Stopford Malloy & Malloy (No 3) - [2016] FamCA 931

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY (NO 3) [2016] FamCA 931

FAMILY LAW – DISCLOSURE – Where the husband consented to orders for discovery – Where the husband then provided discovery within a List of Documents – Where the wife alleged the discovery within that List of Documents was incomplete – Discussion of r 13.04 and r 13.07 of the Family Law rules 2004 (Cth) – Where orders made for further discovery – Order that wife be granted leave to issue subpoena

FAMILY LAW – COSTS – Where the wife’s application was necessary due to the husband’s non-compliance with prior discovery order – Where the application could have been dealt with, at least in part, by consent orders but for the husband’s prolonged opposition – Where husband asserts he is without funds – Where the husband has funded the costs of counsel and multiple affidavits – Where counsel conceded the husband could not resist a costs order – Ordered the husband pay the wife’s costs on a party/party basis

Family Law Act 1975 (Cth), s 117

Telecommunications Act 1977 (Cth)
Trustee Act 1936 (SA)

Family Law Rules 2004 (Cth) rr 13.04, 13.07

Trustee Regulations 2011 (SA)

Mandie v Memart Nominees Pty Ltd (2014) 42 VR 325
Masoud v Masoud (2016) FLC 93-689
Rouse & Ors v IOOF Trustees (1999) 73 SASR 484

APPLICANT: Ms Stopford Malloy

RESPONDENT: Mr Malloy

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 2595 of 2015

DATE DELIVERED: 21 October 2016

PLACE DELIVERED: Adelaide/Newcastle

PLACE HEARD: Adelaide/Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 21 October 2016
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wells QC

SOLICITOR FOR THE APPLICANT: Piper Alderman

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia
Orders
BY CONSENT, IT IS ORDERED THAT
1.The parties’ applications for final parenting orders pursuant to Part VII of the Family Law Act, are adjourned to 9:00 am Adelaide time (9:30 EST) on Monday, 19 June 2017, for further procedural directions in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia).
2.The parties and Independent Children’s Lawyer shall instruct the single expert witness Ms F, to prepare and furnish to the court by Friday, 9 June 2017, at latest, a comprehensive report concerning the child C, born … 2014, touching upon those matters of relevance to the care, welfare, and development of the child.
3.In order to facilitate preparation of the report referred to in the preceding order:
a.Each party must attend upon the single expert witness for such interviews and observation sessions at such times and places nominated by the single expert;
b.Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the single expert;…

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 931
Decision Date: 21 October 2016

CaseChat Overview and Summary

In *Stopford Malloy & Malloy (No 3)*, Austin J of the Family Court of Australia considered applications concerning disclosure and costs. The wife alleged that the husband's discovery, provided pursuant to consent orders, was incomplete. This led to the wife seeking further discovery and leave to issue a subpoena.

The court was required to determine whether the husband had complied with his discovery obligations and whether further discovery was warranted. Additionally, the court had to consider the wife's application for costs, particularly in light of the husband's alleged non-compliance and his assertion of financial hardship.

Austin J applied rules 13.04 and 13.07 of the *Family Law Rules 2004* (Cth) concerning discovery. The court found that the husband's discovery was indeed incomplete and ordered him to produce specific documents within 28 days, or file an affidavit detailing their non-existence, cessation, or disposal, including steps taken to ascertain their whereabouts and current location. Leave was granted to the wife to issue a subpoena to DD Pty Ltd for specified documents. Regarding costs, the court noted the husband's opposition to the wife's application, despite his claims of financial inability, and his expenditure on counsel and affidavits. Counsel for the husband conceded he could not resist a costs order.

Consequently, the husband was ordered to pay the wife's costs on a party/party basis for the applications related to the wife's application filed on 20 July 2016 and the husband's response filed on 25 August 2016. The court also made orders regarding the preparation of a single expert witness report and adjourned final parenting orders.

Orders

Orders of the court

BY CONSENT, IT IS ORDERED THAT

1. The parties’ applications for final parenting orders pursuant to Part VII of the Family Law Act, are adjourned to 9:00 am Adelaide time (9:30 EST) on Monday, 19 June 2017, for further procedural directions in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia).

2. The parties and Independent Children’s Lawyer shall instruct the single expert witness Ms F, to prepare and furnish to the court by Friday, 9 June 2017, at latest, a comprehensive report concerning the child C, born … 2014, touching upon those matters of relevance to the care, welfare, and development of the child.

