MALLOY & STOPFORD MALLOY - [2020] FamCA 506

FAMILY COURT OF AUSTRALIA

MALLOY & STOPFORD MALLOY

[2020] FamCA 506

FAMILY LAW – SPOUSAL MAINTENANCE – Discharge and variation – Where the husband sought to discharge or vary interim spousal maintenance orders made by consent some 5 years ago – consideration of the expression “just cause” in s 83(1)(c) of the Family Law Act 1975 (Cth) in relation to interim spousal maintenance order – where the husband alleges he was under duress or improper pressure from his lawyers to enter into consent orders – where husband had made previous applications regarding the spousal maintenance orders – where allegations of duress or improper pressure were previously not raised – consideration of the principle of finality in relation to interim orders – where circumstances apt to be considered an abuse of process – where no “just cause” demonstrated – where no basis demonstrated to vary the interim consent orders – application dismissed.

Family Law Act 1975 (Cth) ss 43, 72, 74, 75, 80, 81, 83

Family Law Rules 2004 (Cth) r 17.02

Brimaud v Honeysett Instant Print (1988) 217 ALR 44
Chandless-Chandless v Nicholson [1942] 2 All ER 315
Farina & Lofts and Ors [2018] FamCA 763
Hall v Hall 257 CLR 490
Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225
Harvey v Phillips & Anor (1956) 95 CLR 235
I Limited and Chester and Ors (2010) FLC ¶93–456
Jess & Garvey (2018) FLC 93-827
Joubert and Anor & Verhoeven and Anor [2020] FamCA 53
Kendirjian v Lepore (2017) 259 CLR 275
Malcher & Malcher (No. 2) [2012] FamCA 1115
Malloy & Stopford Malloy [2019] FamCA 986
Malloy and Ors & Stopford Malloy [2017] FamCAFC 204
Malone & Malone [2011] FamCAFC 136
Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 All ER 377
Smits v Roach 227 CLR 423
Paris King Investments Pty Ltd & 1 ors v Michael Norman Rayhill & 2 ors [2006] NSWSC 578
Pratt v Pratt (2012) 47 Fam LR 234
R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
Stopford Malloy & Malloy [2016] FamCA 289
Stopford Malloy & Malloy and Ors [2016] FamCA 748
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28
Vakil v Vakil (1997) FLC 92-743
Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325
Wreford v Caley (2010) 43 Fam LR

APPLICANT:

Mr Malloy

RESPONDENT:

Ms Stopford Malloy

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

7 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

9 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wells QC
Mr McGinn

SOLICITOR FOR THE APPLICANT:

Piper Alderman

THE RESPONDENT IN PERSON:

Mr Malloy

Orders

That the Application in a Case filed on 21 August 2019 by the Applicant Husband be dismissed.

