Stopford Malloy & Malloy and Ors - [2016] FamCA 748

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY AND ORS

[2016] FamCA 748

FAMILY LAW – SPOUSE MAINTENANCE – ENFORCEMENT – Where the wife sought the enforcement of interim spouse maintenance orders made by consent by way of the appointment of Receivers – Where the Court found arrears were owing pursuant to spouse maintenance orders – Where the Court exercised its discretion to enforce the spouse maintenance orders and appointed Receivers – Application allowed – Husband to pay the wife’s costs. .

FAMILY LAW – SPOUSE MAINTENANCE – VARIATION – Where the husband sought to vary the interim spouse maintenance orders made by consent – Where the court did not accept that the husband demonstrated any change in circumstances relevant to the application – Application dismissed – Husband to pay the wife’s costs.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Hall v Hall [2016] HCA 23
Reynolds & Reynolds (1985) FLC 91-632

APPLICANT:

Ms Stopford Malloy

FIRST RESPONDENT:

Mr Malloy

SECOND RESPONDENT:

Mr Q Malloy

THIRD RESPONDENT:

The Malloy Group

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

5 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ

HEARING DATE:

15 June 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wells QC with Mr McGinn

SOLICITOR FOR THE APPLICANT:

Piper Alderman

COUNSEL FOR THE RESPONDENT:

Mr Whitington QC with Mr Richards

SOLICITOR FOR THE RESPONDENT:	Howe Jenkin
COUNSEL FOR THE SECOND AND THIRD RESPONDENTS:	Mr Harris QC with Ms Kari

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:

Barnes Brinsley Shaw

Orders

That pursuant to r 20.46 of the Family Law Rules 2004 (Cth) (“the Rules”), Messers R and S of T Accountants are appointed as joint and several receivers (“the Receivers”) of the income and property of Mr Malloy (“the husband”) so as to give effect to Order 1 of the Orders of the Honourable Justice Dawe made on 19 October 2015 and as varied on 22 April 2016 (“the Orders”).
In particular, that the Receivers be appointed to receive the following:
(a)       the husband’s jewellery;
(b)       the husband’s household contents;
(c)       the properties of which the husband is the registered proprietor at:
(i)U Street, Suburb E, South Australia (Suburb E) and
(ii)V Street, Suburb B, South Australia (Suburb B )
That pursuant to r 20.47(3) of the Rules, the Receivers are authorised to do (in the Receivers’ name or otherwise) anything the husband may do.
That pursuant to r 20.47(4) of the Rules the Receivers’ powers operate to the exclusion of the powers of the husband during the receivership in relation to compliance with the Orders.
That the Receivers’ remuneration be paid from the financial resources of the husband and such remuneration be calculated in accordance with the standard rates effective from time to time as set out in Annexure “OSM-7” to the wife’s affidavit sworn 7 June 2016.
That no security be given by the Receivers.
That the husband is to co-operate with the Receivers and shall:
(a) Provide all such documents,…

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.

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Details

Case: [2016] FamCA 748
Decision Date: 5 September 2016

CaseChat Overview and Summary

The proceedings involved an application by the wife for the enforcement of interim spouse maintenance orders, and a counter-application by the husband to vary those same orders. The court was required to determine whether to enforce the existing spouse maintenance orders and whether to grant the husband's application to vary them.

The court considered the wife's application for enforcement, finding that arrears were owing under the consent orders. In exercising its discretion, the court determined that enforcement was necessary and appropriate. The court also considered the husband's application to vary the interim spouse maintenance orders, but found that he had not demonstrated any relevant change in circumstances to warrant a variation.

Consequently, the court ordered the appointment of joint and several receivers to receive the income and property of the husband, specifically including his jewellery, household contents, and two properties. These receivers were authorised to take possession of and sell these assets to give effect to the existing spouse maintenance orders. The husband was directed to cooperate fully with the receivers and was restrained from dealing with the specified assets. The husband's application to vary the spouse maintenance orders was dismissed. The husband was ordered to pay the wife's costs of both the enforcement application and his own variation application.

