Stopford Malloy and Malloy & Ors (No 2)

This matter came before Austin J in the Family Court of Australia concerning various applications and cross-applications between the applicant wife and the respondent husband, as well as the second and third respondents. The disputes involved the admissibility of evidence, an application for variation of spousal maintenance orders, and applications for costs.

The court was required to determine several key legal issues. These included the admissibility of affidavits filed by the husband, despite alleged breaches of the Family Law Rules, and the admissibility of adversarial expert evidence adduced by the wife in relation to both a costs dispute and the spousal maintenance application. Furthermore, the court had to consider an application by the wife to vary spousal maintenance orders, specifically concerning her use of a German 4WD car, and to determine applications for costs made by the parties.

Regarding the admissibility of evidence, the court found that the husband's affidavits were admissible, noting that the wife also sought to rely on multiple affidavits and had not been prejudiced by insufficient time to respond. The adversarial expert evidence concerning the costs dispute was admitted, applying sections 55, 56, and 135 of the Evidence Act 1995 (Cth). However, leave for the wife to rely on adversarial expert evidence in relation to the spousal maintenance dispute was denied, as the court determined that such controversial evidence should originate from a single expert and the Rules' requirements for engaging single experts had not been met. The wife's application to vary spousal maintenance was dismissed, as the car in question was owned by the third respondent and its recovery from the wife was beyond the husband's control, and the wife had the use of another European car. The court ordered no order as to costs, finding that while the husband was in default of spousal maintenance orders and enforcement orders had been made, the wife's initial prosecution of an urgent injunction application was reasonable, and she later consented to its dismissal.