blackmailed into doing so by the applicant threatening to reveal details of an affair to his children and threatening to reopen her family law action.
It is not in dispute that Mr XX attended at the 2 RR Street property in December 2007 when the loan offer was signed, and each party signed the document with the address of 2 RR Street noted under their signature.
The faxed document from AA Company titled “ANZ Lo Doc Loan – Qualifying checklist” had the name “[Mr Colburn]” and an application number typed onto the pre-prepared document. The name “[Ms Cleese]” as applicant was handwritten.
On the face of the documents from the facsimile markings, it appears the documents were prepared initially on 10 December 2007 recording only Mr Colburn as the applicant and faxed back with the handwritten additions including the applicant’s details. The loan distributions and settlement authority document and loan offer document dated 18 December 2007 was prepared with both parties’ details.
The date of and information included in typescript on the documents cause me to have reservation about the respondent’s evidence. The documents are not consistent with his oral evidence that he did not recall filling out the detail and that he merely signed documents handed to him by the applicant. The documents support the finding that he was recorded as the borrower because the typed details of only Mr Colburn were initially included on the 10 December 2007 document.
The funds of $315,000 were borrowed by the parties jointly. The statement shows the funds were drawn down on 10 January 2008 but there was no evidence as to the use made of or who had the benefit of the funds. Neither party provided clear evidence as to the use of the funds other than each asserting the other had access to the funds. The applicant said it was used for joint expenses and each had a card. The respondent was asked what the main purpose of the loan was and said:
it’s hard to recall back then, but it could have been in relation to needing – well first of all, I didn’t need the funds – I’m just trying to think here. I can recall [Ms Cleese] did not have sufficient income, as was explained by [Mr XX], and so that meant that it she wanted to be on the loan, it had to include my name.
Neither party in oral evidence was able to provide any evidence or even any clarity in their recollection as to the use of the funds. The highest the evidence came was a denial that each had solely used the funds. I am unable to make a finding as to the characterisation of the expenditure and whether it was for joint living expenses, contributions to the building and renovations to the respondent’s property at 3 QQ Street or used for other purposes. The evidence from both parties about the use of the funds was unsatisfactory in order to make any finding.
The applicant has the onus of proof. I am not satisfied on the evidence as to the use made of the joint borrowings as the evidence in respect of the use of the funds was sparse, vague and contained general assertions, but no probative evidence. It was denied by the respondent that he had the use of the funds to build 3 QQ Street.
The loan application document included both parties’ assets, liabilities, and income details in support of the application which was approved as a joint loan. Both parties made repayments to the loan account from time to time. The nature of this joint loan supports a finding that the parties had intermingled their finances at this time by obtaining a joint loan, and I make that finding, notwithstanding that the purpose of which and use of funds remains opaque.
Payment of bills and living expenses
The respondent maintained that the applicant was staying with him as she could not afford to stay elsewhere.
From November 2006 to February 2008, the applicant said she paid the phone bills, electricity expenses and grocery bills for the respondent, and herself, and that the respondent paid the utility bills. This was not agreed. No bank records or utility bills or other evidence was relied upon in support of this contention. This distribution of expenses between parties may support a finding of a degree of financial interdependence between the parties however the applicant called no evidence at all other than her assertions to support this claim. The respondent gave no evidence about payment of joint expenses during this period. I cannot be satisfied on the evidence as to the extent of or period of distribution of joint or individual expenses, if there was any. I am not satisfied, if there were shared living expenses, as to how they were paid given the absence of evidence.
The purchase of the water filtration system referred to above however does support a finding of a degree of financial interdependence but curiously that, together with the dishwasher purchase, is the only evidence provided to support a contention of joint expenses being paid in respect of the first period.
The use of the applicant’s inheritance
Between December 2006 and February 2007, the applicant received inheritance of $185,000. Her evidence was that she used these funds, along with sale proceeds of another property, to pay out the mortgage secured against B Street in two transactions of $160,000 in October 2006 and $61,947 in December 2006. The evidence of the applicant is that she applied $61,947 towards the mortgage secured against B Street, applied $20,700 repayment to the respondent for a loan received in January 2006, applied $44,390 toward stamp duty and valuation costs to transfer B Street to her self-managed superannuation fund and applied $57,962 towards joint living expenses. The applicant provided no evidence to corroborate the payment of joint living expenses other than her assertion. I was not taken to any bank statements and the contention was not agreed.
