Australian Coal and Shale Employees' Federation v Commonwealth

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

1. On 17 November 2025 a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders which required the applicant to vacate a property in Suburb C, in which he lived with the parties' two children every second week. Orders were made for the immediate sale of the property and for the proceeds to be used to discharge secured debts, including one owed to the applicant's previous lawyer, a payment to the respondent and for the balance to be held in a trust account pending a final property settlement hearing.
2. The applicant was given liberty to apply in the event he could pay the arrears, to be discussed shortly, or the complaint process, again to be discussed shortly, resulted in the notice of default being withdrawn.

1. The application for sale of the Suburb C property as an interlocutory order came about in this way.
2. The parties own three properties, two in Suburb F and one in Suburb C. Each is subject to a mortgage. The respondent sought the sale of the Suburb C property in 2023. The applicant wished to retain it as part of his overall property settlement. The issue was resolved and a senior judicial registrar made the following notations by consent:

1. The [applicant] is living in the property and has been living in the property and has had sole use and occupancy of the property since 13 December 2021 at which time the total value of the mortgages secured over the property was $816,355.00.

1. The value of the mortgages secured over the [Suburb C], South Australia property was $868,412.00 as at 10 July 2023.
2. Order 1, also made by consent was:
   1. Until further Order the husband pay all costs in association with the [Suburb C], South Australia property including but not limited to:-
      1. Mortgage repayments in association with [D Bank] mortgage numbers ending in ... NOTING THAT the said mortgages are currently subject to hardship provisions extended by the bank and the amount payable on the said mortgages until October 2023 is $50.00 per month in association with each of the mortgages ending in ... respectively.

b. Council rates;

c. Emergency Services Levies;

d. Water rates; and

e. Outgoings such as electricity, gas and internet expenses.

1. The applicant sought to make much of the fact that only one of the mortgages was in fact secured over the Suburb C property. The other two are secured over the Suburb F properties.
2. The misdescription of them as being over just one property seems to me to be of no consequence - it is clear that what was intended is that the applicant was to pay all three mortgages. It is also obvious from the notations that the overall indebtedness under the three mortgages was increasing. At no time has the applicant sought to correct or vary that order.
3. On 2 July 2025 a senior judicial registrar declined to order a sale of any of the properties but made the following notation:
   1. Orders for the [applicant] to service the [D Bank] mortgage numbers ending ... remain extant pursuant to the Order of 12 July 2023.
4. Again no attempt has been made to correct or challenge that order.
5. On 21 October 2025 the respondent received a default notice from lawyers acting for the mortgagee of the Suburb C property. It asserted that the loan was in arrears in the sum of $29,047. The notice advised that if the arrears were not paid by 30 November 2025 the entire balance of the mortgage, then $493,105.82, would become immediately payable. Enforcement proceedings, including repossession and sale might then follow.
6. It is helpful to note that at each of the times the two orders were made by the senior judicial registrars the mortgages were the subject of hardship arrangements. For example, the amount payable under all three mortgages in October 2023 was $50 per month per mortgage.
7. It appears that the applicant in June and July 2025 missed two of the hardship payments, at least in relation to the Suburb C property. He submitted a new hardship application in August 2025 which was declined shortly thereafter.
8. The applicant lodged a complaint with the Australian Financial Complaints Authority which had not been determined at the date of the hearing before the primary judge. The applicant had however resumed paying the mortgage instalments due on the Suburb C property.
9. The primary judge was satisfied that orders "for the sale of the property will preserve the capital that is in the asset pool. It will prevent further erosion of the pool" (at [48]). The evidence before his Honour was that at the time the total indebtedness under the three mortgages was now over $900,000. That is, the position continued to decline.

