Fernan & Mina (No 2) [2025] FedCFamC1F 823 (11 November 2025)

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

1. This is an application by the husband, Mr Fernan ("the husband"), for a stay of orders made on 10 October 2025 (amended 16 October 2025). The husband requires permission to institute proceedings by virtue of paragraph 8 and 9 of those orders made under the harmful proceedings provisions of the Family Law Act 1975 (Cth) ("the Act"). By operation of those orders, the wife, Ms Mina ("the wife"), was not to be notified that an application has been made. There is one child to the relationship, X, born in 2022.

1. On 10 October 2025, as well as the orders made under s 102QAC of the Act, the Court made orders for the enforcement of final orders made by Judge Burt on 3 April 2025 (amended on 7 May 2025). By an Application in a Proceeding accepted for filing on 10 November 2025, the precise relief sought by the husband is recorded to be:
   1. This application is supported by the Affidavit of [Mr Fernan] affirmed 3 November 2025 and the annexures Al- Al2 attached thereto.
   2. This application is filed pursuant to r 2.01 and r 13.12(3) of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) for restitution and suspension of enforcement pending determination of the applicant's application for leave to appeal under s 102QAE of the Family Law Act 1975 (Cth). It is a protective procedural filing made solely to preserve the applicant's appeal rights and does not seek to relitigate substantive issues.
   3. That enforcement of the orders of Justice McNab dated 10 October 2025, including any warrant of possession issued 27 October 2025, be suspended pending determination of the applicant's application for leave to appeal under s 102QAE of the Family Law Act 1975 (Cth).
   4. That possession of the property at [D Street], [Suburb B] be restored to the applicant, including the immediate return of all keys and access rights
   5. That the respondent, [Ms Mina], be restrained from selling, transferring, leasing, or otherwise dealing with the property until final determination of the appeal.
   6. That the respondent be restrained from executing any further enforcement orders or engaging in any acts of possession pending determination of the appeal.
   7. That the orders of Justice Attiwill dated 29 May 2025 (made under s 1337H of the Corporations Act 2001 (Cth)) be recognised and reinstated to preserve the applicant's corporate, financial, and equitable interests in [G] Pty Ltd (ACN [...]) pending the determination of the appeal.
   8. That upon restoration of possession, interim parenting arrangements be reinstated to enable the applicant to resume care and contact with the child consistent with ss 60CA-60CC of the Family Law Act 1975 (Cth), pending the determination of the appeal and any further parenting review..
   9. That the respondent be restrained from alienating, concealing, or removing the child from the jurisdiction, and that the Australian Federal Police be authorised under s 67Q of the Family Law Act 1975 (Cth) to recover the child to the applicant if necessary.
   10. That the Court make such further or other orders as it deems just, including urgent financial relief in the sum of $300,000 representing withheld director salary, superannuation, dividends, and equitable compensation for misappropriated funds and unjust enrichment contrary to the Corporations Act 2001 (Cth) and equitable principles recognised in Warman International v Dwyer [1995] HCA 18; (1995) 182 CLR 544 and Youyang v Minter Ellison (2003) 212 CLR 484.
   11. That the respondent, [Ms Mina], and any person acting on her behalf be restrained from dissipating, concealing, or dealing with funds, clients, or assets of [G] Pty Ltd or [J] Pty Ltd, or any related entity or trust, pending final orders of this Court.
   12. That this application be heard urgently, ex parte if necessary, pursuant to r 5.11 and r 13.38 of the Federal Circuit and Family Court (Familv Law) Rules 2021 (Cth)
   13. Such further or other orders as the Court deems just, including an urgent order under ss 60CA-60CC of the Family Law Act 1975 (Cth) restoring the applicant as the child's primary carer pending appeal, given the proven and unlawful alienation of the child since birth (now approaching three years of age), the absence of any findings of risk or misconduct against the applicant, and the demonstrated need for immediate re-establishment of a meaningful parent-child relationship. The respondent's conduct - including premeditated alienation, deliberate misrepresentation of financial hardship, and misuse of company and family resources - constitutes unclean hands and unjust enrichment, contrary to the equitable principles in Nelson v Nelson (1995) 184 CLR 538, Warman International Ltd v Dwyer [1995] HCA 18; (1995) 182 CLR 544, and Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484. The Family Court's failure to correct these inequities and to address the unlawful deprivation of parental contact offends ss 60CA-CC and the fundamental obligation to act in the child's best interests as articulated in Goode v Goode (2006) FLC 93-286, MRR v GR (2010) 240 CLR 461, and U v U [2002] HCA 36; (2002) 211 CLR 238. In these circumstances, equity and the rule of law require urgent protective intervention to restore care to the applicant, the innocent and fit parent.
   14. That the Court acknowledge this application is brought by a self-represented litigant within the statutory appeal period and direct the Registry to provide procedural assistance to ensure equal access to justice pursuant to r 1.04 and r 1.06 FCFCOA Rules 2021 and Tomasevic v Travaglini [2007] VSC 337.

