Fowles (No 2) [2026] FedCFamC1A 26 (24 February 2026)

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. The applicant is the subject of a harmful proceedings injunction made against him under s 102QAC of the Family Law Act 1975 (Cth) ("the FLA") on 16 July 2025 ("the s 102QAC injunction").
2. These reasons explain the dismissal of his application brought under s 102QAE of the FLA for leave to circumvent the s 102QAC injunction and bring an application for leave to appeal from another order made by the primary judge on 19 August 2025.

1. Final orders were made on 6 October 2023 between the applicant and his former spouse ("the wife") to finalise financial matters between them under Pt VIII of the FLA ("final orders").
2. The final orders did not put a stop to the litigation.
3. On 3 November 2023, the wife filed an application against the applicant seeking a costs order for the finalised financial cause. Nearly two years later, on 4 December 2025, less than two business days before the applicant's s 102QAE application was listed for hearing, the judge who heard and finalised the financial cause ordered that the applicant pay the wife's costs of the final hearing from 19 March 2018 to 10 September 2021 on a solicitor/client basis, as agreed or assessed. See Fowles & Fowles (No 14) [2025] FedCFamC1F 882.
4. On 27 November 2024, the wife filed a contravention application against the applicant seeking to have him sanctioned for non-compliance with the final orders. The primary judge heard the contravention application on 11 September 2025, and delivered judgment on 19 September 2025 (Fowles & Fowles (No 11) [2025] FedCFamC1F 658). The applicant was found guilty of contravening a handful of the final orders without reasonable excuse and was ordered to forthwith comply with those orders or face a term of 12 months imprisonment. The issue of costs was still pending in 2025.
5. Then, between, March 2025 and July 2025, the applicant filed no less than 10 interlocutory applications seeking all manner of restraints and sanctions against the wife's lawyers, together with other forms of procedural relief. With the financial cause having been finalised, the only pending proceeding was the contravention proceeding, and so the applicant's applications were all supposedly filed within that proceeding.
6. On 19 August 2025, the primary judge dismissed all 10 interlocutory applications by making an order ("dismissal order") in these terms:
   1. The following Applications in a Proceeding filed by the husband are dismissed:

(a) 28 March 2025 at 8:09am;

(b) 28 March 2025 at 8:10am;

(c) 2 April 2025;

(d) 15 April 2025;

(e) 4 June 2025;

(f) 25 June 2025;

(g) 26 June 2025;

(h) 27 June 2025;

(i) 4 July 2025; and

(j) 8 July 2025.

1. By an Application in an Appeal filed on 16 September 2025, the applicant applied for the grant of leave to override the s 102QAC injunction so he could prosecute an application for leave to appeal from the dismissal order made on 19 August 2025.
2. The applicant purportedly brings the application for leave under s 25(2) of the FLA, but he is mistaken because no such provision exists. As we explain below, the application must be brought under s 102QAE of the FLA.
3. The Application in an Appeal was listed for hearing before the Full Court, given the earlier application unsuccessfully brought by the applicant under s 102QAE of the FLA in relation to other orders, including the s 102QAC injunction itself (Fowles [2025] FedCFamC1A 147).

1. The s 102QAC injunction relevantly provides:

Pursuant to s 102QAC(1) of [the FLA], the [applicant] is prohibited from instituting proceedings under [the FLA] against the ... wife without the leave of the Court pursuant to s 102QAG of [the FLA].

1. Section 102QAC(1) of the FLA provides:

A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:

(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or

(b) in the case of child‑related proceedings (within the meaning of Part VII) - the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.

Note: Proceedings includes cross‑proceedings and incidental proceedings (see subsection 4(1)).

(Emphasis in original)

1. Previously, in Fowles [2025] FedCFamC1A 147, regarding the s 102QAC injunction, Austin J said at [18]-[20]:
   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.
2. Nevertheless, on 4 December 2025, less than two business days before the hearing of the s 102QAE application, the applicant filed amended submissions in support thereof, in which it is belatedly submitted that leave under s 102QAE of the FLA is not required for the applicant to bring an appeal. This is because, it is submitted, the prohibition in s 102QAC and s 102QAD of the FLA applies only to "proceedings under this Act", whereas the proposed appeal from the dismissal order is brought pursuant to s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("FCFCOA Act").
3. Notwithstanding what the Full Court held in Pencious & Searle [2017] FamCAFC 210; (2017) FLC 93-805 and what Austin J accordingly held in Fowles [2025] FedCFamC1A 147, it is submitted by the applicant that the reasoning in Pencious is no longer applicable, by reason of the removal of appeal rights from the FLA and their inclusion in the FCFCOA Act as from 1 September 2021.
4. Pencious considered the analogous vexatious litigant provisions of the FLA. The order made by the primary judge in that case was that:

Pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) ("the Act") [the husband] be prohibited from instituting proceedings under the Act in any court having jurisdiction under the Act without first having been granted leave to commence that proceeding pursuant to s 102QE of the Act.

