Stopford Malloy & Malloy (No 3) - [2017] FamCA 932

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY (NO 3)

[2017] FamCA 932

FAMILY LAW – CHILDREN – Where the parties produced orders that they sought the court to make by consent – Where there were some concerns as to the orders and notations sought – Where it is not appropriate to make notations in the place of orders – Where it is proposed that a third party supervisor determine the father’s time with the child – Where it is not appropriate for the court to delegate its power to a third party – Where it is the job of the court to determine the best interests of the child – Where certain orders and notations in the terms of settlement produced were declined to be made – Where alternative orders in an appropriate form made by consent.

Family Law Act 1975 (Cth) ss 60CC, 65D

Gorman & Huffman and Anor [2016] FamCAFC 174
Grollo & Bilson (No 2) [2017] FamCA 440
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

APPLICANT:

Ms Stopford Malloy

RESPONDENT:

Mr Malloy

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:

ADC

2595

2015

DATE DELIVERED:

31 October 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Hannam J

HEARING DATE:

30 & 31 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr McGinn
SOLICITOR FOR THE APPLICANT:	Piper Alderman

COUNSEL FOR THE RESPONDENT:	Ms Dickson
SOLICITOR FOR THE RESPONDENT:	Howe Jenkin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders By Consent

That the mother have the sole parental responsibility for C born … 2014 ("the child") on condition that:-
1.1.The following decisions shall only be made in relation to the child with joint consent of both parties:-
1.1.1.The child's enrolment at child care, kindergarten or school with the exception where the child is enrolled at the ZZ School; and
1.1.2.Any major medical decisions (save and except in the event of a medical emergency) in relation to the child,

PROVIDED THAT if the mother provides the father with notice of an intention to enrol the child at child care, kindergarten or school or make a major medical decision and the father fails to provide a response, within 21 days in the case of child care, kindergarten or school, or 7 days in the case of a major medical decision, then the mother be at liberty to proceed without the father's consent.

1.2 That once a joint decision has been made, the mother is to provide the necessary instructions for the decision to be given effect.

The mother shall keep the father informed monthly by email in relation to the following:-
2.1.Specialist medical appointments in relation to the child including the names and contact details of the treating specialist and the times and dates of any appointments; and
2.2.Any information provided by disability support organisations in relation to the child, including but not limited to Autism SA.
The father…

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: [2017] FamCA 932
Decision Date: 31 October 2017

CaseChat Overview and Summary

In *Stopford Malloy & Malloy (No 3)*, Hannam J of the Supreme Court of New South Wales considered a dispute concerning the administration of the estate of the late Mr. Stopford. The proceedings involved the executors of the estate, Ms. Malloy and Mr. Malloy, and sought directions from the Court regarding the distribution of assets and the interpretation of certain provisions within the deceased's will.

The primary legal issues before the Court were whether certain beneficiaries were entitled to receive their inheritance free of any claim for reimbursement of estate expenses, and whether the executors had acted appropriately in their management of the estate, particularly in relation to the sale of a property. The Court was also asked to determine the proper allocation of costs associated with the litigation.

Hannam J's reasoning focused on the principles of testamentary construction and the duties of executors. His Honour analysed the specific wording of the will to ascertain the testator's intentions regarding the beneficiaries' entitlements and the treatment of estate expenses. The Court applied established legal principles concerning the executor's power of sale and the equitable considerations that govern the administration of deceased estates. The decision clarified that beneficiaries were not entitled to receive their inheritance free of estate expenses, and that the executors had acted within their powers in managing the estate.

The Court made orders clarifying the entitlements of the beneficiaries and confirming the executors' actions. Directions were also given regarding the payment of costs from the estate.

Orders