Vaughan
[2025] FedCFamC1A 155
•28 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Vaughan [2025] FedCFamC1A 155
Appeal from: Vaughan & Vaughan (No 3) [2025] FedCFamC1F 455 Appeal number: NAA 369 of 2025 File number: ADC 5154 of 2022 Judgment of: SCHONELL J Date of judgment: 28 August 2025 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Leave to appeal – Harmful proceedings – Where the primary judge made interlocutory financial and parenting orders and restrained the applicant from instituting further proceedings against the respondent without leave – Where the applicant sought a grant of leave to appeal from the orders of the primary judge – Where all grounds of appeal are bereft of merit – Where the applicant has not established the proposed appeal is not vexatious – Application dismissed. Legislation: Family Law Act 1975 (Cth) ss 102Q, 102QAC, 102QAE, 102QAG, 102QAF
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.11 and 8.01(1)
Cases cited: Ancer & Ancer [2024] FedCFamC1A 90
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Darley (No 4) [2023] FedCFamC1A 158
De Winter and De Winter (1979) FLC 90-605
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Garside [2024] FedCFamC1A 250
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Randwick City Council v Fuller [1996] NSWCA 444
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Number of paragraphs: 55 Date of hearing: 25 August 2025 Place: Determined in chambers The Applicant: No appearance required ORDERS
NAA 369 of 2025
ADC 5154 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR VAUGHAN
Applicant
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
28 AUGUST 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 8 August 2025 is dismissed.
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 Vaughan has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in an Appeal filed 8 August 2025, the applicant seeks leave to appeal some of the orders made 10 July 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 1). The orders the subject of the appeal included interlocutory parenting orders, interlocutory financial orders, procedural orders and an order pursuant to s 102QAC of the Family Law Act 1975 (Cth) (“the Act”).
Section 102QAE(2) of the Act enables a person who is subject to a harmful proceedings order to apply to the Court for leave to institute proceedings. As permitted by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and the Act, the Court has adopted the procedure of hearing the application in chambers. In doing so, it has considered the applicant’s affidavit, the Application in an Appeal, the Draft Notice of Appeal, the reasons for judgment recorded as Vaughan & Vaughan (No 3) [2025] FedCFamC1F 455 (“the judgment”), the transcript and the documents relied upon by the primary judge.
A party seeking leave is required, pursuant to s 102QAE(3) of the Act, to file an affidavit in support of the application for leave. The section, in mandatory terms, directs the filing of an affidavit that:
(a)lists all the occasions on which the applicant has applied for leave under the section; and
(b)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
I am satisfied for the purposes of the application that the applicant’s affidavit substantially complies with s 102QAE(3) of the Act.
Section 102QAF(2) provides that the Court must make an order dismissing an application under s 102QAE if it considers the proceedings are vexatious. Pursuant to s 102QAG of the Act, the Court may grant leave only if it is satisfied that the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success. This latter section casts an onus upon the applicant and a failure to discharge that onus means that leave will not be granted (Darley (No 4) [2023] FedCFamC1A 158).
Vexatious proceedings are defined in s 102Q(1) of the Act to include:
(a)proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c)proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
A determination under either s 102QAF(2) or s 102QAG(1) invites consideration of the merits of the appeal as articulated through the grounds in the context of the primary judge’s reasons (Ebner & Pappas (2014) FLC 93-619).
The applicant’s Draft Notice of Appeal comprises some 40 grounds. As Austin J observed in Garside [2024] FedCFamC 1A 250:
35.While such an expansive catalogue of alleged errors might tend to conceal an essential ground (Thorne v Kennedy (2017) 263 CLR 85 at [49]), it is more likely none of the grounds are meritorious when they are pleaded with such prolixity and repetition (Tame v NSW (2002) 211 CLR 317 at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]).
His Honour’s observations are apposite to the Draft Notice of Appeal prepared by the applicant. It is a rambling and chaotic series of assertions and grievances following no specific order or grouping and containing a mixture of asserted errors of fact, law and/or discretion.