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 between Mr Malloy (“the husband”) and Ms Stopford Malloy (“the wife”) have been extraordinarily protracted. Since the commencement of the proceedings in July 2015, there have been seventeen judgments delivered in this matter, three of which relate to the issue of spousal maintenance. This judgment relates to a further application by the husband regarding spousal maintenance.
The husband was born on … 1969 and is presently 50 years of age, and the wife was born on … 1981 and is presently 39 years of age. The parties commenced a relationship in June 2010, and married on … 2013. They initially separated in March 2015, and attempted to reconcile on 2 November 2015. However, this reconciliation failed, and the parties separated on a final basis on 22 January 2016.
There is one child of the relationship, C born … 2014, the subject of the parenting aspect of the proceedings. The husband also has two children from two separate relationships, a daughter, K born … 2006, and a son, AK born … 2019, a child he has with his current partner.
According to the wife, C suffers from autism and has been diagnosed with sensory processing disorder, behavioural insomnia of childhood, separation anxiety disorder of childhood, skin sensitivities, language disorder and delay.[1]
[1] Wife’s Affidavit, 30 September 2019, [28].
At present, C lives with his mother in a small two bedroom flat, which the wife asserts is “too small for C’s needs”.[2] The husband contends that he pays $120 per month in child support, in line with an assessment made by the Child Support Agency.[3] The husband is also liable to pay the sum of $2,650 per week to the wife by way of spousal maintenance. As will be discussed below, this amount is not currently being paid, and the husband is substantially in arrears.
[2] Wife’s Affidavit, 30 September 2019, [29].
[3] Husband’s Affidavit, 21 August 2019, [9.12].
In addition to the husband and the wife, there are various other parties involved in this litigation, including the husband’s father, Mr Q Malloy. The husband’s father established a group of companies known as the “Malloy Group”. The Malloy Group is also a party in these proceedings. The wife describes the group of companies as “a family business which deals in and manages property investments and developments involving hundreds of millions of dollars in South Australia, Victoria and Queensland.”[4] Whilst this judgment directly involves only the husband and the wife, the financial position of Mr Q Malloy and the Malloy Group are of some relevance.
[4]Stopford Malloy & Malloy and Ors [2016] FamCA 748, [22].
The husband’s father and the Malloy Group are wealthy. This did not seem to be disputed by either party.
On 19 October 2015, the matter was listed in a Judicial Duty list before the Honourable Justice Dawe and the following orders were made by Consent:
BY CONSENT IT IS ORDERED THAT
1. The husband do pay the wife by way of interim spousal maintenance:
1.1 the sum of TWO THOUSAND DOLLARS [$2,000.00] per week with the first such payment to be made on Friday 23 October 2015;
1.2 the sum of up to SIX HUNDRED AND FIFTY DOLLARS [$650.00] per week in such instalments or multiples as the lease of any property the wife shall rent together with the amount of any bond payable by the wife such payment to be made to the wife’s landlord or to her agent as and when they fall due and payable under the lease or rental agreement.
2. The payments referred to in paragraph 1.1 shall be paid to an account nominated by the wife’s solicitors in writing
3. The husband do indemnify and do keep indemnified the wife in relation to the payment of rental and other bond in respect of the premises that the wife rents with the monies provided pursuant to paragraph 1.2 and if so requested by the wife’s solicitors in writing do guarantee the rental payments of the wife.
These orders were made on the basis of a written undertaking given by the husband that until further order, he would not either personally or by his servants or agents dispose of, encumber or further encumber, sell, transfer or deal with his interest or any interest of any company of which he is a shareholder and a Director and/or Secretary and of any Trustee or any Trust of which he is Appointor or Trustee or beneficiary or member of a class of beneficiary in any property save and except:
a)Pursuant to an order of the Family Court of Australia first having been obtained; or
b)To give effect to the orders of the Family Court of Australia; or
c)To meet his living expenses; or
d)In the ordinary course of business of any such company or trust; or
e)With the wife’s written consent first having been obtained upon the husband giving the solicitors for the wife not less than 42 days clear notice in writing setting out full details of any proposed transaction.[5]
[5]Stopford Malloy & Malloy and Ors [2016] FamCA 748, [7].
I will refer to the orders and undertaking made and given on 19 October 2015 as the “original orders”. The original orders were varied slightly on 22 April 2016 in a manner discussed later in these reasons. The reference to “original orders” in these reasons includes that variation.
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.
In her Response filed 30 September 2019, the wife sought that the husband’s Application in a Case filed on 21 August 2019 be dismissed. She additionally sought an order for costs.
For reasons which are to follow, the husband’s Application in a Case should be dismissed.

