Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Colburn & Cleese [2022] FedCFamC1A 147
Appeal from: Cleese & Colburn [2022] FedCFamC1F 282 Appeal number: NAA 120 of 2022 File number: SYC 2480 of 2016 Judgment of: MCCLELLAND DCJ, AUSTIN & GILL JJ Date of judgment: 23 September 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Jurisdiction – Declaration of de facto relationship – Where judgment was entered between the parties by consent in the Supreme Court of NSW (“the Supreme Court”) dividing their property interests pursuant to the Property (Relationships) Act 1984 (NSW) (“the State Act”) – Where the primary judge declared the de facto relationship existed during a period covered by the Supreme Court judgment – Claim estoppel – Where the right to property settlement relief had already been asserted and determined by the Supreme Court judgment – Issue estoppel – Where the respondent was estopped from contending the de facto relationship was still in existence at a time when the Supreme Court judgment was premised upon its cessation – Findings not open on the evidence – Where the findings of the primary judge were made in reliance upon the respondent’s uncorroborated evidence, which was inconsistent with facts incontrovertibly established before the Supreme Court – Accrued jurisdiction – Where resort to the use of power under the State Act to set aside the Supreme Court judgment in the exercise of accrued jurisdiction was not intrinsic to the disposition of the respondent’s federal claim – Whether the primary judge erred by finding the parties improperly procured the Supreme Court judgment and that it was an abuse of process – Where it was not reasonably open for the primary judge to find the parties intentionally misled the Supreme Court and abused its process – Error established – Appeal allowed – Costs certificates granted for the appeal and the re-hearing. Legislation: Commonwealth Powers (De Facto Relationships) Act 2003 (NSW) s 4
Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 90RD, 90RE, 117
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26
Federal Proceedings (Costs) Act 1981 (Cth)
Judiciary Act1903 (Cth) s 79
Limitation Act 1969 (NSW) s 17
Property (Relationships) Act 1984 (NSW) s 18
Supreme Court Rules 1970 (NSW) Pt 15, r 23
Uniform Civil Procedure Rules 2005 (NSW) rr 14.22, 14.23, 17.7
Cases cited: ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
Chamberlain v Deputy Commissioner of Taxation (1998) 164 CLR 502; [1988] HCA 21
Clarence & Crisp (2016) FLC 93-728; [2016] FamCAFC 157
Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44
Colburn & Cleese (2020) FLC 93-995; [2020] FamCAFC 278
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68
Cuan & Kostelac (2017) FLC 93-801; [2017] FamCAFC 188
Continue reading Colburn & Cleese
Sign in free to access the full text
Details
- AGLC
- Colburn & Cleese [2022] FedCFamC1A 147
- Case
- [2022] FedCFamC1A 147
- Decision Date
CaseChat Overview and Summary
In this case, the appellant and respondent were in a de facto relationship for a period of time, the length of which was contested. The appellant admitted the relationship existed from 1995 until the end of 2000, while the respondent contended for a relationship that began in 1990 and ended in May 2014. The dispute over the length of the de facto relationship was fundamental to the establishment of jurisdiction for the respondent’s application for property settlement under Pt VIIIAB of the Act. The primary judge found the relationship endured until May 2014, though punctuated by several periods of separation, and that the de facto relationship broke down earlier than 2002 and resumed before November 2006. The Supreme Court judgment, entered in November 2006, was based on the premise that the parties’ de facto relationship had broken down four years prior in November 2002.
The legal issues that the court was required to decide were whether the primary judge was correct in finding that the de facto relationship endured until May 2014, and whether the court had the power to set aside the agreement as to judgment under s 41 of the State Act. The court had to consider the evidence presented and determine the length of the de facto relationship, as well as whether the primary judge had the power to set aside the agreement as to judgment. The court also had to consider whether the Supreme Court judgment obstructed the grant of any subsequent property settlement relief under Pt VIIIAB of the Act.
The court's reasoning and outcome was that the appeal succeeds with costs and the proceedings must be remitted for re-hearing. The court found that the primary judge's findings were not supported by the evidence and that the de facto relationship did not endure until May 2014. The court also found that the primary judge did not have the power to set aside the agreement as to judgment under s 41 of the State Act. The court held that the primary judge's decision was flawed and that the proceedings must be remitted for re-hearing. The court's decision was based on a thorough analysis of the evidence presented and a careful consideration of the legal issues involved.