It was submitted on behalf of the respondent that the applicant did receive a “modest” inheritance, and that, just as with the ANZ loan, there is no evidence that the monies had been used on living expenses.
I cannot on the evidence make any finding as to the use of the applicant’s inheritance.
The setting up of individual SMSFs and transfer of the B Street property
The applicant said that in early 2007 they travelled to City MM to seek advice about setting up a SMSF and met with a financial advisor at AB Accountants. They initially received advice from AB Accountants and in around June 2007 they attended upon Mr W accountant to set up the individual SMSFs.
The fact that the parties set up individual SMSFs dealing with B Street is contended by the respondent to support the contention that this was part of the implementation of the Supreme Court orders and the disentangling of their financial lives as contemplated by the orders. This submission has some weight.
In September 2007, the parties discharged the mortgage over B Street, which had been paid out, and on 4 October 2007 the parties transferred their shares in the B Street property to the trustees of their individual SMSFs.
The applicant said the respondent suggested that they set up individual SMSFs which they did. The applicant contends this is consistent with and indicative of financial interdependence and him providing advice to her. The respondent agreed that he provided the applicant with advice in respect of property development issues from the end of 2006, however, he contends that this was merely a part of dealing with B Street as required by the Supreme Court orders and indicative of financial unravelling.
It was the applicant’s evidence that setting up the SMSFs was the respondent’s idea which she, effectively, went along with. This proposition was put to the respondent, who denied that he was the driving force of putting B Street into separate SMSFs. The respondent’s evidence was that it was a joint decision.
The evidence of the accountant Mr W is that the parties attended together, at some stage, to get advice about transferring property out of a unit trust into SMSFs. Mr W was asked if the respondent was the driver of the idea and his answer was:
Yes. Yes it was definitely [Mr Colburn] who contacted me by telephone…. he had already formulated the idea of transferring the property to self-managed super because he knew that when self-managed funds were in pension phase, the sale of the property would be exempt from capital gains tax, so he was planning ahead for that scenario.
…
[Mr Colburn] was – I remember [Mr Colburn] was quite knowledgeable about aspects of – of the whole transaction as a whole.
This evidence is consistent with the applicant’s evidence.
The respondent contends that in late 2007 the applicant was under significant financial strain. In such circumstances it is difficult to accept that she was proposing to restructure her affairs resulting in the incurrence of $110,000 in capital gains tax, valuation expenses, and stamp duty. This seems an unlikely situation for a person in a financially dire circumstance, as the respondent contended the applicant was. When it was put to the respondent that it was implausible that he would be concerned about her financial strain and yet enter into a series of transactions causing her to incur a significant liability, his answer was that was “[Ms Cleese’s] consideration really.”
I am satisfied that it was at the respondent’s instigation that the SMSFs were initially discussed and that the applicant relied on his advice and knowledge at least to some degree. This also accords with the respondent’s own admission that he advised the applicant financially.
The setting up of the individual SMSFs may be indicative of joint plans and future financial commitment, but equally supports a finding that the parties were merely implementing steps to dispose of B Street in accordance with the Supreme Court orders. This is a finely balanced analysis that is capable of supporting both contentions. The applicant has the onus of proof and on balance the SMSF set up is equally consistent with the parties disentangling their financial affairs as contemplated and ordered by the Supreme Court. Firstly because of the timing, and secondly because they set up individual funds. This does not indicate an intermingling of funds or degree of financial interdependence as contended by the applicant.
Joint ANZ loan
The applicant said the $315,000 was partly used to repay a $70,000 loan the respondent took out from her daughter Ms G, partly used for renovation costs to 3 QQ Street and partly on living expenses.
The respondent’s evidence was that he “did not receive the statements from this account and did not become aware of them until they were produced by [Ms Cleese] for the purpose of these proceedings.” He also says that “except for the draw down of $70,000 I did not make any withdrawals on the loan account.”
The applicant’s evidence was “the large cash withdrawals from the joint ANZ account were withdrawn during the period where we were building [3 QQ Street]. [Mr Colburn] was responsible for managing funds and paying invoices in respect of the build.” No evidence was called to support these contentions.
