DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By amended application filed 11 March 2005 the applicant sought a number of orders including leave to proceed pursuant to r 389 of the Uniform Civil Procedure Rules 1999 (“UCPR”) which was granted by this court on 31 March 2005 and further relief in respect of a “purported agreement made on 19 December 2002” which is the subject matter of the hearing presently before the court.

Background Facts

2. [2]
   The applicant and respondent had maintained a de facto relationship over a number of years from 1992 until 2001 with the applicant filing an originating application on 8 October 2002 seeking a property adjustment order pursuant to s 286 of the Property Law Act 1974 (“the Act”).

3. [3]
   On 28 November 2002 this court made a number of orders and directions with respect to the conduct of the proceeding, the primary order being that the parties mediate with a view to resolving the matters in dispute between them.  This conference took place on 19 December 2002 at which time a document entitled “Heads of Agreement” (“the document”) (which refers to and addresses a number of property matters relevant to the parties^[1]) was signed by them.

4. [4]
   It is with respect to the document that this current application arises.

Parties’ Submissions

5. [5]
   The applicant submits that the document is in effect “no agreement at all”^[2] and that in the absence of settlement it will be a matter for the parties to return to court and seek a formal property adjustment order pursuant to the provisions of the Act.

6. [6]
   On the other hand the respondent submits that “the matter settled at the mediation and a mediation agreement was entered into and signed by the parties”.^[3]  The respondent says further that the parties “…rights under chapter 19 (of the Act) merged into that agreement such that the only rights that the applicant (now) has are under that agreement”^[4] and that the applicant is not entitled to pursue any further application under the Act “…without the court’s leave because it is too late”.^[5] Reference was also made to two authorities dealing with the merger of parties’ rights in signed settlement agreements in the course of litigation which it was submitted, were relevant to the instant case.^[6]

The Law

7. [7]
   Part 19 of the Act governs the law to be applied in respect of the resolution of disputes concerning financial matters between de facto spouses and that Part under subdivision 4 of division 2 provides for de facto spouses reaching “agreement” in respect of various aspects of their relationship including “financial matters”.^[7]

8. [8]
   Relevant to this application, ss 265 and 266 of the Act deal with what is called a “separation agreement” and/or a “recognised agreement” respectively.

9. [9]
   While the “purpose” of these agreements is to enable de facto spouses to resolve any disputed financial matters for themselves^[8] any provision “…in an agreement purporting to exclude the jurisdiction of a court in relation to a cohabitation or separation agreement is invalid…”^[9] and a court “…may vary all or any of the provisions of the agreement…” on certain grounds.^[10]

10. [10]
    However, s 272 of the Act provides that “a cohabitation or separation agreement is subject to and enforceable according to the law of contract except as otherwise provided by this part”.

The Evidence

11. [11]
    It seems quite clear from the material filed in this proceeding that it was the intention of the parties to attempt to achieve a resolution of financial matters arising out of their de facto relationship at the mediation conference on 19 December 2002 but equally it seems clear that a resolution of all issues in dispute was not achieved.

12. [12]
    It seems to me that the document does not qualify as a “recognised agreement” pursuant to s 266 of the Act in that although it is “a written agreement” and “is signed”, it is substantially deficient in detail to satisfy me that it “contains a statement of all significant property, financial resources and liabilities of each de facto spouse…” within the terms of s 266(c) of the Act.  For example, although it refers to “letters of appraisals” being obtained for the properties mentioned it does not refer to all properties the subject of dispute; it is deficient in respect of specific valuations for the properties which in this type of proceeding, is essential information for the assistance of both parties to reach common ground; it is unspecific in respect of other assets and liabilities and does not set out any of the “mechanics” in respect of the mutual transfer or exchange of the parties’ assets if and when agreement is finally reached (my emphasis).

13. [13]
    Although, for the above reasons I find that it does not qualify as a “recognised agreement” I am satisfied and so find that it does satisfy the definition of a “separation agreement” within the terms of s 265 of the Act, in that it represents an attempt by the parties to narrow the issues of dispute in respect of financial matters between them and in the absence of the parties being able to resolve once and for all the disputed financial matters between them, will be of some persuasive value to a court within the terms of s 277 of the Act in any final determination of the proceeding.

Findings

14. [14]
    I therefore make the following findings in this application:

1. (a)
   the document “Heads of Agreement” dated 19 December 2002 and signed by the parties to this application is a “separation agreement” within the terms of s 265 of the Act;

2. (b)
   the rights of either party under Part 19 of the Act have not merged into the document such that it is an enforceable contract to the exclusion of Part 19 of the Act; and

3. (c)
   as a consequence of the above, the applicant is entitled to proceed with her application for which leave was granted by this honourable Court on 31 March 2005.

Orders

15. [15]
    My orders in this matter will therefore be:

1. I declare that the document entitled “Heads of Agreement” dated 19 December 2002 and signed by the parties in this proceeding is a “separation agreement” within the terms of s 265 of the Property Law Act 1974 (“the Act”) as amended and has such force and effect as may be attributed thereto under Part 19 of the Act.

2. The applicant be at liberty to proceed with her originating application for which leave was granted by this honourable Court on 31 March 2005;

3. The proceeding generally be adjourned to the civil list for hearing;

4. The applicant file and serve any further material upon which it is intended to rely on the respondent by 9 June 2006;

5. The respondent file and serve any material in reply on the applicant by 23 June 2006;

6. The costs of and incidental to this application be reserved.