To the extent that the orders result from an exercise of discretion, the applicant must bring his appeal within the categories of error identified in House v The King (1936) 55 CLR 499 at 505 (“House v The King”). An appeal is not a re-running of the case heard by the primary judge nor another attempt to convince a court of the merits of the relief sought by the disappointed party. Absent establishment of error, the appeal will be dismissed.
Grounds that contend allegations of apprehended bias and/or a miscarriage of justice must ordinarily be dealt with first as they challenge if successful the integrity of the hearing (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). Grounds 33, 37, and 38 albeit somewhat opaquely allude to such assertions contending the primary judge was critical of the father’s submissions as opposed to those of the ICL and respondent (Ground 33), “cherry picked” various communications of the respondent which did not “fairly represent the content of the communication” (Ground 37) and was “hostile and unsupportive” of the applicant’s submissions in contrast to how her Honour dealt with the submissions of the Independent Children’s Lawyer (“ICL”) and respondent (Ground 38).
The apprehended bias test requires the establishment of two limbs. First, an identification of what it is said might lead the judge to decide the particular case other than on its merits and, second, the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). None of the grounds engage with the first or second limb or any factors or considerations relevant to the assessment of the reasonableness of the asserted apprehension of bias.
A review of the transcript in combination with a reading of the judgment does not establish that the primary judge displayed any form of bias, pre-judgment, acted partially or departed in any way from her obligations of ensuring a fair hearing took place. The task of the primary judge was to determine the various applications before her according to law. Making findings contrary to the case presented by the applicant does not establish apprehended bias or pre-judgment nor does it establish that the primary judge’s determination miscarried.
A review of the transcript and judgment does not reveal a “staunch criticism” of the applicant’s submissions per se but rather a criticism entirely consistent with the highly inappropriate, disrespectful and disparaging tone, threats and language adopted by the applicant. The primary judge’s conduct of the hearing demonstrated the patience of Job and a model of restraint, while her observations reflected accurately the way in which the applicant choose to conduct himself and the way in which he elected to present his case.
The written communications of the applicant were before the primary judge. The applicant, beyond a broad sweeping generalisation, does not identify in the ground how or in what way the primary judge “cherry picked”. If it be the case that the sample of communications did not represent the communications as a whole, then that was a matter for the applicant to have established (which he did not) but does not evidence error on the part of the primary judge, let alone apprehended bias or pre-judgment.
The primary judge listened dispassionately to the applicant’s submissions. The judgment records as follows:
9From the outset I record that the conduct of the recent hearings in these proceedings on 9 May and 2 July 2025 was striking so far as the conduct of the father is concerned.
10This is because the father was determined not to have the Court engage with him and raise concerns with him in order that he address them during his submissions.
11Instead, at both hearings, at the insistence of the father and given the option of how the hearing was to be conducted, the father requested that I sit “mute” during his submissions. Unfortunately, however, this was not at all helpful in understanding the father’s position. This is because his submissions, were more akin to a soliloquy of unvarnished and often non-sensical complaints, rhetorical questions, and statements, with little connection to the issues in dispute.
There is no merit to any aspect of Grounds 33, 37 and 38.
In an attempt to bring some order to the chaos occasioned by the manner in which the Draft Notice of Appeal is presented; the remaining grounds will be dealt with in groups where referable to the orders the subject of contended error.
GROUNDS ADDRESSING THE PARENTING ORDERS
The applicant’s Draft Notice of Appeal seeks to only appeal Orders 1, 3, 4, 5, 7, 17 and 18 of the orders made on 10 July 2025. Only Order 1 of the orders the subject of the appeal dealt with parenting matters.
By Order 1, the primary judge varied sparingly interlocutory parenting orders made on 28 February 2025 which provided for the applicant to spend supervised time with the children. The supervision was to be conducted by a nominated supervision service.
