Kevin and Trembath

[2012] FamCA 807

FAMILY COURT OF AUSTRALIA

KEVIN & TREMBATH [2012] FamCA 807

FAMILY LAW – PROPERTY – where orders effecting a property distribution made by consent – where the parties were in a de facto relationship – where the parties had entered into a cohabitation agreement pursuant to the Property Law Act 1974 (Qld) – where this Court had jurisdiction in respect of the property dispute – effect of the cohabitation agreement – whether the agreement constituted a Part VIIIAB financial agreement – consideration of Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) – where cohabitation agreement is not a recognised agreement – where cohabitation agreement is not a Part VIIIAB financial agreement – where agreement is not a bar to the parties entering into consent orders.

Family Law Act 1975 (Cth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Property Law Act 1974 (Qld)

Tighe v Commissioner of State Revenue [2008] QSC 30

APPLICANT: Ms Kevin

RESPONDENT: Mr Trembath

FILE NUMBER: BRC 7703 of 2010

DATE DELIVERED: 11 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hamwood

SOLICITOR FOR THE APPLICANT: Wrightway Legal

COUNSEL FOR THE RESPONDENT: Mr Livesay QC with Mr Burridge

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler Barristers and Solicitors

Orders

IT IS ORDERED THAT

1. The agreement between the parties dated 1 September 2005 is declared to be:

   1.1Not a recognised agreement within the meaning of s 266 of the Property Law Act 1974 ;
   
   

   1.2Not taken to be a Part VIIIAB financial agreement within the meaning of s. 88(1)(d) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth); and
   
   

   1.3    Not a binding Part VIIIAB financial agreement.

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.
   
   

2. All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
   
   

3. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
   
   

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

MINUTES OF CONSENT

IT IS ORDERED BY CONSENT

1. That on or before 12 November 2012 the respondent will pay to the applicant the sum of Two Hundred and Fifty Thousand Dollars ($250,000.00).

1. That on or before 11 September 2013 the respondent will pay to the applicant the sum of Six Hundred and Fifty Thousand Dollars ($650,000.00).

1. The respondent will make available to the applicant for collection the [luxury motor vehicle] in its condition as inspected for the purposes of valuation with the Queensland number plates “[…]”.

1. The applicant agrees to make herself available to give evidence as a witness in any proceedings brought by the respondent against Grope Hamilton and de Groot’s Lawyers in connection with the agreement dated 1 September 2005 and the respondent agrees to meet the reasonable travel and accommodation expenses incurred for that purpose by the applicant together with payment of any reasonably necessary legal advice required for the purpose of giving evidence.

1. The applicant shall within fourteen days remove all or any caveat lodged in respect of any property owned by the respondent or entities associated with him being including caveat number […]08.

1. The respondent will transfer to the applicant the cemetery plot.

1. Each party do all things and sign all documents necessary to give effect to this order in default of which pursuant to s. 106A of the Family Law Act the Registrar of the Family Court of Australia at Brisbane is hereby appointed to do all things and sign all documents instead of the party in default.

1. That the terms of these orders shall remain confidential, and neither party shall divulge them to any other person save that the respondent shall be at liberty to make such use of them as he may be advised in relation to the proceedings referred to in order 4 hereof.

1. That all other property and financial resources of either party be retained by that party as their own property.

10. That all other applications be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kevin & Trembath has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 7703 of 2010

Ms Kevin

Applicant

And

Mr Trembath

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. To their credit the parties, with the assistance of their respective legal advisers, have been able to reach agreement in respect of the issues outstanding between them.  The agreement effects a distribution of property consistent with the evidence before me.  As will emerge, I consider the agreement effects a just and equitable settlement of property. The orders proposed to be made by consent contain, however, some unusual provisions that require further comment.

2. Paragraph (a) of the orders seeks a declaration in respect of an agreement entered pursuant to State law (Property Law Act 1974 (Qld)) (“PLA”) on 1 September 2005. The effect of that agreement needs to be examined.

3. The orders sought for an adjustment of property, pursuant to the Family Law Act 1975 (Cth) (“the Act”), are consequent upon the breakdown of a de facto relationship which is admitted by both parties to have existed for a period of time. The applicant says that the relationship commenced in about 1998. The respondent alleges the relationship commenced in about 2002 when she moved to the respondent’s home.

4. The difference between them in that respect, need not be resolved not only because of the ultimate resolution of the issues as earlier referred to, but also because all such contributions as were made by each of the parties in respect of an admitted de facto relationship prior to its commencement can, in my view, be taken into account in arriving at a just and equitable order in respect of property.

5. On 1 September 2005, the parties signed the agreement earlier referred to. That agreement was made pursuant to the PLA. At that time that legislation governed the rights of parties to de facto relationships in this State.

6. The agreement, by its terms and by reference to the stated intention of each of the parties, was intended to be a “recognised agreement” within the meaning of that legislation.  The legislation distinguishes between agreements of that type and “cohabitation agreements”.  It is only agreements of the former type that preclude property adjustment orders pursuant to that legislation being made.

7. Contrary to the requirements of the legislation the agreement was not witnessed by a solicitor or justice of the peace; rather it was witnessed by the parties’ then cleaning lady. 

8. In terms, the relevant section would indicate that the agreement is, as a result, “not a recognised agreement” for the purposes of the legislation.  Counsel helpfully provided a decision of the Chief Justice of Queensland in

   
   Tighe v Commissioner of State Revenue

   [2008] QSC 30 which confirms that a reading of the section in those terms, is consistent with authority.