Orders

Orders of the court

That pursuant to r 20.46 of the Family Law Rules 2004 (Cth) (“the Rules”), Messers R and S of T Accountants are appointed as joint and several receivers (“the Receivers”) of the income and property of Mr Malloy (“the husband”) so as to give effect to Order 1 of the Orders of the Honourable Justice Dawe made on 19 October 2015 and as varied on 22 April 2016 (“the Orders”).

In particular, that the Receivers be appointed to receive the following:

(a) the husband’s jewellery;

(b) the husband’s household contents;

(i) U Street, Suburb E, South Australia (Suburb E) and

(ii) V Street, Suburb B, South Australia (Suburb B )

That pursuant to r 20.47(3) of the Rules, the Receivers are authorised to do (in the Receivers’ name or otherwise) anything the husband may do.

That pursuant to r 20.47(4) of the Rules the Receivers’ powers operate to the exclusion of the powers of the husband during the receivership in relation to compliance with the Orders.

That the Receivers’ remuneration be paid from the financial resources of the husband and such remuneration be calculated in accordance with the standard rates effective from time to time as set out in Annexure “OSM-7” to the wife’s affidavit sworn 7 June 2016.

That no security be given by the Receivers.

That the husband is to co-operate with the Receivers and shall:

(a) Provide all such documents, financial records, bank statements/books, tax records and any other financial documents as required by the Receivers within twenty-four (24) hours of the request by the Receivers;

(b) Provide full details to the Receivers within twenty-four (24) hours of request of the names and address of any employer or entity controlled by the husband which has received remuneration within the last seven (7) days;

That, in particular, the Receivers may sell any assets collected by them pursuant to Order 2 upon such terms and conditions as they shall see fit and after payment of the costs and expenses of sale and payment of registered encumbrances are to apply the net proceeds of such sale:

(a) in payment of the Receivers’ fees and the costs and expenses of such sales;

(b) in payment to the wife of such sum or sums as shall be outstanding from time to time pursuant to the Orders;

(d) the balance, if any, to be held as security for and applied to the payment of spousal maintenance pursuant to the Orders.

That the husband is directed and an injunction is granted directing the husband to deliver up to the Receivers and/or make available for collection by the Receivers in good order and repair the husband’s jewellery and household contents upon such date and at such time as the said Receivers shall advise him in writing delivered to U Street, Suburb E in the State of South Australia.

10.

That the husband do, and an injunction is granted directing the husband to do, all things, provide all documents and authorities, and execute all documents necessary to cause any credit provider or any person providing financial accommodation to the husband to pay any monies or the money equivalent of any accommodation to the Receivers.

11.

That the Receivers submit accounts to the following parties on a three (3) monthly basis for work done pursuant to these orders:

(a) The wife; and

(b) The husband.

12.

In default (whether such default be by reason of any act or omission or neglect) of the husband executing any document necessary to give effect to these orders within twenty-four (24) hours of the same having been delivered to the husband’s solicitors whilst they maintain a notice of address for service on behalf of the husband in the state of South Australia then and in such event a Registrar of this Honourable Court upon proof by affidavit of such default is hereby authorised and directed to sign all such documents and if in the Registrar’s opinion it is necessary to do so to settle the same and to do all things to give effect to these orders.

13.

The husband’s application for variation of the maintenance orders made 19 October 2015 as varied by order made 22 April 2016 (“the spouse maintenance orders”) contained in his response filed 9 June 2016 is dismissed.

14.

The husband pay the wife’s’ costs of and incidental to the enforcement application filed by her on 13 May 2016 and his application to vary the spouse maintenance orders contained in his response filed 9 June 2016, as assessed in default of agreement.

15.

The application for orders sought by the second and third respondents in their response dated 14 June 2016 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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