In the judgment, the primary judge recorded as follows:
17The father sought to appeal the parenting orders made on 28 February 2025, however he did not comply with the timeframe for doing so. As a result, on 31 March 2025, the father filed an Application in an Appeal seeking an extension of time in which to appeal some, but not all, of the orders made 28 February 2025. The Application in an Appeal was summarily dismissed by the Appeal Judicial Registrar on 15 April 2025 (together with an Application in an Appeal in which an extension of time was sought to appeal costs orders made in the proceedings on 18 September 2024.)
18Inexplicably, and despite these events the father has filed four separate additional interlocutory parenting applications since the orders made 28 February 2025. The main focus of these applications has been the father’s pursuit of unsupervised time spending with the children on terms he dictates. However, the question of the father spending unsupervised time with the children was the subject of the father’s earlier interlocutory applications before the Court and was determined by the orders made on 28 February 2025. Other than the “on-site unsupervised” service provided for in those orders no longer being available, nothing has changed since the making of the orders on 28 February 2025 so as to warrant the Court being satisfied that the risk factors identified by the Court in the reasons delivered 28 February 2025, have changed and/or been ameliorated.
19 The Court observed in the reasons delivered 28 February 2025 (at [91]):
… At this juncture however, and given the interlocutory nature of the proceedings and the inability to make findings without the evidence of the parties and any expert being tested (as would occur at a final hearing), and in the absence of tangible evidence supporting the Court adopting a different approach, the Court shall continue to afford the opinions of the Court Child Expert some significant weight, and err on the side of caution with respect to the parenting arrangements for these children, as has been the case to date by each judicial officer that has grappled with the complex dynamic of this family.
In view of the unavailability of the nominated supervision service, the primary judge only varied Order 1 of the 28 February 2025 orders to delete a reference to the nominated supervision service and replace it with the words “at a contact service nominated by the ICL”.
By Order 2 made 10 July 2025, the primary judge dismissed all interlocutory parenting applications of the parties. The applicant has not sought leave to appeal Order 2.
An appeal only lies from an order (Oswald & Karrington (2016) FLC 93-726). No ground of appeal addresses the variation of Order 1 changing the supervision service.
As Grounds 3, 4, 5, 6, 9, 10, 12, 13, 23, 26, 28, 29, 30, 31, 32 and 36 address an order which is not the subject of the appeal, they are incompetent and consequently vexatious. For those reasons, the above grounds have no merit.
GROUNDS ADDRESSING THE FINANCIAL ORDERS
Grounds 15, 16, 17, 18, 34 and 35 address the orders made by the primary judge selling the two blocks of land comprising the Town E property.
The orders were made by the primary judge to enforce in part orders made on 27 March 2024 which required the applicant to pay the respondent $50,000 and in default provided for the sale of the former matrimonial home at Suburb C with the proceeds to be paid to the respondent in compliance with the order and the balance to her solicitor’s trust account. It was not in issue that the applicant had not complied with the orders for payment to the respondent.
Over the preceding twelve months, each of the parties filed various applications with the matter initially heard on 28 November 2024. Thereafter, the respondent brought an application to re-open the evidence which was heard on 28 February 2025 and the remaining applications and variations of them were ultimately heard on 2 July 2025.
The respondent amended her relief seeking a sale of the Town E property as opposed to a sale of the property at Suburb C, which the evidence revealed was the subject of a mortgagee sale. The applicant for his part filed a series of sometimes inconsistent applications including proposing on 12 May 2025 by Amended Response a transfer of one of the blocks of land in the Town E property to the respondent on the basis that she transfer to him the other block of land.
The primary judge identified in the judgment the documents she had read for the purposes of the hearing. No part of the Draft Notice of Appeal contends factual error in that respect. Part of the documents relied upon included the applicant’s affidavit filed 2 May 2025 in which he recorded that he had received a default notice from the mortgagee, was “unable to borrow funds to relist the [Suburb C] property with an alternate agent” and was “in a parlous financial position” at paragraph 165.
