Brose & Albert [2025] FedCFamC1F 898 (8 December 2025)

(a) Contends that the certificates attached to the s 90C agreement entered 8 March 2005, attached to his affidavit filed on 3 December 2025, failed to comply with s 90G of the Family Law Act 1975 (Cth) as it existed at the date of the agreement; and

(b) Any relief to be prosecuted pursuant to s 90K of the Act.

1. On or 26 January 2026, the wife shall file and serve a Response to Initiating Application annexing points of defence.
2. The matter is listed on 23 February at 9.30 am before a senior judicial registrar.
3. The wife's costs of today are reserved.

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

1. These reasons determine an application for urgent injunctive orders prosecuted by Mr Brose ("the husband") to preserve what he contends would be the status quo in the subject matter litigation he commenced on 3 December 2025.
2. Ms Albert ("the wife") opposes the relief as sought by the husband.
3. The parties married in 2005 and separated either in December 2023 or January 2024. They have one child, X born in 2005.
4. The parties entered a financial agreement pursuant to s 90C of the Family Law Act 1975 (Cth) ("the Act") on 8 March 2005. The agreement attaches certificates that appear to be compliant with s 90G of the Act as it existed at the date of entry of the agreement, executed by Rosana Tyler, solicitor on behalf of the wife on 4 March 2005, and by Mary Rose Barber, solicitor on behalf of the husband, on 8 March 2005. While each certificate itself identifies that they are for the purposes of s 90B, rather than s 90C of the Act, it appears the incorrect identification of the section of the Act on the top of each certificate currently does not carry moment.
5. The agreement records the contended financial circumstances of each party at the date of its entry.
6. Clause 8 of the agreement provides that it operates in substitution for the parties' rights under Pt VIII of the Act. Clause 22 provides that each party will retain property as legally held by each of them as at the date of breakdown of the marriage and that any joint property is to be sold, with the proceeds of sale being distributed by reference to the contributions made by each party to the property as sold.
7. The husband gives evidence that:

(a) The wife acquired a property at B Street, Suburb C ("The Suburb C property") in mid-2014 for $1,250,000. The property is subject to a mortgage; and

(b) The Suburb C property has been listed for sale since early 2024, initially for a sale price of around $4 million, and in more recent times, reduced to $2.9 million; and

(c) At or about early 2024, the wife acquired another real property at D Street, Suburb E, obtaining bridging finance secured upon the Suburb C property.

1. The husband by way of his Initiating Application filed on 3 December 2025, seeks the following final orders:
   1. Pursuant to section 79 of the Family Law Act 1975 the parties' property interests are to be adjusted such that each party receives property, superannuation, and financial resources equal to 50% of the net asset pool.

2. The Applicant be granted leave to amend and further particularise Order 1.

1. The Court declares that the Financial Agreement entered into between the parties dated 8 March 2005 is not binding.

2. In the alternative to Order 3, above and pursuant to section 90K (1) of the Family Law Act 1975, the financial agreement entered into between the parties dated 8 March 2005 is set aside.

(As per the original)

1. In that application he seeks the following interlocutory orders:

Procedural

1. This Application be urgently listed.

2. This Application be heard on an ex-parte basis.

3. The usual rules as to listing be dispensed with.

1. In the alternative to Orders 1, 2, and 3, the matter be listed urgently and the Applicant be granted short service.

Injunction

1. Pursuant to section 114(1) of the Family Law Act 1975, and pending the determination of the Applicant's application to set aside the financial agreement dated 8 March 2005 under section 90K:

5.1 The Respondent be restrained until further Order from selling, transferring, assigning, disposing of, mortgaging, encumbering or otherwise dealing with the property situate and known as [B Street], [Suburb C] being the whole of the property contained in folio identifier [redacted] ("the [Suburb C] Property").

5.2 The Respondent be restrain until further order from proceeding with, causing, facilitating or permitting any auction, private sale, marketing campaign, inspection or other sale-related activity concerning the [Suburb C] Property.