1. On the day before the hearing of the appeal, the applicant tried unsuccessfully to file an Application in an Appeal seeking to adduce further evidence. Such application must be filed at least 14 days before the sitting in which the appeal is being heard (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") r 13.39).
2. Nonetheless, the lawyer acting for the respondent did not object to the applicant being permitted to bring the application but opposed the reception of the evidence sought to be relied upon.
3. New evidence will be received in an appeal to demonstrate error in the judgment the subject of the appeal or to bolster it, or to bring evidence to support a re-exercise of any discretion in the event the appeal is allowed.
4. The applicant submitted that the proposed evidence demonstrated two errors.
5. The first is the error in the 12 July 2023 orders in describing all the mortgages as being secured over the Suburb C property. Additionally, there were said to have been changes since then which made those orders unworkable. This was because the payments were then under hardship provisions at very much reduced rates, whereas they are no longer.
6. This is not an appeal against either the 12 July 2023 orders or the 2 July 2025 orders. It is not an opportunity to seek to vary them (which I could not do in any event, since they were made in a different court). Thus, whilst those orders remain extant, the applicant is bound by them.
7. The second error said to be shown is the finding of potential risk to the properties. On 11 February 2026, the mortgagee advised that it would no longer regard the loan secured over the Suburb C property as overdue. The arrears has been added to the principal of the loan and the applicant was required to pay $3,319 per month by way of instalments.
8. Order 6 made by the primary judge provided:

The [applicant] has liberty to apply on short notice in the event that he satisfies the default notice by paying the arrears within the grace period, or in the event that the Australian Financial Complaints Authority takes any step with the effect that the parties are released from the default notice.

1. I asked the applicant why he had not sought to relist the matter in accordance with that order given the letter from the mortgagee. In the course of the lengthy discussion that ensued, it emerged that the other two loans were also in default, although no notices of default had been served. It was apparent that discussions were continued. It was also suggested that other payments required under the earlier orders had not been paid. Thus, the fact that one of the mortgages was now in a satisfactory state did not necessarily provide a basis for setting aside the orders as it was at least arguable that the net asset position was continuing to erode.
2. The applicant contended that the primary judge should have adjourned the application for sale so that the complaint procedure could be followed and discussions held with the mortgagee. Thus, this error was said to be confirmed by the 11 February 2026 letter.
3. Adjourning the proceedings was indeed one course available to his Honour. Another was to make the orders as made which gave the applicant the right to relist the matter for re-consideration if he rectified the position.
4. Merely because another course is properly available, does not mean that the course that was taken was erroneous (see House v The King (1936) 55 CLR 499).
5. I am not satisfied the further evidence is likely to demonstrate that the judgment under question is erroneous and it will be dismissed.

1. The order the subject of the appeal is interlocutory and leave to appeal is required. Leave to appeal generally will be given when it has been shown the decision the subject of the application is attended by sufficient doubt as to warrant reconsideration and a substantial injustice would arise if leave was not granted (Medlow & Medlow (2016) FLC 93-692). I shall return to that issue in due course because the merits of any proposed appeal are relevant to that consideration.
2. A judgment is regarded as correct unless an appeals court finds that it is affected by a material error of fact or law (see Australian Coal and Shale Employees' Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621). It is for the applicant to demonstrate such an error.
3. I will start with Ground 2, which asserts a denial of procedural fairness, in accordance with the relevant authorities (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).

Ground 2 - Did the primary judge follow an unfair evidentiary process?