9. It is, then, common ground that, despite the intentions of the parties and the terms of the agreement, the agreement as made between them is not a “recognised agreement” within the meaning of the PLA.

10. Notwithstanding the differences between them as to the date of commencement of their relationship, the parties are in agreement that their relationship meets the definition of “de facto relationship” within the meaning of the Act (s 4AA(1) of the Act). The relief sought by each of the parties is a “de facto financial cause” (see definition in s 4(1), in particular sub-paragraph (c) under the heading “de facto financial cause”).

11. The period of the parties de facto relationship was for at least two years (see s 90SB(a) of the Act). Both parties were ordinarily resident in Queensland when their relationship broke down. Queensland is a “participating jurisdiction” within the meaning of the Act (s 90SK(1)), and importantly, the parties’ relationship broke down after 1 March 2009.

12. The plain intention of the legislation is that it governs de facto relationships to the exclusion of any State legislation in relation to them, save where a State has not referred the relevant powers to the Commonwealth.  Queensland has, as I have just mentioned, referred those powers.

13. Accordingly, this Court has jurisdiction to hear and determine the claim for property adjustment (s 39B of the Act; see, also, s 255A of the PLA). A de facto financial cause cannot be instituted except under the Act (see, s 39A(5) of the Act).

14. This Court cannot, relevantly, make orders for the alteration of property interests in a de facto financial cause, if there exists between the parties a “Part VIIIAB financial agreement” that is binding upon the parties (s 90SA). 

15. A “Part VIIIAB financial agreement” is defined in the Act (s 4). Relevantly, the instant agreement is not an agreement made pursuant to s 90UB or s 90UC, because it is not an agreement “expressed to be made under [that] section” (s 90UB(1)(c) and s 90UC(1)(c)).

16. Although made under State law, the instant agreement is also not an agreement “covered by s 90UE” because it is not made “…under a law of a non-referring State” (s 90UE(1)(b)).

17. Accordingly, if the agreement is to be a “Part VIIIAB Agreement” for the purposes of the application of the Act and, specifically, for the purposes of the application of s 90SA of the Act, it must be by reference to a legislative provision not contained within Part VIIIAB of the Act.

18. Part VIIIAB was inserted by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (No. 115 of 2008).  That Act contained transitional provisions relevant to the instant issue. Item 88 of that Act provides for an agreement of the instant type, namely “pre-commencement agreements

    
    

    -- made during de facto relationships”. 

19. Yet, while the agreement was made “…under a preserved law of an earlier participating jurisdiction” within the meaning of that Item, the instant agreement does not satisfy the requirement in item 88(1)(c):

    [A] court could not, because of the preserved law, make an order under that law that is inconsistent with the agreement with respect to any of the eligible agreed matters...

20. The sub-section is not satisfied because the PLA distinguishes between “cohabitation agreements” and “recognised agreements” (see, ss 264-266 of the PLA). It is only agreements of the latter type which meet the requirement just quoted (see, s 274 of the PLA). “Cohabitation agreements” had a different impact upon property adjustment proceedings under the Queensland Act

    
    

    (see, s 277 of the PLA).

21. Accordingly, the instant agreement is not a “Part VIIIAB Agreement” within the meaning of the Act, and there is no “binding Part VIIIAB Agreement” for the purposes of section 90SA of the Act.

22. As a result, the agreement signed by the parties is not a bar to the relief sought by the applicant, and, of course, is not a bar to the making of the consent orders for adjustment of property.

23. It is in those circumstances that the parties seek the declarations contained in paragraph 1 of the draft minutes of order under the heading “Upon hearing the applicant and respondent the court orders…” 

24. The declarations are to the effect that the agreement signed by the parties, to which I have referred, is not a recognised agreement within the meaning of s 266 of the PLA and is not taken to be a Part VIIIAB financial agreement within the meaning of s 88(1)(d) of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

25. By reason of all of the matters just referred to, it seems to me that the declaration sought by the parties by agreement is appropriate and ought be made. 

26. Otherwise, Mr Hamwood, who appears as counsel for the applicant, has outlined the facts and circumstances underlying the basis of the orders embraced by the consent reached between the parties. 

27. I repeat that I have carefully read all of the material filed by each of the parties and relied upon by them for the purposes of the final hearing which was due to take place before me, commencing today. Mr Hamwood outlines and Mr Livesy, counsel appearing on behalf of the respondent agrees, that, leaving aside factual matters that might otherwise remain in contention between the parties, the property of the parties or either of them within the meaning of the Act is valued in the region of $8.2 million to $8.3 million.

28. Pursuant to the proposed orders, the applicant retains a property valued at about $800,000 and is to be paid a sum of about $900,000 and is to retain a luxury motor vehicle valued at about $69,000.  The broad discretion within which orders effecting a just and equitable settlement between the parties is, in this case, represented by reference to a settlement that Mr Hamwood says equates to an entitlement to the applicant in the “low 20 per cents”.  The respondent, through his counsel, agrees that this represents a just and equitable settlement.

29. It seems to me that an entitlement expressed in those terms is well within the broad range of results encompassed by the broad discretion to which I have referred.

30. The orders encompassing that overall result are also, in my view, just and equitable. Accordingly, I make orders in terms of the minutes signed by each of the parties, initialled by me and placed with the papers.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 11 September 2012.

Associate:

Date:  21 September 2012