1. Section 102QAE(3) of the Act requires that when an applicant applies for leave to institute proceedings:

(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known the applicant.

1. The affidavit filed by the husband on 3 November 2025 contemporaneously with his application does not comply with that requirement. The affidavit is a lengthy discursive document. The application seeks more than a stay of the orders of 10 October 2025, and seeks, effectively, to set aside the final orders that were made on 3 April 2025 in conjunction with a stay of the orders of 10 October 2025 which enforced the final orders.
2. After considering the application and the affidavit of the husband, the Court will order that the application be dismissed pursuant to s 102QAF(2) of the Act on the grounds that the proposed proceedings are vexatious proceedings. By the terms of the orders sought, the husband is seeking to overturn the decision of Judge Burt in respect of parenting and property orders.
3. Notwithstanding that the affidavit does not comply with the requirements of the Act, in considering an application for a stay, I have regard to Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]. That authority refers to a number of principles which are to be applied and matters to be taken into account in determining an application for a stay of orders. These include:

(a) the onus to establish a proper basis for a stay is on the applicant for the stay, however, it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;

(b) a person who has obtained a judgment is entitled to the benefit of that judgment;

(c) a person who has obtained a judgment is entitled to presume the judgment is correct;

(d) the mere filing of an appeal is an insufficient basis for the granting of a stay;

(e) the applicant's bona fides;

(f) a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted (this will be a substantial factor);

(g) some preliminary assessment of the strengths of the proposed appeal and whether the appellant has an arguable case; and

(h) the stay may be granted on terms that are fair to all parties and this may involve weighing the balance of convenience and competing rights of the parties.

1. The husband's affidavit is prolix and replete with factual inaccuracies. For instance, it is asserted at paragraph 9 of the affidavit that:
   1. On 3-4 February 2025, proceedings were heard before Judge Burt in the Federal Circuit and Family Court of Australia (Division 2). The respondent did not contest that trial. Orders were later made on 3 April 2025 that were inconsistent with the evidence given and with the respondent's non-participation.
2. That assertion is simply incorrect. Both parties participated in the hearing, and that is apparent from the written reasons of Judge Burt at [38]-[41]. The assertion that the wife did not contest matters raised by the husband is factually incorrect as is apparent from the written reasons.
3. The husband, by this application, is also asserting matters in relation to the parenting orders which do not reflect the terms of the orders which were made on 3 April 2025. Those orders provided the husband with an opportunity to spend supervised time with the child pursuant to paragraph 4 of the orders and it is not the case that the husband has been deprived of an opportunity to spend time with the child. He seeks, by this application, to set aside those orders pending appeal and to institute new orders giving him primary care of the child, and that, in my view, is a hopeless application to the point of being vexatious.
4. The husband's application did not have attached to it any proposed Notice of Appeal, although I have been provided this day with an affidavit filed by the husband which is listed for hearing before the Full Court on the question of leave to appeal and has annexed to it a proposed Notice of Appeal.
5. I find that the matters raised by the husband in the proposed Notice of Appeal do not give rise to a reasonably arguable case on appeal. I refer to the reasons for judgment which were provided in respect of the orders made on 10 October 2025 (Fernan & Mina [2025] FedCFamC1F 733), and, the written reasons which were provided to the husband by Appeal Judicial Registrar Thomas in earlier appeal proceedings, which are referred to in that judgment. There is no arguable basis raised by the husband that the orders made on 10 October 2025 are affected by error, nor are there, in my view, coherent or reasonably arguable grounds of appeal raised in relation to the orders of 3 April 2025.
6. For these reasons, I refuse the application for leave to institute proceedings on the grounds that the proposed proceedings and application for a stay of the orders is vexatious.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice McNab.