Malloy and Stopford Malloy (No. 4) - [2020] FamCA 995

FAMILY COURT OF AUSTRALIA

MALLOY & STOPFORD MALLOY (NO. 4)

[2020] FamCA 995

FAMILY LAW – SPOUSAL MAINTENANCE – Repeated interlocutory applications – Further application by the Husband to discharge and vary existing spousal maintenance orders made in 2015 – Interlocutory applications – Application for a stay of orders – Whether there has been an abuse of process by the Husband – Application for costs order – Application dismissed.

Family Law Act 1975 (Cth) ss 83, 117(1)
Family Law Rules 2004 (Cth) rr 11.01, 19.08(3)

Bhatt & Acharya (Costs) [2017] FamCAFC 71
Brown & Brown [1998] FamCA 115; (1998) FLC 92-822; 23 Fam LR 349
Harris & Dewel and Anor (No. 2) [2018] FamCAFC 180; (2018) FLC 93-863
Joubert & Anor & Verhoeven and Anor [2020] FamCA 53
Malloy & Stopford Malloy [2017] FamCA 986
Malloy & Stopford Malloy [2020] FamCA 506
Malloy & Stopford Malloy (No 2) [2020] FamCA 773
Parentage & Parentage [2013] FamCAFC 105; [2013] FLC 93-544; (2013) 49 Fam LR 197
Paris King Investments Pty Ltd & 1 Ors v Michael Normal Rayhill & 2 ors [2006] NSWSC 578
Re Golding [2020] HCA 38
Tomlinson v Ramsey Food Processing Pty Lmited [2015] HCA 28; (2015) 256 CLR 507; (2015) 89 ALJR 750; (2015) 254 IR 371
Worth & Worth (No.2) [2019] FamCAFC 126; (2019) FLC 93-910

APPLICANT:

Mr Malloy

RESPONDENT:

Ms Stopford Malloy

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

26 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

23 October 2020

REPRESENTATION

THE APPLICANT IN PERSON:

Mr Malloy

COUNSEL FOR THE RESPONDENT:

Mr Wells QC and Mr McGinn

SOLICITOR FOR THE RESPONDENT:

Piper Alderman

Orders

The Application in a Case filed on 4 September 2020 by the Applicant be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the Application in a Case filed 4 September 2020.
That such costs be assessed on an indemnity basis.
That such costs be certified fit for counsel and senior counsel

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malloy & Stopford Malloy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: ADC 2595 of 2015

Mr Malloy

Applicant

And

Ms Stopford Malloy

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are between Mr Malloy (“the husband”) and Ms Stopford Malloy (“the wife”). This judgment relates to a further application by the husband seeking discharge of existing spousal maintenance orders made…

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.

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Details

Case: [2020] FamCA 995
Decision Date: 26 November 2020

CaseChat Overview and Summary

Harper J of the Family Court of Australia considered an application by the Husband to discharge and vary existing spousal maintenance orders made in 2015. This application followed a series of repeated interlocutory applications by the Husband, and the Wife sought to have the Husband's latest application dismissed, alleging an abuse of process. The Wife also sought an order for costs.

The central legal issues before the court were whether the Husband's application constituted an abuse of process, and consequently, whether the Wife was entitled to an order for costs, and on what basis. The court was required to assess the Husband's conduct in light of the history of litigation and the nature of his current application.

Harper J found that the Husband's repeated applications, without any substantial change in circumstances or new evidence to justify a variation of the long-standing spousal maintenance orders, amounted to an abuse of process. The court applied the principle that litigation should have a proper purpose and that parties should not be permitted to repeatedly litigate issues that have already been determined, absent compelling reasons. The court therefore dismissed the Husband's application.

The court ordered that the Husband's application be dismissed and that he pay the Wife's costs of and incidental to the application. These costs were to be assessed on an indemnity basis and certified fit for both counsel and senior counsel.

Orders

Orders of the court

The Application in a Case filed on 4 September 2020 by the Applicant be dismissed.

The Applicant pay the First Respondent’s costs of and incidental to the Application in a Case filed 4 September 2020.

That such costs be assessed on an indemnity basis.

That such costs be certified fit for counsel and senior counsel

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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