Fowles [2025] FedCFamC1A 147 (21 August 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 Fowles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons explain the refusal of the grant of leave for the husband to institute appeals against orders made by two different judges on 16 and 21 July 2025.

1. Property settlement orders were made between the parties on 6 October 2023 to finally resolve their financial dispute under Pt VIII of the Family Law Act 1975 (Cth) ("the Act"). The husband's appeal and the wife's cross appeal from those orders was dismissed by the Full Court in July 2024 (Fowles & Fowles (No 2) (2024) FLC 94-198). The husband's application for special leave to appeal to the High Court of Australia was dismissed in early November 2024 (Mr Fowles v Ms Fowles [2024] HCASL 292).
2. Shortly afterwards, in late November 2024, the wife filed a contravention application alleging the husband's multiple breaches of the property settlement orders. The contravention application was listed for hearing in April 2025 but was adjourned for three months at the husband's request after his application for an order under s 102NA of the Act was granted. The adjournment to July 2025 was designed to enable him time to engage legal representation.
3. The contravention application was re-listed to 4 July 2025 but, the day beforehand, the husband foreshadowed another adjournment application because he was unwell and still without legal representation.
4. The husband lacked legal representation because no less than 33 legal firms had declined offers by the State legal aid agency to represent him (Fowles & Fowles (No 8) [2025] FedCFamC1F 472 at [9]).
5. The husband produced two medical certificates to supposedly verify his illness, the first of which was useless because it merely attested to him being stressed (at [6]) and the second of which certified he was "unable to attend [the] court hearing" on 4 July 2025 (at [7]), but the second certificate also lacked probative value as the husband actually did attend the Court on 4 July 2025. In that respect, the primary judge said in the reasons:
   1. ... The husband submitted that he was "very sick" and "very unwell". He had nevertheless been able to attend Court, and he participated in the proceeding...

1. The wife opposed the husband's application to again adjourn the hearing, but her objection was overruled. The contravention application was adjourned for another couple of weeks to 17 July 2025 (at [14]).
2. However, the primary judge contemplated making a "harmful proceedings" injunction against the husband, about which he was forewarned (at [10]-[12]). Procedural orders were then made that day for the parties to file evidence and submissions on the point, which decision the husband agreed could be made on the papers (at [13]-[14]). The parties did thereafter file written submissions (at [15]-[16]), though the husband chose not to file any evidence (at [17]). The husband recanted his consent to the decision being made on the papers, but the primary judge did so anyway (at [18]).
3. The primary judge pronounced judgment on 16 July 2025, making these orders (Fowles & Fowles (No 8)):
   1. Pursuant to s 102QAC(1) of [the Act], the [husband] is prohibited from instituting proceedings under the Act against the [wife] without the leave of the Court pursuant to s 102QAG of the Act.
   2. Pursuant to s 102QAC(7) of the Act, in the event that the [husband] makes an application under s 102QAE for leave to institute proceedings against the [wife], the [wife] is not to be notified that:

(a) an application has be made; and/or

(b) if the application is dismissed - that the application has been dismissed.

1. Order 2 is entirely procedural.
2. Order 1 embodies the final order which is amenable to appeal (s 102QAC(6)).
3. Order 1 was made because the husband's voracious appetite for litigation in the confined period between March 2025 and July 2025 adversely affected the wife, which is to say nothing of his absorption of a disproportionate share of the Court's resources.
4. In that period of only a few months, the husband filed multiple interlocutory applications, many more affidavits, tried to issue subpoenas, and made professional complaints against the wife's lawyers (at [39]-[69], [71] and [73]). There is also an extensive history of parallel litigation between the parties in State courts (at [70]). All the while, the husband has apparently failed to comply with the property settlement orders made in October 2023 (at [72]). The primary judge accepted the wife's submissions of suffering financial and emotional detriment in having to deal with the barrage (at [74]) and was satisfied there were reasonable grounds to believe she would suffer more harm if the husband initiated further proceedings (at [85]-[86]).
5. Less than a week later, on 21 July 2025, another judge entertained the wife's application against the husband for the payment of her costs in the original financial cause, which costs application was filed long ago on 3 November 2023. Relevantly, the primary judge made these orders that day (Fowles & Fowles (No 9) [2025] FedCFamC1F 491):

1. ...

1. The wife's costs application filed on 3 November 2023 be adjourned before me to 25 September at 10AM, estimated to take not more than 3 hours.

