Alexander v Cambridge Credit Corporation Ltd

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 Farrington & Belkis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Application in an Appeal filed 3 December 2025, the appellant seeks a stay expressed as "pending determination of this appeal and/or the determination of the applicant's application under s 65DAAA".
2. The Application in an Appeal will be dismissed for the reasons set out below.

1. This is the appellant's seventh appeal, the first of which was dismissed on 13 March 2023; the second on 16 November 2023; the third on 8 August 2024; and the fourth, fifth, and sixth on 23 June 2025.
2. The last four appeals all have their genesis in the appellant's dissatisfaction with final parenting orders made by a judge of Division 2 on 14 June 2024. Those orders provided for the children to live with the respondent, for the respondent to have sole parental responsibility, and for the children to spend no time with the appellant.
3. Remaining dissatisfied with the result of earlier attempts to set aside the final parenting orders, on 3 July 2025 the appellant filed an application pursuant to s 65DAAA of the Family Law Act 1975 (Cth) ("the Act") which application was heard on 21 November 2025 before a different judge of Division 2 and for which judgment has been reserved. Meanwhile, on 12 November 2025 the primary judge satisfied the appellant had contravened without reasonable excuse some of the orders made 14 June 2024 made orders for the parties including the appellant to file and serve any affidavit and written submissions relevant to the issue of penalty.
4. Dissatisfied with that order, on 24 November 2025 the appellant filed an Application in a Proceeding seeking orders described by the primary judge in the following terms:

(a) The orders timetabling the father's evidence and submissions "be stayed until the final determination of the father's application under s65DAAA, or further order;" and > > (b) In the alternative, those orders "be vacated and relisted for directions not before 7 days following the delivery of judgment on the s65DAAA application;" and > > (c) "That this application be determined 'on the papers'.

5. The appellant submitted to the primary judge the consequence of the application pursuant to s 65DAAA of the Act, if successful, would render the orders the subject of the contraventions applications "void ab initio" and by filing submission as to penalty he would be prejudiced because he would be compelled to adopt positions that may be inconsistent with the outcome of the s 65DAAA determination and that the court would be "asked to fix penalty on a foundation that may shortly be reconsidered" (appellant's affidavit filed 24 November 2025, paragraph 8(b)).
6. On 28 November 2025, the primary judge dismissed the appellant's application and made an order for costs observing in the following terms:
   1. Firstly, there is no possible outcome to the s 65DAAA application that could render or declare the extant parenting orders as beyond power or invalid or void ab initio (from the beginning).
   2. Secondly, orders of the Court are valid until set aside - irrespective of his belated challenge to the "evidentiary foundation" or the "factual foundation" on which they were made.

...

1. In the plainest of terms, the father wants to be able to use in his submissions on penalty for contravention any finding the Court may make of retrospective criticism or the casting of doubt over the extant parenting orders that he contravened. Undoubtedly, in order to then ground a submission on penalty that his contravention of those orders was justified, or of lesser seriousness.

1. The appellant sought his application for stay be determined in the absence of the parties pursuant to r 13.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
2. The appellant has elected not to approach the primary judge for a stay, consistent with the provisions of r 13.12 which identifies the stay must be heard by the primary judge unless unavailable. The appellant has not adduced any evidence that the primary judge was unavailable. That said, this court has power to stay orders the subject of an appeal for the purposes of preserving its subject matter (Federal Circuit and Family Court of Australia Act 2021 (Cth) s 38).
3. The appellant, having elected to have the matter determined in chambers, means the entirety of the matters relied upon by him are to be found in either the Notice of Appeal, the Application in an Appeal or his affidavit. The first two of those documents are mere assertions. The affidavit comprises some 20 paragraphs of which 13 address the reasons for stay. Those paragraphs amount to no more than a repeat of the submissions advanced to the primary judge, namely, that he would be occasioned prejudice and that the effect of the application pursuant to s 65DAAA of the Act, "could render the 14 June 2024 parenting orders invalid, beyond power or void ab initio" (appellant's affidavit filed 24 November 2025, paragraph 8(b)) and further:
   1. If penalty is imposed before the section 65DAAA decision, I face a risk of significant and irreparable prejudice, including exposure to penalty on the basis of orders which may later be reconsidered or varied in the reserved proceeding.
4. The appellant's Notice of Appeal contends some seven grounds asserting legal and factual error, the last of which was "the primary judge applied the wrong legal tests for stay of proceedings" (Ground 7). Remarkably, the affidavit does not identify what he says is the correct test.
5. The power to grant a stay pending an appeal is discretionary and is embodied in part in r 13.12(2). A stay is not ordered as a matter of right. The power to order a stay is incidental to the right of appeal.
6. The principles applicable to a stay are well settled (Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106). In order to justify a stay, the party seeking the stay bears the onus of establishing circumstances warranting a departure from the general rule that a judgment is presumed to be correct and liable to be enforced (Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-694) and a court should not deprive a successful litigant of the fruits of litigation without just cause (Kelly and Kelly [1980] FamCA 88; (1981) FLC 91-007).
7. Thus, to succeed the appellant must establish the application is brought bona fide and that he has an arguable case. The court may in certain circumstances weight the balance of convenience and the competing rights of the parties.
8. The application is brought promptly.
9. Despite the appellant's history I am prepared to give the appellant the benefit of the doubt that the application, albeit misguided, is bona fide and not merely a delaying tactic. While the application the subject of the appeal involved a dismissal of an application, the orders the subject of the application were purely procedural requiring the appellant to file certain documents. Those orders were not decisive of any legal right of the appellant, nor do they prejudice any substantive right he enjoyed (Yule v Junek [1978] HCA 4; (1978) 139 CLR 1). While it is questionable whether an appeal even lies from the judgment, the appellant has not been invited to show cause.
10. The appellant alludes, albeit not expressed in such terms, to the balance of convenience such that his appeal would be rendered nugatory in the event a stay was not granted. Relevantly Harper J observed in Samaras & Allen [2021] FedCFamC1F 20:
    1. ... The High Court has several times indicated that the enjoyment of a right is rendered "nugatory" if it is rendered worthless or seriously undermined: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450, referring to Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 647-648, 659.
11. I do not accept the appeal would be rendered nugatory. A mere statement of prejudice without more is insufficient. There is no prejudice occasioned to the appellant by complying with the procedural orders to file certain documents. If it be the parenting orders are as he contends found to be "void ab initio" then axiomatically there can be no prejudice by filing the subject documents.

1. Where the reasons are presumed to be correct, where there is not established any prejudice to the appellant warranting a stay, and where it is questionable whether the appellant even has an arguable appeal; then a stay serves no purpose.
2. The Application in an Appeal will be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.