3. In order to facilitate preparation of the report referred to in the preceding order:

a. Each party must attend upon the single expert witness for such interviews and observation sessions at such times and places nominated by the single expert;

b. Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the single expert; and

c. The single expert is granted leave to inspect the Court file and all documents produced on subpoena.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

4. The following applications for interim relief are listed for hearing at 9:00 am Adelaide time (9:30 am EST) on Friday, 9 December 2016, in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia).

a. The Application in a Case filed by the wife on 10 June 2016; and

b. The Response to an Application in a Case filed by the husband on 14 October 2016.

5. The husband shall within 28 days hereof:

a. Produce for inspection and copying such of the documents specified in paragraphs 1.3, 1.6, 1.11, 1.12 and 1.17 of Schedule 1 to these Orders as are in his possession or under his control; and

b. Otherwise file and serve an affidavit swearing or affirming as to each document or class of documents appearing in paragraphs 1.3, 1.6, 1.11, 1.12 and 1.17 of Schedule 1 to these Orders:

i. That it does not exist or it never existed, or it ceased to exist or which of these, and when that occurred, and in what circumstances; or

ii. That it passed out of the possession or control of the husband and, in that respect:

A. When he last had that document in his possession or under his control and the circumstances in which the document ceased to be in his possession or under his control;

B. That he has taken all available steps to ascertain its whereabouts, giving full details of the steps taken; and

C. Stating the present whereabouts of the document.

6. Leave is granted to the wife to issue a subpoena to DD Pty Ltd to produce to the Court documents of the description set out in paragraphs 1.9 and 1.10 of Schedule 1 hereto.

7. Otherwise, save as to costs:

a. The Application in a Case filed by the wife on 20 July 2016 is dismissed; and

b. The Response to an Application in a Case filed by the husband on 25 August 2016 is dismissed.

8. The husband shall pay the wife’s costs of and incidental to the determination of the wife’s Application in a Case filed on 20 July 2016 and the husband’s Response to an Application in a Case filed on 25 August 2016, on a party/party basis in the sum agreed or assessed, for which purpose Senior Counsel and Counsel are certified pursuant to Rule 19.50 of the Family Law Rules.

9. Save in respect of the interlocutory applications set out hereunder (Judgment in respect of which is reserved to the Chief Justice since 14 October 2016), any and all other outstanding applications for interim relief are dismissed:

a. The Application in a Case filed by the husband on 4 October 2016;

b. The Application in a Case filed by the Third Respondent on 11 October 2016; and

c. The Response to an Application in a Case filed by the wife on 14 October 2016.

NOTATIONS

A. Pending an application otherwise, Rule 15.47 of the Family Law Rules applies in respect of the costs of the single expert witness.

B. The parties’ respective applications for final orders pursuant to Part VIII of the Family Law Act remain listed before Registrar Paxton in the Adelaide Registry of the Family Court of Australia on 8 November 2016, for further procedural directions.

SCHEDULE 1

1.3 Any guarantee provided by the Husband to any financial institution as referred in paragraph [17] of the Husband’s affidavit filed 4 August 2015;

1.6 All documents relating to the takeover of AA Group by the Malloy Group referred to at paragraphs [12] and [21] of the Husband’s affidavit filed 4 August 2015, including:

1.6.1 All accounting records;

1.6.2 Records of advice provided from or received by accountants with whom the Husband then dealt;

1.6.3 All correspondence provided to or received from any banker or financial institution;

1.9 Trust deed of The Malloy Family Trust and

1.9.1 Financial statements for The Malloy Family Trust from 30 June 2010 to present;

1.9.2 Records of when those statements were prepared;

1.10 DD Pty Ltd:

1.10.1 Financial statements for DD Pty Ltd 30 June 2010 to present

1.10.2 Records of when those statements were prepared;

1.11 All documents relating to the financial settlement between the Husband and Ms L including documents disclosed to the solicitors acting for Ms L and any documents received by or on behalf of the Husband from the solicitors for Ms L;

1.12 All documents relating to the acquisition of Property LL and BB Development referred to at paragraphs [6] and [7] of the Husband’s affidavit filed 4 August 2015 including:

1.12.1 Accounting records relating to each of the said Property LL and BB Development from 30 June 2010 to present;

1.12.2 Documentation of the advice received by accountants from 2010 to present;

1.13 Records of any donation made to any political party by the Husband or with the Husband’s knowledge since 30 June 2010 to present;

1.14 All documents relating to the disposal of the Husband’s Italian motor vehicle referred to at paragraph [23.36] of the affidavit of the Husband filed and sworn 4 August 2015 and

1.17 Telephone accounts for mobile telephone number … utilised by the Husband.

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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