Brown v West

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

1. This is an application under s 102QAE of the Family Law Act 1975 (Cth) ("the Act") seeking leave to appeal a suite of orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 10 October 2025 and amended on 16 October 2025. Such leave is necessary because one of the orders made was an order under s 102QAC of the Act prohibiting the applicant from instituting proceedings under the Act against the proposed respondent without the leave of the court (Pencious & Searle [2017] FamCAFC 210; (2017) FLC 93-805 at [77]-[85]).
2. On 3 April 2025 a judge of the Federal Circuit and Family Court of Australia (Division 2) made final property and parenting orders between the parties, including an order that a property at Suburb B be sold and the proceeds divided between the parties. The final property order was amended on 7 May 2025.
3. The respondent subsequently filed an application seeking further orders as to the sale of the Suburb B property, and an order under s 102QAC of the Act. The proceedings came before the Federal Circuit and Family Court of Australia (Division 1) because in May 2025, Attiwill J in the Supreme Court of Victoria transferred to it proceedings commenced there by the applicant under the Corporations Act 2001 (Cth) ("Corporations Act"). The respondent sought the dismissal of those proceedings.
4. In his orders, the primary judge:
   • Set aside Order 2(f) of the 3 April 2025 orders and made other orders in substitution so as to require the applicant to give vacant possession of the Suburb B property within 14 days, together with consequential orders to enforce it, including the prospective issue of a warrant for possession;
   • Made a harmful proceedings order against the applicant;
   • Dismissed the Corporations Act motion together with all outstanding proceedings brought by the applicant; and
   • Made costs orders in favour of the respondent.
5. An application for leave under s 102QAE of the Act may be dismissed without an oral hearing with or without the applicant's consent. The order may be made in chambers (s 102QAF(3) and (4) of the Act).
6. The application indicated that the applicant was content for the matter to be determined on the papers. Nonetheless, the matter was listed for oral submissions.
7. The hearing was to take place electronically. The applicant had joined the hearing link and was in the electronic waiting room whilst the court was being set up. He was no longer there when court staff went to admit him to the virtual courtroom. Emails were sent to him asking him to rejoin but he did not. Court staff were unable to contact him via telephone. The applicant has not made contact with the National Appeal Registry since then.
8. In these circumstances we have determined the matter on the papers in chambers.

1. When hearing an application under s 102QAE of the Act, the court must dismiss the application if it considers the proposed proceedings to be vexatious (s 102QAF(2) of the Act). Vexatious proceedings are defined by s 102Q for the purpose of Pt XIB as:

vexatious proceedings includes:

(a) proceedings that are an abuse of the process of a court or tribunal; and

(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and

(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and

(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

1. If, and only if, the court is satisfied that the proposed proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success, the court "may" then grant leave (s 102QAG of the Act). The exercise of the discretion only arises after those conditions are met.

1. Jurisdictional Error - Breach of Supreme Court Transfer Orders

The Court exceeded jurisdiction by disregarding the [May 2025] orders of the Supreme Court of Victoria (Attiwill J) made under s 1337H Corporations Act 2001 (Cth), which transferred the corporate-oppression and family-property matters for an integrated hearing. Proceeding inconsistently with those binding orders constituted jurisdictional error and denial of the integrated hearing contemplated by Parliament (Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531; Re Bhardwaj (2002) 209 CLR 597).

2. Unlawful Revival of Finalised Proceedings

The respondent's Amended Initiating Application (8 Oct 2025) re-opened proceedings already determined at the 3-4 Feb 2025 trial without a valid s 79A FLA application. This "back-door rehearing" was outside jurisdiction (Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Re Bhardwaj).

3. Denial of Procedural Fairness - Inability to Test Evidence

The [applicant] was denied a meaningful opportunity to know and meet the case and to cross-examine the respondent, despite repeated requests and extensive material filed between 3 Apr 2023 and 27 Oct 2025. Denial of these basic hearing rights constitutes jurisdictional error (Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57). Orders made without natural justice are void ab initio (Re Bhardwaj; House v The King (1936) 55 CLR 499). Findings of fact must derive from evidence tested in adversarial process (Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336).

4. Constructive Bias and Selective Use of Evidence (3 Apr 2023 - 27 Oct 2025)

The proceeding advanced the respondent's narrative while disregarding the [applicant's] affidavits and exhibits, amounting to constructive bias and denial of equality before the law (Minister for Immigration v Li (2013) 249 CLR 332; Tomasevic v Travaglini [2007] VSC 337).

