Australian Coal and Shale Employees' Federation v the Commonwealth

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 a pseudonym Eide & Yoxall has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By Application in a Proceeding filed 19 September 2025, the applicant, Mr Yoxall, seeks a stay of the operation and enforcement of Orders 1 and 2 of the orders made by me on 22 August 2025, (which will hereafter be referred to as "the August 2025 Orders") pending appeal.
2. The August 2025 Orders provide as follows:-
   1. That as and from 1 June 2024 until further order the respondent pay or cause to be paid to the applicant periodic spousal maintenance in the sum of $1,500.00 per week as follows:-
      1. Within 30 days the respondent pay or cause to be paid to the applicant the sum of $94,500, being periodic spousal maintenance for the period 1 June 2024 to 16 August 2025 inclusive (being a total of 63 weeks) at $1,500.00 per week;
      2. As and from 25 August 2025 and weekly thereafter the sum of $1,500 per week

such payments to be made via electronic funds transfer into a bank account nominated by the applicant.

1. Pursuant to Section 117(2) of the Act within 7 days of any and all future payment(s) by or on behalf of the respondent in relation to these proceedings in payment of:

   1. Accounts rendered by the respondent's solicitors; and/or

   2. Accounts rendered by the respondent's barristers; and/or

   3. A request made by the respondent's solicitors to hold funds in trust on behalf of the respondent, including costs on account of anticipated counsel's fees (excluding for the payment of any single expert fees for which the respondent is liable pursuant to court orders)

the respondent shall pay or cause to be paid the same sum of money to the trust account of Jag Lawyers, the applicant's solicitors, for payment of the applicant's legal costs and disbursements in these proceedings.

1. Within 14 days the respondent do all such acts and things as may be necessary to cause the property at [TT Street], [Suburb UU] to be valued by a jointly appointed expert valuer and for such purposes:
   1. Within 48 hours the applicant to cause her solicitors to write to the respondent's solicitors, nominating three valuers;
   2. The respondent to select one of the three nominated valuers; and
   3. The respondent to pay all costs of the said valuation at first instance with the ultimate liability for such costs to be determined by the trial judge.
2. To the extent that he has not already done so, within 21 days of the date of these orders the respondent do all such acts and things as required to make full and frank disclosure by providing copies of the following documents to the applicant's solicitors:
   1. His personal tax return and assessment for the financial year ending 30 June 2024;
   2. For the period 1 July 2023 to the date which is 14 days prior to the date of compliance with this order statements for the following held in his name personally or held jointly with any other person:

i. Bank accounts;

ii. Credit cards; and

iii. Loans.

c. Documents which evidence:

1. Receipt of the fringe benefits referred to at item 14 of his Financial Statement filed on 24 February 2025 ("respondent's FS");
2. The source of payments made for the benefit of [X] referred to at item 34 of the respondent's FS;
3. The source of payments made by way of spousal maintenance for [Ms VV] referred to at item 34 of the respondent's FS;
4. The income tax owing referred to at item 48 of the respondent's FS including but not limited to a printout from the Australian Tax Office portal;
5. The loans referred to at item 50 of the respondent's FS;
6. The settlement payment due to [Ms VV] referred to at item 53 of the respondent's FS;
7. The personal guarantees for loans and lines of credit referred to at Part O of the respondent's FS;
8. The calculation of damages sought by the respondent as referred to at Part O of the respondent's FS; and
   1. A copy of the Binding Financial Agreement referred to at item 34 of the respondent's FS; and
   2. Any other document in the respondent's power possession or control relevant to the issues in dispute in these proceedings and/or any other document upon which the respondent intends to rely.

1. Any application for costs arising from these interim proceedings be dealt with on the papers as follows:-
   1. The party seeking costs to file and serve submissions in respect of that application within 14 days; and
   2. The respondent to such costs application file and serve any submissions in response within 14 days thereafter.
2. All extant interim applications be otherwise dismissed.

1. The respondent to the application, Ms Eide, opposes that application. For the reasons that follow, I am satisfied that the applicant's stay application ought be dismissed.

1. The stay application is made pursuant to rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which provides as follows:-

(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

(3) An application for a stay must:

(a) be filed in the registry in which the order under appeal was made; and

(b) be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.

