Bienstein v Bienstein

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

1. The appellant wife appeals against orders made by the primary judge on 23 September 2025. Those orders:

(a) dismissed an application to set aside procedural directions made on 5 November 2024;

(b) dismissed an application to set aside orders made on 17 April 2025 for the application to vary the interim spousal maintenance order (that was pending in April 2025) to proceed on an undefended basis (which had been heard and determined on 22 July 2025); and

(c) adjourned an application to set aside or vary the spousal maintenance order made on 22 July 2025 for hearing on 20 November 2025.

1. The primary judge conveniently summarised the orders of 5 November 2024 that the appellant sought to have set aside:

1. The orders of 5 November 2024: (1) set aside various subpoena (orders 2-3); (2) granted the Second Respondent liberty to inspect documents produced pursuant to subpoena to remove documents excluded and thereafter permitted the other parties leave to inspect and copy the redacted documents (orders 5-6); (3) extended the time in which the Second Respondent was to comply with a subpoena, and granted leave to inspect and copy the same (orders 7-8); (4) varied earlier orders with respect to the terms of reference to the single expert witness, to value B Pty Ltd (order 9-10); (5) required the wife to file an amended Minute of final relief sought, together with a Statement of Claim setting out the legal and factual basis of the claims against third parties and the filing of amended Minutes and a Defence from the other parties (orders 11-12); (6) programmed applications for various interim and interlocutory orders for hearing on 17 April 2025 (orders 19-27); and (7) injunctions restraining all parties from filing any application without permission and the basis upon which such permission could be sought (orders 13-15). 2. Since then, in the Family Court:

(a) on 15 November 2024, orders were made discharging Ms C as the single expert witness, and requiring each party to file a minute with respect to any further orders relating to any further appointment of a single expert witness or procedural orders; > > (b) on 20 December 2024, orders of 5 November 2024 for the filing of the wife's Minute and Statement of Claim, and the Respondent's Minute and Defence, were discharged by consent, and the issues to be determined at the interim hearing were varied to include expert evidence; > > (c) on 17 April 2025 the Court granted the husband leave to proceed on an undefended basis; > > (d) the wife's recusal application was heard on 16 June 2025, and dismissed on 30 June 2025; and > > (e) on 22 July 2025, orders were made, upon the husband's application which in summary: (1) permitted the husband and the wife to seek to adduce and rely upon expert evidence as to the husband's interest in B Pty Ltd, D Company and the E Family Trust, to be determined at the readiness hearing; (2) included mechanisms for the parties to agree upon the value of items in the wife's possession, and failing which, for the appointment of single expert witnesses; (3) dismissed the husband's 2018 Application for Divorce and the wife's Response, and listed the husband's 2024 Application and the wife's Response to hearing on 23 September 2025; (4) discharged the interim orders with respect to the wife's spousal maintenance, and ordered the husband to pay interim maintenance of $900 each week, net of tax; (5) granted the wife leave to set aside or vary the orders on short notice; and

([f]) the wife's latest Application has been accepted for filing and listed for hearing on 20 November 2025, with ancillary procedural orders.

1. The appellant did not lodge an appeal against the orders of 5 November 2024 within the time limit set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The appellant did not seek orders on the appeal to set aside those Orders of 5 November 2024 that remain in force (see Part F of the Notice of Appeal filed on 21 October 2025).
2. The respondent husband's application to vary the spousal maintenance orders was heard on an undefended basis (as a result of the orders of 17 April 2025) and determined on 22 July 2025. There is no longer any purpose in hearing an appeal concerning the procedural orders permitting that application to proceed on an undefended basis: the procedural orders are no longer operative as the application has been determined. If the procedural orders resulted in an appealable error on the part of the primary judge when hearing and determining the application to vary the spousal maintenance orders (on 22 July 2025), the appellant's remedy lay in an appeal against the orders made varying the spousal maintenance amount. She has not lodged an appeal against those orders.
3. The only substantive issue dealt with on 23 September 2025 was the application to set aside or vary the interim spousal maintenance orders made on 22 July 2025. The appellant's application in this regard was adjourned to 20 November 2025 for an interim hearing (with directions for the parties to file further material). The primary judge gave cogent reasons for adjourning the application to set aside or vary the orders of 22 July 2025 (which varied the appellant's spousal maintenance orders) saying at [41]:
   1. I am not satisfied it is proper to set aside the interim maintenance orders and reinstate the previous orders, on the basis of the available evidence. The wife's application to set aside and vary the interim maintenance orders will be listed for hearing on 20 November 2025. The Court will be in a better position to entertain the application, noting the procedural orders which have been made for the filing of updated financial statements and evidence. That will allow each party to adduce relevant admissible evidence.
4. The interim spousal maintenance application was heard on the merits on 16 December 2025 and judgment is reserved.
5. As the substantive issue has now been the subject of a hearing on the merits (in which both parties participated) there appears to be no purpose in reviewing the earlier orders.
6. The appellant filed an enormous volume of material in a Contested Appeal Book (over 4500 pages) and additional transcripts of hearings other than the hearing that led to the orders the subject of appeal. The respondent did not object to the appellant relying upon this material. The large volume of additional material served only to distract from the issues properly the subject of the current appeal and delay the delivery of this judgment.