The statement for the joint ANZ statement contains no draw down of a specific sum or of amounts that add up to $70,000. There is one significant draw down on $242,847.45 referred to as a “card entry” at City Y branch on 11 February 2008. The balance of the entries were debits of $35,000 on 16 January (transaction 438701), $1,010 on 13 February (438707), and $7,874 on 20 February (438702). Other withdrawals were debits of $5,000 on 16 January, $7,750 on 21 February, $5,200 on 22 February, $1,937.60 on 11 March, all referenced as “Card Entry at [City Y] Branch.” On 18 March 2008 when the balance was $9,159, Ms N, the daughter-in-law of the applicant transferred $164,921.18 to the account.
The respondent’s evidence is he did not have access to a debit card from the bank attached to the account and did not use the account other than depositing sums. He says he did not make withdrawals from the bank.
The evidence from Ms G was that the loan of $70,000 from 23 July 2007 was repaid in December 2007. Although it was put to Mr G that was “when the loan was first taken out”, it is clear from the bank statement that the proceeds were drawn down on 10 January 2008. The evidence as to repayment appears to pre-date the date when the ANZ joint loan proceeds became available, although the applicant also gave evidence that the funds were used to repay Ms G the $70,000.
The applicant’s evidence was “on 20 December 2007 [Ms G] loaned $70,000 to [Mr Colburn] to assist him with completing the house build at [3 QQ Street]. Annexed hereto and marked “80” is a true copy of [Mr Colburn’s] ANZ equity account showing receipt of the $70,000.” Annexure 80 is a copy of the Applicant’s CBA Netbank saver account from March until September 2007 and a deposit or cheque butt recording $70,000 for an account …94. There is no evidence this account is the respondent’s account.
Ms G’s evidence, and the statutory declaration, make it more likely that on 23 July 2007 she lent $70,000 to the respondent. Ms G’s evidence in her affidavit and oral evidence in cross examination was that it was repaid in December 2007. Annexure 80 pages 473-475, contains a statement from Ms Cleese’s CBA Netbank saver account recording that in July 2007 she received “discharge proceeds” of $204,147.24, and on 23 July 2007 there was a Netbank transfer made out of her account of $70,000. There is also annexed a copy of what may be a deposit book or a cheque but from account …94 dated 23 July 2007 referencing “[Mr Colburn Ms G’s] $70,000.” I am unable to make any finding other than the respondent borrowed $70,000 from Ms G on 23 July 2007 which all parties agree was repaid in or around late 2007 or early 2008.
The respondent agreed he used $70,000 but said he did not need access to the balance of the funds, and he did not use them. He said the applicant had access to and used the loan monies. The applicant said the money went into the parties’ joint account and she could not work out who took what now. The applicant was unable to explain any of the withdrawals made from the account in the amounts of $20,000, $15,000 and $7,000 in May 2008. The applicant did not know how the funds were used but said they both had key cards to access the account. Some of the funds were used during a period when neither party contends they were in a relationship.
The property was still undergoing some building works after May 2007 including in December 2007, when Mr XX attended 2 RR Street to sign the loan documents due to access issues with the outside of the property at 3 QQ Street due to ongoing landscaping work at that time. That however does not establish that the funds were utilised by the applicant or respondent.
The only conclusion open on the evidence is that the parties had a joint account, but I am unable to reconcile how or when the loan funds were used or for what purpose.
The onus is on the applicant to establish her case. There is no evidence as to the purpose of the withdrawal of $242,847.45 and neither party in cross examination could recall. The loan purpose was recorded by the ANZ as “funds to set up investment portfolio” with security over “[1 QQ Street City Y].” I have no evidence as to how the funds were used and can make no finding it was spent as alleged by the applicant on the build of 3 QQ Street, or otherwise.
It does not follow that one would enter into a joint loan with someone with whom they had a friendship or a mere business relationship if the funds were not for the benefit of both parties. However, the respondent explained his ongoing involvement as a response to the applicant saying “you need to keep me viable for [B Street]” and his concern that the applicant was in financial difficulty. He said the applicant had said to him “you need to keep me viable for [B Street],” had threatened to reveal the details of an affair to his children and had threatened to re-open the family law proceedings. Given the final orders had been made the prior year it is not clear on what basis such the threat to re-open could be or was allegedly made.
The evidence in respect of the ANZ loan satisfies me that the parties had a degree of financial dependence in the obtaining of a joint loan facility.