2. The time in which the husband can file and serve a response to the wife's costs application and any affidavit in support thereof be extended to 4 August 2025 at 12 noon.

3. The time provided for in the Order of 22 February 2025, for the filing of written submissions as to costs, be extended as follows:

(a) For the wife, to 3 July 2025 at 12 noon NOTING THAT her costs submissions have been so filed and served; and

(b) For the husband, to 4 August 2025 at 12 noon.

1. Within 14 days of compliance by the husband with the preceding order that he file costs submissions by 4 August 2025 at 12 noon, and the wife file any reply thereto within 14 days.
2. I reserve the wife's costs of and incidental to this day.

1. As can be seen, those orders are all entirely procedural. The pending costs application is yet to be determined.
2. By an Application in an Appeal filed on 13 August 2025, the husband sought leave to appeal from Order 1 made on 16 July 2025.
3. By another Application in an Appeal filed on 19 August 2025, the husband sought leave to appeal from the orders made on 21 July 2025.

1. Pt XIB of the Act was enacted by the Family Law Amendment Act 2023 (Cth) and became operative from 6 May 2024, the purpose of which was explained this way in the Explanatory Memorandum:
   1. ...The purpose of this measure is to protect the respondent and/or children who are the subject of proceedings from the harmful impact of frequent and unnecessary applications filed by an applicant. This measure aims to limit systems abuse, which is a form of family violence that is prevalent in the family law system.
   2. This measure addresses a gap in the court's powers to scrutinise the institution of further proceedings, cited in the case of Marsden & Winch [2013] FamCAFC 177; (2013) 50 Fam LR 409. The ALRC Report found that the court's existing vexatious proceedings and summary dismissal powers do not provide sufficient scope for courts to make appropriate orders in cases where one party oppresses the other by repetitive filing of applications and the serving of those applications on the other party.
2. The harmful proceedings order made against the husband pursuant to s 102QAC(1) of the Act (Order 1) does not carve out any exception for appeals and so the injunction restraining him from bringing further proceedings without leave to do so catches both further original and appellate proceedings (Pencious & Searle [2017] FamCAFC 210; (2017) FLC 93-805 at [77]-[88]).
3. The husband therefore needs leave under Pt XIB of the Act to bring an appeal from Order 1 made by the primary judge on 16 July 2025 and to bring an appeal from the orders made by the other judge on 21 July 2025.
4. When prosecuting an application under s 102QAE(2) of the Act for leave to institute further proceedings and thereby override the effect of the harmful proceedings injunction, it is obligatory for an applicant to file an affidavit containing certain evidence (s 102QAE(3)) and, absent substantial compliance with the requirements of s 102QAE(3) of the Act, the application may be dismissed (s 102QAF(1)).
5. The application must be dismissed if the proposed further proceeding (in this case an appeal) falls within the definition of "vexatious proceedings" (s 102QAF(2)) or if the applicant fails to satisfy the Court the further proceedings are not vexatious (s 102QAG(1)). The distinction between the counterparts of those two provisions (s 102QF(2) and s 102QG(4)) was explained by the Full Court (Darley (No 4) [2023] FedCFamC1A 158 at [13]-[22]).
6. To ascertain whether s 102QAF(2) or s 102QAG(1) apply to mandate the dismissal of the application, the term "vexatious proceedings" is defined as follows in the Act (s 102Q(1)):

"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.

(Emphasis in original)

1. Sub-paragraph (c) of the definition makes clear that, if the proposed appeal in this instance is "without reasonable ground", it is characterised as vexatious and the leave to bring the appeal pursuant to s 102QAE of the Act must be dismissed.
2. The applicant did not state in the two applications or supporting affidavits whether or not he wants his applications determined in the parties' absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but the applications are determined that way, as permitted (s 102QAF(3) and s 102QAF(4)).

Leave to appeal from the order made on 16 July 2025

1. In support of his application for leave to appeal from Order 1 made on 16 July 2025, the husband relied upon two affidavits. The first was filed on 13 August 2025 with the application. The second was sworn or affirmed on 20 August 2025, which the husband attempted to file late that evening. Although the second affidavit was not accepted for filing, it is now marked as an exhibit (Exhibit A) and is considered.
2. The husband did not attach a draft Notice of Appeal to either affidavit.
3. However, he said this in his first affidavit about the nature of his intended appeal:

5. The questions of law and/or fact I seek to raise on appeal include:

(a) Whether the primary judge erred in treating the harmful proceedings order process on 4 July 2025 as "by consent" when I was unwell, unrepresented, and did not have capacity to consent.