The Law

Orders for spousal maintenance are made under s 74 of Part VIII of the Act. The threshold or gateway, as the High Court called it in Hall v Hall [2016] HCA 23; 257 CLR 490 at [3], to making such an order is specified in s 72(1) in the following terms “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)". The threshold therefore requires consideration of the factors in s 75(2). By reason of s 80(1)(h) the Court may exercise the power conferred by s 74(1) by making an order pending the disposal of proceedings or until further order. Such an order is called an interim order: Hall at [6]. The original orders were such orders.
There is a specific power to discharge or vary spousal maintenance orders, whether interim or final, found in s 83 of the Family Law Act 1975 (Cth) (“the Act”), which is in the following terms:
83 Modification of spousal maintenance orders
(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court’s jurisdiction under subsection (1) may be exercised:
(a) in any case—in proceedings with respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to the marriage—on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a debtor subject to a personal insolvency agreement—on the application of the trustee of the agreement.
(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative—the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent—that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
When it comes to discharge or variation of interlocutory orders, Rule 17.02(1)(c) of the Family Law Rules 2004 (Cth) gives the Court a specific discretion at any time to vary or set aside an order if it is interlocutory. There are no criteria given in the Rule to guide the exercise of the discretion. The Court also has inherent power to regulate and govern its own practices and procedures, subject to jurisdiction, including setting aside or varying interlocutory orders, unless they have “determined in whole or in part the rights and status of parties on the essential issues involved in the case”: Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325, at 330; I Limited and Chester and Ors [2010] FamCAFC 251; (2010) FLC ¶93–456; (2010) 44 Fam LR 585 at [170]. There would clearly be some overlap between the inherent jurisdiction and Rule 17.02(1)(c). It is not clear how the powers in s 83 to discharge or vary interim spousal maintenance orders interact with Rule 17.02(1)(c) or the inherent jurisdiction. There seems to be little doubt that s 83 is the dominant head of power for this purpose, and I will determine this application by reference to the provisions of s 83 of the Act.
There was no dispute that the Court had jurisdiction pursuant to s 83(1A)(a) of the Act. For the purposes of this judgment it should be emphasised that by reason of s 83(6) of the Act, the Court may make an order retrospectively discharging an interim spousal maintenance order.
The husband is self-represented. Although he was articulate and presented as intelligent, it was also clear he did not frame his application by clear reference to the terms of s 83 of the Act, or any other head of power. The husband’s present application is for discharge of an interim spousal maintenance order made by consent some 5 years ago. He made submissions that fell into two broad limbs. The first pertains to events surrounding the original order, and the second to the cessation of financial support from his father, and other alleged changes to his financial circumstances. Since much of the husband’s evidence was directed to the circumstances at the time the original orders were made, and he seeks discharge of arrears, I infer the husband relies on s 83(1)(c) and s 83(6) in seeking to discharge the original orders retrospectively because there is “just cause for doing so”. From the orders sought by the husband it is clear he sought the discharge of the orders to take place retrospectively on a date which would eliminate any arrears he owes the wife, however, no specific date was submitted to the Court. No other jurisdictional basis for discharging arrears was put forward. Then I infer the husband relies on ss 83(1)(f) and (2)(a)(i) seeking to decrease the amount payable under the original orders to $100 because there has been a change to his financial circumstances. It was not entirely clear but this relief seems to be predicated upon the original orders not being discharged, although on one view the husband seems to be offering to pay $100 per week going forward even if the original orders are discharged. On the view I have taken this question does not need to be resolved.
In relation to final orders for spousal maintenance the expression “just cause” in s 83(1) has been discussed by the Full Court in a number of authorities, particularly Vakil v Vakil (1997) FLC 92-743 at 84,027 and Wreford v Caley [2010] FamCAFC 21; (2010) 238 FLR 88; (2010) 43 Fam LR. In Pratt v Pratt [2012] FamCAFC 81; (2012) 47 Fam LR 234 at [97], the Full Court followed these decisions and, in relation to spousal maintenance, said:
…their Honours in Wreford & Caley agreed with Vakil that in deciding whether there is just cause to discharge a maintenance order the Court would consider, inter alia the right of a spouse to maintenance (s 72); the matters to be taken into account in relation to spousal maintenance (s 75); the duty of the Court to end financial relations (s 81); and the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life (s 43(a)).
The discharge of an interim spousal maintenance order requires consideration of many of the same issues, although some, such as the need expressed in s 43(a), may have less significance at an interim stage. The threshold in s 72(1) may be reconsidered. In Hall at [10] the High Court said:
…an applicant for discharge of a maintenance order can seek to satisfy the court that the party in receipt of maintenance does not meet the threshold requirement of s 72(1), but that the requirement of s 83(1)(c) that there be "just cause for so doing" imports a need for the court to be satisfied of circumstances which justify the court considering that threshold requirement again.
But the nature of the original orders as interim orders made by consent raises particular matters relevant to the question of their discharge. Final or interim orders made by consent may embody a contract or agreement between the parties or they may simply embody provisions to which neither party objects: Chandless-Chandless v Nicholson [1942] 2 All ER 315 at 317; Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 All ER 377 at 380; I Limited at [168], [169]. It is well settled that final consent orders which embody an agreement may be set aside on any recognised basis to set aside a contract such as “illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like” and if the agreement stands so does the order: Harvey v Phillips & Anor (1956) 95 CLR 235 at 243-44.

The Court has power to vary a consent interlocutory order even if made pursuant to an agreement between the parties: R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 at 392 and 393 cited with approval in I Limited at [171]. In my view, if a party established a vitiating element, such as mistake or duress, in the agreement underlying an interim consent order for spousal maintenance, this could amount to a “just cause” for the purposes of s 83(1)(c).
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. 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. To set out the relevant principles, I repeat what I said in Joubert and Anor & Verhoeven and Anor [2020] FamCA 53 at [30] to [31]:
[30] There is considerable authority to establish that a principle of finality applies to interlocutory decisions. In Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015-16) 256 CLR 507 at [24] to [25] the High Court confirmed the doctrine of abuse of process is informed in part by considerations of finality and fairness similar to the doctrines of res judicata and issue estoppel, although it is inherently broader and more flexible than estoppel, and is capable of application in any circumstances in which the use of a Court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. In relation to interlocutory applications, this statement of principle has been echoed in numerous judgments of this, and other, Courts: in Malcher & Malcher (No. 2) [2012] FamCA 1115 at [15], Ryan J stated that the Family Court is “not a court of unrelenting interlocutory applications”; in Farina & Lofts and Ors [2018] FamCA 763 at[31] Carew J held attempts to re‐litigate matters already determined, even on an interlocutory basis, will be discouraged; in Jess & Garvey [2018] FamCAFC 44; (2018) FLC 93-827 at [130]- [131] the Full Court followed the decision of McLelland J (as he then was) in Brimaud v Honeysett Instant Print (1988) 217 ALR 44 at 46 where he said:
It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order re-litigated at will.
[31] In Brimaud it was held that a subsequent application to set aside, vary or discharge an interlocutory order must be founded on a material change of circumstances, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application. More recently, the limits on successive interlocutory applications were explained in Paris King Investments Pty Ltd & 1 ors v Michael Norman Rayhill & 2 ors [2006] NSWSC 578 at [14] by Brereton J as follows:
In my opinion, as outlined in Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225, [16]-[17], acknowledging that it is impossible to state a principle capable of universal application, nonetheless the general rule is that interlocutory relief is not to be reconsidered if 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. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reason than dissatisfaction with the previous decision.
I turn then to the relevant facts.

