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 of 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

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

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

3. That such costs be assessed on an indemnity basis.

4. 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

1. 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 in 2015. I delivered judgment on 7 July 2020 regarding the same orders: Malloy & Stopford Malloy [2020] FamCA 506 (“the July judgment”). At [1] of the July judgment, I pointed out that there have already been seventeen judgments in this matter, three relating to spousal maintenance. This judgment will be the fourth concerning spousal maintenance.

2. The existing spousal maintenance orders were made on 19 October 2015, and supported by an undertaking to the Court by the husband. They were varied slightly on 22 April 2016. The terms of the existing orders were set out at [8] and [9] of the July judgment. It is unnecessary to repeat them here. In the July judgment I referred to the orders and undertaking made and given on 19 October 2015 as the “original orders”.  I will continue to do so in this judgment.

3. The July judgment determined an application relating to the original orders filed by the husband on 21 August 2019 (“the August 2019 application”). I set out the substance of the August 2019 application in the July judgment at [11] as follows:

   By his Application in a Case filed on 21 August 2019, the husband seeks to discharge arrears of spousal maintenance owed to the wife under the original orders, and vary the original orders for spousal maintenance to decrease the amount to be paid to the wife to $100 per week. It is this Application that is the subject of this judgment

4. The August 2019 application was heard on 9 April 2020.

5. The Application in a Case to which the present judgment relates was filed on 4 September 2020 (“the current application”). By that application the husband sought orders that the interim spousal maintenance orders made on 19 October 2015, and varied on 22 April 2016, be discharged, and all outstanding arrears be discharged. [1] This relief is identical to part of the relief sought by the husband in his August 2019 application, which was dismissed.

   [1] Husband’s Application in a Case at [6].

6. The husband filed written submissions in support of the current application on 19 October 2020. At the conclusion of those submissions the husband sought the following orders:

   33. That the interim spousal maintenance Orders made by this Honourable Court on the 19 October 2015 and varied on the 22 April 2016 be discharged.

   34. That all outstanding arrears for the interim spousal maintenance Orders made by this Honourable Court on the 19 October 2015 and varied on the 22 April 2016 be discharged.

   35. That in the alternative, a stay of the operation of the interim spousal maintenance Orders made by this Honourable Court on the 19 October 2015 and varied on the 22 April 2016, be granted pending a trial.

   36. Such further or other Orders as this Honourable Court considers appropriate

7. As can be seen, by these orders the husband introduced an application for a stay as an alternative form of relief, which was not included in his Application in a Case. At the interim hearing on 23 October 2020, as I understood his submissions, the Husband pressed his orders for discharge of the original orders but also pressed his application for a stay.

8. The wife contends that the husband’s current application is an abuse of process and asks that it be dismissed, with an order for indemnity costs, certified fit for counsel and senior counsel and such further or other orders as considered appropriate by the Court.[2]

   [2] Wife’s Response to Application in a Case at [4].

9. The July judgment sets out the relevant background facts. There is no need to repeat them in this judgment, which should be read with the July judgment.

Material Relied Upon

1. Both parties relied upon the material identified in their Case Outlines. The husband, also relied on material provided to the Court and the wife on Thursday, 22 October 2020.

2. The husband relied on:

   a)Application in a Case filed 4 September 2020;

   b)His affidavit sworn and filed on 4 September 2020;

   c)His written submissions filed on 19 October 2020;

   d)Financial statement filed on 24 August 2020;

   e)An updated financial statement filed on 21 October 2020;

   f)Centrelink statements;

   g)Child support letters;

   h)NAB Bank Statements – Last (4) months;

   i)AQ Health Insurance;

   j)Letter – Mr Q Malloy – 8 April 2020;

   k)Tax Returns – Last ten years;

   l)Appointment of Receivers – 25 November 2016;

   m)Supreme Court Order for possession – 24 October 2017.

