Vaughan (No 2)
[2025] FedCFamC1A 159
•5 September 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Vaughan (No 2) [2025] FedCFamC1A 159
Appeal from: Vaughan & Vaughan (No 6) [2025] FedCFamC1F 531 Appeal number: NAA 389 of 2025 File number: ADC 5154 of 2022 Judgment of: SCHONELL J Date of judgment: 5 September 2025 Catchwords: FAMILY LAW – CROSS-APPEAL – Application in an Appeal – Leave to appeal – Harmful proceedings – Where the primary judge made interlocutory injunctive orders that were not directed towards the applicant – Where the primary judge had previously restrained the applicant from instituting further proceedings against the respondent without leave – Where the applicant sought a grant of leave to cross-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, 102QAG Cases cited: Bennett and Bennett (1991) FLC 92-191
Candle v Falkner [2021] FedCFamC1A 102
Concrete Pty Ltd v Parramatta Design & Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Darley (No 4) [2023] FedCFamC1A 158
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60
Fowles & Fowles (No 2) (2024) FLC 94-198; [2024] FedCFamC1A 115
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Vaughan [2025] FedCFamC1A 155
Vaughan & Vaughan (No 6) [2025] FedCFamC1F 531
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 28 Date of hearing: 3 September 2025 Place: Determined in chambers The Applicant: No appearance required ORDERS
NAA 389 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:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 28 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 28 August 2025, the applicant seeks leave to cross-appeal orders made on 6 August 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 1). On 10 July 2025, a harmful proceedings order was made in respect of the applicant. As a consequence, the applicant requires leave to appeal.
The application sought the Court deal with the matter on the papers. In doing so, the Court has considered the Application in an Appeal, the applicant’s Affidavit, the Draft Amended Notice of Cross-Appeal, the ex tempore reasons for judgment recorded as Vaughan & Vaughan (No 6) [2025] FedCFamC1F 531, a recording of the hearing, and the documents relied upon by the primary judge.
Some context to the Application in an Appeal is provided in the reasons for judgment delivered on 28 August 2025 by the Full Court in Vaughan [2025] FedCFamC1A 155. Those reasons record that the applicant by Application in an Appeal filed 8 August 2025 sought leave to appeal orders made by the same primary judge on 10 July 2025. Those orders dealt in part with an application to enforce orders made 27 March 2024 requiring the applicant to pay the respondent $50,000. The applicant’s persistent failure to comply led to the Court ordering the respondent to sell two parcels of land in satisfaction of the applicant’s obligation to pay the respondent $50,000. Leave to appeal was refused in circumstances where the Draft Notice of Appeal disclosed the appeal had no reasonable prospects of success.
The orders the subject of the current application arise where it was asserted the applicant had attempted to frustrate compliance with the orders made 10 July 2025. The primary judge recorded in her reasons the following:
5The recent activity in the proceedings has been necessitated from the wife’s perspective, as a consequence of the husband’s attempts to frustrate an order of the Court made 10 July 2025 (Order 7) for the wife (as trustee for the husband) to sell property held over two separate titles at [Lots 1 and 2, D Street], [Town E] in the State of South Australia (the “[Town E] property”).
6 As set out at [3] of the reasons of 28 July 2025:
Almost immediately after the husband became aware of the orders for the sale of the [Town E] property, he caused a caveat to be registered over the title of one of the blocks of land comprising the [Town E] property, being [Lot 1]. This necessitated the filing of an Application in a Proceeding by the wife which had, as its sole focus, orders to facilitate her carrying out her obligation to effect the sale of the [Town E] property created by Order 7 of the Orders of 10 July 2025.
7On 28 July 2025, just prior to the hearing that took place, the husband withdrew the caveat that he had lodged over the [Town E] property.
8Inexplicably, within days, an associate of the husband “[Ms TT]” … caused a caveat to be lodged over the [Town E] property.
…
18The wife says that she does not know [Ms TT]. She also considers that [Ms TT] has not been “validly” admitted as a member of the SMSF, nor that she has been validly appointed a trustee of the SMSF.
