Polak & Polak (No 4) - [2025] FedCFamC1F 291

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Polak & Polak (No 4) [2025] FedCFamC1F 291

File number: CAC 1719 of 2024

Judgment of: GILL J

Date of judgment: 2 May 2025

Catchwords: FAMILY LAW – STAY– Where the husband was sentenced to imprisonment following pleading guilty to ten contempt charges – Where the husband filed a Notice of Appeal and application for a stay shortly after delivery of sentence – Application for a stay heard the same day as delivery of sentence – Absence of arguable appeal grounds – Application for a stay refused

Cases cited: Aldridge & Keaton [2009] FamCAFC 106

Division: Division 1 First Instance

Number of paragraphs: 14

Date of hearing: 2 May 2025

Place: Canberra

Counsel for the Applicant: Mr Whitfield

Solicitor for the Applicant: Farrell Lusher Solicitors

Solicitor for the Respondent: Mr Horne, BJH Lawyer
ORDERS

CAC 1719 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS POLAK

Applicant

AND:
MR POLAK

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

2 MAY 2025

THE COURT ORDERS THAT:
1.The application for a stay is refused.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Polak & Polak has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
GILL J:

In this matter judgment was delivered this morning, the effect of which was to impose a term of imprisonment upon Mr Polak of six months, but with a requirement that he serve four months on the basis that he enter into a bond to be of good behaviour for a period of 18 months, by virtue of which the last two months of his sentence is stayed. Mr Polak entered into that bond before me and accordingly is currently liable to serve a period of imprisonment for a period of four months.
This afternoon a Notice of Appeal was filed along with an application seeking a stay of the orders made this morning, in order to effect the liberty of Mr Polak pending a consideration by the Full Court of this morning’s judgment.
In Aldridge & Keaton [2009] FamCAFC 106 (“Aldridge & Keaton”), the Full Court identified the principles to be applied in considering a stay noting the discretionary nature of each ruling which should…

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: [2025] FedCFamC1F 291
Decision Date: 2 May 2025

CaseChat Overview and Summary

In the matter of Polak & Polak (No 4), the Federal Circuit and Family Court of Australia (Division 1) considered an application for a stay filed by the husband, Mr Polak, in relation to a sentence imposed on him following his guilty plea to ten charges of contempt. The applicant, Ms Polak, sought the stay of the sentence pending the determination of an appeal. The court was required to determine whether the application for a stay should be granted, considering the absence of arguable grounds for appeal.

The legal issue before the court was whether there were sufficient grounds to justify a stay of the sentence pending the appeal. The court noted that the husband had filed a Notice of Appeal and an application for a stay shortly after the sentence was delivered. The application for a stay was heard the same day as the delivery of the sentence. The court had to examine the arguable merit of the appeal grounds presented by the husband.

The court found that there were no arguable grounds for the appeal. Given the absence of such grounds, the application for a stay was refused. The court concluded that the sentence should stand as imposed, and no further appeal should be entertained at that stage. The decision highlighted the importance of having substantial grounds for an appeal to warrant a stay of sentence.

The court made an order refusing the application for a stay. This decision underscored the principle that a stay of sentence is not automatic and requires a demonstration of arguable appeal grounds. The refusal of the stay meant that the sentence imposed on Mr Polak remained in effect, pending any further legal proceedings.

Orders

Orders of the court

CAC 1719 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS POLAK

Applicant

AND:

MR POLAK

Respondent

ORDER MADE BY:

GILL J

DATE OF ORDER:

2 MAY 2025

THE COURT ORDERS THAT:

1. The application for a stay is refused.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	CAC 1719 of 2024
Judgment of:	GILL J
Date of judgment:	2 May 2025
Catchwords:	FAMILY LAW – STAY– Where the husband was sentenced to imprisonment following pleading guilty to ten contempt charges – Where the husband filed a Notice of Appeal and application for a stay shortly after delivery of sentence – Application for a stay heard the same day as delivery of sentence – Absence of arguable appeal grounds – Application for a stay refused
Cases cited:	Aldridge & Keaton [2009] FamCAFC 106
Division:	Division 1 First Instance
Number of paragraphs:	14
Date of hearing:	2 May 2025
Place:	Canberra
Counsel for the Applicant:	Mr Whitfield
Solicitor for the Applicant:	Farrell Lusher Solicitors
Solicitor for the Respondent:	Mr Horne, BJH Lawyer

CAC 1719 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS POLAK Applicant
AND:	MR POLAK Respondent

ORDER MADE BY:	GILL J
DATE OF ORDER:	2 MAY 2025