The loan of $165,000 from Ms N
The applicant gave evidence that she and the respondent received a loan of $165,000 Ms N, in around March 2008. The applicant says that the funds went into the joint account and that both parties had cards on it and had access to it. The applicant annexed to her affidavit bank statements demonstrating the transfer into the parties’ joint account.
The evidence of the applicant was that these funds were applied to the construction at 3 QQ Street, as well as living expenses. The respondent denied this. There was no other evidence that the respondent made use of any of the funds that were lent by Ms N.
The applicant’s case is that she moved out of the respondent’s property in February 2008 after she believed he was having an affair. The deposit made into the joint account of $164,921.18 occurred on 18 March 2008, during the period the applicant says the parties were separated.

It was not relied upon in the earlier proceedings and, as I say above, that fact does not support a finding of a deliberate attempt to set up evidence of a relationship that did not exist. It supports and I find the parties spent Christmas together in 2013. I do not give the evidence any particular weight other than it was an example of the parties spending time together with their extended family at the time.
The wife gave evidence that she did not seek legal advice until after May 2014. This was not in contest.
Conclusion as to s 4AA(2)(f)
Having regard to the facts set out above, especially having knowledge of the history and context of the parties’ previous relationship, the evidence does not support that the parties had a high degree of mutual commitment to a shared life.
The evidence speaks to the tension between the parties which heightened in this period. There is limited evidence of any future planning.
Section 4AA(2)(i) - The reputation and public aspects of the relationship
As with the previous periods there is evidence of the parties spending time together, socialising together, attending functions, having a holiday and hosting dinners together during this period.
In 2013, the parties went for an outing. The applicant took a photograph of the respondent wearing a hat that she gifted to him.
In 2013, Mr UU and AR attended 3 QQ Street to visit the parties. The applicant took a photograph of the respondent and AR playing together. Mr UU did not give evidence.
In 2013, the parties attended the respondent’s children’s grandmother’s celebration of life. The respondent says they attended separately. In May 2013, the parties attended a funeral. The applicant says the parties were affectionate towards each other, and the respondent hugged and comforted the applicant when she cried during the ceremony. The respondent does not give any evidence in relation to this event. I do not consider that to provide support is significant in the context of a funeral of a mutual friend or the children’s grandmother. I give little weight to evidence of the parties attending funerals after such a long history of being involved in each other’s lives.
The applicant deposes that in mid-2013 the parties travelled to Sydney to stay with Mr AO and Ms AP. The parties stayed in the guest room and slept in a queen-sized bed together, according to the applicant. The respondent agrees that they went with Mr AO and Ms AP and other friends to stay at a resort, and that they had twin beds and shared the same cabin.
The applicant says that in late 2013 the parties travelled to Town EE for a holiday to celebrate the applicant’s birthday. The parties booked a house. The respondent deposed that he did not recall this holiday. It was put to her that the parties were in disagreement in late 2013 as to what to do with B Street, and her oral evidence was:
No. No. Late 2013 we went on a holiday to [Town EE] and [Mr Colburn] wrote all over the newspaper, because we didn’t have any paper, he was doing figures on development and there’s lots of emails going back and forth and there’s also [Mr AT], the draftsman. We were having meetings with the council, which [Mr Colburn] didn’t turn up because he was sick, and there’s emails saying, “I want to speak with you and [Mr AT] before the council meeting”, and we had plans drawn up again in 2013, and those are exhibited in my affidavit.
This evidence accords with the evidence of the respondent, when asked to recall what the parties would have discussed at this holiday, he also referenced dealings with Mr AT at the time. I find that the parties did go to Town EE together in late 2013, and I note the agreement that the development of B Street was discussed.
Ms C gave evidence that they were “definitely not in a relationship in 2013.” She did not elaborate on why she formed this view, however it was in stark contrast to her evidence about being unsure as to the relationship at other periods.
On 11 November 2013, the applicant sent an email to her friend and advised her that she would be looking after Ms D’s daughters while she was working on the coming Thursday, and the respondent was away helping Mr VV in Sydney. Ms D’s evidence is that she never left her children with the applicant alone. I accept the evidence of the applicant in this regard, as she produced a contemporaneous record advising of her availability.
