STOPFORD MALLOY & MALLOY

[2015] FamCA 904

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY [2015] FamCA 904

FAMILY LAW – COSTS – between parties – where the issues to be determined on an interim basis – where the wife seeks a finding that the husband has given unreliable evidence and it should therefore be treated with caution – where consideration is given to the financial circumstances of the parties – where consideration is given to the requisite that the court must have justifiable circumstances to part from the requirement that each party bear their own costs – where it cannot be established that the husband has appropriate funds available to him to justify the order being sought by the wife – where the application is dismissed.

Family Law Act 1975 (Cth) – s 80, s 117

G & T (2004) FLC 93-176
Iphostrou & Iphostrou [2011] FamCA 20
McD & McD (unreported) O’Ryan J, 8 October 2001
McL & McL (unreported) O’Reilly J, 30 January 2003

APPLICANT: Ms Stopford Malloy

RESPONDENT: Mr Malloy

FILE NUMBER: ADC 2595 of 2015

DATE DELIVERED: 19 October 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 19 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Nelson QC
(with Mr McGinn)

SOLICITOR FOR THE APPLICANT: Tessa Hume

COUNSEL FOR THE RESPONDENT: Mr Whitington QC
(with Mr Richards)

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

Orders

Upon Noting the husband’s written undertaking given to this Honourable Court this day in terms of paragraph 8 excluding the words “not exceeding paragraph [7.1] of these orders” of the wife’s Application for Interim Orders filed 17 July 2015 SAVE AND EXCEPT for the sale and settlement of Suburb B property which proceeds are to be applied to the first mortgagor and (without prejudice to any application the wife may make) the balance to the Malloy Group.

BY CONSENT IT IS ORDERED THAT

1. The husband do pay the wife by way of interim spousal maintenance:

   (a)the sum of TWO THOUSAND DOLLARS [$2,000.00] per week with the first such payment to be made on Friday 23 October 2015;

   (b)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.

4. The husband be restrained and an injunction granted restraining the husband from doing anything or taking any steps to cause or facilitate the removal of the German motor vehicle Registration number … from the possession or control of the wife.

5. Within twenty-one [21] days the husband do give discovery on oath including but not limited to those documents referred to in the Application in a Case filed 28 September 2015.

6. The child C born … 2014 live with the mother.

7. Until further order the child spend time with the father as follows:

   (a)       on two [2] occasions each week;

   (b)from 9.30 am to 12.30 pm on Thursday and Saturday or at such other times as agreed between the parties in writing between their solicitors commencing Thursday;

   (c)under the supervision of Ms D upon the condition that the husband meet Ms D’s costs;

   (d)at the Suburb E property and then thereafter at such place as the parties agree in writing between their solicitors;

   (e)it be a condition of such time that unless the wife otherwise agrees in writing through her solicitor that the husband shall not bathe or swim or drive with C unless properly and legally restrained and the child not attend upon husband’s mother;

8. Within twenty-eight [28] days the husband shall provide unrestricted access to the wife to collect at times to be agreed between the parties solicitors in writing from the Suburb E property with the assistance of removalists and packers the following items:

   (a)all personal clothing and effects of the wife and C (including the wife’s computer);

   (b)       all items of C’s furniture toys and equipment;

   (c)       the wooden dining table and bentwood chairs;

   (d)       the brown leather couch and ottoman;

   (e)       fridge;

   (f)       washing machine;

   (g)the contents of the “wife’s room” including the rug, rocking chair, bed and base;

   (h)       selection of linen, bedding and towels for the wife and C;

   (i)        all kitchen items;

   (j)        two brown small bookshelves in sitting room;

   (k)television cabinet, smaller television, floor lamp and rug in the sitting room next to the front door;

   (l)        red Canvas outdoor chairs;

   (m)      cross trainer;

   (n)       laundry drying racks;

   (o)       new step ladder;

   (p)       printer from the office;

   (q)       two small coffee tables;

   (r)       iron, Ironing board and cleaning products;

9. UNTIL FURTHER ORDER each party Mr Malloy born on … 1969 and Ms Stopford Malloy born on … 1981 their servants and / or agents be and are HEREBY restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 (Cth), from removing or attempting to remove or causing or permitting the removal of the child C born on … 2014 from the Commonwealth of Australia for a period of two [2] years AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child C on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist for the said period, or until the Court orders its removal.

10. The husband do pay or cause to be paid the removalist expenses associated with the collection of items in Paragraph 8 not exceeding the sum of FIFTEEN HUNDRED DOLLARS [$1500.00].

11. The wife’s costs of her Application in a Case filed 28 September 2015 be reserved.

12. The wife’s Application in a Case filed 28 September 2015 be otherwise dismissed.

13. The matter be listed before Registrar Paxton on a date to be advised for further directions regarding the preparation of a Family Assessment report.