The final orders of the court were that the appeal succeeds with costs and the proceedings must be remitted for re-hearing. The court found that the primary judge's findings were not supported by the evidence and that the de facto relationship did not endure until May 2014. The court also found that the primary judge did not have the power to set aside the agreement as to judgment under s 41 of the State Act. The court's decision was based on a thorough analysis of the evidence presented and a careful consideration of the legal issues involved. The court's final orders were that the appeal succeeds with costs and the proceedings must be remitted for re-hearing.
The legal issues that the court was required to decide were whether the primary judge was correct in finding that the de facto relationship endured until May 2014, and whether the court had the power to set aside the agreement as to judgment under s 41 of the State Act. The court had to consider the evidence presented and determine the length of the de facto relationship, as well as whether the primary judge had the power to set aside the agreement as to judgment. The court also had to consider whether the Supreme Court judgment obstructed the grant of any subsequent property settlement relief under Pt VIIIAB of the Act.
The court's reasoning and outcome was that the appeal succeeds with costs and the proceedings must be remitted for re-hearing. The court found that the primary judge's findings were not supported by the evidence and that the de facto relationship did not endure until May 2014. The court also found that the primary judge did not have the power to set aside the agreement as to judgment under s 41 of the State Act. The court held that the primary judge's decision was flawed and that the proceedings must be remitted for re-hearing. The court's decision was based on a thorough analysis of the evidence presented and a careful consideration of the legal issues involved.
The final orders of the court were that the appeal succeeds with costs and the proceedings must be remitted for re-hearing. The court found that the primary judge's findings were not supported by the evidence and that the de facto relationship did not endure until May 2014. The court also found that the primary judge did not have the power to set aside the agreement as to judgment under s 41 of the State Act. The court's decision was based on a thorough analysis of the evidence presented and a careful consideration of the legal issues involved. The court's final orders were that the appeal succeeds with costs and the proceedings must be remitted for re-hearing.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow, the appeal succeeds with costs and there is no reasonable option but to remit the proceedings for re-hearing.background The appellant is 75 years old and the respondent is 76 years old. The appellant admits the parties were in a de facto relationship from 1995 until the end of 2000, but contends their legal rights arising from that relationship merged in the Supreme Court judgment in 2006. The respondent, however, contends for a relationship of much greater length, beginning in 1990, subsisting when the Supreme Court judgment was entered in 2006, and not finally ending until May 2014. The dispute over the length of the de facto relationship and the timing of its breakdown was fundamental to the establishment of jurisdiction to entertain the respondent’s application for property settlement under Pt VIIIAB of the Act, filed in April 2016, as one pre-condition to the existence of federal jurisdiction is that the de facto relationship did not end until after 1 March 2009. The primary judge duly found it did. The primary judge found the relationship did not begin quite as early as the respondent alleged, but that it endured until May 2014, though punctuated by several periods of separation. The specific findings, as reflected in the declaration made, were that the de facto relationship existed during these periods:(a)1991 to 1994;(b)1995 to the end of 2000;(c)September 2006 to July 2010;(d)January 2011 to October 2012; and(e)April 2013 to May 2014. Such findings collided with the Supreme Court judgment, entered in November 2006 on the premise that the parties’ de facto relationship had broken down four years prior in November 2002, thereby enabling the consequential adjustment of their property interests under the State Act. Yet the primary judge contrarily found the parties’ de facto relationship broke down earlier than 2002 and was back in full swing before November 2006. Realising that the Supreme Court judgment obstructed the grant of any subsequent property settlement relief under Pt VIIIAB of the Act covering the whole of the de facto relationship, which was declared to reach as far back as 1991, the primary judge accepted the respondent’s submission that his Honour was vested with power under the State Act to set aside the Supreme Court judgment and smooth the way for a fresh exercise of discretionary power, saying:122.… This Court has jurisdiction to make orders altering property interests between the parties because there was a breakdown of a de facto relationship after 1 March 2009. The Court may then also exercise the powers afforded to it under the state law pursuant to its accrued jurisdiction, to make declarations and/or orders to grant relief so as to determine the whole of the justiciable controversy between the parties. This includes the power under s 41 of the State Act to vary or set aside the agreement as to judgment. ……126.It beggars belief that this Court could not appropriately intervene to remedy an abuse of process (because the parties had resumed their de facto relationship) in which both [Respondent] and [Appellant] were complicit, notwithstanding a comprehensive scheme of referral of powers that was driven by public interest, and intended to avoid a multiplicity of proceedings. The existence of a single justiciable controversy in this case is clear.127.This Court is empowered to set aside the agreement as to judgment.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.