Malloy and Ors & Stopford Malloy

FAMILY COURT OF AUSTRALIA

MALLOY AND ORS & STOPFORD MALLOY [2017] FamCAFC 204

FAMILY LAW – APPEAL – CROSS-APPEAL – LEAVE TO APPEAL – SPOUSAL MAINTENANCE – ENFORCEMENT – VARIATION – Where there is sufficient doubt about the decision so as to justify its reconsideration and substantial injustice would flow if the orders are not set aside, supposing those orders to be wrong – Leave to appeal granted and leave to cross-appeal granted in part – Where the primary judge did not err in finding that there was no change of circumstances sufficient to justify a variation of the spousal maintenance orders – Where the primary judge did not err in finding that there were arrears of spousal maintenance such that the application for enforcement was able to be brought – Where the primary judge found it appropriate to appoint receivers and managers to effect the enforcement of spousal maintenance – Where the primary judge applied Chapter 20 of the Family Law Rules 2004 (Cth) – Where s 109A of the Family Law Act 1975 (Cth) provides the power to make Rules which apply to the present circumstances – Where s 109A must be given a wide interpretation – Where s 80(3) of the Family Law Act 1975 (Cth) is not an exclusive source of power for the Rules made in Chapter 20 and does not impermissibly enlarge the court’s jurisdiction – Where the primary judge was not limited to s 80(1)(k) of the Family Law Act 1975 (Cth) as being the only source of power to appoint Receivers Where the primary judge erred in the exercise of her discretion in finding that it was appropriate to make the orders appointing Receivers – Appeal and the cross-appeal allowed in part.

FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the further evidence sought to be adduced is controversial – Where the evidence does not buttress the findings of the primary judge – Application dismissed.

FAMILY LAW – APPEAL – REOPEN – FURTHER EVIDENCE – Where the basis and the purpose of adducing the further evidence is unclear, and its relevance to the appeal and the cross-appeal is not apparent – Where the evidence does not demonstrate any error by the primary judge and nor does it buttress her Honour’s findings – Application dismissed. – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where it was agreed that the question would be the subject of written submissions by the parties – Where orders are made for the filing of submissions from the date hereof.

Family Law Act 1975 (Cth) ss 66L, 74, 79, 80(1)(k), 80(3), 83, 105, 106, 107, 108, 109A, 114(3), 117, 123, Part VIII and Part XIII

Family Law Rules 2004 (Cth) r 20.47, Part 20.6 and Chapter 20
Family Law Amendment Bill 1999, Explanatory Memorandum – Item 11

Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311
Broken Hill South Ltd (Public Officer) v Commissioner of Taxation New South Wales (1937) 56…