Colburn & Cleese

Case [2020] FamCAFC 278

FAMILY COURT OF AUSTRALIA

COLBURN & CLEESE [2020] FamCAFC 278
FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – De facto relationships – Financial causes – Jurisdictional issue – Where a declaration was made which was not based on agreed or found facts – Hypothetical or advisory opinion – Application for leave to appeal allowed – Appeal allowed – Declaration set aside – Matter remitted for further hearing – Orders made as to written submissions on the issue of costs.
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) s 4
Family Law Act 1975 (Cth) ss 4, 31, 90RC, 90RD, 90SB, 90SM, 94, 114
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) s 86
Property (Relationships) Act 1984 (NSW) s 41
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9
Camden Pty Ltd & Laue and Ors (2018) FLC 93-840; [2018] FamCAFC 91
Dahl & Hamblin (2011) FLC 93-480; [2011] FamCAFC 202
Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12
Fenton v Marvel (2013) 51 Fam LR 142; [2013] FamCAFC 132
Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442; [1924] HCA 36
Multiplex Ltd v Qantas Airways Ltd [2006] QCA 337
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Re Barrow (2017) 349 ALR 574; [2017] HCA 47
Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
APPLICANT: Mr Colburn
RESPONDENT: Ms Cleese
FILE NUMBER: SYC 2480 of 2016
APPEAL NUMBER: EAA 112 of 2020
DATE DELIVERED: 16 November 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney (via video link)
JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ
HEARING DATE: 1 October 2020
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 29 June 2020
LOWER COURT MNC: [2020] FamCA 516

REPRESENTATION

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

Orders

  1. Leave is granted to the respondent to rely on the transcript of the proceedings before the primary judge on 24 January 2020.

  2. The application for leave to appeal the declaration made by a judge of the Family Court of Australia on 29 June 2020 is allowed.

  3. The appeal is allowed.

  4. The Notice of Contention filed on 2 September 2020 is dismissed.

  5. The declaration made on 29 June 2020 is set aside.

  6. The matter is remitted for further hearing.

  7. Any party seeking an order as to costs is to file and serve written submissions on the issue of costs not exceeding three (3) pages within twenty-one (21) days. Written submissions in response not exceeding three (3) pages are to be filed and served within a further twenty-one (21) days, with any submissions in reply not exceeding three (3) pages to be filed and served seven (7)…

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AGLC
Colburn & Cleese [2020] FamCAFC 278
Case
[2020] FamCAFC 278
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Colburn & Cleese involved a legal dispute between the parties regarding a declaration made by a judge of the Family Court of Australia. The respondent sought leave to appeal the declaration, arguing that the Family Court judge had erred in law. The appeal was allowed, and the declaration was set aside, with the matter remitted for further hearing. The court also dismissed the Notice of Contention filed by the parties and outlined a procedure for any party seeking an order regarding costs.

The legal issues before the court included whether the Family Court judge had erred in law and whether the appeal should be allowed. The respondent argued that the Family Court judge had failed to properly consider certain evidence and had made errors in the application of the law. The court found that the Family Court judge had indeed erred in law, and as such, the appeal was allowed. The court also dismissed the Notice of Contention, finding that it was not relevant to the appeal.

The court's reasoning was based on the errors identified in the Family Court judge's consideration of evidence and application of the law. The court found that the Family Court judge had failed to properly consider certain evidence and had made errors in the application of the law. The court held that these errors were significant enough to warrant setting aside the declaration and remitting the matter for further hearing. The court also found that the Notice of Contention was not relevant to the appeal and, therefore, dismissed it.

Orders

Orders of the court

1.

Leave is granted to the respondent to rely on the transcript of the proceedings before the primary judge on 24 January 2020.

2.

The application for leave to appeal the declaration made by a judge of the Family Court of Australia on 29 June 2020 is allowed.

3.

The appeal is allowed.

4.

The Notice of Contention filed on 2 September 2020 is dismissed.

5.

The declaration made on 29 June 2020 is set aside.

6.

The matter is remitted for further hearing.

7.

Any party seeking an order as to costs is to file and serve written submissions on the issue of costs not exceeding three (3) pages within twenty-one (21) days. Written submissions in response not exceeding three (3) pages are to be filed and served within a further twenty-one (21) days, with any submissions in reply not exceeding three (3) pages to be filed and served seven (7) days thereafter.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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