5. Suppression of Premeditated Misconduct Evidence / Abuse of Process

The [applicant's] written submissions and Application for Contravention exposed a pre-planned diversion of company assets and misleading conduct. The Court's refusal to consider this material offended s 75(v) of the Constitution and the supervisory principles in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82.

6. Parenting Orders Procured by False Pretence; Ignored Expert Findings

The 11 Sep 2023 relocation orders were obtained on false claims of destitution, disproved by payslips, profit-and-loss statements, ASIC extracts and NAB records. Independent experts Osmand (2023) and Dungey (2024) found no violence and opposed the plan; police attending [early] 2025 recorded no violence. The 3 Apr 2025 orders ignored this uncontroverted evidence, breaching the paramountcy principle (s 60CA FLA) and the requirement that justice be seen to be done (R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248).

7. Financial Oppression and Unjust Enrichment

Evidence shows the respondent (a) diverted $60 000 (Westpac loan) to acquire property in [Country C]; (b) applied $30 000 of company funds to a personal ATO debt; and (c) withheld the [applicant's] salary, superannuation and dividends (2020-2025). Awarding her 70 % of property proceeds and $73 000 costs rewards misconduct, contrary to fundamental equitable principles (Nelson v Nelson (1995) 184 CLR 538; Warman v Dwyer [1995] HCA 18; (1995) 182 CLR 544; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564).

8. Unlawful Enforcement Within Appeal Period

The warrant of possession executed [in] Oct 2025 within the statutory appeal window breached r 13.12(3) FCFCOA Rules 2021 (Cth) and is void (Re Bhardwaj; House v The King).

9. Material Prejudice and Economic Loss from Unlawful Enforcement

The unlawful eviction caused homelessness, loss of employment income, and pecuniary damage (including perished goods ≈ $2 000 and utility reconnection fees). These losses flow directly from the failure to stay enforcement and constitute interference with the constitutional right of appeal. Equitable relief arises where prejudice flows from jurisdictional error (Ainsworth v CJC; Plaintiff S157 /2002; Li).

10. Failure to Assist a Self-Represented Litigant

The Court failed to discharge its duty to ensure fairness to an unrepresented party, contrary to Tomasevic v Travaglini [2007] VSC 337, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 and T v The Queen [1997] HCA 56; (1998) 191 CLR 439.

11. Need for Forensic Accounting and Disclosure of Records

Given financial diversions exceeding $1 million, the Court ought to have ordered a forensic accounting investigation (Youyang Pty Ltd v Minter Ellison (2003) 212 CLR 484; Ainsworth v CJC). The [applicant] seeks leave to work with the appointed expert and requests release of recorded hearings, transcripts and the Westpac bank statements already paid for and withheld by the Registry.

12. Restoration of Parental Contact and Recognition as Primary Carer

The [applicant] has been unlawfully alienated from his child without lawful basis. Consistent with expert evidence and s 60CA-60CC FLA, the [applicant] seeks immediate restoration of contact and recognition as primary carer on an interim and final basis.

Summary:

The cumulative effect - jurisdictional excess, denial of cross-examination, selective use of evidence, unlawful enforcement and resulting hardship, alienation from the child, and disregard of constitutional safeguards - constitutes a constructive denial of justice and jurisdictional error of a fundamental kind.

The orders of 10 Oct 2025 are void ab initio and should be set aside, with restitution and a rehearing before a different judge in accordance with law and natural justice.

(Annexure "A1" of the applicant's affidavit filed 5 November 2025)

(As per the original)

