FAMILY COURT OF AUSTRALIA
| STOPFORD MALLOY & MALLOY | [2021] FamCA 234 |
| FAMILY LAW – COSTS – Where the wife seeks costs against the husband – Where there have been a number of previous applications in relation to the variation or discharge of spousal maintenance – Where the husband’s most recent application was dismissed – Where the husband claims to be impecunious and therefore unable to pay any costs order – Where the wife claims that the husband lives a lavish lifestyle funded by his wealthy father. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) rr 1.06, 1.07, 1.0 Supreme Court Rules 1987 (NT) r 1.10 | |
| Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Atkins & Hunt and Ors (Costs) [2017] FamCAFC 131 Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 Bhatt & Acharya (Costs) [2017] FamCAFC 71 B & J (2006) FLC 93-259 Brown & Brown (1998) FLC 92-822 Cachia v Hanes (1994) 179 CLR 403 Latoudis v Casey (1990) 170 CLR 534 Malloy and Ors & Stopford Malloy [2017] FamCAFC 204 Malloy & Stopford Malloy [2019] FamCA 986 Malloy & Malloy [2020] FamCA 506 Northern Territory v Sangare (2019) 265 CLR 164 Oshlack v Richmond River Council (1998) 193 CLR 72 Parke & The Estate of the Late A Parke (2016) FLC 93-748 Paysen & Laukien [2020] FamCAFC 101 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311 Prantage & Prantage (Costs) [2014] FamCA 850 Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 Stoian & Fiening (Costs) [2014] FamCA 944 Stopford Malloy & Malloy [2016] FamCA 289 Stopford Malloy & Malloy and Ors [2016] FamCA 748 | |
| APPLICANT: | Ms Stopford Malloy |
| RESPONDENT: | Mr Malloy |
| FILE NUMBER: | ADC | 2595 | of | 2015 |
| DATE DELIVERED: | 23 April 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Harper J |
| HEARING DATE: | In Chambers by way of Written Submissions |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jonathan Wells QC & Mr John McGinn of Counsel |
| SOLICITOR FOR THE APPLICANT: | Piper Alderman |
| THE SELF-REPRESENTED RESPONDENT: | Mr Malloy |
Orders
That the husband pay the wife’s assessed party and party costs of and incidental to:
(a) The husband’s Application in a Case filed 21 August 2019;
(b) The wife’s Response to an Application in a Case filed 30 September 2019;
(c) The wife’s submission filed 30 March 2020;
(d) The husband’s submission filed 1 April 2020;
(e) Court attendances at which directions were made in relation to the Application in a Case filed 21 August 2019;
(f) Court attendance of 9 April 2020;
(g) That the matter certified as suitable for counsel and senior counsel other than for the appearance on 9 April 2020 which appearance shall be certified for counsel.
Any assessment of costs in accordance with these orders take place no earlier…
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- AGLC
- STOPFORD MALLOY & MALLOY [2021] FamCA 234
- Case
- [2021] FamCA 234
- Decision Date
CaseChat Overview and Summary
In *Stopford Malloy & Malloy*, the wife sought costs against the husband following the dismissal of his application to vary or discharge spousal maintenance orders. The original spousal maintenance orders, made by consent in October 2015, required the husband to pay the wife $2,000 per week, plus up to $650 per week for her rental accommodation and any bond payment. The husband's father and his associated companies, the Malloy Group, were also parties to the proceedings and were acknowledged as being financially well-resourced and a source of support for the husband.
The legal issue before the court was whether the husband should be ordered to pay the wife's costs in relation to his unsuccessful application to vary or discharge the spousal maintenance orders. This application had been dismissed in a primary judgment delivered on 7 July 2020. The husband opposed any costs orders being made against him.
The court noted the history of the husband's repeated attempts to vary the spousal maintenance orders since March 2016, all of which had been unsuccessful. These attempts included applications dismissed by Dawe J, Bryant CJ, and an appeal to the Full Court, which confirmed that there had been no sufficient change in circumstances to justify a variation. The husband's most recent application, heard by Tree J in 2019, was not pressed, with his senior counsel conceding that such an application would have constituted an abuse of process, by which time the husband was in significant arrears of spousal maintenance.