19 October 2015

The first part of the husband’s submissions focused upon the circumstances surrounding the entering of the consent orders on 19 October 2015. In particular he said that his mother had significant health issues at the time, and that his legal counsel “pressured” him into accepting the terms of the consent orders. There was no dispute that the husband’s mother was placed in palliative care on 12 October 2015 and that she passed away on the afternoon of … 2015, being the date the application was listed before the Court.[6] As a result of this, the father claimed in his Affidavit that on 19 October 2015 “I continually reiterated that I wasn’t thinking clearly, however, my counsel were only interested in opposing the wife’s cost Application”. He claimed that his father “had previously made it explicitly clear that he was only prepared to fund spousal maintenance of $1000 per week, rental assistance of $650 per week and the continued use of his German 4WD vehicle”.[7] The husband submitted that “given the circumstances, I knew that I did not have the financial capacity nor the presence of mind to make any decisions. I was put under duress by my Counsel to agree to $2,000 per week”.[8] The father gave evidence that he “should never have agreed to the consent order for $2000 per week as I did not have the proper consent from my father to be able to honour the payments”.[9]
[6] Husband’s Affidavit, 21 August 2019, [3.3] – [3.6].
[7] Husband’s Affidavit, 21 August 2019, [3.9].
[8] Husband’s Case Outline, 1 April 2020, [9].
[9] Husband’s Affidavit, 21 August 2019, [8].
Exhibits “1” and “2” were tendered by the father in support of his submissions. Exhibit “1” was a letter from Mr Q Malloy’s solicitor to the husband’s then solicitor dated 7 June 2016. The letter confirmed that “I am instructed to inform you however that Mr Q Malloy will maintain a contribution in the amount of $650 per week, towards the provision and maintenance of his grandchild, C [sic]. Exhibit “2” was a letter from Mr Q Malloy’s solicitor to the husband’s then solicitor dated 17 July 2019, and in that letter, Mr Q Malloy notified the husband that he would no longer contribute towards spousal maintenance and “the last payment that the wife will receive is the payment scheduled for 19 July 2019.”