1. As to the first ground, the primary judge found that the factual issues underpinning the applicant's Corporations Act application had already been determined by the Division 2 judge in the original property proceedings. This led his Honour to find:
   1. An estoppel arises by virtue of her Honour's reasons where there have been findings of fact made on the same subject matter. If I am wrong about that, the application in its form and the relief sought, constitutes an abuse of process. Its principal aim is to either seek to undermine the final orders that were made by her Honour or, alternatively, to frustrate the enforcement of those final orders. The evidence of the [applicant] both before her Honour and as set out in his material which has been filed with the Court, is incoherent and argumentative. Whilst the [applicant] is self-represented, that is no proper explanation or a salve for him to rely upon. The [respondent] is being subjected to an abuse of process by this application that the [applicant] seeks to press. These proceedings have been the subject of numerous applications, both prior and subsequent to the final orders being made, and that is reflected in the number of orders which were made in the proceedings.
2. The primary judge then referred to many messages sent by the applicant and said:
   1. The [applicant] did not deny sending those messages. I find that by sending messages in those terms, provides a basis that the application is brought for an ulterior purpose and is an abuse of process.
   2. The [applicant] is simply seeking to undermine the final orders of this Court and I find that it is not appropriate or in the interests of justice, that the [respondent] be subjected to further proceedings in their current form. It runs entirely contrary to the overarching purpose of this Court, which is set out in s 67 of the FCFCOA Act.
   3. There is a proper basis for the orders that are sought by the [respondent] for the dismissal of the [applicant's] application pursuant to r 10.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and/or s 102QAB of the Act. I find that the application is a proceeding that falls under frivolous, vexatious or an abuse of process.
3. It follows that his Honour did not ignore the orders of transfer made by the Supreme Court. The transferred proceedings were considered and dismissed.
4. This ground has no prospect of success at all.

1. As to the second ground, the orders made by the primary judge were said to be pursuant to s 79A(1)(c) of the Act. The primary judge need not have referred to s 79A as Order 2(f) is a machinery provision which can be amended without resort to that section. The authorities are drawn together in Olsson & Olsson [2022] FedCFamC1A 129; (2022) 67 Fam LR 66 and Goldsmith & Stinson (No 2) (2023) FLC 94-134.
2. Order 2(f) required the applicant to provide vacant possession at the time of completion of the sale of the Suburb B property. The primary judge varied that to require vacant possession within 14 days and made other consequential orders that were not substantive in nature.
3. The primary judge clearly had the power to make Orders 1 to 4 without reliance on s 79A. As long as there was power to make the orders, as there was here, the reference to s 79A is not a material error. For example, see R v Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 at 487; Lockwood v Commonwealth [1954] HCA 31; (1954) 90 CLR 177 at 184; Brown v West (1990) 169 CLR 195 at 203; Browne v Keith [2015] FamCAFC 143; (2015) 55 Fam LR 208 at 212; Kramer and Ward [2017] FamCAFC 270; (2017) FLC 93-817 at [152].
4. This ground cannot succeed.

1. As already discussed, the primary judge had sufficiently considered the evidence so as to be able to decide that the factual issues raised by the applicant had already been determined. His Honour also quoted extensively from the applicant's affidavit as to the alleged embezzlement and failure to pay wages. That evidence, accurately it seems to us, was described as incomprehensible.
2. The evidence was considered. The fact that the primary judge did not place any weight on the applicant's evidence does not, of itself, give rise to any suggestion of bias. It is part of a judge's role to determine the evidence which is to be given weight. Similarly, the applicant's submissions as to pre-meditated conduct and abuse of process were not supported by any evidence upon which the primary judge was prepared to rely and were therefore doomed to failure.
3. Grounds 3, 4 and 5 must fail.

1. Grounds 6 and 12 concern parenting orders. The primary judge did not make any parenting orders, so these grounds are not competent.

1. Grounds 7 and 11 appear to challenge the substantive property orders made on 3 April 2025 and not those made on 10 October 2025 and amended on 16 October 2025. To the extent they refer to the Corporations Act proceedings, the applicant did not adduce evidence that would have justified further disclosure.
2. In any event, the applicant could not simply re-open the s 79 orders by using other proceedings as a guise to effect that challenge.

1. We do not understand Ground 8. No relevant appeal period was running when the orders the subject of the proposed appeal were made. A judgment takes effect immediately, unless it is stayed. There was no stay in this matter. Therefore, the requirement to vacate the premises in 14 days was immediately in force. It is not relevant that the appeal period is longer than 14 days.

1. Ground 9 identifies the effect of the orders on the applicant (according to him). That does not make any of the orders erroneous. Indeed, it is obvious that an order for possession requires the person the subject of the order to find other accommodation.

1. Finally, Ground 10 is a bald assertion that the applicant was not given assistance as an unrepresented litigant. He does not identify in what way, if any, he contends that he was prejudiced by a lack of assistance or explanation.

1. None of the proposed grounds of appeal has any prospect of success, let alone a reasonable one. It necessarily follows that the proposed proceedings are vexatious. The application for leave must be dismissed.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carew & Behrens.