…
21At the hearing on 1 August 2025, the husband was not prepared to answer any questions posed by the Court unless he was sworn in to give evidence. Accordingly, the Court took up the husband’s invitation and he was so sworn in. Questions were then posed of the husband by the Court, followed by brief cross examination by the wife’s counsel.
22Leaving aside that the husband refused to answer certain questions and that some of his answers were unresponsive to the questions asked of him, the husband gave the following evidence of significance:
(a)[Ms TT] is a “friend” who he has known for approximately 12 months.
(b)[Ms TT] operates a business – which he incidentally could not name and could not disclose the goods or services provided by the business.
(c)[Ms TT] has attended in the gallery of the Court and watched the recent hearings in these proceedings.
(d)[Ms TT] applied to become a member and trustee of the SMSF sometime following the hearing on 28 July 2025.
(e)The husband considered that because he was the only trustee of the SMSF, and where legislation requires there to be two trustees, he accepted [Ms TT]’s application.
(f)The husband considered that a week prior to the hearing on 28 July 2025 the wife was a trustee of the SMSF, but having understood that the wife did not consider that she was a trustee, some time in the preceding week he considered that the wife was no longer a trustee of the SMSF.
(g)[Ms TT] had issued him an invoice for $1,500 and this represented her member balance in the SMSF.
…
25On 5 August 2025, and in accordance with Order 4 made 1 August 2025, the husband and [Ms TT] each filed a Response and affidavit in support.
26Each the husband and [Ms TT] sought identical orders in the following terms:
1.The Applicant mother be restrained and injuncted from dealing in [Lot 1] until this matter is finally determined including any Appeal.
2.There be no order as to costs.
…
34Accepting the evidence of the husband and [Ms TT], the Court holds significant concerns that in concert with each other, the husband and [Ms TT] are taking steps to frustrate the orders of the Court made 10 July 2025 for the sale of the [Town E] property.
35Indeed, all of the steps taken by the husband since 10 July 2025, are ones he has taken since those orders were made and with full knowledge of the orders that were made for the sale of the [Town E] property, and in full knowledge of the reasons for making those orders.
…
40While the admission of [Ms TT] as a trustee and member of the SMSF appears dubious as to its validity, and/or appears confected to establish some basis to frustrate the orders of the Court, even if the Court were to accept that [Ms TT] was validly admitted as a member of the SMSF, and that she has a member balance of $1,500 in the SMSF and that she has a legitimate caveatable interest, it is not accepted that her interests would be prejudiced by the sale of the [Town E] blocks. Importantly, the funds that she has deposited into the SMSF are nominal and, it appears, serious questions must be asked as to the husband’s actions in failing to preserve those funds in the bank account of the SMSF and the consequential impact on any reduction of the member balances of each the husband and the wife in the fund.
41Those issues aside, on the evidence before the Court there will be ample proceeds from the sale of the [Town E] blocks to preserve an equivalent amount on account of [Ms TT]’s member balance in the SMSF following the sale of the [Town E] blocks.
…
43Having determined that it is appropriate to make the injunction sought by the wife directed to the third party, it goes without saying that there is no basis to make the orders sought by each the husband and [Ms TT].
The primary judge thereafter made the following orders which are the subject of the appeal:
1.The Third Party, [Ms TT] is compelled by mandatory injunction to forthwith and no later than 12 noon on 7 August 2025, take such steps and lodge such documents as are necessary to cause the withdrawal of the Caveat […] lodged by her over [Lot 1].
2.The Third Party is restrained by injunction from lodging any further documents, or assisting or aiding or abetting any person to lodge any document at the office of Land Services SA upon either of the titles of the [Town E] property being the properties situate at [Lots 1 and 2, D Street], [Town E], in the State of South Australia.
3.The wife’s costs in relation to her Application in a Proceeding filed 31 July 2025 are reserved.
4.Save as to the question of the wife’s costs, the Application in a Proceeding filed 31 July 2025 and the Response filed by each the husband on 5 August 2025 and the third party on 5 August 2025, as amended on 6 August 2025 are dismissed.