1. During the course of the hearing, the primary judge, in some detail and more than once, explained to the applicant, who was acting for himself, that decisions could only be made on the basis of evidence - that is, what is said in the affidavits or documents that have been admitted into evidence. The applicant told the primary judge that he was disadvantaged because he thought he was limited under the Rules to only five annexures, whereas the respondent was relying on an extensive tender bundle.
2. His Honour told the applicant that he could tender any document he wished and added that the respondent's lawyer could object to any document sought to be tendered, as indeed the applicant could object to documents being tendered by the respondent. In such a case, the judge would decide whether the document would be received into evidence or not.
3. The parties were located in City K. The primary judge was sitting in another state conducting the hearing remotely and it is apparent that the applicant and respondent were not in the same premises.
4. The primary judge adopted a mechanism that required the applicant to send the documents to the lawyers for the respondent. During the course of the day, the applicant sent through two bundles of documents he proposed to tender. In this regard, the hearing started in the morning and then there was a significant break of over six hours before the hearing resumed because the primary judge was attending to other matters.
5. One of the reasons for requiring the applicant to send the documents he wished to tender to the respondent was so that they had the opportunity of looking at them prior to them being tendered.
6. As his Honour told the applicant, "trial by ambush is not part of the system" (Transcript 14 November 2025, p.9 line 18). If the documents were in fact relevant to the hearing, they should have been disclosed to the respondent in any event prior to the hearing under the applicant's general obligation of disclosure. The respondent for example sent their tender bundle out a few days prior to the hearing.
7. The transcript reveals an extensive discussion of documents sought to be relied upon by the applicant which resulted in a number being received as exhibits.
8. Nonetheless, he submitted that this process placed him "at a material disadvantage in presenting his case on equal terms" (applicant's Summary of Argument filed 5 March 2026, p.3). This was because his documents had to pass two gateways before they could be seen by the judge. That is to say, the respondent's solicitors and counsel.
9. It is obvious that the applicant was given every opportunity to tender whatever documents he wished. Some were the subject of objection, but that was, of course, part of the point of sending the documents to the respondent so they would have time to form a view on them. Whilst the applicant may have felt rushed, neither the process nor the outcome would have been any different had the documents been properly served by him ahead of the hearing.
10. The applicant also submitted that relevant material was excluded on objection without the Court inspecting it. The Summary of Argument, unhelpfully, did not identify those documents.
11. The transcript reveals extensive discussion of some of the contents of particular documents and their relevance to the proceedings. Such a discussion is often sufficient to enable a trial judge to determine admissibility. That was the case here. There is no appeal against the rejection of any particular document.
12. No procedural unfairness has been identified.

Ground 1 - Did the primary judge err in finding exceptional urgency and in ordering an irreversible interim sale on that basis?

1. There are two immediate difficulties with this ground. His Honour did not make a finding of exceptional urgency. Secondly, there is no principle which requires such a finding to be made before interim orders for sale of property can be made.
2. The primary judge did find that the application was "brought in circumstances of proper urgency" (at [57]).
3. The applicant's essential point was that "the active [Australian Financial Complaints Authority] complaint with an imminent bank determination and an unexpired default notice grace period" materially affected the immediacy of any risk of enforcement by the mortgagee (applicant's Summary of Argument filed 5 March 2026, p.7).
4. The primary judge discussed these matters at [40]-[45] before concluding:
   1. ...There is no evidence that satisfies me that although the [applicant's] attempts have been substantial, that there is anything that he has done or that he is doing that is capable of impeding the bank from exercising its rights under the default notice.
5. There is no evidence that the applicant had the means to repay the arrears. Thus, the relevance of any grace period is difficult to see.
6. All the applicant could hope for was some success on the outcome of the complaint process, but that would be most unlikely to occur with a waiver of the arrears or a permanent hardship arrangement. Even such an arrangement does not prevent interest running on the whole of the principal - thus increasing the debt.
7. This ground has not been made out.

Ground 3 - Was there a material error in understanding the equity position?