On 25 December 2013, Ms G hosted Christmas lunch as set out above. Her evidence was that she invited the respondent and his children, however, only the respondent and his son Mr VV attended. Ms L took a video of the respondent touching the applicant’s feet and the group apparently playing a game. Ms G said that they were affectionate towards each other during this lunch, and Ms H recalls that the respondent participated in a Kris Kringle game and cooked garlic prawns.
The applicant gives evidence supported by her sister that she and the respondent hosted a family dinner at 3 QQ Street on 28 December 2013. The respondent could not recall.
Ms G deposes that she attended 3 QQ Street on numerous occasions to visit Mr VV and observed that the applicant was staying with Mr Colburn and sharing the same bed.
In late 2014, the applicant went and sought the advice of a solicitor, Mr AE. Mr AE told the applicant that she should seek the advice of a family law specialist. The applicant then engaged Mr CC at AD Lawyers to represent her in late 2014. A letter was sent on her behalf to the respondent on 7 November 2014 (Exhibit 1). The letter details the periods that she instructs the parties were in a de facto relationship. The letter included the claim about the third period.
Conclusion as to s 4AA(2)(i)
There is evidence of the public aspects of the parties’ relationship similar to that in the earlier periods, including shared holidays and attendances at family events. I accept that the parties continued to spend time together and the applicant’s family at least continued to consider the parties were in a relationship. I am satisfied that there was a public aspect of the parties’ relationship and reputation that supports a finding that they were in a de facto relationship.
CONCLUSION IN RELATION TO THE THIRD PERIOD
I am not satisfied on the applicant’s case that the parties were a couple living together on a genuine domestic basis during this period.
In carefully considering the composite picture of the parties conduct and relationship, despite some indicia of a de facto relationship, I am not satisfied that the applicant has established on the balance of probabilities that the parties did have a de facto relationship in consideration of the balance of the evidence that makes up the composite picture.
The factual findings referred to above in respect of this period, after carefully considering the composite picture by reference to the relevant statutory considerations, do not support the declaration sought.
CONCLUSION ON THE SUBSTANTIVE MATTER
On balance, I am satisfied that the matters referred to above under this indicia are supportive of the case advanced by the applicant in respect of the first two periods.
Section 4AA makes it apparent that each case will turn on its individual facts. Not every fact relied upon by each of the parties will consistently support the conclusion sought by that party. Following from that, there is a requirement to have regard to all of the circumstances of their relationship to determine if there was a de facto relationship.
On my assessment of all of the evidence, the respondent’s case that there was no de facto relationship and only a business relationship after the making of the NSW Supreme Court orders is not supported on the evidence.
Because of the factors considered under s 4AA(2), as set out in these reasons, although finely balanced, I am satisfied that the parties were a couple living together on a genuine domestic basis in the first period claimed being 29 November 2006 until February 2008.
The composite picture from the evidence is that the parties were a couple living together on a genuine domestic basis in the second period of July 2008 until October 2012.
In the third period, there are indicia of a de facto relationship, however, on the evidence when considering the composite picture I am not satisfied that their relationship during the third period meets the threshold to be considered a de facto relationship.
Accordingly, I make the declaration sought in respect of the first two periods claims.
INTERLOCUTORY ISSUES
Nature of this remittal hearing
The applicant filed a Case Outline on 11 April 2023, which agitated the issue as to whether this remittal hearing was a “re-hearing” or a “further” hearing. Although it was not explicitly framed as an application, it was treated and responded to as if it were. The applicant’s position was that this hearing was a “further hearing” and that there is an issue estoppel in relation to the findings of Altobelli J of matters after 28 November 2006. The respondent was in opposition to this approach and submitted this hearing was a “re-hearing”.
The substance of the applicant’s submission was that the Full Court had allowed the appeal as to the error of the primary judge in finding a de facto relationship between the parties for the first, second and part of the third periods of the relationship then claimed, which was inconsistent with the Supreme Court judgment. Reference was made to s 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). It was submitted that “[a]ccordingly, the Full Court reversed this, but only this, aspect of the judgment of the primary judge”. Further, the applicant contended that “[t]he Full Court did not set aside the judgment as contemplated in s 36(1)(c), it only set aside the orders of the primary judge. It appears this was deliberate given paragraphs [84] and [85] of the decision”, that “[i]t was not on any view an order for a hearing de novo” and “while the Full Court used the term re-hearing in its orders it can only properly be a further hearing” (emphasis in original).