After 19 October 2015

Some further detail of the history of earlier applications should be given at this point.
In March 2016, the husband filed an Application in a Case seeking that spousal maintenance be reduced to $6,100 a month together with a mortgage to NAB which would be, overall, equivalent to $7,400 per month. The orders made by consent on 19 October 2015 saw the wife receive approximately $10,000 to $11,000 per month.
On 22 April 2016, the husband’s application was listed in a Judicial Duty list before the Honourable Justice Dawe, and her Honour delivered ex tempore reasons on that date.[10] In summary, Dawe J noted that there had been a “minor change in circumstances” in that the parties briefly reconciled for a period of approximately 3 to 4 months from October 2015, and the other change was that the mother no longer resided with her family, but had moved with the child to a property she owned subject to a mortgage.[11]
[10]Stopford Malloy & Malloy [2016] FamCA 289.
[11]Stopford Malloy & Malloy [2016] FamCA 289, [7].
Dawe J took account of the parties’ lifestyle prior to separation, the fact that the wife had the means to gain employment, but did have some health issues and cared for the child.[12] Ultimately, Dawe J concluded that the amount sought to be varied by the husband would not reasonably cover the wife’s living expenses. The only variation made was that the words “to an account nominated by the wife’s solicitors in writing” were inserted into paragraph 1.2 of the original orders in lieu of “to the wife’s landlord or to her agent…payable under the lease or rental agreement”.[13] Otherwise, the amount of spousal maintenance the husband was to pay the wife was not altered. Thus the only variation required the $650 previously paid to the wife’s landlord or agent was to be paid to a nominated account.
[12]Stopford Malloy & Malloy [2016] FamCA 289, [9].
[13]Stopford Malloy & Malloy [2016] FamCA 289, [16].
It is clear from the reasons of Dawe J that none of the matters now relied upon by the husband as impugning his decision-making capacity on 19 October 2015 or any allegation of improper pressure from his legal representatives, were put to her honour in support of that application.
On 15 June 2016, two applications were listed and heard before the Honourable Chief Justice Bryant (as she was then known). The first was an application for enforcement of spousal maintenance orders brought by the wife on 13 May 2016 and the second was an application for orders sought in a response filed by the husband dated 9 June 2016 for variation of the maintenance orders. In his Application before the Court, the husband essentially sought to vary the orders for spousal maintenance made on 19 October 2015 and varied on 22 April 2016 by reducing spousal maintenance to the sum of $650 per week.
In support of that application the husband filed a financial statement on 9 June 2016 and filed an Affidavit much of which was directed to opposing the wife’s application for enforcement of the existing maintenance orders.[14] It is apparent from the reasons of Bryant CJ that, again, none of the matters to which the husband now points as impugning his capacity to make decisions on 15 October 2015 were put forward.
[14]Stopford Malloy & Malloy [2016] FamCA 289, [158], [159].
Bryant CJ delivered reasons on 5 September 2016. In summary, she determined that an amount was outstanding pursuant to the orders, that the wife is entitled to an enforcement order, and that the circumstances of the case justify the appointment of receivers and managers to effect the enforcement. The Court was satisfied the maintenance owing as at 10 June 2016 was $21,197.86.[15] Additionally, the Court refused to vary spousal maintenance orders as sought by the husband as the Court did not accept that the husband demonstrated any change in circumstances.
[15]Stopford Malloy & Malloy and Ors [2016] FamCA 748, [127].
The husband, the husband’s father, and the Malloy Group appealed the decision of Bryant CJ and the appeal was heard on 22 February 2017. The Full Court, comprising of Thackray, Strickland and Kent JJ heard the appeal and delivered reasons on 5 October 2017.[16] In respect of spousal maintenance the Full Court confirmed the finding of Bryant CJ that there were no changes of circumstances sufficient to justify a variation of spousal maintenance orders and that there were arrears of spousal maintenance. However, the Full Court did overturn the order by Bryant CJ for the appointment of receivers for enforcement purposes.
[16]Malloy and Ors & Stopford Malloy [2017] FamCAFC 204.
The Full Court explained that in relation to the application to vary the original orders, that “the issue now engaged is not the circumstances under which the initial orders were made, but the method of enforcement of those orders”.[17]
[17]Malloy and Ors & Stopford Malloy [2017] FamCAFC 204, [30].
A range of further applications in the proceedings were listed before the Honourable Justice Tree between December 2018 and May 2019, including an application by receivers for remuneration and an application by the wife for a dollar for dollar litigation funding order. The husband had filed a Response which included an application to vary the spousal maintenance amount and discharge the arrears. His Honour delivered a judgement on 13 December 2019.[18] Tree J noted that as at March 2019 there were undisputed spousal maintenance arrears in the sum of $337,965.02, however, the application by the husband to vary spousal maintenance was not pressed.[19] According to the wife during the course of the hearing before Tree J on 11 April 2019, senior counsel then appearing for the husband explained that such an application would have constituted an abuse of process. According to the evidence of the wife, which appeared to be undisputed, senior counsel made the following submissions:
There has been no application pressed, but there's a particular reason for that. As your Honour would have seen from a close reading of the Full Court's judgment, it would have been an abuse to press an application for variation of spousal maintenance and that's why the application, although filed, was not pressed. And I’m going to take your Honour to the Full Court judgment for what it reveals about this particular aspect of the matter. But the Full Court said - as did the Chief Justice below - that the husband gave his consent to a particular order for a payment in excess of $2000 a week, knowing that he was dependent upon his father's continued willingness to pay, and the fact that the father, in the words of the Full Court, may have turned off the tap, didn't affect the efficacy of the order, didn’t affect his consent because the consent was made in light of that.
