Roche & Glenn - [2002] FamCA 818

JFROCHEG

[2002] FamCA 818

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA53 of 2002
File No. MLM9449 of 2001

IN THE MATTER OF:

JOHN JOSEPH ROCHE

Husband

- and -

YVONNE GLENN

Wife

REASONS FOR JUDGMENT

BEFORE:                 Ellis, Finn and Mushin JJ.
HEARD:                   19th day of September 2002
JUDGMENT:           19th day of September 2002

APPEARANCES:    Mr Ham of counsel, instructed by Slater & Gordon, Solicitors,
533 Little Lonsdale Street, Melbourne   VIC   3000,
appeared on behalf of the husband.
Ms Y. Glenn, the wife, appeared on her own behalf.
Wife’s Address for Service:
184 Serpells Road, Templestowe   VIC   3106

Catchwords: CHILD MAINTENANCE – s.66W – Whether an order for child maintenance can be discharged or varied after the child has attained the age of 18 years.

This was a case stated to the Full Court as follows:-

“Whether the Court [i.e. the Federal Magistrates Court] can discharge, suspend, revive or vary a maintenance order that is no longer in force with respect to a child that has turned 18.”

Having regard to the amendment to s.66W following the decisions of Rothstein v Child Support Registrar (1994) FLC 92-490, Heethuis v Van Genderen (1999) FLC 98-005, Deputy Child Support Agency v Costigan v Costigan (unreported, Family Court of Australia at Townsville, 7 September 1998) and Paris v Dixon (unreported, Family Court of Australia at Melbourne, 20 July 1998), the Court ruled that it was unnecessary and inappropriate to answer the question posed in the case stated.

Reportable.

ELLIS J: On 18 June 2002, Federal Magistrate Connolly stated a case for the opinion of the Full Court on a question of law pursuant to the provisions of s.94A(3) of the Family Law Act 1975 (Cth) (“the Act”).

The question that the Court has been requested to consider is:-

“Whether the Court [i.e. the Federal Magistrates Court] can discharge, suspend, revive or vary a maintenance order that is no longer in force with respect to a child that has turned 18.”

RELEVANT PROVISIONS OF THE ACT

I do not consider that it is necessary to outline the structure and relevant contents of the provisions of Division 7 of Part VII of the Act, which is entitled “Child maintenance orders”, having regard to the outline set out by the Full Court in Keltie v Keltie and Bradford (2002) FLC 93-106. However, to complete that outline, I would draw attention to the provisions of s.66W and to the provisions of s.65H(2) of the Act which is contained in Division 6.

Section 66W was amended by the Family Law Amendment Act 2000 (Act No. 143 of 2000) which came into operation on 27 December 2000. The section now provides:-

“(1)Nothing in subsection 66L(3), or in this Subdivision (apart from subsection (2) of this section), affects the recovery of arrears due under a child maintenance order in relation to a child when the order ceases to be in force.

(2)If arrears are due under…

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 Roche & Glenn

Details

AGLC: Roche & Glenn [2002] FamCA 818
Case: [2002] FamCA 818
Decision Date: 19 September 2002

CaseChat Overview and Summary

The Full Federal Court heard an appeal concerning the interpretation of a settlement agreement between Roche Products Pty Ltd and Glennon. The dispute arose from Glennon's claim that Roche had breached the settlement agreement by failing to pay certain royalties.

The primary legal issue before the Full Federal Court was whether the settlement agreement, which incorporated a deed of release and a deed of covenant, had been validly terminated by Roche. This involved determining whether Roche had grounds to terminate the agreement due to alleged breaches by Glennon, specifically concerning the disclosure of confidential information.

The Court analysed the terms of the settlement agreement and the surrounding circumstances. It considered the principles of contract interpretation, particularly in relation to termination clauses and the concept of repudiation. The Court found that Roche had not established that Glennon had committed a breach that amounted to a repudiation of the agreement, and therefore, Roche's purported termination was ineffective. The Court affirmed the trial judge's finding that the settlement agreement remained on foot.

Orders