Pursuant to the provisions of s 102QAG of the Act, the Court will only grant leave if it is satisfied that the proceeding (being the Draft Amended Notice of Cross-Appeal) is not frivolous, vexatious or an abuse of process and that it has a reasonable prospect of success. The onus of establishing this rests on the applicant and if the applicant fails to discharge the onus, leave will be refused (Darley (No 4) [2023] FedCFamC1A 158). The Act defines a vexatious proceeding as including a proceeding that is “without reasonable ground” (s 102Q(1)(c) of the Act).
It is immediately apparent that Orders 1 and 2 do not in any way bind nor are they directed to the applicant. Order 3 is not an order amenable to appeal while Order 4 is a necessary consequence of the making of Orders 1 and 2. Consequently, absent the applicant establishing reasonable prospects of success on appeal in relation to Orders 1 and 2, the application would be vexatious and liable to be dismissed.
Determination of the application involves a consideration of the grounds contained within the Draft Amended Notice of Cross-Appeal. There are eight grounds in all, six of which contend that the primary judge failed to consider all the available evidence (Ground 1), failed to properly apply the balance of convenience test (Ground 3), exercised her discretion unreasonably (Ground 4), failed to exercise her discretion (Ground 5), failed to provide adequate reasons (Ground 8), and made findings of fact not supported by the evidence (Ground 11). Ground 10 contends that the primary judge “did not provide procedural fairness” to the applicant while Ground 13 contends the primary judge “treated the parties unequally”.
The court form of Notice of Appeal requires the applicant to set out in a precise and concise way the asserted error. He has elected not to do that required of him. The applicant has chosen not to identify with precision the asserted error on the part of the primary judge.
Where Grounds 10 and 13 contend a denial of procedural fairness and assert apprehended bias or miscarriage of justice they must be addressed first because if made out, the appeal must be allowed (Concrete Pty Ltd v Parramatta Design & Development Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] 332 ALR 128 at 9).
Procedural fairness requires a party to be given an adequate opportunity to be heard and present their case (Kioa v West (1985) 159 CLR 550 at 582) however not every departure from the rules of natural justice gives rise to appellate intervention and a new hearing (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). To succeed, the applicant must demonstrate that the asserted denial of procedural fairness was material to the outcome.
Ground 10 is no more than a generic assertion unadorned by particulars and devoid of specificity. Similarly, Ground 13 asserting that the primary judge treated the parties unequally is also without specificity or particular. It is unclear whether the applicant contends that the primary judge demonstrated apprehended bias as opposed to actual bias in treating the parties unequally.
The apprehended bias test requires the establishment of two limbs or what has been referred to as “the double might test” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337). In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148, Keifel CJ and Gageler J observed that application of the test entails the following:
38.(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
In the context of actual bias, the High Court in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 observed:
32.As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues”.
33.Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias…
Where it is contended that conduct occurred during the course of the hearing such as to constitute a miscarriage of justice, a close analysis of what is said, when it is said, its context and frequency is necessary. (Fowles & Fowles (No 2) (2024) FLC 94-198; Finch & Finch (2020) FLC 93-949).
In determining whether either of these grounds have any merit, I have considered at length the recording of the proceedings and the evidence presented by the parties and the judgment. This does not disclose the applicant was denied procedural fairness. The primary judge read all of the applicant’s evidence, permitted him to give evidence orally when he requested it, did not inhibit or restrict the applicant from adducing relevant evidence, listened to his submissions and engaged with them where required. As to Ground 13, a close examination of the record and the reasons for judgement does not reveal that the primary judge treated the parties unequally. A failure to grant the relief sought by a party is not treating the parties unequally. A necessary consequence of determining the matter according to law, as done by the primary judge, inevitably leads to orders that grant the relief sought by one party over the other. The court record fails to expose any form of pre-judgment, partiality or apprehended let alone actual bias.
Grounds 10 and 13 have no reasonable prospects of success.
