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

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

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.
The payments referred to in paragraph 1.1 shall be paid to an account nominated by the wife’s solicitors in writing.
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.
The husband be restrained and an injunction granted restraining the husband from doing anything…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading STOPFORD MALLOY & MALLOY

Details

AGLC: STOPFORD MALLOY & MALLOY [2015] FamCA 904
Case: [2015] FamCA 904
Decision Date: 19 October 2015

CaseChat Overview and Summary

This matter came before Dawe J concerning an application for interim orders between Ms Stopford Malloy and Mr Malloy. The dispute involved various financial and custodial arrangements for the parties' child, C.

The court was required to determine the terms of interim spousal maintenance, the arrangements for the child's living arrangements and time with each parent, the division of certain property, and the prevention of the child's removal from Australia. Specific issues included the husband's obligation to pay interim spousal maintenance, the wife's rental expenses and bond, the husband's indemnification of the wife for these costs, and the husband's guarantee of rental payments. The court also considered an injunction to prevent the removal of a specific motor vehicle from the wife's possession and the husband's obligation to provide discovery. Furthermore, the court addressed the child's residence with the mother, the father's supervised time with the child, and specific conditions attached to that time, including restrictions on bathing, swimming, driving, and contact with the husband's mother. The court also had to order the husband to facilitate the wife's collection of personal belongings and household items.

By consent, the court made orders regarding interim spousal maintenance, including a weekly sum and an additional amount for rental expenses and bond, to be paid to the wife's solicitors. The husband was ordered to indemnify the wife for these rental costs and to guarantee her rental payments. An injunction was granted restraining the husband from removing a specified German motor vehicle from the wife's possession. The husband was ordered to provide discovery within 21 days. The child C was ordered to live with the mother, and the husband was granted supervised time with the child on specified days and times, subject to certain conditions, including the husband meeting the supervisor's costs and restrictions on bathing, swimming, and driving with the child unless properly restrained, and a prohibition on the child attending upon the husband's mother unless the wife agreed in writing. The husband was also ordered to provide the wife with access to collect specified personal belongings and household items from the Suburb E property within 28 days, with the husband to pay removalist expenses up to $1500. Crucially, both parties were restrained by injunction from removing the child C from Australia for two years, and the Australian Federal Police were requested to place the child on the Family Law Watchlist. The wife's costs of her application were reserved, and the application was otherwise dismissed. The matter was listed for further directions regarding a Family Assessment report. Special provisions were made for Christmas Day 2015, suspending the husband's usual time on 24 December and ordering supervised time with the child on Christmas Day itself.

Orders

Orders of the court

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

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.

The payments referred to in paragraph 1.1 shall be paid to an account nominated by the wife’s solicitors in writing.

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.

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.

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.

The child C born … 2014 live with the mother.

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;

(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;

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;

(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;

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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