3. The wife relied on:

   a)Malloy & Stopford Malloy [2020] FamCA 506 (7 July 2020);

   b)Malloy & Stopford Malloy [2019] FamCA 986 (13 December 2019);

   c)Her financial statement 10 July 2020;

   d)Her affidavit filed 6 May 2020; and

   e)Husband’s Affidavit filed 23 April 2020

The Law

1. I set out the law relating to variation or discharge of spousal maintenance orders, including interim orders, in the July judgment. I also discussed the powers of the Court to discharge or vary interlocutory orders. Repetition is unnecessary.

2. At [26] - [41] of the July judgment I set out the history of earlier applications by the husband, in which the existing orders were considered. The present application is yet another application by the husband about the same orders.

3. At [23] of the July judgment I pointed out that where there are repeated interim applications regarding spousal maintenance the principle of finality, informed by questions of change of circumstances or the availability of fresh evidence, gains added prominence, and the discretion to set aside or vary an interim order must at some point be subject to the constraints imposed by the public interest in the finality of litigation. I repeated what I said in Joubert and Anor & Verhoeven and Anor [2020] FamCA 53 at [30] - [31]. I rely upon that statement of the law again, in particular the principles stated by Brereton J in Paris King Investments Pty Ltd & 1 Ors v Michael Normal Rayhill & 2 ors [2006] NSWSC 578 at [14] as follows:

   the general rule is that interlocutory relief is not to be reconsidered if at all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered

4. At [45] of the July judgment I held that “the circumstances cry out for an end to the serial applications by the husband concerning the original orders and arguments for variation of his spousal maintenance obligations”.

5. At the interim hearing, I drew the husband’s attention to the following recent statement of the relevant law by Nettle J in the High Court in Re Golding [2020] HCA 38:

   [11] Generally speaking, an applicant for interlocutory relief is required to advance all of the grounds on which he or she relies in support of the relief sought; and, in the absence of exceptional circumstances, such as, for example, the discovery of facts of which the applicant was not aware and which the applicant could not have ascertained with reasonable diligence at the time of the first application, it will ordinarily be regarded as an abuse of process to make a second application for interlocutory relief on the same or other grounds.

6. I also emphasise that in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507; (2015) 89 ALRJR 750; (2015) 254 IR 371 at [24] - [25] the High Court confirmed the doctrine of abuse of process is informed in part by considerations of finality.

7. At [46] of the July judgment I found that while the husband’s August 2019 application “may be apt for a finding of abuse of process”, it was not necessary to make such a finding, because his application could be disposed of by determining he had not established a “just cause” within s 83 of the Family Law Act 1975 (Cth) (“the Act”) to vary or discharge the original orders.

8. At [57] of the July judgment I recorded that: “There was no dispute the arrears of spousal maintenance now stand in excess of $350,000”. This remains the position.

9. The husband contended in his affidavit in support of the current application that the wife has “net equity” of $222,800.[3] He claims a loan owing by the wife for mortgage payments made by the father on behalf of the wife for $61,873 that were applied to the loan account.[4] The wife claims that her financial circumstances remain dire.[5] The wife maintains that she remains reliant on Centrelink, and has had to increase her home loan debt to pay for essential bills and to pay her credit card debt.[6] She claims to be unable to pay the apartment mortgage, her bank has placed a hold on her mortgage payments but that this arrangement is on a short term basis.[7] I accept the wife is likely to be in straitened circumstances. Evidence about the wife’s financial position would be relevant to the exercise of discretion to order the relief sought by the husband. However, in light of the view I have taken the question of exercise of discretion does not arise.

   [3] Husband’s affidavit sealed 4 September 2020 at [41].

   [4] Husband’s affidavit sealed 4 September 2020 at [63].

   [5] Wife’s affidavit sealed 6 October 2020 at [12].

   [6] Wife’s affidavit sealed 6 October 2020 at [13].