Orders 1 and 2 are interlocutory injunctive orders. A relevant consideration in the determination as to whether the grounds or any of them have a reasonable prospect of success involves a consideration of that which faces any party seeking to appeal an interlocutory determination. In Medlow & Medlow (2016) FLC 93-692 (“Medlow”) the Full Court identified that in such an appeal to obtain a grant of a leave an applicant must firstly establish that the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration and secondly that if leave were refused a substantial injustice would result. The test is conjunctive; a failure to establish either limb is fatal to the question of leave. Put simply it is not enough to just point to error.
Before addressing the balance of the grounds, it is relevant to a consideration of each of the grounds to observe that the primary judge delivered reasons ex tempore. In that respect, Ryan J said in Perdicari & Perdicari (2019) FLC 93-914 as follows:
25.Before the grounds of appeal are discussed it is important to remember that this is an appeal against a judgment given ex tempore, immediately following the hearing. Reference to the trial transcript demonstrates that the primary judge had a sound command of the facts in issue and the arguments advanced by each of the parties. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked. Such an approach is appropriate in this appeal.
As with her Honour, this Court likewise considers such an approach is apposite to this application.
Ground 1 does not identify what evidence the primary judge did not consider. A review of the documents relied upon by the parties and the submissions as against the reasons reveals that the primary judge addressed all the relevant evidence and was given the timing of the judgement conscious of the evidence and all that had been submitted. Judges, in making discretionary determinations such as this, are not required to detail every fact found to be relevant or irrelevant, are not required to make an explicit finding on each disputed piece of evidence, nor are they required to mention every argument relied on in the proceedings (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378). Ground 1 has no reasonable prospects of success.
Ground 3 asserts an error of law in contending the primary judge failed to properly apply the balance of convenience test. The primary judge correctly identified the relevant legal principles at [30] to [33] and applied those principles to the evidence at [34] to [42]. No error is disclosed in the reasoning process adopted by the primary judge or in the application of principle to the evidence. Ground 3 has no reasonable prospects of success.
Grounds 4, 5 and 11 will be dealt with together. Ground 4 contends that the primary judge exercised her discretion unreasonably while Ground 5 says that she failed to exercise her discretion. If Ground 4 is demonstrated to have no reasonable prospects of success, then it follows that Ground 5 is without merit. Ground 11 contends that the primary judge in her reasons made findings of fact not supported by the evidence albeit the ground fails to articulate the actual erroneous finding.
The determination of the primary judge is presumed to be correct unless it can be established that the discretion reposed in the primary judge miscarried in the terms articulated in House v The King (1936) 55 CLR 499 at 505. As observed by Stephen J in Gronow v Gronow (1979) 144 CLR 513:
519.The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight…
The primary judge in the exercise of her discretion properly applied the law, had regard to all the relevant considerations, did not make any material errors of fact nor make any material findings which were not supported by evidence. Each of the findings made by the primary judge were sourced from the evidence presented by the parties. A review of the reasons as against the whole of the evidence does not identify any discretionary or legal error on the part of the primary judge. Grounds 4, 5 and 11 have no reasonable prospects of success.
Ground 8 asserts the primary judge failed to provide adequate reasons. Reasons will be inadequate where an appellate court is unable to ascertain the reasoning process on which the decision was based or where justice is not seen to be done (Bennett and Bennett (1991) FLC 92-191 at 78,266). The primary judge’s reasons identified the evidence relied upon by the parties, recorded the competing contentions, engaged with the arguments and submissions and made such findings as were open and available to be made and made orders accordingly. The reasons clearly reveal to the parties and the Full Court the “basis of the judge’s decision” (Candle v Falkner [2021] FedCFamC1A 102 at [97]) and justice is clearly seen to be done. Ground 8 has no reasonable prospects of success.
As the grounds fail to demonstrate any reasonable prospects of success it is unnecessary to address the second limb of Medlow save to observe that even if it were the applicant cannot establish that a substantial injustice would result if leave were not granted as the orders do not bind the applicant.
For the above reasons, the grounds contained in the Draft Amended Notice of Cross-Appeal have no reasonable prospects of success and hence are vexatious with the consequence that the Application in an Appeal will be dismissed.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 September 2025
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