(b) Whether the primary judge erred in proceeding to make or timetable for a harmful proceedings order without proper procedural fairness.

(c) Whether the primary judge erred in declining to accept that my medical condition prevented meaningful participation in the 4 July 2025 hearing.

(d) Whether the primary judge erred in declining to treat [legal firm for the wife] as an "interested party" despite prior court communications and appearances on their behalf.

...

6. It is in the interests of justice for leave to be granted because:

(a) The 16 July Orders flow directly from the 4 July 2025 hearing, which I was not able to properly engage in due to illness.

(b) If the appeal is not heard until after final orders, the harm from the harmful proceedings order process and related findings could not be effectively remedied.

(c) The orders restrict my ability to bring applications in the primary proceedings, affecting substantive rights.

1. The husband relevantly adds this in the second affidavit:
   1. In her reasons for the Harmful Proceedings Order, her Honour treated those 2025 applications as repetitive, unmeritorious, or otherwise supporting the conclusion that there were reasonable grounds to make the order. I say it was procedurally unfair to characterise and rely upon those applications without first hearing my evidence or submissions on them. I was denied the potential to provide that evidence and those submissions, which amounted to a denial of procedural fairness.

...

1. I further say that the process was tainted by her Honour's misunderstanding, as at 4 July 2025 and 16 July 2025, of the party status of the [legal firm representing the wife]. On 4 July 2025, her Honour stated on the record that [the legal firm representing the wife] were "not a "party" to the proceedings. This misunderstanding was critical because it meant my conflict and subpoena applications were not dealt with on their merits. I was not given the opportunity to properly challenge [the legal firm representing the wife] role in the case or to test their involvement by cross-examination of other procedural means. Instead, her Honour treated my attempts to raise conflicts and subpoenas as misconceived, and later relied on those refusals as part of the basis for concluding that my litigation conduct was unreasonable and repetitive.

...

1. I say that the combination of (a) making a final Harmful Proceedings Order before hearing my pending applications, and (b) making that order on the basis of a material factual error about party status, amounts to a denial of procedural fairness and a jurisdictional error warranting the grant of leave to appeal.

...

1. At the time the Harmful Proceedings Order was made on 16 July 2025, those applications had not yet been heard and her Honour had not been taken to their substance. In her reasons of 16 July 2025, those applications were referred to as unmeritorious and repetitive.

1. Summarising then, the husband intends to attack Order 1 on several premises:

(a) his medical condition on 4 July 2025 precluded his meaningful participation in the proceedings that day (first affidavit at [5(c)] and [6(a)]);

(b) due to illness, he did not have capacity on 4 July 2025 to consent to the primary judge determining the harmful proceedings injunction on the papers (first affidavit at [5(a)]);

(c) he was denied procedural fairness by the timetable made on 4 July 2025 for the filing of evidence and submissions (first affidavit at [5(b)]);

(d) the primary judge declined to treat the wife's lawyers as an "interested party" (first affidavit at [5(d)]; second affidavit at [9]);

(e) the harmful proceedings injunction hinders his rights (first affidavit at [6(b)] and [6(c)]); and

(f) it was procedurally unfair and/or jurisdictional error for the primary judge to refer to and rely upon applications filed by the husband in 2025 which were still undetermined (second affidavit at [7], [13] and [15]).

