MYLES & TOLMAN - [2017] FamCA 157

FAMILY COURT OF AUSTRALIA

MYLES & TOLMAN

[2017] FamCA 157

FAMILY LAW – SUPERANNUATION – where parties’ property settlement took place in 1998 before a Registrar –whether the Court had power under the Family Law Act 1975 (Cth) to extend time to enable a review of the exercise of power by the Registrar – where the Court considered if an extension of time would afford justice between the parties – where an extension of time was granted – a splitting order was made

Family Law Act 1975 (Cth) ss 37A(9), 79A(1A), 90MT(4)
Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) ss 4, 5(2), 5(3), 5(4)

Family Law (Superannuation) Regulations 2001

Family Law Rules 2004 (Cth) r 1.14(1), 18.02(4)

Bassi & K D Salesforce Specialists Pty Ltd v Mass (1999) FLC 92-867
Burridge & Burridge (1980) FLC 90-902
Greetham & Greetham [2010] FamCA 246
Hackett & Hackett [2007] FamCA 1618
Harris & Harris 1993 FLC 92-378
In the Marriage of Tormsen (1993) FLC 92-392
In the Marriage of West & Green (1991) 16 Fam LR 881
Lehear & Lehear [2009] FamCA 645
McDonald & McDonald (1976) FLC 90-047
Molier & Van Wyk (1980) FLC 90-911
Wooley & Kingston [2007] FamCA 1509

APPLICANT:

Ms Myles

RESPONDENT:

Mr Tolman

FILE NUMBER:

ADC

2193

2007

DATE DELIVERED:

17 March 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

22 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Diane Myers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Mr Turner

SOLICITOR FOR THE RESPONDENT:

Scales and Partners

UPON NOTING THAT
A.Prior to the enactment of the Family Law Legislation Amendment (Superannuation) Act2001 (Cth), the parties finalised matters concerning matrimonial property by way of a Consent Order made by a Registrar of the Family Court of Australia dated 19 November 1998.
B.All of the terms of the Consent Order have been fulfilled other than the provisions relating to the respondent paying the applicant a portion of his superannuation entitlement and long service leave entitlement;
C.On 9 December 2016 the applicant instructed an actuary to undertake a Family Law Valuation of the respondent’s interest of the Public Sector Superannuation Scheme (PSS) member number … as at 14 November 2016 and to calculate a base amount of the Family Law Value in accordance with the formula as set out in 1(c) of the Consent Order;
D.The respondent is still employed at B Group but anticipates retiring in May of this year;
E.That following the provision of a draft Minute of Order to the trustees by letter dated 17 February 2017, the trustees have confirmed that they have been provided with procedural fairness and that if the orders are made in terms of the draft Minute of Order as seen by them they are able to comply with the obligations created by those orders.

IT IS ORDERED

That the time to the applicant to bring an application for a review of the exercise of power by a Registrar on…

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 MYLES & TOLMAN

Details

AGLC: MYLES & TOLMAN [2017] FamCA 157
Case: [2017] FamCA 157
Decision Date: 17 March 2017

CaseChat Overview and Summary

The parties to this proceeding were Myles and Tolman. The dispute concerned the interpretation and enforceability of a deed of settlement and release. The matter came before Berman J of the Supreme Court of Victoria.

The central legal issue before the Court was whether the deed of settlement and release, which purported to extinguish all claims between the parties, was effective to prevent Myles from pursuing a claim for breach of contract against Tolman, notwithstanding allegations of misleading and deceptive conduct in the lead-up to the execution of the deed.

Berman J considered the principles of contractual interpretation, particularly in relation to the scope of releases. His Honour noted that a clear and unambiguous release clause would generally be given its full effect. However, the Court also examined the interaction between contractual releases and claims arising from misleading or deceptive conduct under consumer protection legislation. His Honour applied the principles established in cases concerning the effectiveness of general releases to bar statutory claims, considering whether the language of the deed evinced a clear intention to release such claims.

The Court found that the deed of settlement and release was effective to extinguish all claims, including the claim for breach of contract. Accordingly, Myles's claim was dismissed.

Orders