5.3 The Respondent be restrained from entering into any contract for sale of the [Suburb C] Property whether conditional or unconditional.

5.4 The Respondent be restrained from further encumbering, refinancing, redrawing upon, increasing or otherwise dealing with any liability or borrowing secured against the [Suburb C] Property until further Order.

5.5 The Respondent be restrained from applying, drawing down on, or increasing any line of credit, loan, or borrowing secured in whole or in part against the [Suburb C] Property.

Withdrawal from Sale

6. Within twenty-four (24) hours the Respondent:

6.1 Provide written instruction to the real estate agent(s) engaged in relation not the [Suburb C] Property to withdraw the property from auction and from sale forthwith.

6.2 Take all steps required to immediately terminate all advertising, marketing, promotional material and on line listings relating to the sale or auction of the [Suburb C] Property.

1. Within twenty-four (24) hours of the completion of Order 6, the Respondent provide the Applicant's legal representative with written confirmation of her compliance with Order 6 including:

7.1 The name of the real estate agent(s);

7.2 The date and time instructions were given; and

7.3 Copies of the written correspondence sent.

Disclosure

1. Within twenty-one (21) days, each party provide the other with full and frank disclosure of their financial circumstances in accordance with rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 .

Financial Agreement

1. The Court declares that the Financial Agreement entered into between the parties dated 8 March 2005 is not binding.

2. In the alternative to Order 9, above and pursuant to section 90K (1) of the Family Law Act 1975, the financial agreement entered into between the parties dated 8 March 2005 is set aside.

Costs

1. The Respondent pay the Applicant's costs of and incidental to this interlocutory application on an indemnity basis.

(As per the original)

1. The husband says that the wife was served with a copy of the interlocutory application and the affidavit evidence in support of it by email on 3 December 2025.
2. The proceeding was transferred from Division 2 to this Court earlier today. I made orders listing the husband's application for injunctive relief for the preservation of property for hearing late this afternoon in circumstances where the Suburb C property is scheduled for auction on 10 December 2025.
3. The wife has not had an opportunity to file evidence in response to the injunctive relief sought by the husband.
4. The husband attached to his affidavit a letter from his solicitors to the wife dated 10 October 2025. In that letter he seeks that the parties enter of a further financial agreement providing for a convoluted arrangement whereby the Suburb C property be transferred to him in specie, that a property at F Street, Suburb G ("the Suburb G property") that he will receive by way of a Grant of Probate be sold, that he pay $1,300,000 to the wife and the wife pay $300,000 towards a home loan that he would obtain secured against the Suburb C property, with the balance of $1 million being paid to the wife following the sale of the Suburb G property in six to 12 months. The husband's evidence is that on 12 November 2025 the wife rejected his proposal and maintained the integrity of the s 90C financial agreement. She implicitly seeks enforcement of the agreement.
5. The husband sent a further letter on 22 November 2025 requesting the wife withdraw the Suburb C property for sale. She has not responded to or complied with that request.
6. The husband contends that he will suffer a real risk of "irreparable prejudice" if the Suburb C property is sold.
7. Applicable principle to the determination of an application for injunctive orders of the nature sought by the husband is well known. The Full Court said in Tsiang & Wu and Ors (2019) FLC 93-911:
   1. The grant of an injunction is discretionary and the basis on which such an order is made is well established. A purpose, as in this case, is to preserve the status quo pending resolution of the controversy. An applicant must demonstrate first that there is a serious issue to be tried. While that statement has been the subject of various iterations, in essence it requires the demonstration of an arguable case or as was said in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], the applicant must "show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo".
   2. Next the applicant must demonstrate that the balance of convenience favours making the order sought. As part of this, the applicant must show that there is a "danger" or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the applicant.