14. In relation to Christmas Day 2015 that the husband’s time on 24 December 2015 do stand suspended and that the husband shall spend time with the said child on Christmas Day from 9.30 am to 11.30 am on the same terms and conditions provided for in paragraph 7 of these orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. I am now dealing with the application in relation to costs which appear in the initiating application filed by the wife on 14 July 2015, paragraph 11, although the Court should take into account that the reference within paragraph 11 to subparagraphs 9.1, 9.2 and 9.3 should, in fact, be understood to be references to paragraphs 11.1, 11.2 and 11.3.

2. Those orders sought are that:

   Within seven days of the payment by or on behalf of the husband of any money in payment of accounts:

   11.1rendered by the husband’s solicitors in respect of these proceedings;  and

   11.2rendered by any account valuer or expert engaged by the husband in respect of these proceedings, the husband pay or cause to be paid the same amount of money to the wife’s solicitor.

3. 11.3 then says:

   within one day after payment by or on behalf of the husband, that any money referred to in 11.1 and 11.2

   I have corrected the reference to 9.1 and 9.2:

   “the husband provide to the wife’s solicitors a memorandum stating the amount so paid.”

   11.4all money paid to the husband’s solicitors by or on behalf of the husband referred to in order 11.1 be held in trust by the husband’s solicitor and not be applied in payment of his legal costs and outlays until such time as the amount has been paid by or on behalf of the husband to the wife’s solicitor, and the event that such payment to the wife’s solicitors not be made within seven days after the payment on behalf of the husband of any money referred to in 11.3, the husband direct his solicitors to pay 50 per cent of the amount or amounts so held by them on trust to the solicitors for the wife.”

4. The orders sought are opposed by the husband. 

5. What needs to be taken into account in this matter is that it appears, on the face of it, to be an application for an order in relation to costs under s 117 of the Family Law Act 1975 (Cth) (“the Act”). Therefore I take into account the authorities in relation to orders concerning costs.

6. I was referred by both counsel for the parties to the decision of O’Reilly J (as she then was) in G and T (2004) FLC 93-176 in which there is reference made to the unreported cases of McD & McD and McL & McL.

7. All three of these cases were referred to in the decision of Cronin J more recently delivered in January 2011, known as Iphostrou & Iphostrou & Ors [2011] FamCA 20. The matters which have to be taken into account are referred to in that judgment. I have taken into account those matters.

8. It is put to me on the basis that this is not an interim property settlement application. Therefore I have not heard submissions in relation to what might apply to the orders sought by way of interim orders, pursuant to s 79. I take into account the provisions of s 117 and s 80 of the Act, which primarily guide me in relation to this case.

9. The question is to be determined on an interim basis.  That is a case of some difficulty in this matter because of the substantial dispute about the most significant facts, including, primarily, the assets that should be brought into account in the overall settlement, which may or may not leave the wife in a position in which the costs could be deemed to be part of the overall payment under s 79 and therefore, whether the payment of an amount in advance for costs should be just and equitable in all the circumstances.

10. In G & T (Supra), the decision was made on the basis that when making any order for costs, but, in particular, such an order as the dollar for dollar, as it is described, the Court has to have regard to s 117(2A), the financial circumstances of each of the parties, and other matters contained in the provisions of s 117.

11. This case can be distinguished from some of the cases referred to by her Honour O’Reilly J, and subsequently in the cases referred to by Cronin J in Iphostrou & Iphostrou (Supra) in that there is a significant disagreement of what are the financial circumstances of the husband. 

12. I am being asked to find that the husband has given unreliable evidence, and therefore I should treat his evidence with caution.  Even if I were to make that finding, however, it would not establish that he has the ability to have a person or another company or entity pay his costs and to have those payments or that capacity to have that payment deemed as a financial resource which would allow me to make an order in relation to the wife’s costs.

13. The difficulty I have is that even if I were to take into account that some of the husband’s evidence is unreliable due to the contradictions in his documents or inconsistencies in some portions of his affidavits and financial statement (including Exhibit 1, which I have received) I am not satisfied that it has been established that there is sufficient financial resource available or income and assets available to the husband to carry out what I accept is a duty, where possible, to create a level playing field.

14. I accept that it is always appropriate in the correct circumstances to ensure that there is an equal playing field in the context of complex matters having each party in a position to obtain appropriate funding for their legal representation.  However, the Court needs to find that there are justifiable circumstances to part from the requirement that each party bear their own costs, and the Court needs to take into account evidence which is available to it which would establish the capacity to pay.

15. I accept that the wife’s situation is such that it will be a detriment to her to not have available funds from the husband to source her legal representation, but I am not satisfied that it has been established that there are appropriate funds available to the husband in any sense that would justify the order being sought by the wife.

16. In particular, also, I accept that the orders sought would place the husband’s solicitors in a difficult position should they receive funds which would thereafter have to be divided equally and passed on to the wife’s solicitors.  That, however, is not a determining factor in this matter.

17. My overall decision is on the basis that it has not been established that there is sufficient capacity of the husband in the present circumstances, so the interim application seeking the order as to costs of the wife is dismissed.  I leave the question of costs of the application by the wife and the response of the husband in relation to that issue (unless there is any serious opposition) to be dealt with at a later time when further information is available in relation to the financial circumstances of both parties.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 October 2015.

Associate: 

Date:  26 October 2015