The primary judge recorded in the judgment as follows:
168Additionally, when regard is had to all of the communications between the father and the agent, and the father and the mother’s solicitors, the Court would have to have some apprehension that the father does not ever intend to comply with the orders for the sale of the [Suburb C] property. This is particularly so taking into account that the property is advertised as “BEING SOLD UNDER COURT ORDER – Substantial Renovations Needed, Still Liveable. But Needs Work.”, which does not sit comfortably against the father’s justification for failing to comply with the orders for the sale of the property in his communications to the mother’s solicitors that it would be “highly prejudicial” to force the sale of the property without “repairs” being undertaken (presumably by him).
169By his affidavit handed up at the commencement of the hearing on 2 July 2025, the Court now understands that the father has liaised with the mortgagee of the [Suburb C] property and has invited them to issue proceedings in the Supreme Court of South Australia “to claim possession” of the [Suburb C] property; much as he had foreshadowed in the communications in February earlier referred to in the lead up to the scheduled auction of the property.
170Concerningly, during submissions at the hearing on 2 July 2025, the father did not make any submissions that he would facilitate the orderly sale of the [Suburb C] property if indeed the mortgagee took steps to force its sale; including but not limited to him vacating the property and/or not taking steps to frustrate and/or delay any proceedings commenced by the mortgagee for such sale.
171Given the father’s conduct in these proceedings, and his failure to abide orders for the sale of the [Suburb C] property, the Court would have to have some concern about the father’s intention to vacate and facilitate the sale of the [Suburb C] property in proceedings instituted in another court by the mortgagee.
The applicant’s Financial Statement disclosed his interest in the Town E Blocks as being worth $100,000. The primary judge thereafter observed that the issues for determination were as follows:
174In summary, the principal financial relief now pressed by the mother is that the [Town E] blocks be sold. It appears that the mother wishes to satisfy the orders for the payment of $50,000 to her pursuant to Order 2 made 27 March 2024 from the sale of the [Town E] blocks, but in addition the mother asks the Court to disburse the additional sum of $50,000 to each of the parties by way of partial property settlement from the proceeds of the sale of the [Town E] blocks.
175The father opposes any application for the sale of the [Town E] blocks, and despite his applications before the Court, as best can be discerned from his response to a question posed of him during the hearing on 2 July 2025, he suggests that the mother ought wait until the mortgagee sale of the [Suburb C] property for the payment of $50,000 to made to her.
176As earlier identified, at the hearing on 9 May 2025, the father submitted in opposition to the orders sought by the mother for the sale of the [Town E] blocks, that the “non-caravan block” be transferred to the mother to do with as she pleases and that the father either personally or that the self-managed superannuation fund retain the “caravan block”. This however was not the position advanced by the father when he filed his Amended Response on 27 May 2025 (annexed to the father’s affidavit filed 23 May 2025).
177Whatever the position of the father now is (that advanced at the hearing on 9 May 2025, or that contained in the Amended Response “placed on the court file”), the father has put no cogent evidence before the Court capable of satisfying the Court with any certainty as to how the [Town E] blocks are held (for example no certificates of title and/or financial statements for the self-managed superannuation fund evidencing which block is held by the superannuation fund and which is not), and his Financial Statement filed 7 May 2025 is of no assistance in this regard. Indeed, at the hearing on 9 May 2025 the father could not, when asked, identify which of the [Town E] blocks is the “caravan block” and which is the “non-caravan block”. The father seemingly attempted to deal with this latter difficulty by annexing a “Decision Notification Form” relating to “CT 6191/771” (presumably claiming this to be the “caravan block”) to his affidavit filed 23 May 2025, however this document does not change the position that the Court does not know how each block is held.
178In addition, and in accordance with paragraph 1A of her Amended Application in a Proceeding filed 4 March 2025, the mother also seeks orders in default pursuant to r 10.27 which have the effect of the father being prohibited from taking any further steps in the proceedings until he has complied with the orders for the sale of the former matrimonial home.
The primary judge observed that the applicant’s “contumelious failure to abide orders” at [182] meant that further steps needed to be taken. The primary judge’s reasons for the making of the orders are comprehensive and more than meet the requirements of “adequacy” where she observed:
183Whilst the father might wish to retain at least one of the [Town E] blocks in the superannuation fund or personally (depending on how the [Town E] blocks are held), his failure to abide orders of the Court has rendered his preference to do so futile.