   [7] Wife’s affidavit sealed 6 October 2020 at [13].

10. The husband’s financial position remains relevant for an additional reason in that, according to him, it forms part of an argument about change of circumstances. He claims that he is insolvent, that he does not own any properties or vehicles; that he is unemployed and has no money, assets or any financial resources other than furniture worth approximately $5,000.[8]

    [8] Husband’s affidavit sealed 4 September 2020 at [63].

11. The husband contends that the current application was filed due to the urgency of his deteriorating financial circumstances shown by the following change of circumstances:

    a)Centrelink payments including the Family Tax A and B and Jobseeker payments being claimed;

    b)Centrelink payments regarding Parenting Payment being claimed by the husband’s partner as [his] partner cannot work due to personal reasons;

    c)The wife engaging the services of the Child Support Agency as a collection agent for spousal maintenance under the legislation;

    d)The husband receiving numerous telephone threats from the Child Support Agency;

    e)The Child Support Agency advising that enforcement action will be taken against the husband unless a further Application is made in the Family Court to remedy the Orders regarding spousal maintenance;

    f)Encouragement by the Child Support Agency to make a further Application in the Family Court regarding the spousal maintenance Orders;

    g)Encouragement by the Child Support Agency to make a further Application in the Family Court regarding the spousal maintenance Orders including a stay of the operation of the Orders;

    h)Evidence not previously filed because of a lack of understanding of the processes of the Family Court.[9]

    [9] Husband’s written submissions filed 19 October 2020 at [4].

12. The husband’s argument to counter a suggestion of abuse of process is that his circumstances have changed since the interim hearing and the July judgment, satisfying the criteria spelt out in Paris King and Re Golding above. I do not accept this argument.

13. The husband made the assertion of insolvency in support of his August 2019 application. This, even if it true, is not a new or a material change of circumstance. The assertion was made on 9 April 2020 and considered in the July judgment.

14. According to the husband’s own evidence, the material said to demonstrate his parlous financial circumstances was available for consideration in the July judgment. At [67] of the July judgment I recorded that on 14 April 2020, some 4 days after the parties’ submissions were heard, the evidence closed and judgment was reserved, the husband tried to submit further evidence, which was not permitted in the absence of consent by the wife or a properly constituted application to reopen.

15. The husband claims that he did not submit this material for the hearing on 9 April 2020 because he did understand the Court’s processes. I am dubious about this contention. At [59] of the July judgment I pointed out that “Whilst self-represented, the husband is no stranger to litigation, and in particular to applications regarding changes to the original orders, which, as noted, he has made several times in the past.” But as Nettle J stated in Re Golding, above, an applicant for interlocutory relief is required to advance all of the grounds on which he or she relies in support of the relief sought “in the absence of exceptional circumstances”. If he did not do so, especially where this was through no fault of the wife, he does not satisfy the test articulated by Nettle J. There is nothing exceptional about the circumstances relied upon by the husband, even if it is true that the husband did not understand Court processes.

16. Furthermore, the evidence to which the husband now points was available to him for the hearing on 9 April 2020 and according to his evidence he submitted some or all of it to the Court on 14 April 2020 after judgment was reserved.

17. The pressure from the Child Support Agency, which collects outstanding spousal maintenance, and its threats of enforcement do not constitute a material change of circumstances which justify the present application. As I understood the husband’s argument, he accepts that there are substantial arrears of spousal maintenance, but because he is insolvent, and the Child Support Agency is threatening to take enforcement action against him, the original orders and the arrears should simply be discharged so he does not have to pay. This is a startling argument and I reject it. It amounts to saying the husband should be allowed to escape his liability for spousal maintenance because he has not paid it. Enforcement is a consequence of failing to pay a debt, not a reason to discharge it. The threat of enforcement is not a change of circumstance which justifies a further interlocutory application.