Now, what has happened since is that the father has definitely turned off the tap, refused to turn it on again for more than $650 per week to each party, and in light of what fell from the Full Court, it would have been a plain abuse to pursue that application on that same basis and there is no other basis. Now, that's the reason why there has been no application to discharge spousal order, because the money is not being paid because there is no money to pay it. And the Full Court, as I say, said that that was a factor that was always available to the husband to know (emphasis added). [20]
[18]Malloy & Stopford Malloy [2019] FamCA 986.
[19]Malloy & Stopford Malloy [2019] FamCA 986, [79].
[20]Wife’s Affidavit, 30 September 2019, [18].
The High Court made clear in Smits v Roach [2006] HCA 36; 227 CLR 423; 80 ALJR 1309; 228 ALR 262 at [46] that
a party is generally bound by the conduct of counsel, and counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister's paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes.
The High Court also said at [47]: “Having regard to counsel's role in the conduct of litigation, when a characterisation of the legal nature and quality of counsel's acts and omissions depends upon knowledge of some fact or circumstance, then counsel's clients are affected by that knowledge” and generally speaking there is no reason in principle to distinguish between the knowledge of counsel and knowledge of the client.
There is no reason to think senior counsel, in the hearing before Tree J, was not acting on his client’s instructions in the ordinary way. The husband gave no evidence to that effect. It can be seen that senior counsel expressly disavowed the existence of any other basis for varying the spousal maintenance order such as the circumstances on 19 October 2015, as now put forward by the husband. He also made clear that the husband’s consent to the original orders was informed consent, that is, it was given in light of his knowledge of his reliance on the his father’s largesse. Senior counsel, quite correctly in my view, conceded that to press the husband’s application to vary the original orders would have constituted an abuse of process.
According to the husband he was himself aware of his alleged inability to think clearly on 19 October 2015 but fell prey to pressure from his counsel. I am not satisfied the husband’s evidence establishes this or any basis to set aside the agreement underlying the original orders.
To accept the husband’s contentions about improper pressure from his then lawyers to enter into the original orders on 19 October 2019 would require the Court to accept not only that his then lawyers acted in breach of their duties to him as a client but also that his legal representative on 11 April 2019 made submissions without a proper basis. I am unable to make any such finding on the evidence placed before me on this application. I am unable to accept the evidence of the husband concerning his alleged incapacity or undue pressure from lawyers said to be suffered on 19 October 2015. No new facts have emerged in this regard. The husband relies on evidence which has limited probative value and in any event such evidence ought reasonably to have been in his contemplation when he consented to the original orders, and certainly by 11 April 2019 before Tree J.
The following factors combine to persuade me it is not possible to be satisfied that the father has demonstrated a “just cause” sufficient to discharge the original orders retrospectively or at all: (i) the absence of any specific evidence about how he was unduly pressured by his legal representatives; (ii) the passage of time; (iii) the failure to raise any of the present allegations in previous applications to the Court about the original orders and arrears; (iv) the pointed acknowledgement by the Full Court that the circumstances of the original orders were not in issue before it; (v) the specific disavowal of any such a basis to pursue variation of the original orders, and the risk of an abuse of process, before Tree J.
Three other considerations are of equal importance. First, as the wife also submitted, there is the absence of any explanation in the husband’s evidence of why he has not previously raised his alleged inability to give proper instructions or make competent decisions, or undue pressure from lawyers, on 19 October 2015 on any subsequent occasion until the present application was made, despite a number of challenges to the original orders. This delay of itself could provide a basis to dismiss his application to discharge the original orders: Malone & Malone [2011] FamCAFC 136.
Secondly, even if I had been satisfied that the husband had proved he suffered some pressure or duress on 19 October 2015 at the hands of his legal counsel, no reason or basis was given why this should then be laid at the feet of the mother. It is long established that counsel as an agent gives an implied warranty of authority to the third party with whom they deal: Kendirjian v Lepore [2017] HCA 13; 259 CLR 275 at [15]. The husband does not allege the mother was party to any duress or pressure, and there is no reason to think she, or her lawyers, did not rely upon his lawyer’s authority in the ordinary way. To the extent that the husband’s argument simply ignores this, the cause to which he points could not be said to be “just”.
Thirdly, 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. Whether true or not, his allegations about the circumstances on 19 October 2015 were obviously available to be made by him at any time since that date. They are not new facts which have emerged since the original orders. It is clear from the history recited above that the situation is ripe for application of the finality principle.
While the husband’s application the subject of this judgment may be apt for a finding of abuse of process, it is not necessary to make such a finding. The application can be disposed of by determining whether the husband has established a “just cause”. The factors mentioned above at [39] to [43] preclude a finding of “just cause” in my view.
The husband did not put the wife’s threshold need for maintenance in issue or seek to justify the Court considering again the threshold requirement in s 72(1). Rather he focussed on his capacity to pay. I point out here that I have had regard to ss 72 and 75 of the Act as required by s 83(7). As the discussion below makes clear, there was insufficient evidence to form a clear view about the extent to which the husband’s circumstances had changed or presently should be held to render him incapable of meeting the obligations of the original orders.