184Orders shall be made providing for the sale of the [Town E] blocks, with the mother to be in control of that sale process. This is because the Court has no confidence whatsoever that the father will abide the orders of the Court for the sale of the [Town E] blocks (for all of the reasons discussed throughout these reasons). The proceeds from that sale of the [Town E] blocks shall be applied to the extant order for the payment of $50,000 to the mother, and thereafter the funds are to be preserved.
185I have taken the view that it is necessary at this stage to preserve the balance of the sale proceeds from the sale of the [Town E] blocks, until such time that there is clarity as to both how those properties are held, and the particulars of the self-managed superannuation fund.
186To that end, it appears from the evidence before the Court that the father has not complied with his obligations for disclosure together with various obligations imposed upon him by orders of the Court, including orders that would regularise the self-managed superannuation fund. As best as can be discerned, the extant orders are:
(a)Order 8 made 27 March 2024, which provided for valuations of the [Town E] blocks;
(b)Orders 14-15 made 27 March 2024 requiring the father to prepare and finalise the financial statements of the self-managed superannuation fund for the financial years ending 2019, 2020, 2021, 2022, and 2023 (noting draft financial statements appear to have been prepared but no returns lodged);
(c)Order 16 made 27 March 2025 requiring the father to keep the mother informed of the quantum of costs payable by him arising from orders made in proceedings he is engaged in, in the Supreme Court of South Australia ([Vaughan] v Ecosol Pty Ltd); and
(d)Order 2 made 9 September 2024 requiring the father to produce bank statements for the bank account of the self-managed superannuation fund from 1 July 2021 to the present.
187In all of these circumstances, both the mother and the Court are left in the dark as to the father’s dealings, particularly as they relate to the self-managed superannuation fund. Importantly, the Court is also left in the dark and unable to discern the parties’ legal and equitable interests in property, nor their liabilities as now codified in s 79(3) of the Act.
188The mother asks the Court to make orders to enable her to instruct accountants to bring the self-managed superannuation fund’s affairs in order. Again, it appears appropriate in all of the circumstances that this occur. Firstly, because it is step necessary to enable the Court to understand the parties’ legal and equitable interests in property, and their liabilities. Secondly, the father’s abject failure to not only abide orders of the Court, but also to properly manage the self-managed superannuation fund, likely rendering it non-compliant (and thus pregnant with concomitant financial and taxation consequences), renders the Court with little confidence that the father will deal with these issues.
189In circumstances where the mother is to undertake this process, it appears appropriate that the costs of her doing so (particularly accounting costs) be borne from the sale proceeds of the [Town E] blocks, as it is likely that those costs will ultimately be costs borne by the superannuation fund and/or the parties in any event.
190Whilst the mother has sought orders that she pay any costs orders relating to the proceedings the father is pursuing in the Supreme Court of South Australia ([Vaughan] v Ecosol Pty Ltd), from the proceeds of the sale of the [Town E] property, I do not at this stage, and in the absence of clarity from the father about what those costs actually are (again, his recently filed Financial Statement provides no assistance), consider it appropriate to make this order at this stage.
191I otherwise at this stage decline to make any further orders pursuant to s 79 and/or s 80 of the Act as promoted by either party as I do not consider that it would be just and equitable to do so.
192For the reasons already given, and for the sake of clarity, I specifically decline to make orders disbursing any further funds to the mother and/or the father from the sale of the [Town E] blocks. I do so on the basis, that until such time that there is clarity as to the ownership of each of the [Town E] blocks and any amounts necessary to be paid into the self-managed superannuation fund, it would not be proper to release any funds to the parties which might render the self-managed superannuation fund non-compliant, and/or which might not be capable of claw back at a later stage.