18. I am satisfied the present application is simply a rerun of the August 2019 application. There has not been a material change of circumstances nor has there been any discovery of facts of which the husband was not aware and which the he could not have ascertained with reasonable diligence at the time of the hearing of the August 2019 application. The husband’s present application constitutes an abuse of process.

19. Although the husband’s application for a stay was made irregularly by his written submissions, I propose entertain and rule upon it. I accept the husband made his stay application orally as well. Rule 11.01 of the Family Law Rules (Cth) 2004 (“the Rules”) gives the Court power to allow an application to be made orally. It also gives the Court power to “stay a case or part of a case”.

20. The husband relied upon the same evidence and submissions in support of his application for a stay. Consequently, although a stay is a fresh form of relief, which the husband has not sought before, the application for a stay is in substance also a rerun of the August 2019 application. The fact that a stay application is made as an alternative form of relief in an application which is otherwise an abuse of process provides a good reason why, as a matter of discretion, such a stay should not be granted.

21. But even if this is wrong, for the reasons given at [29] above, the stay should be refused. The husband has been unsuccessful in persuading the Court that the original orders should be discharged or varied. The husband seeks a stay to escape enforcement of a liability for spousal maintenance which has existed for some five years and which he has not paid. This is not a basis for staying the original orders.

22. The husband’s present application should be dismissed.

23. As already noted, the wife sought a costs order on an indemnity basis. I set out relevant general principles regarding orders for costs in these proceedings in Malloy & Stopford Malloy (No. 2) [2020] FamCA 773 at [32] and [33]. I apply them but will not repeat them here. I have taken account of the husband’s claim to be impecunious, but of itself this is not a bar to a costs order: Bhatt & Acharya (Costs) [2017] FamCAFC 71 at [20]. I am satisfied the husband has been wholly unsuccessful in the present application, which constitutes a reason for departing from the position set out in s 117(1) of the Act and making an order for costs. The conclusion that the husband’s application constitutes an abuse of process is “a feature which so dominates the scene that it can outweigh any of the other s117(2A) considerations”: Brown & Brown [1998] FamCA 115; (1998) FLC 92-822; 23 Fam LR 349 per Kay J at [17]. Additionally, the husband’s application wasted Court time.

1. The application for indemnity costs raises additional considerations. The Full Court has made clear that indemnity costs are a very great departure from the normal standard of costs in this jurisdiction and before making an indemnity costs order, the Court should be apprised of a range of information, such as the extent of the retainer agreements of the successful party exceed the parameters of the scale of costs set by the Court: Prantage & Prantage [2013] FamCAFC 105; [2013] FLC 93-544; (2013) 49 Fam LR 197 at [77] - [79]; Harris & Dewell and Anor(No.2) [2018] FamCAFC 180; (2018) FLC 93-863 at [23] - [26]. Exceptional circumstances need to be demonstrated: Worth & Worth (No.2) [2019] FamCAFC 126; (2019) FLC 93-910 at [9].

2. Redacted copies of the retainer agreements between the wife and her lawyers were the subject of extensive consideration in Malloy & Stopford Malloy (No. 2) [2020] FamCA 773, in which I held the wife’s lawyers are continuing to appear “without any guarantee of reward” on a “no-win no-fee basis”: at [25]. In light of this judgment the wife submitted she should be excused from compliance with Rule 19.08(3) of the Rules requiring a party seeking indemnity costs to inform the Court of a the terms of a party’s costs agreement. I agree. I am satisfied the husband was wholly unsuccessful on his current application which wasted court time and constitutes an abuse of process. It is apt for an indemnity costs order. An award of indemnity costs is designed to compensate the successful party. There is no reason why the wife should bear any cost of the husband’s wholly unsuccessful application nor should payment of those costs be contingent on the wife’s successful outcome of the substantive hearing.

3. I am satisfied that an indemnity costs order should be made in favour of the wife.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 26 November 2020.

Associate: 

Date: 26 November 2020