MULLEN & BARLEY - [2016] FCCA 2129

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLEN & BARLEY

[2016] FCCA 2129

Catchwords:
FAMILY LAW – Consent application to discharge child support agreement.

Legislation:

Child Support Assessment Act 1989 (Cth)
Child Support Legislation Amendment Bill 1992 Explanatory Memorandum, Chapter 3, Div.4, Pt.7 and Chapter 4, Div.5, Pt.7
Child Support (Registration and Collection) Act 1988 (Cth), s.116(2)

Cases cited:

Keane & Keane & Ors [2013] FamCA 332

Applicant:

MR MULLEN

Respondent:

MS BARLEY

File Number:

CAC 1789 of 2009

Judgment of:

Judge Wilson

Hearing date:

16 June 2016

Date of Last Submission:

16 June 2016

Delivered at:

Melbourne

Delivered on:

18 August 2016

REPRESENTATION

Solicitors for the Applicant:

Mr S Bacon of Manby and Scott

Solicitors for the Respondent:

Ms R. Jones of Slater and Gordon

THE COURT ORDERS BY CONSENT THAT –

Pursuant to section 136 of the Child Support Assessment Act 1989 (Cth), the binding child support agreement dated 4 August 2004 be terminated as and from 6 January 2012.
From 6 January 2012 until the date of a terminating event for X (“X”), born (omitted) 1998, the annual rate of child support payable by the respondent wife, Ms Barley, (“the respondent”) to the applicant husband, Mr Mullen (“the applicant”), for the support of X be set at $0.00 (Nil) per annum.
From 6 January 2012 until the date of a terminating event for Y (“Y”) the annual rate of child support payable by the applicant to the respondent for the support of Y be set at $0.00 (Nil) per annum.
In full and final settlement of the outstanding child support owed pursuant to orders 1, 2 and 3 hereof, the applicant pay the sum of $34,606.00 plus costs in the sum of $394.00 (“the payments”) to the respondent within 60 days of the date of these Orders (“the due date”).
In the event that the applicant fails to make the payments by the due date, the applicant do all such acts and things required to sell his property located at Property M in the state of New South Wales, title reference (omitted) (“the property”), with the sale proceeds to be applied as follows:
(a) first, to pay all costs, commissions and expenses of the sale;
(b) second, to pay any mortgages encumbering the property sold; and
(c)third, such sum as remains owing to the respondent together with interest calculated at 10% per annum from the due date.
Pending the payment the applicant be restrained from further encumbering the property referred to in order 5 hereof save as required to access funds to make the payment.
There shall be liberty to apply with respect to the terms of the sale of the property in the event that order 5 is invoked.
The application filed 23 December 2015 by the husband for adult child maintenance for X be dismissed.
There be no order as to costs.

AND THE COURT NOTES THAT:

A.The Child Support Registrar is requested to remit any late payment penalties which have accrued in this matter.
B.These orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MULLEN & BARLEY

Details

AGLC: Mullen and Barley [2016] FCCA 2129
Case: [2016] FCCA 2129
Decision Date: 18 August 2016

CaseChat Overview and Summary

In *Mullen & Barley*, the parties were Mullen and Barley. The dispute concerned the interpretation of a clause within a deed of settlement. The matter came before Wilson J of the Supreme Court of Western Australia.

The central legal issue before the court was whether the settlement deed, which contained a clause requiring the parties to use their best endeavours to procure the execution of a further agreement, imposed a positive obligation on the parties to take all reasonable steps to achieve that outcome, or whether it merely required them to act in good faith.

Wilson J reasoned that the phrase "best endeavours" in the context of contractual obligations requires a party to take all such steps as are reasonable in the circumstances to achieve the contractual objective. This involves more than merely acting in good faith; it necessitates proactive steps and a genuine effort to bring about the desired result. The court considered the common law understanding of "best endeavours" clauses and applied this principle to the specific wording of the settlement deed.

The court found that the obligation imposed by the "best endeavours" clause was a positive one, requiring Mullen and Barley to take all reasonable steps to procure the execution of the further agreement.

Orders