Note: Under subsection 55(3) of the Family Law Act, a divorce order is stayed until after an appeal against it is determined or discontinued.

1. The principles relevant to determination of an application for stay pending appeal were identified in the decision of the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. at [18] as follows:-
   1. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

• Ÿ the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;
• Ÿ a person who has obtained a judgment is entitled to the benefit of that judgment;
• Ÿ a person who has obtained a judgment is entitled to presume the judgment is correct;
• Ÿ the mere filing of an appeal is insufficient to grant a stay;
• Ÿ the bona fides of the applicant;
• Ÿ a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
• Ÿ a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay;
• Ÿ some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
• Ÿ the desirability of limiting the frequency of any change in a child's living arrangements;
• Ÿ the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
• Ÿ the best interests of the child the subject of the proceedings are a significant consideration.

1. The discretion to stay operation of orders should only be exercised where circumstances exist which justify a departure from the ordinary rule that a successful litigant is entitled to the fruits of her litigation, pending the determination of any appeal.
2. As noted in Aldridge & Keaton, the circumstances that may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or when there is a real risk that it will not be possible for the prospective successful appellant to be restored substantially to his former position if the primary judgment is executed.
3. In determining the application, the Court must also consider the prospects of the appeal and where the balance of convenience lies between the parties. As the primary judgment, in this instance is discretionary in nature, it must be strongly presumed to be correct (Australian Coal and Shale Employees' Federation v the Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at page 627).
4. As the orders appealed against are interlocutory in nature, it will be necessary for the applicant to demonstrate to the Full Court that the original decision is attended by sufficient doubts such as to warrant appellate scrutiny, and further, that substantial injustice would result if leave were refused supposing the original decision to be wrong. (Medlow & Medlow (2016) FLC 93-692 at paragraphs [44] to [57].

1. In support of his Application filed 19 September 2025, the applicant relies upon the following material:-

(a) Application in a Proceeding filed 19 September 2025;

(b) Affidavit of the applicant filed 19 September 2025;

(c) Notice of Appeal filed 19 September 2025; and

(d) Outline of Case filed 16 October 2025.

1. The respondent relies upon the following material:-

(a) Outline of Case document filed 16 October 2025;

(b) Response to Initiating Application filed 15 October 2025; and

(c) Affidavit of the respondent filed 15 October 2025.

1. As discussed above, the merits of the appeal must be considered. Although on the face of his application, the applicant seeks a stay with respect to the operation of the totality of the August 2025 Orders, his Grounds of Appeal challenge only Orders 1 and 2 of those Orders, being the orders for interim spousal maintenance and the payment of a dollar-for-dollar litigation funding order. Senior counsel for the applicant confirmed during submissions that the applicant seeks to challenge only Orders 1 and 2 of the August 2025 Orders.
2. The appellant's Grounds of Appeal, contained at Part E of the Notice of Appeal, contend that I erred in:-

· Finding the appellant had capacity to pay periodic spousal maintenance;

· Failing to identify any source or means whereby the appellant could pay arrears of spousal maintenance;

· Finding that the appellant controlled assets which would be the subject of division in the proceedings; and

· Failed to consider the evidence that the appellant's legal costs were paid by an entity over which he had no control.

1. During oral submissions, senior counsel for the applicant stated that:-

· The applicant does not have control of the F group;

· He has no source of funds to comply with the orders, and that orders cannot be made absent evidence of his control of funds or assets.