1. The applicant submitted that the primary judge was plainly wrong to find that the parties' equity in their properties was low and at risk. This was because the primary judge was said to have taken into account loans not secured over the Suburb C property.
2. The primary judge noted the respondent's estimate of the value of the Suburb C property at $1.2 to $1.3 million. His Honour was aware that the amount outstanding under the mortgage was $493,105.82.
3. His Honour also understood that there were loans over the other properties. He said:
   1. The [applicant] says there is substantially more equity in the home than the [respondent] asserts, pointing to the way in which the loans have been structured, which he says are somewhat complex, with [one] loan account ... being secured over the [Suburb C] property, the [second] loan account ... being secured over the [respondent's] investment property at [Suburb F], and the [third] loan account ... also being secured over the [Suburb F] property with funds contributing to the [Suburb C] property. The [applicant] is concerned that any sale would take all that off the table and prevent the proper analysis of all of that being conducted at a final hearing.
4. There was no finding made that there was limited equity in the Suburb C property.
5. His Honour did note that the indebtedness over the three loans had increased from $816,355 in July 2023 to $909,591 in October 2025.
6. His Honour's conclusion was:
   1. I do not believe that the [applicant's] views of being treated unfairly are as simple as he presents them to be, or that the remedy though is as simple as the [applicant] making a complaint about how he has been treated by the bank because of the missed payments. I am not satisfied that that will remedy the situation. There has been substantial capitalisation on each mortgage account that continues to accrue. It has significantly increased the total debt that is owed that I have stated. In my view the financial situation with the property is untenable. It exposes the parties to imminent liability.
7. The logic of that is inexorable - remembering that the applicant was obliged to service all three mortgages.
8. This ground has not been made out.

Ground 4 - Was there mischaracterisation of hardship, the default notice and the Australian Financial Complaints Authority intervention as indicators of imminent enforcement and urgency when those matters evidenced financial stabilisation?

1. The applicant submitted that as he had commenced the full repayments under the mortgages, he had demonstrated "ongoing serviceability and an active effort by the [applicant] to stabilise the loan" (applicant's Summary of Argument filed 5 March 2026, p.7). He also emphasised that the two missed payments leading to the default notice were minor.
2. As I have said, the primary judge discussed these matters, took them into account and determined that they did not remedy the situation. It was clear that the bank, at that time and as far as could be seen, was not going to reinstate the hardship plan.
3. No error has been identified as these findings were open to his Honour on the evidence.

Ground 5 - Did the primary judge err by failing to weigh comparative hardship and the selection of the most harmful interim remedy?

1. Under this ground the applicant repeated his earlier submissions. He also referred to the fact that it was his home, and the home for the children half the time, and there would be personal hardship suffered by them if they were required to move out. His Honour specifically took those matters into account. The challenge can therefore be only as to the weight that his Honour gave those matters and that is a very difficult hurdle indeed to overcome.
2. It may well be that a different court would have weighed the matters differently and decided not to act pending the final hearing which was then expected in March this year, though it has apparently now been adjourned to May. Such a course, however, carried the real risk that the mortgagee would continue to take enforcement action, thus worsening the equity position.
3. However, again, the possibility that a different order could have been made does not demonstrate error in the course that was followed.
4. Again, no error has been identified.

1. I return then to the question of leave. The applicant has not persuaded me that the first limb of that test has been made out, nor that there is reason to suspect that the decision is attended by sufficient doubt to warrant reconsideration.
2. Assuming for the moment, however, that it has been established that the primary judge failed to take into account the unexpired period under the default notice and the unresolved complaint. Let us also assume for the moment that the letter of 11 February 2026 is in evidence. Order 6 gave the applicant the opportunity to relist the matter on short notice "in the event that he satisfies the default notice by paying the arrears within the grace period, or in the event that the Australian Financial Complaints Authority takes any steps with the effect that the parties are released from the default notice". In that event, the applicant could relist the matter in accordance with that order. The fact that a judge might refuse to change the order because of non-compliance with other aspects of the 12 July 2023 orders does not alter the position that if the default on the mortgage over the Suburb C property was rectified in some way there was an opportunity to fix the orders.
3. In short, it seems to me that even if there was an error, no substantial injustice would arise because of Order 6. The fact that an order might not be granted on a relisting because of other matters does not change that position. I am therefore not satisfied that any substantial injustice would result from a failure to give leave.
4. It follows that I am not persuaded there should be a grant of leave. Leave will be refused and the appeal dismissed.

1. The application for leave to appeal has been wholly unsuccessful. The amount sought by the respondent in costs seems very reasonable in the circumstances. The applicant will pay the respondent's costs fixed in the sum of $6,354.22.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.