I discuss the husband’s evidence of his current financial circumstances below. For the reasons given there, it is unsatisfactory and does not establish any just cause. In Wreford the Full Court when considering child maintenance orders under Division 7 of Part VII of the Act. At [76] the Court said:
It seems to us that it would be quite contrary to the objects and principles of Part VII – Division 7 for the Court to be able to be satisfied as to just cause merely on evidence as to the parties about their relative current financial circumstances. If that were the case, arguably, an applicant for discharge of arrears could be assured of success simply by divesting themselves of assets and income prior to a hearing.
In my view this statement applies equally to the present situation in which the husband relies upon his financial circumstances to support a finding of just cause under ss 83(1)(c) and 83(2), even if this section falls in Part VIII of the Act, rather than Part VII. As already stated above, there are numerous factors precluding a finding of “just cause” as sought by the husband, and the evidence of the parties’ financial circumstances does not change those conclusions.

Financial circumstances

The next limb of the husband’s submissions were that there has been a change of his circumstances since the Court made the original orders.
The wife filed a Financial Statement on 30 September 2019. It disclosed an excess of weekly expenditure of $1841 over $707.66 of income and deficit of assets of $395 over liabilities of $1,531,900. I am satisfied the wife continues to need spousal maintenance, and as pointed out above, the husband did not seem to put this in issue.
The husband had submitted that he had relied upon his father to pay the wife spousal maintenance, however, as a result of the current litigation, the relationship with his father had deteriorated and consequently, his father was unwilling to provide him with financial assistance. As previously stated, he relied on Exhibits “1” and “2” to support this assertion. Without such support, the husband insisted that his financial circumstances would not allow him to pay the wife the sum of $2,650 per week.
As the discussion above already indicates, this particular submission has been before the Court on a number of occasions. Before Dawe J, the husband asserted he was technically unemployed, however worked for his father, and his father would provide him living money “as he saw fit”.[21] His Financial Statement stated that he had expenses of $17,000 per week but received nil income.[22]
[21]Stopford Malloy & Malloy [2016] FamCA 289, [12].
[22]Stopford Malloy & Malloy [2016] FamCA 289, [8].
Again before Bryant CJ the husband asserted that “he has no funds of his own to enable him to pay any sums to the wife whether by order for spousal maintenance or otherwise” and “relies entirely on my father’s largesse to meet my expenses”.[23]
[23]Stopford Malloy & Malloy and Ors [2016] FamCA 748, [108].
Before me, the husband submitted that he is unemployed and has “absolutely no money, no assets or any financial resources”.[24] He further submitted that his relationship with his father has been strained for several years and that he continues to receive $650 per week “as a loan” from his father.[25] The father further submitted that he had an additional child to support, AK, who currently resides with him and his new partner.[26]
[24] Husband’s Affidavit, 1 April 2019, [20].
[25] Husband’s Affidavit, 1 April 2019, [24].
[26] Husband’s Affidavit, 1 April 2019, [33].
The husband set out the asserted changes to his circumstances at paragraph 9 of his 21 August 2019 Affidavit as follows:
[9] Since the 22 February 2017, the Appeal before the Full Court, there has been a significant change in my Financial Circumstances.
[9.1] On 27 October 2017, Chief Justice Kourakis of the Supreme Court, made an order enforcing the rights of the Mortgagee and granting possession of the Suburb E and Suburb B residences.
[9.2] The holding costs over the Suburb E and Suburb B residences have accrued significantly, only increasing my indebtedness to my father.
[9.3] The Suburb B residence has been on the market for sale under the instruction of the Mortgagee since 17 January 2018. The property is still for sale.
[9.4] The long, protracted funding of my legal fees has increased my indebtedness to my father.
[9.5] My father has appointed AL Accountants as Receivers to various companies.
[9.6] I now have an additional child to support, AK, born on the … 2019, to whom I am full-time carer. My partner is a health professional and has resumed employment and is supporting us financially.
[9.7] I have a daughter K, born … 2006. I am a full-time carer for her during school holidays throughout the entire year.
[9.8] My son C turn five (5) year of age on the … 2019 and currently attends preschool and will be commencing year on (1) at school at the beginning of 2020.
[9.9] On the 17 July, I received a letter from my father’s Counsel AM Lawyers advising that my father had reached breaking point and was no longer prepared to fund my legal fees beyond 31 July 2019.
[9.11] The only funds I receive is $650 per week provided by my father, my father refuses to pay any more money since the joining of his companies on the proceedings by the wife.
[9.12] I have been independently assessed through the Child Support Agency and have been paying child support for my son C in the sum of $120 per month.
[9.13] The arrears for spousal maintenance is already well in excess of $350,000 and will now continue to compound at an even greater rate when I have absolutely no financial capacity of means to pay the outstanding balance of spousal maintenance and the current Order of $2,650 per week.
[9.14] Given my financial limitations, I am nevertheless prepared to pay the sum of $100 per week to the former wife in lieu of my spousal maintenance obligations. This is all I can afford as I have family including my son AK and daughter K to care for.