1. The first and second complaints are specious. The husband attended Court on 4 July 2025 and actively participated in the proceedings from 10.33 am until 11.32 am, as the transcript annexed to his affidavit demonstrates. His attendance at Court and his participation in the proceeding showed the medical certificates he produced were worthless. The husband plainly did consent to the primary judge deciding the "harmful proceedings" injunction on the papers and, having freely given his consent, his subsequent revocation of it did not preclude the primary judge from acting on the consent initially given. The Act only required that the husband be given the opportunity to be heard (s 102QAC(5)), as indeed he was.
2. The third complaint is misconceived. The timetable was made to afford, not deprive, the husband of procedural fairness. As the prospect of the "harmful proceedings" injunction was raised with the husband for the first time on 4 July 2025, he was not expected to deal with it that day. Instead, the proceeding was adjourned and the parties were directed to file any evidence and submissions upon which they wished to rely. The husband took the opportunity he was given. He filed his submissions on 14 July 2025, which were then taken into account by the primary judge, even if the husband doubts it (second affidavit at [17]). He was heard.
3. The fourth complaint is misconceived. The wife's lawyers had no interest at all in the mooted "harmful proceedings" injunction, which order only binds the husband by prohibiting him from initiating proceedings under the Act against the wife (without an anterior grant of leave). It serves no other purpose. The injunction does not preclude the husband from taking whatever action he deems necessary in respect of the wife's lawyers extraneously to the prosecution of fresh applications against the wife.
4. The fifth complaint is misconceived. Obstructing the husband's ordinary right to commence new litigation against the wife at will is the precise intention of the injunction, not an unintended consequence of it. The injunction does not prevent the husband from contesting any applications pending before the Court at the time the injunction was made.
5. The sixth complaint is misconceived. In the short period between March 2025 and July 2025, the husband filed no less than "15 applications and thousands of pages of affidavit material" (at [73]). The primary judge did not say those applications were "unmeritorious", as the husband wrongly alleges (second affidavit at [15]). The reference within the reasons to the statutory title to Pt XIB of the Act and the content of the Explanatory Memorandum which presaged its introduction (at [75]-[76]) is not part of the primary judge's commentary upon the nature of the husband's applications. Her Honour did not comment at all upon the ostensible merit of his unresolved applications, but rather focussed entirely upon the sheer volume of the litigious onslaught which caused the wife emotional distress and financial stress (at [85]-[86]).
6. None of the premises upon which the husband intends to challenge the validity of Order 1 made on 16 July 2025 evinces any reasonable prospect of success and so, by definition, the intended appeal is vexatious (s 102Q(1)). The application for leave to appeal must therefore be dismissed (s 102QAF(2)).

Leave to appeal from the orders made on 21 July 2025

1. In support of the application for leave to appeal from the orders made on 21 July 2025, the husband relied upon two affidavits filed on 19 August 2025.
2. Again, no draft Notice of Appeal was attached to either affidavit, but the husband did say this about the nature of his intended appeal in the first affidavit:

5. ...

1. Whether [the primary judge] erred in law by failing to consider and determine the Proton application and affidavit filed on 28 March 2025. Despite being raised at the hearing on 21 July 2025, her Honour stated that the application was "not listed before me" and declined to address it. The failure to consider relevant material already filed and sealed on the Court record constitutes an error of law.

2. Whether [the primary judge] erred in law by failing to consider the application and affidavit filed on 2 April 2025 which raised conflict of interest issues concerning [solicitor] and [solicitor] (both former associates of her Honour employed by the wife's solicitors), and [solicitor] (a former solicitor for me who joined the wife's firm). Her Honour dismissed these concerns as "none of your business" rather than applying the established test for conflicts of interest and apprehended bias.

3. Whether [the primary judge] erred in law by refusing to entertain my oral application for subpoenas directed to [the three named solicitors], despite those issues having been raised in filed material. The refusal to consider subpoenas to test the conflict allegations denied me procedural fairness.

4. Whether [the primary judge] erred in law by failing to recognise that [the legal firm for the wife] had been formally joined as an Interested Party by the 12 June 2025 orders of [named registrar], and by proceeding at the 21 July 2025 hearing as if they were not a party.

5. Whether [the primary judge] erred in law by failing to apply the correct legal principles governing conflicts of interest and apprehended bias as set out in Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; (2001) 4 VR 501, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, and Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

(Emphasis in original)

1. The husband deposed much the same evidence in his second affidavit (at [5]-[9]).
2. The husband deposed this in his first affidavit:
   1. The 21 July 2025 orders significantly affect my substantive rights, including my ability to properly contest the wife's costs application, which exceeds $1.8 million.
3. He deposed much the same evidence in his second affidavit (at [10]).
4. That evidence is simply untrue. The husband's "substantive rights" were not affected in any way by the procedural orders made on 21 July 2025. In fact, being entirely procedural in nature, the subject orders do not even amount to a "judgment" which is amenable to appeal, thereby rendering the proposed appeal futile. The proposed appeal has no reasonable prospect of success, so it is vexatious (s 102Q(1)) and must be dismissed (s 102QAF(2)).
5. The husband's right of appeal will lie from the ultimate order made to determine the wife's costs application.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.