The applicant relied upon the authorities of Marcin & Marcin (2020) FLC 93-956 and Allesch v Maunz (2000) 203 CLR 172. In oral submissions, counsel for the applicant referred me to the decision of Tree J in Holgar & Stott [2017] FamCA 772, specifically to [3]–[4], [7]–[9], [12]–[14], [18]–[23], and [24]–[30].
It was contended that the appeal was allowed for errors of law and the only ground that attempted to challenge a factual finding was Ground 8, which it is contended was rejected by the Full Court: Colburn & Cleese (2022) FLC 94-105 at [77]–[81]. The appeal was allowed due to the error of law. Ground 8, being that the primary judge erred by finding the parties were in a de facto relationship between 2011 until 2014, was not rejected, but the Full Court determined it was not necessary to be definitive in relation to, as the appeal succeeded on other grounds.
The respondent opposed the position of the applicant. In oral submissions, senior counsel for the respondent relied upon the Full Court’s case stated judgment of Hartnett & Sampson (Scope of rehearing) (2009) FLC 93-391 (“Hartnett & Sampson”), in particular, [23]–[25]:
23.Thus, subject to any relevant statutory provision, the scope of any rehearing is to be determined by the circumstances of the particular proceedings in the interests of justice. In Waterways Authority v Fitzgibbon (2005) 221 ALR 402 Gleeson CJ (with whom McHugh, Gummow and Hayne JJ agreed) held that although “[c]onducting a new trial on the basis of a certain view of the primary facts is not impossible”, in that case it was “in the interests of justice that the judge hearing the second trial should be in a position to make a fresh appreciation of the whole of the relevant evidence”.
24.The functions of a federal judge were discussed in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (“Hindmarsh Island Bridge case”) [1996] HCA 18; (1996) 189 CLR 1 (6 September 1996) by Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. Their Honours said:
Harrison Moore wrote that under the Australian Constitution there was, between legislative and executive power on the one hand and judicial power on the other, “a great cleavage”. The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation. This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion. The result is promulgated in public and implemented by binding orders. The institutional separation of the judicial power assists the public perception, central to the system of government as a whole, that these controversies have been quelled by judges acting independently of either of the other branches of government.
25.Thus, a trial judge must not be constrained as to the determination of a controversy other than that it must be determined according to law. For a Full Court to direct that a new trial judge accept findings of another judge and then apply the law would be to inappropriately shackle that judge.
I find that the Full Court remitted the matter for re-hearing. There were several issues with the applicant’s position. The applicant herself in this application has filed new evidence from herself and various witnesses, and she has reframed the periods she is seeking declarations of a de facto relationship from that contained in her 1st Further Amended Initiating Application filed 29 November 2018, which contained the relief she sought before Altobelli J. Aside from omitting periods that are precluded by estoppel, the applicant altered the periods after 28 November 2006.
The law is clear, it is necessary to assess the cumulative evidence and look to the evidence to determine whether in accordance with the legislation there was a de facto relationship during the relevant periods. As the trial judge, I cannot form a view on the facts of this case without assessing the evidence. To suggest that the findings cannot be disturbed when the evidence is new and the period sought to be the period for the declaration has changed, is flawed.
Application to re-open and adduce further evidence
The hearing of the de facto threshold application concluded before me on 21 April 2023.
On 9 June 2023, the applicant filed an Application in a Proceeding, seeking leave to re-open the hearing and adduce further evidence. The new evidence sought to be to be adduced was as follows:
a.The Power of Attorney executed by the respondent with his daughter, [Ms D], dated 13 February 2008 being Annexure 12 pages 109 and 110 of the respondent’s affidavit dated 28 March 2023.
b.The Bank Statement in respect of the parties’ joint ANZ loan account [#...63] for the period from 10 January 2008 to 15 February 2008.
c.The respondent’s Income Tax Returns for the financial years ending 30 June 2007 and 30 June 2008.
d.The Non-Inpatient Registration Form and Discharge Referral Notes referable to my admission to […] Hospital [in mid] 2012.
The respondent opposed the application.
As to the documents contained in paragraphs (a)–(c), the applicant submitted they are probative to a real issue in the proceedings, they are the respondent’s documents, and there is no prejudice to the respondent. As to the documents contained in paragraph (d), the applicant submitted they were obtained by her after the hearing and address various factors identified by the below authorities in support of adducing this evidence in the re-opening.