[9.15] As a result, there is a great urgency to vary spousal maintenance given the range of significant changes in my financial circumstances as outlined above.
There was no dispute the arrears of spousal maintenance now stand in excess of $350,000. Of itself this fact could support the inference that the husband cannot pay. But, for the following reasons, the Court is unable to determine whether this is because the husband cannot pay, or because he refuses to pay.
There was no Financial Statement filed by him in support of his application, nor was there any supporting documentation which would assist the Court to form even a reasonable “broad brush” view about his asserted parlous financial position. Given that the husband’s application was heard on an interim basis, where the evidence cannot be tested, the Court was in a particularly difficult position to determine the veracity of his contentions.
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. As previously stated, there have been seventeen judgments delivered in this matter and the father’s earlier applications to vary the original orders have been before a first instance judge on two separate occasions, and the Full Court. As the husband filed a financial statement in support of his previous applications, the absence of a sworn financial statement in support of the present one is therefore difficult to understand.
This is particularly so in circumstances where hearing before Tree J, it was undisputed that the husband lived a lavish lifestyle. In Malloy & Stopford Malloy [2019] FamCA 986 at [154] Tree J stated:
It is not in contention that the husband continues to lead an extravagant lifestyle of luxury housing and expensive, exotic cars. On the other hand, the wife is in receipt of social security and the $650.00 weekly payment made by the husband, and only has the benefit of legal representation because her solicitors are prepared to act for her, seemingly on a no-win no-fee basis. Her counsel have similarly agreed to act for her, but have not necessarily agreed to continue to do so at any trial.
While these undisputed facts were noted by Tree J in relation to an application for litigation funding, they clearly have relevance for the husband’s present application regarding spousal maintenance orders.
The reliance by the husband upon his father has been consistently treated as an undisputed aspect of his financial situation. In Malloy and Ors & Stopford Malloy [2017] FamCAFC 204 (5 October 2017) at [48] the Full Court quoted Bryant CJ at [164] where she referred to the husband’s “father switching on and off financial largesse as the fortunes of the parties’ relationship ebbed and flowed”.
In order to make good his assertions of change of circumstance, the father needed to explain how it was that his undisputed lavish lifestyle in the hearing before Tree J had disappeared by the time the application the subject of this judgment was filed or heard. His evidence does not state that his lifestyle has changed. He states rather that his father has ceased to pay his legal fees or fund his child support liabilities of $650 per week, which, if correct, merely amounts to the fulfilment of a possibility which has been known by him for many years.
The husband does not explain exactly what impact the order for mortgagee possession of the Suburb E and Suburb B residences, made by the Supreme Court of South Australia, may have had on his financial circumstances. Nor is it clear what, if any, impact the appointment of AL Accountants as Receivers has had on his financial position. The husband does not even specify which companies are in receivership, or how they relate to him.
Any increase in his indebtedness to his father was a risk known to the father since at least the hearing before the Full Court.
I am not satisfied the husband has proved his financial circumstances have changed in any material way since the original orders or since he brought his application regarding spousal maintenance before Tree J so as to justify the variation which he seeks under s 83(2)(a) of the Act.
It should be noted here that on 14 April 2020, some 4 days after the parties’ submissions were heard, the evidence closed and judgment was reserved, my Chambers received an email from the husband attaching further documents said to be in support of his Application. This email was also carbon copied to the wife’s solicitor. On 15 April 2020, the wife’s solicitors responded to this email and notified my Chambers that they object to the husband relying on the further documents for the purposes of his Application. The following day my Chambers responded to both parties, notifying them that:
These documents have not been forwarded to, or seen by, Justice Harper.
Since the hearing was concluded on 9 April 2020 and judgment is presently reserved, no party can adduce further evidence in support of their case without filing an appropriate application seeking the leave of the Court to reopen in accordance with the Family Law Rules 2004 (Cth) or without the consent of the other parties. We note that on 15 April 2020, the solicitor for the wife emailed Chambers and indicated they objected to the Court having any regard to the “supporting documents” emailed by the husband on 14 April 2020.
The Court does not invite applications, and discourages unnecessary applications, from any party to litigation. If any party makes an application to reopen the evidence prior to delivery of judgment, such application will be considered and determined in accordance with the Family Law Rules 2004 (Cth) and well established principles. Subject to those considerations, the Court will have no regard to the documents sent by the husband on 14 April 2020.
No application to reopen was filed. Consequently, in the absence of consent, I have not had regard to the husband’s email or any of the documents attached to the email for the purposes of this judgment.
For these reasons, I will dismiss the husband’s application.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper J delivered on 7 July 2020.

Associate:

Date: 7 July 2020