Addressing the grounds, Ground 15 is not a recognisable ground of appeal and amounts to no more than an assertion. Ground 16 contends that the primary judge inappropriately failed to properly exercise her discretion and only order the sale of one of the blocks of land. Beyond a bald assertion, the ground fails to identify any House v The King error in the exercise of discretion. Ground 17 contended the primary judge failed to consider “the irrevocable harm” suffered by the applicant by a sale of one of the blocks of land “given his stated desire for the caravan park …to be his next career opportunity.” There was not a scintilla of evidence, as opposed to an assertion in written submissions which itself is not evidence (Randwick City Council v Fuller [1996] NSWCA 444), from which the Court could conclude such “irrevocable harm”. The applicant was in default of an order to pay the respondent $50,000, in default under a mortgage, was on his own case so impoverished that he “unable to borrow funds to relist the [Suburb C] property with an alternate agent”, was “in a parlous financial position” and his evidence was that the Town E property was only worth $100,000 (applicant’s Financial Statement filed 7 May 2025). In the absence of any evidence apposite to the consideration, a failure to take it into account cannot constitute discretionary error.
Grounds 18, 34 and 35 all deal with overlapping contentions of asserted error. The grounds variously contend that the primary judge erred by failing to recognise that an onus fell on the respondent given she was represented to establish the ownership of the blocks of land at Town E and to obtain independent valuation evidence as to the value of the blocks of land if sold separately or combined before ordering a sale.
While the respondent professed uncertainty as to the ownership of the blocks of land at Town E, it being either the parties, one of them, or in part the self-managed superannuation fund, the applicant’s case was that the ownership of the two blocks of land comprising the Town E property was not in issue and had been disclosed by him at an earlier hearing. At no point in the hearing did the applicant contend that the issue of ownership was an impediment to transfer or sale. Further, his case was that the non-caravan park lot comprising one of the two blocks of land in Town E could be transferred to the respondent and she could do with it what she liked rendering otiose any issue of ownership or value. The issue of value of the blocks of land either separately or combined was not raised by the applicant as an issue at the hearing in so far as he asserted one could be transferred to the respondent without first determining its value. All of the applicant’s complaints are disingenuous after thoughts. In that respect, the applicant’s written submissions filed 22 November 2024 contended as follows:
39.Given the blocks allocated within commuting distance and are of low agricultural value in that area acreage adds little value, it is all about being able to put a residence on the property and the agent engaged at that time advised to sell the blocks individually which would gain more proceeds by making them more affordable than selling them combined.
In Metwally v University of Wollongong (1985) 60 ALR 68 the High Court said:
71.It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The applicant is bound by the case he presented. No aspect of what he now erroneously contends to be error on the part of the primary judge was part of the case he brought. There is no merit to Grounds 15, 16, 17, 18, 34 and 35.
GROUNDS ADDRESSING THE HARMFUL PROCEEDINGS ORDER
Grounds 1, 2, 11 and 25 contend error on the part of the primary judge in making a harmful proceedings order pursuant to s 102QAC of the Act. The applicant contends that the primary judge erred in making the order and erred in being satisfied the applicant had an opportunity to be heard and was heard pursuant to s 102QAC(5) of the Act (Grounds 1 and 2). Further grounds contend the primary judge made an error in determining that the applicant made frequent and unnecessary applications (Ground 11) and that the primary judge failed to provide adequate reasons for the making of the order (Ground 25).
In DL v The Queen (2018) 266 CLR 1, the High Court observed:
130.… although the extent of reasons may depend on the circumstances of the case, reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.
(Footnote omitted)
The primary judge’s reasons complied with each of those requirements. Her Honour identified the applicable legal principles at [204] to [208], referred in the judgment to the evidence of the applicant, and made numerous findings that unquestionably established the appropriateness of the making of such an order which were summarised at [212]. The conclusions at [212] were informed by numerous findings throughout the judgment including those at [6] to [8], [18], [36], [63], [85], [88] and [89].
At [210] the primary judge recorded the applicant was put on notice on 17 April 2025 of the making of a harmful proceedings order and invited submissions to be made regarding such order at the hearing on 2 July 2025. On 2 July 2025, the applicant was provided an opportunity to be heard and was heard in accordance with s 102QAC(5) of the Act.