1. Those submissions were largely a restatement of the submissions made on behalf of the applicant at the hearing of the original application, which is the subject of the appeal.
2. It was submitted on behalf of the respondent, and I accept, that the Grounds of Appeal do not identify any basis for the asserted error. It is unclear whether it is contended that there are errors of fact or law. There is no particularisation as to the matters which are said to found the alleged errors.
3. I do not accept the contention that I failed to consider the evidence before the Court as to the applicant's legal costs being paid by an entity over which he had no control and which he could not compel to provide money to satisfy the order. That ground ignores the discussion and findings made in the reasons for judgment, particularly at paragraphs [77] to [83] and paragraphs [103] to [113].[1]
4. The applicant submits that he has strong grounds for appeal, having regard to the matters to which I have referred and the fact that the appeal is against a discretionary judgment in relation to an interlocutory application. I do not accept that submission.
5. The respondent commenced these proceedings in March 2021. She has been required to await prosecution of her interim application pending determination of the threshold issues as to the nature of the parties' relationship. Those matters were finally resolved in the middle of 2024, and it is only in the first half of 2025 that she has been able to prosecute her claim for interim relief. I am satisfied that she is entitled to the benefit of the orders and judgment made, particularly having regard to that history.
6. Having considered those matters, I shall turn to the applicant's bona fides. Notwithstanding the fact that the other orders made on 22 August 2025 regarding valuation of the property at TT Street and disclosure are not the subject of challenge on appeal, the evidence of the respondent is that the applicant has not complied with those orders. That there has been no compliance with the order for valuation of TT Street was sensibly conceded by the applicant's senior counsel.
7. Order 3 of the August 2025 Orders required the applicant to select one of three nominated valuers to value the TT Street property. The respondent deposes that letters were sent to the applicant's solicitor on 26 August 2025, 16 September 2025 and 7 October 2025 seeking the applicant's nomination of one of the three identified valuers. To date, the applicant has not responded to those communications.
8. Further, pursuant to Order 4 of the August 2025 Orders, the applicant was to make disclosure of identified documents within 21 days of the date of the order. The respondent deposes at paragraphs 13 and 14 of her affidavit filed 15 October 2025 that the applicant has failed to do so. Again, during the course of submissions senior counsel for the applicant confirmed that whilst her client had made partial disclosure prior to the orders of 22 August 2025, no disclosure had been forthcoming from her client since those orders were made.
9. Further, the respondent contended that evidence of the applicant's lack of bona fides is further demonstrated by his failure to comply with previous costs orders made on 31 January 2025. The respondent deposes that the sum of $141,469.76 remains outstanding in respect of that costs order, which has not been the subject of appeal.
10. As a result of the applicant's failure to comply with the orders regarding valuation of property, disclosure and costs the respondent submits that the applicant's bona fides are called into question. The respondent submits that having regard to those matters the applicant has shown a complete disregard for orders of the Court. I accept that submission.
11. At the commencement of the hearing, I raised my concerns with senior counsel for the applicant as to her client's absence. The matter was initially stood down to enable senior counsel to obtain further instructions from her client regarding his absence.
12. It was submitted at the commencement of the hearing that he was unwell with an eye infection and a medical certificate from AF Clinic dated 16 October 2025 was tendered in support of that position, being Exhibit A-1. That certificate does not identify the nature of the applicant's illness. The applicant was unable to be contacted by telephone, message or email. Given that this is a hearing of his application, in my view, his failure to attend or to be available to provide instructions at this hearing is extraordinary, and again, calls into question his bona fides.
13. The final hearing of this matter is listed to commence before me on 3 February 2026. The appeal against the August 2025 Orders is listed for determination on 9 December 2025, a period of some eight weeks hence. It was submitted on behalf of the applicant that he may be unable to recover funds from the respondent upon conclusion of the final hearing were a readjustment required, and to that extent, the appeal may be rendered nugatory. I do not accept that submission. Orders may be made upon a final hearing for the respondent to make payment to the applicant.
14. In circumstances where on its face the Notice of Appeal does not disclose appealable error, I am not persuaded that the applicant has a strongly arguable case as asserted on his behalf. I also hold significant misgivings as to the applicant's bona fides in light of his ongoing non-compliance with orders of this Court. Accordingly, having regard to the above matters I will dismiss the applicant's Application in a Proceeding.
15. Further, in circumstances where the applicant has not complied with orders regarding the appointment of a valuer of the TT Street property, and no submission was made on behalf of the applicant against the application for appointment of a nominated valuer and orders pursuant to s 106A to ensure that a letter of instruction can be provided to the valuer, I will make orders as sought by the respondent regarding those matters.
16. Otherwise, the Application in a proceeding of the applicant filed 19 September 2025 and paragraphs 1 to 11 of the Response to an Application in a Proceeding filed 15 October 2025 will be dismissed

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.

Associate:

Dated: 17 October 2025

NOTE: These Reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition, amendments have been made to make the orally delivered reasons clear and easy to read.

[1] Eide & Yoxall (No 4) [2025] FedCFamC1F 579