1. On the day before the hearing of the appeal, the appellant filed an Application in an Appeal and a 266 page (including annexures) supporting affidavit seeking an adjournment of the appeal. This is the second application by the appellant to adjourn the appeal: Van Achteren & Yusuf (No 2) [2025] FedCFamC1A 246.
2. The appellant sought a decision on the papers. The application for an adjournment was dismissed. The reasons for dismissing that application are that the appellant, in substance, relied upon a note from a general practitioner that is not addressed to anyone and is merely headed "THIS IS TO CERTIFY THAT". The note stated that the appellant "has a medical condition and will be unfit for work from 06/01/2026 to 03/02/2026 inclusive". No diagnosis or provisional diagnosis is set out. The note states that the appellant is "undergoing medical investigations at this point in time" but lists no symptoms. Nor is there any opinion explaining how any illness, injury or symptoms would prevent the appellant from preparing for and appearing at the appeal, yet have not prevented her from preparing a 266 page affidavit to seek an adjournment. There is insufficient evidence to justify adjourning the appeal in circumstances where the appeal concerns only interlocutory orders and the appellant has had sufficient capacity to prepare a lengthy affidavit in a case that has been pending before the courts since 2018.

1. Section 28(3)(e)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act") states that leave to appeal is required from "a prescribed judgment of the Family Court of a State". This appeal is from the Family Court of Western Australia. Regulation 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) prescribes interlocutory decisions (other than in child welfare matters) for the purpose of s 28(3)(e) of the FCFCOA Act.
2. The orders the subject of this appeal are all interlocutory orders as none finally determine the parties' rights: Bienstein v Bienstein [2003] HCA 7; (2003) FLC 93-124; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246.
3. The test for granting leave to appeal against an interlocutory order is set out in Medlow & Medlow (2016) FLC 93-692 ("Medlow & Medlow") at [57]:
   1. ... in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

APPLICATION TO ADDUCE FURTHER EVIDENCE ON THE APPEAL

1. The appellant filed an Application in an Appeal on 24 December 2025 seeking to adduce further evidence on the appeal. It was supported by an affidavit of 215 pages (including annexures). The further evidence is identified in paragraph 41. In paragraphs 41.1(a) and 41.1(b), the appellant refers to orders and applications made or filed after the hearing the subject of the appeal. These documents do not go to the issues raised on the appeal. Paragraphs 41.1(c) and 41.1(d) refer to evidence as to the financial position of the first respondent. This material may have been relevant to the determination of the spousal maintenance application, however that part of the application was not determined by the orders the subject of the appeal.
2. We decline to grant leave to rely upon the additional evidence the appellant has identified in her affidavit in this appeal.

1. Ground 1 (as identified in Part E of the Notice of Appeal together with the lengthy exposition of the grounds) alleges a failure to afford the appellant procedural fairness and natural justice. The arguments put by the appellant concerned the conduct of earlier proceedings and not the orders the subject of the appeal. Any failure to afford procedural fairness in the earlier interlocutory hearings does not demonstrate a failure to afford procedural fairness with respect to the orders the subject of this appeal. The appellant's claims that there was a lack of procedural fairness at the hearings that led to the orders she sought to have set aside in the application the subject of the appeal is only relevant to whether the primary judge ought to have set aside those earlier orders (in the context of this case). These claims do not show that there was a lack of procedural fairness at the interlocutory hearing leading to the orders the subject of the appeal.
2. This ground has no merit on the material before this Court.
3. Ground 2 alleges "Jurisdictional Errors on the Face of the Record". The appellant's argument under this ground relates to an earlier judgment (in April 2025) and a decision made in chambers in August 2025: it does not directly address the judgment the subject of the appeal. This ground has no merit.
4. Ground 3 complains that the primary judge failed to have regard to the alleged failure of the respondent to make full and frank disclosure, difficulties in enforcing court orders, and that the assets had not been preserved. The only substantive issue that this may have affected in the present application was the interim spousal maintenance determination. However, the primary judge did not determine the interim spousal maintenance application, but adjourned it to another date, specifically to ensure that the parties had an appropriate opportunity to file further evidence. There is no merit in this ground.
5. Ground 4 makes allegations that the primary judge suppressed evidence and court records. There is no evidence to indicate any basis for this allegation. Rather, it appears to be a reflection of the appellant's frustration at the alleged failure of the respondent to make full and frank disclosure. There is no merit in this ground.
6. Although the argument pursuant to Ground 5 commences with a complaint alleging a miscarriage of discretion by the primary judge, it is entirely general in its claims that the decision of the primary judge was unreasonable. There is no merit in the argument put pursuant to this ground.
7. In Ground 6 the appellant alleges that the primary judge:

... erred by mispresenting, falsely recording and omitting to record admissible, prima facie subpoena, forensic and other relevant and admissible documentary evidence, and recording information which is false in material particulars ...