The primary judge set out the basis of her conclusion at [212] that the mother might suffer harm through the extraordinary legal costs she had incurred, including the quantum of legal costs incurred by the respondent due in no small part to the numerous applications, affidavits, and documents filed by the applicant, the failure by the applicant to comply with orders, and the asserted psychological harm occasioned to the mother by the conduct of the proceedings by the applicant.
There is no merit to grounds 1, 2, 11 and 25.
GROUNDS ADDRESSING THE NOTICE TO ADMIT SERVED ON THE INDEPENDENT CHILDREN’S LAWYER
Grounds 7,8,14, 20, 21, 22, 27 and 40 all contend error in the primary judge’s determination in relation to a Notice to Admit prepared by the applicant and served on the ICL on 1 April 2025. On 9 April 2025, the ICL filed an application seeking dismissal of the Notice to Admit.
A Notice to Admit is an interlocutory inter-party process directed at identifying the issues in dispute between the parties. It is not an opportunity for one party to enumerate their belief about the manner and the conduct of the litigation, as is here in a document of some 94 paragraphs many of which were myopically perceived injustices incapable of acceptance.
The primary judge correctly identified that no aspect of the Act or the Rules makes the ICL a party. The primary judge correctly identified that long-established jurisprudence of the Court affirms such a position (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184). As the ICL is not a party, and where a Notice to Admit is directed to parties pursuant to r 8.01(1), the application of the ICL seeking the dismissal of the Notice to Admit was soundly brought.
Consequently, those grounds directed to the Notice to Admit and the manner in which it was dealt with by the primary judge (Grounds 14, 20, 21, 22 and 40) are specious and without any merit. Ground 7 contends the primary judge failed to apply r 3.11 to the ICL is equally specious in that r 3.11 merely contends that the parties are to conduct the proceedings “as if the independent children’s lawyer were a party”, not that they are a party. Ground 8 is also without merit as the ICL owes no fiduciary duty to the applicant, while Ground 27 incorrectly asserted that the ICL submitted he was a party when he submitted to the contrary.
There is no merit to Grounds 7, 8, 14, 20, 21, 22, 27 and 40.
REMAINING GROUNDS
Ground 19 contends error on the part of the primary judge in stating the applicant agreed that the sample of his communications in the evidence of the ICL and respondent was a fair representation of how he communicated to them. The ground misrepresents what the primary judge said. Her Honour stated:
13In addition, at the hearing on 2 July 2025, the father acknowledged that all of the communications before the Court (some of which is referred to in detail throughout these reasons) is an accurate record of the communications written by him and exchanged between the relevant players.
Even assuming that the primary judge misrepresented what the applicant said, the error is not material to the determination (De Winter and De Winter (1979) FLC 90-605 at 78,092) as the applicant does not contend error on the part of the primary judge in attributing to him a communication, which he asserts he did not make or send. There is no merit to Ground 19.
Ground 24 is a broad-based attack on the primary judge’s reasons in relation to the orders the subject of the appeal contending they were inadequate in that they did not sufficiently engage with the evidence and submissions at the hearings on 17 April, 9 May, and 2 July 2025.
The hearing on 17 April 2025 was purely procedural providing for the filing of documents in anticipation of the hearing to occur on 2 July 2025. There is no necessity for the Court to provide reasons for the making of procedural orders and no appeal lies from the making of a procedural order (Ancer & Ancer [2024] FedCFamC1A 90). Her Honour’s judgment, when read in context, provide a clear exposition of the issues for determination arising from the hearings on 9 May 2025 and 2 July 2025. The reasons identified the applicable legal principles, referred in the judgment to the evidence of the parties, and made findings that supported the making of the orders. There is no merit to Ground 24.
Ground 39 is so badly drawn as to be incomprehensible, and thus open to being dismissed as it fails to article appealable error (Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]). It is not the role of an appellate court to ascertain error (Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
CONCLUSION
As the grounds set out in the Draft Notice of Appeal have no reasonable prospects of success, they are liable to be dismissed as vexatious and accordingly the Application in an Appeal filed 8 August 2025 will be dismissed.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 28 August 2025
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