The respondent contended that the application to re-open should not be granted, as the documents in paragraph (a)–(c) were not tendered and the respondent not cross-examined on those documents, and the documents in paragraph (d) was new evidence but no explanation for why this was not considered or investigated properly at the original hearing. The respondent submitted that leave be refused, but should the Court grant leave to re-open, it be on conditions as to costs and the respondent be given the opportunity to adduce further evidence.
Neither party required any witness for cross-examination. The hearing of this application occurred on 23 August 2023.
Legal principles
In Smith v New South Wales Bar Association (1992) 176 CLR 256 (“Smith v NSW Bar Association”), the High Court, in a joint judgment of Brennan, Dawson, Toohey and Gaudron JJ, expressed the view (at 266–267) that;
If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to inquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side.
(footnotes omitted)
In Australian Securities and Investments Commission v Rich (2006) 235 ALR 587 (“ASIC v Rich”), Austin J, sitting in the Supreme Court of New South Wales, was required to determine whether the ASIC should be permitted, after the close of the defendant’s case, to adduce evidence in reply, being affidavit evidence that the ASIC served on the defendants before they opened their case. His Honour accepted from the defendants “a useful statement of relevant discretionary factors” to be considered in permitting the ASIC to adduce further evidence after the close of its case. These factors were listed at [18] as follows:
(a) the nature of the proceeding;
(b)whether the occasion for calling the further evidence ought reasonably to have been foreseen;
(c)the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question;
(d)the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case-in-chief;
(e)the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;
(f)the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;
(g)the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;
(h) the public interest in the timely conclusion of litigation; and
(i)what explanation is offered by the plaintiff for not having called the evidence-in-chief.
The decision of ASIC v Rich was discussed and applied in Stephens & Stephens and Anor (Enforcement) (2009) FLC 03-425. There it was held that further evidence sought to be adduced by the husband, as to endorsements on envelopes, would not be allowed because it would have necessitated a new trial, the omission of the evidence at trial was not inadvertent as the husband alleged, the evidence was not particularly important to the outcome and the application would, if granted, cause significant prejudice to the wife. Further evidence sought to be adduced by the wife, as to the identity of trustees of certain trusts, was allowed because it was uncontroversial and did not necessitate a re-hearing.
Discussion
I was assisted by the submissions of counsel for both parties, orally and in writing. However, ultimately, I was persuaded that the applicant should be permitted to re-open her case for the purpose of adducing further evidence in respect of the documents outlined in paragraphs (a)‑(c), however limited to tender and not cross-examination. I refused the application to adduce further evidence in respect of the documents contained in paragraph (d).
The nature of the proceeding

The proceedings are civil adversarial litigation. Evidence and submissions concluded on the basis that, a list of factual contentions were to be filed with an opportunity to respond in the event the contentions had not been addressed.
Whether the occasion for calling further evidence ought reasonably to have been foreseen
The evidence which the applicant wished to call was not evidence and could have been called at the trial because in the first three examples the documents belonged to the respondent, had been before the court and there was little prejudice. In respect of the medical notes the applicant was legally represented and had time to present her case. Had such evidence been sought it could have been responded to.
The importance of the issue on which the further evidence is sought to be adduced
The applicant holds the burden of proof in this application. The evidence from the hospital sought to be adduced was a document where the source of the information was in dispute, contained various addresses and was over 10 years old. I conclude that it could not, even if admitted, be particularly important to the outcome of the substantive proceedings as no findings of fact could be made from the document.
The degree of relevance and probative value of the further evidence
The relevance and probative value of the bank statements and the tax records, and the address recorded between May 2007 and February 2008 is a significant contention made by the applicant and one requiring analysis of the facet of the picture, in arriving at a composite picture in this case. In my view, the evidence containing a residential address of the respondent at the time of the applicant contended the parties were in a de facto relationship was both relevant as to a real issue in the proceedings and were potentially probative.
The prejudice to the respondent;
This is the central consideration and is significant in the present case. There was little prejudice that could not be overcome by cross-examination and admission of responding evidence by the respondent, which was admitted into evidence. The documents were the respondent’s own documents. The parties were represented by counsel and were available to address the evidence without further adjournment or calling of further witnesses. These factors were also relevant to the decision to allow the re-opening and receipt of potentially probative and relevant material that went to one issue of addresses recorded at points in time, a factor that may be persuasive in determination of the matter.