(Notice of Appeal filed 21 October 2025, paragraph 15).

1. The argument developed was around complaints concerning the conduct of other parties. The appellant does not identify any aspect of the judgment of the primary judge where relevant evidence was not identified, nor does the appellant identify any evidence supporting the allegations purported in this ground. There is no merit in this ground.
2. In Ground 7 the appellant claims that the primary judge failed to take into account that the appellant "suffers from a disclosed 'medical disability' for the purposes of s 4(a)(e) of the Disability Discrimination Act 1992 (Cth)" (emphasis in original) (Notice of Appeal filed 21 October 2025, paragraph 16). The appellant has not identified with particularity how any disability specifically impacted upon matters relevant to the judgment under appeal, nor did she point to evidence of that impact.
3. It may be that the appellant seeks to argue that the primary judge failed to have regard to medical evidence when declining to set aside orders made in her absence (due to her failure to file material and attend the 17 April 2025 hearing). The primary judge addressed this issue in the judgment (at [41]-[42]).
4. The evidence before the primary judge as to the inability of the appellant to file her material and attend the interlocutory hearing of 17 April 2025 was her statement in her 213 page (including annexures) affidavit of 16 April 2025 that she had a "severe medical relapse over the last 10 days" (paragraph 11) and that, at paragraph 12:
   1. I have been vomiting this morning and had to wait until my symptoms of severe vertigo subsided, before I could get out of bed; and had to wait for a lift from a colleague to take me to have this affidavit sworn because I am not medically fit to drive a car at the moment, or to attend tomorrow's hearing, or any hearing in the near future, either by telephone or in person.

⁘ Annexure 1 is a true copy of my treating GP Dr G confirming that I am currently medically unfit to attend week's hearing on the 17 April 2025 either in person or by telephone, and from drafting documents for up to 2 weeks.

(Emphasis in original)

1. The note from the doctor was addressed "To Whom it May Concern" and merely stated:

[The appellant] is currently suffering from a medical condition and will not be able to prepare the documentation required for court and attend the court hearing scheduled for 17/4/2025. In my opinion she would benefit from 1-2 weeks delay to allow her to prepare.

(Appellant's affidavit filed 16 April 2025, Annexure 1)

1. The note from the doctor is not in a form which could have been accorded any weight as it was not addressed to the Court, nor did it identify the medical condition, nor did it explain why the "medical condition" prevented the appellant from filing her material some five weeks earlier (in accordance with directions) nor attending at court. The appellant also sets out many claims of family violence perpetrated by other parties. The allegation that she was unable to prepare her material is not credible in light of the fact that she had filed a very lengthy affidavit the day before the hearing. The primary judge had regard to the material and, unsurprisingly, was not persuaded by it. None of these claims appear to have prevented the appellant from presenting her case.
2. These claims appear to be relevant to the considerations in determining spousal maintenance and property settlement orders, rather than the orders the subject of the appeal. This ground is also without merit on the material before this Court.
3. Pursuant to Ground 8 the appellant makes a litany of complaints against the primary judge leading to what she alleges is the primary judge's alleged "open antipathy and hostility towards the Appellant" and "fixed and unshakable opinions". The appellant was unable to point to any specific evidence that would support these claims. There is nothing in the transcript to indicate that the primary judge did anything other than take considerable care to understand the appellant's case and hear her arguments. There is no merit in this ground.

1. The appellant has not identified any ground of appeal that has merit. The appellant has not shown that any of the orders the subject of the appeal are "attended by sufficient doubt to warrant ... being reconsidered by the Full Court" (Medlow & Medlow at [57]).
2. Not only does the appellant fail to show any arguable error on the part of the primary judge, importantly, she is unable to identify any significant injustice that flows from the orders of the primary judge. The various orders largely concerned mundane procedural matters, and thus there would be no "substantial injustice" if leave to appeal were refused concerning these orders. The one significant issue was the interim spousal maintenance orders, which issue was adjourned to another date for hearing after the parties were given yet another opportunity to file further material. No "substantial injustice would result if leave were refused, supposing the decision to be wrong" in this respect as the substantive issue was not determined and the appellant was given a further opportunity to file material before a substantive hearing on the issue.
3. In the circumstances of this case, we are comfortably satisfied that the appellant should not be granted leave to appeal.

1. The appellant has been unsuccessful in the appeal, however the respondent, who was unrepresented, sought no costs order. Therefore, we make no order for costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Harper, Riethmuller & Brasch.

BECKETT GROUP PTY LTD AS TRUSTEE FOR THE BECKETT FAMILY TRUST