X v. Y

[2013] QDC 19

[2013] QDC 19

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3234 of 2012

X	Applicant
and
Y	Respondent

BRISBANE

..DATE 29/01/2013

ORDER

CATCHWORDS

Property Law Act 1974 - s286, s288

Courts accept appropriateness of a property adjustment order agreed on by former defacto partners in a proceeding heard by the court. In a proceedings brought with the court’s leave more than 2 years after termination of the relationship.  

HIS HONOUR: Exhibit 1 is terms of settlement of this application for what's known as a de facto “property adjustment order” affecting the former de facto partners under s286 of the Property Law Act 1974.

Judge Clare on the 11th of September made an order under Section 288 (1)(b) of the Act allowing the application to be made out of time. I understand from Mr Carroll, representing the respondent, that that was done by the consent of counsel then acting.

The applicant, at least on her version, has primary responsibility for the everyday tasks involved in bringing up the couple's two boys for whom the parties are jointly responsible under orders made by consent by a Federal Magistrate.  She may harbour the belief that the respondent has, and has had, means of which she's not aware, but the primary focus of the application has been a sum slightly in excess of $200,000 which has been held in a solicitor's trust account earning no interest for the last 17 months.  It represents the net proceeds of sale of the former joint residence of the parties, and the boys, before the separation which had happened late in February 2009 occurred; the approximate date seems to be common ground.

A considerable amount of effort has been devoted to an attempt by the applicant and her legal representatives to get access to a substantial part of the fund, indeed, almost half of her presumptive (half) share for the purposes of properly funding this application.  In all the circumstances, that could have been a rather pointless exercise if a broad view is taken.  The parties should be congratulated for not spending any more of their time and the Court's time on an exercise calculated to produce more disclosure by the respondent of his financial situation.

Mr Carroll, when he rose to speak, accepted that there was a responsibility of the parties to persuade the Court that the division now proposed of the funds presently held in trust was appropriate and in the interest of justice.  Taking the applicant's material at face value and really no reason appears why the Court shouldn't do it there are good reasons why she ought to have the lion's share of the funds given her contribution to the relationship while it lasted, and her continuing contribution with to the “family”.

So the respondent's share of the fund is to be $33,488 which I mention for the sake of making things clear should Exhibit 1 occasion difficulties in its interpretation; there are at least four other amounts appearing in figures in a relevant clause of the document, although the correct final amount, the subject of the agreement, is the one written in words.

So there is an order in terms of Exhibit 1.  Once again, I congratulate the parties for resolving the entire matter today rather than just a preliminary spat.

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