B1 Pty Ltd & Vilas [2025] FedCFamC1A 182 (7 October 2025)

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 B1 Pty Ltd & Vilas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the dismissal of an application to expedite the hearing of an application for leave to appeal from interlocutory orders made on 3 October 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 1) during the part-heard trial of financial proceedings.

1. The underlying proceedings concern a financial cause contested by the spouses under Pt VIII of the Family Law Act 1975 (Cth) ("the Act"), commenced by the husband in November 2019.
2. After those proceedings were commenced, numerous other corporate entities engaged in the matrimonial cause.
3. The second and third respondents are corporations controlled by the wife's father.
4. The fourth and fifth respondents are corporations in which the spouses currently have interests as either directors, shareholders or both.
5. In March 2020, the second and third respondents separately started debt proceedings against the husband and the fourth respondent in the Supreme Court of NSW. However, in mid-2020, those State proceedings were transferred to the Family Court of Australia (as the Federal Circuit and Family Court of Australia (Division 1) was then known) pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).
6. By consent orders made over two years later, on 5 July 2024, the second, third, fourth and fifth respondents were formally designated those identities within the matrimonial cause. On that same date, the Court made procedural orders fixing the trial in December 2024 and requiring all parties to file their pleadings and evidence in readiness.
7. As scheduled, the trial of the matrimonial cause began before the primary judge in December 2024 and ran for nine days, after which it was adjourned part-heard until October 2025 for completion.
8. On 22 September 2025, the second and third respondents filed an Application in a Proceeding. Curiously, the application did not comprise an application for any order. Rather, it merely asked for the primary judge to consider the question of whether jurisdiction existed to entertain the amended debt claim brought by the second and third respondents against the husband and fifth respondent (instead of the husband and fourth respondent) and requested the primary judge to remit the debt claim to the Supreme Court of NSW if determined there was no jurisdiction to entertain it as part of the matrimonial cause.
9. His Honour considered the application on 3 October 2025 and determined jurisdiction existed to entertain the debt claim as part of the matrimonial cause. His Honour dismissed the interlocutory application of the second and third respondents, making these orders and notation:
   1. The Application in a Proceeding filed on 19 September 2025 and sealed on 22 September 2025 by the second and third respondents is dismissed.
   2. Costs are reserved.

1. Reasons for Decision will be delivered as soon as possible.

1. His Honour's reasons for those orders were delivered on 7 October 2025.
2. In the meantime, on 6 October 2025, the second and third respondents filed a Notice of Appeal seeking leave to appeal from the orders made on 3 October 2025.
3. Simultaneously, the second and third respondents filed an Application in an Appeal seeking expedition of the appellate proceeding, given the resumption of the trial before the primary judge on 7 October 2025.
4. The expedition application was supported by the affidavit of the second and third respondents' solicitor, filed on 7 October 2025, in which the solicitor deposed:
   1. The significant of this request [for expedition] is supported by the real concern that the court may fall into jurisdictional error should the substantive proceedings continue without a determination as to the courts power to hear and determine those proceedings.
5. Curiously, neither spouse consented to nor opposed the expedition application, yet they both foreshadowed their resistance to the application for leave to appeal and, if granted, the appeal. Had all parties acceded to the application for leave to appeal and the appeal it would have been counter-intuitive to resist the expedition application.

1. These reasons have nothing to say about the prospects of the intended appeal. That will be a matter for the Full Court in due course.
2. The appellate proceedings entail an anterior decision about whether leave to appeal should be granted. The grant of such leave requires the applicant (here the second and third respondents) to show the challenged decision is attended by sufficient doubt to warrant an appeal and, additionally, substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]-[57]). That is also a decision for the Full Court.
3. The only application under present consideration is the application to expedite the hearing of the application for leave to appeal, but that decision is influenced by the ostensible merit of the leave application, as counsel commendably conceded.
4. Regardless of the asserted merit of the intended appeal, there are several reasons why the second and third respondents will encounter difficulty in demonstrating they will suffer "substantial injustice" if leave to appeal is not granted by the Full Court and, hence, the present application to expedite the hearing of the leave application fails.
5. The second and third respondents' proposal for the primary judge to consider remitting the debt claim to the Supreme Court contradicted the original transfer of the State proceeding to this Court by the Supreme Court in mid-2020. They do not try to explain why the original transfer order was wrongly made.
6. The proposal to remit the debt claim to the Supreme Court also contradicted an order made by this Court with the second respondent's consent on 18 September 2020. On that occasion, all parties to the proceedings consented to the dismissal of the second respondent's application for the Court to hear and determine its debt claim separately from the matrimonial cause. Then nearly four years later, in July 2024, the second and third respondents again affirmed their assent to their debt claim being heard as part of the matrimonial cause when the trial was fixed for December 2024.
7. Additionally, the second and third respondents' proposal to remit their debt claim to the Supreme Court was made deep into the trial, after nine days of hearing and only a few days before the part-heard trial was to resume in October 2025. It is almost inconceivable the second and third respondents would wait for so long to change their minds about the existence of jurisdiction to entertain and decide their debt claim.
8. True enough, the second and third respondents acted swiftly to contest the decision made by the primary judge on 3 October 2025, but their acquiescence to the jurisdiction of this Court from May 2020 until September 2025 is significant.
9. There could well be some saving of legal costs if the trial does not now proceed to its conclusion until after the hearing of the appellate proceeding is complete, but that assumes the appeal will be ultimately successful. If the appeal proceeding is expedited and the appeal fails, the parties will have thrown away their costs in preparing for and attending to the trial for the balance of this week before the primary judge. I am unable to see how the question of wasted costs is influential, let alone dispositive.
10. The judgments which will be pronounced to finalise the matrimonial cause and the debt claim after the part-heard trial is concluded will necessarily entail the grant or refusal of relief sought between all parties. The second and third respondents are necessary parties to the matrimonial cause anyway because the husband seeks relief against them both under the Act. Obviously enough, the second and third respondents will both have an absolute right of appeal from the final judgments. Any appeal which either the second or third respondent may choose to bring from the final judgment in the debt claim could incorporate a complaint about the existence of jurisdiction. They hardly now lose anything by continuing to submit to jurisdiction until the trial concludes.
11. The refusal of the application to expedite the hearing of the second and third respondents' application for leave to appeal will mean the pending appellate proceedings will likely be heard in the week of 27 January 2026 - some three months hence. In the meantime, the trial of the matrimonial cause will proceed and probably finish with final submissions filed by late November 2025. Whether judgments are delivered before late January 2026 is uncertain. If they are, the second and third respondents may choose to exercise their right of appeal from the final judgments instead. If they are not, they will be free to prosecute their current application for leave to appeal from the interlocutory order made on 3 October 2025.
12. The expedition application is dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.