I was reminded that, whatever the outcome of the application to adduce further evidence, each party could seek review at the appellate level both of this decision, with leave, and the decision of the substantive matter. Either of those appeals, if allowed and if successful, could lead to a re-hearing. I was persuaded that the evidence relied upon was important enough to justify the case being re-opened to the extent that it was to permit possibly probative and persuasive evidence of the composite picture as to the existence as claimed or otherwise of a de facto relationship, and that the documents were the Respondent’s own documents.
Further the admission of the evidence did not “expand” the case as suggested by counsel for the respondent, as the contention that the respondent lived with the applicant at 2 RR Street between May 2007 and February 2008 was the applicant’s evidence, and the documents were the Respondent’s own documents and the prejudice to the respondent in admitting the evidence was minimal.
The public interest in the timely conclusion of litigation
The applicant did not attend in person and indeed the afternoon prior sought leave to attend via electronic means. The respondent took a pragmatic approach and consented to the cross‑examination of the applicant via electronic means. The respondent appeared in person and was available for cross-examination.
The ability to conclude the matter on the day listed for the application was a significant factor, not only from the perspective of the parties but given that that the additional evidence from both parties was able to be received, cross-examination occur, and submissions made on the day the application was determined in an efficient use of the Court’s limited resources.
It may also be relevant to consider what the High Court said in Aon Risk Services. Senior counsel for the respondent submitted, and I accept, that the court must also consider the allocation of court resources and the interests of other litigants in the exercise of the court’s discretion to permit a case to be re-opened to adduce further evidence. In this case, the further evidence was challenged and dealt with by limited further cross-examination and, with the limit placed on the Power of Attorney to be tendered but not cross-examined, it did not involve further days of court time.
CONCLUSION
I did consider the evidence that was admitted to be sufficiently important to the outcome to permit the applicant to adduce further evidence where the determination of s 90RD required consideration of the composite picture, and that evidence could arguably have been significant in making up that composite picture. While each individual aspect of evidence in such a case may not be a smoking gun, the composite picture requires the relevant evidence to be considered. Accordingly, in this case the application to adduce the further evidence was granted as the overall justice of the case required it. I formed the view that the justice did require the admission of the further evidence after careful consideration of the discretionary factors as identified in the authorities referred to above. The limitations on and manner in which the evidence was admitted, in my view, ameliorated the concerns of the respondent that the admission would prejudice the respondent due to the costs of further hearing and the lack of opportunity to respond. The evidence that was admitted did not cause prejudice and did not involve the parties in any more days of hearing with the substantive further evidence being finalised on the same day as the application, balancing considerations of public interest.
I accept that the interests of justice were better served by allowing the applicant’s application to re-open her case for the purpose of adducing further evidence in respect of the respondent’s records being joint bank records, his ATO records and the limited admission of his power of attorney of 13 February 2008. I accepted it was omission in the context of protracted litigation involving the parties for over seven years with costs currently of in excess of $1.8 million dollars on the costs notices filed, that was the reason for the evidence needing to be adduced.
I did not accept that adducing new evidence that would otherwise have been available to the applicant in respect of her health records was in the interests of justice, that they were probative, or that there was an explanation as to her failure to enquire and produce the evidence earlier. They were documents that reasonable and diligent inquiry ought have exposed earlier and I accept the submission of the respondent that they had more of an air of reconstruction after seeing the FOI request “court request”, and the breadth of the enquiry of 2006-2012 together with the applicant’s evidence that she also sought records from at least one other hospital to determine address and next of kin.

I certify that the preceding four hundred and sixty-six (466) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 4 April 2024

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 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 Waterways Authority v Fitzgibbon (2005) 221 ALR 402 Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (“Hindmarsh Island Bridge case”) (1996) 189 CLR 1
Division:	Division 1 First Instance
Number of paragraphs:	466
Date of hearing:	17-21 April 2023, 23 August 2023
Place:	Sydney
Counsel for the Applicant:	Mr Stewart
Solicitor for the Applicant:	Dorter Family Lawyers and Mediators
Counsel for the Respondent:	Mr Cox SC with Mr O’Brien
Solicitor for the Respondent:	Bryant McKinnon Lawyers

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