Given the history of unsuccessful applications and the concession that a further application constituted an abuse of process, the court found that the husband's opposition to costs was without merit. The court ordered the husband to pay the wife's costs of and incidental to his application to vary or discharge the spousal maintenance orders.
The legal issue before the court was whether the husband should be ordered to pay the wife's costs in relation to his unsuccessful application to vary or discharge the spousal maintenance orders. This application had been dismissed in a primary judgment delivered on 7 July 2020. The husband opposed any costs orders being made against him.
The court noted the history of the husband's repeated attempts to vary the spousal maintenance orders since March 2016, all of which had been unsuccessful. These attempts included applications dismissed by Dawe J, Bryant CJ, and an appeal to the Full Court, which confirmed that there had been no sufficient change in circumstances to justify a variation. The husband's most recent application, heard by Tree J in 2019, was not pressed, with his senior counsel conceding that such an application would have constituted an abuse of process, by which time the husband was in significant arrears of spousal maintenance.
Given the history of unsuccessful applications and the concession that a further application constituted an abuse of process, the court found that the husband's opposition to costs was without merit. The court ordered the husband to pay the wife's costs of and incidental to his application to vary or discharge the spousal maintenance orders.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 7 July 2020, I delivered judgment in which I dismissed an Application by the husband to vary or discharge orders for spousal maintenance originally made in October 2015: Malloy & Stopford Malloy (2020) 61 Fam LR 449; [2020] FamCA 506 (“the primary judgment”). The wife filed an Application in a Case on 4 August 2020 seeking costs against the husband in relation to his unsuccessful application. The husband opposes any orders for costs being made. These proceedings were commenced by the wife on 14 July 2015 by the filing of an Initiating Application seeking both parenting and financial relief. The background is set out in the primary judgment and need not be repeated for the purposes of this judgment. I will refer to further factual matters as necessary in the course of these reasons. The husband’s father, Mr Q Malloy, is the principal of a group of companies known as the “Malloy Group”. He and the Malloy Group are also parties to these proceedings. There has been no dispute that they are well resourced financially and have been a source of financial support for the husband. On 19 October 2015, by consent, orders were made by Dawe J for the husband to pay the wife $2,000 per week by way of interim spousal maintenance, as well as up to $650 per week in payment of the wife’s rental accommodation together with the amount of any bond payment (“the original orders”). By March 2016, the husband filed the first of several Applications seeking a variation to the original orders. He claimed that, due to a “minor change in circumstances”, the maintenance due should be reduced to $6,100 a month, in addition to the payment of a NAB mortgage. Dawe J dismissed this Application at the first return date on 22 April 2016, concluding that the proposed variation to the orders would not cover the wife’s living expenses: Stopford Malloy & Malloy [2016] FamCA 289. By 13 May 2016, the wife claimed significant spousal maintenance arrears, therefore filed an Application in a Case for the enforcement of the spousal maintenance orders. The husband filed a Response to this Application on 9 June 2016, seeking to vary the original orders. He specifically sought to reduce the amount payable by way of spousal maintenance to $650 per week. Bryant CJ delivered reasons on 5 September 2016, concluding that the arrears owing as at 10 June 2016 amounted to $21,197.86, and should be enforced: Stopford Malloy & Malloy and Ors [2016] FamCA 748 at [127]. The husband’s Response to an Application in a Case to vary the amount payable was dismissed. The husband, his father, and the Malloy Group appealed. The Full Court confirmed the finding of Bryant CJ that there were no changes of circumstances sufficient to justify a variation of spousal maintenance: Malloy and Ors & Stopford Malloy (2017) FLC 93-804; [2017] FamCAFC 204. The appeal on this issue was, therefore, unsuccessful. The issue of spousal maintenance was again raised before Tree J in 2019, but ultimately was not pressed by the husband at the interim hearing on 11 April 2019. Senior Counsel then appearing for the husband conceded that such an Application would have constituted an abuse of process. By such stage, the husband was in arrears of spousal maintenance in the sum of $337,965.02: Malloy & Stopford Malloy [2019] FamCA 986, at [79].
Ratio Decidendi
Legal Principle Established
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