1. The husband must establish both an arguable case with sufficient likelihood of success to justify the preservation of the status quo and that the balance of convenience in granting the injunction falls in his favour, in that there is a real risk of dissipation of, or dealing with assets, that will frustrate any judgment in his favour.
2. The husband has no direct interest in the Suburb C property.
3. The s 90C agreement dated 8 March 2005, by way of the s 90G certificates attached thereto, prima facie is evidence as to each party receiving requisite advice prior to the entry of the agreement to impel the operation of s 71A of the Act (Hoult & Hoult [2013] FamCAFC 109; (2013) FLC 93-546).
4. His interest is in the subject matter of his proposed s 79 litigation is therefore contingent on a successful challenge to the s 90C agreement. Absent successful challenge, no s 79 jurisdiction is enlivened.
5. The husband by way of his affidavit asserts two broad challenges to the agreement being:

(a) That he did not receive the requisite advice as identified in the certificate executed by his solicitor prior to entering the agreement. In the letter from his solicitors to the wife dated 22 November 2025, he said "specifically, [I] contend that prior to the signing of the agreement [I] did not receive the requisite advice from the legal practitioner pursuant to s 90G(1)(b)". This contention may be in direct contrast to his evidence in his affidavit filed on 3 December 2025. It records:

1. I do not recall receiving any verbal advice about the Financial Agreement during that consultation and never received any written advice in relation to the Financial Agreement prior to that appointment.

(b) That the agreement be set aside pursuant to s 90K(1) of the Act. That section is a statutory recognition of the basis upon which the court would ordinarily interfere with a contract. The husband makes a bare assertion by way of his solicitors' letter dated 22 November 2025 attached to his affidavit as follows:

Our client otherwise contends that the Agreement is otherwise capable of being set aside by the Court pursuant to section 90K of the Act where:

1. There was non-disclosure of a material matter at the time of entering the Agreement, namely that you failed to disclose your interest in further real property to our client; and
2. The Agreement is rendered unenforceable by its own terms, which are internally inconsistent and ambiguous.

1. The wife implicitly contends that the husband's challenges to the financial agreement do not, on the material adduced in evidence thus far, establish a reasonable prospect of success. To my mind, that submission has merit. Hence there is real dispute between the parties as to whether the Court's jurisdiction to consider any adjustment of the parties' property pursuant to s 79 of the Act will be enlivened.
2. There is merit in the wife's submission as to the husband delaying for more than 18 months, absent explanation, bringing an application to restrain her from dealing with the Suburb C property.
3. I further accept that there is merit in the wife's submission that the husband cannot establish irretrievable prejudice to his proposed litigation where his overriding implicit objective is to "preserve the equity in the Suburb C property." There is no evidence that the wife will dissipate her property sale proceeds to defeat any potential claim of the husband as sought by the husband in his initiating application as filed. Putting it simply, the wife is currently converting her real property interests to cash.
4. In the circumstances, I am not satisfied that the husband has established a likelihood of success in the proceedings to justify a preservation of the status quo. My conclusion is reinforced by the wife having to meet the cost of continuing bridging finance on the Suburb C property and her attempts to liquidate it for more the past 18 months. The husband has not established that the wife will deal with her property in a way that will frustrate the terms of the judgment sought in his favour as articulated on a final basis in his Initiating Application filed on 3 December 2025.
5. For the above reasons, the relief sought by the husband on an interlocutory basis in paragraphs 5, 6 and 7 of his Initiating Application filed on 3 December 2025 will be refused.
6. The husband seeks an order in paragraph 8 of his Initiating Application on an interlocutory basis that the parties comply with their obligations pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). There is no utility in making an order for the parties to do what the Rules mandate. That relief will be refused.
7. The husband will be directed to particularise with precision the legal and factual foundations upon which he proposes to challenge the s 90C agreement. Directions will be made for him to file and serve an Amended Initiating Application annexing points of claim. The wife will thereafter be directed to file a response to that document with points of defence.
8. For all of the above reasons, I make the following orders.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.