1. The issue that arises is whether, in view of that order, leave is required by the husband to institute this appeal or whether he can do so as of right. This in turn requires consideration of whether appeals fall within the definition of "proceedings under the Act". 2. In relation to a Court, s 102Q(1) proceedings are defined by reference to the definition of proceedings in s 4(1) of the Act. Thus "proceedings" means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding". 3. This definition is in contrast to the definition of "proceeding" in s 4 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"), which specifically includes "an appeal". 4. Nonetheless, the word "proceeding" is, of itself, apt to include an appeal, as is made clear by s 102Q, which defines "institute" to include:

(d) for civil or criminal proceedings or proceedings before a tribunal - the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.

1. The separate definition of an appeal in s 4 of the Act, which is simply defined to include within its meaning "an application for a re-hearing", does not detract from this conclusion. 2. Accordingly, although worded slightly differently from s 4 of the Federal Court Act, ultimately the effect is the same when the entirety of s 102Q(1) is read. See also the Explanatory Memorandum to the Access to Justice (Federal Jurisdiction) Amendment Bill 2011 at paragraph 199. 3. Section 102QD(1) prohibits an applicant who is subject to a vexatious proceedings order from instituting proceedings, or proceedings of the type described in the order, without leave of the Court under s 102QG. Hence the husband requires leave to "take a step necessary to start an appeal", which in accordance with the Act is the filing of a Notice of Appeal. 4. This accords with what the Full Court of the Federal Court said in Fuller v Toms [2015] FCAFC 91, when dealing with the same issue: 1. ... [i]n terms of paragraph (d) of the definition of 'institute', an appeal from a single judge is 'started' by the filing of a notice of appeal: r 36.01(c) Federal Court Rules 2011 (Cth) ( Federal Court Rules). 2. By this somewhat circuitous route, the position which is reached is that Mr Fuller did not require a grant of leave to seek to appeal. Rather what he required was a grant of leave to so as to institute ("start") an appeal.
2. The applicant submits that leave under s 102QAE is not required to bring an appeal from the dismissal order because the prohibition in the s 102QAC injunction applies only to proceedings under the FLA and that, since 1 September 2021, the right to appeal is now found in s 28 of the FCFCOA Act. Accordingly, it is submitted that "[i]t would be an inappropriate exercise of statutory construction to read 'instituting proceedings under this Act' in s 102QAC as meaning anything other than a proceeding instituted under the Family Law Act 1975 (Cth)" (applicant's written submissions, paragraph 6).
3. In support of this submission, the applicant points to the Explanatory Memorandum to the Family Law Amendment Bill 2023 (Cth) (to which reference was previously made in Fowles [2025] FedCFamC1A 147 at [18]), as harmful proceedings orders were introduced into the FLA by the Family Law Amendment Act 2023 (Cth). For example, paragraphs 36 and 37 of the Statement of Compatibility with Human Rights of the Explanatory Memorandum state:
   1. The Bill introduces 'harmful proceedings orders' to prevent vexatious litigants from filing and serving new applications without first obtaining leave from the court. The new orders will allow the court to prevent harm to the intended respondent, assisting to protect victim survivors of family violence from systems abuse. Recognising the agency of victim survivors, as part of the court's powers to make harmful proceedings orders, the courts will have the power to order whether or not the respondent (the person who a harmful proceedings order is intended to protect) should be notified of any further application for leave made by an applicant that has been dismissed. In making this decision, the court must have regard to the wishes of the respondent.
   2. To ensure procedural fairness, a meritorious application made for a proper purpose would be allowed to proceed, regardless of the impact that it might have on the respondent.
4. Paragraph 52 similarly states:

New Division 1B introduces 'harmful proceedings orders'. This will provide the courts with a new power to restrain a person from filing any further family law applications and serving them on the respondent, without first obtaining leave of the court. 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. Once this order is in place, further applications will first be assessed by the court to ensure that they are not vexatious, frivolous or an abuse of proceedings and have reasonable prospects of success before they can be filed and served.

1. Accordingly, it is submitted that the use of the word "applications", and the absence of a reference to "appeals", in the Explanatory Memorandum supports the conclusion contended by the applicant.
2. However, other paragraphs of the Explanatory Memorandum do not support such a narrow construction. For example, paragraph 53 of the Statement of Compatibility with Human Rights states that the "court will need to be satisfied that there are reasonable grounds to believe that further proceedings will be harmful to the respondent" (emphasis added).
3. Similarly, paragraph 54 states that whilst s 102QAC orders constitute a limitation on the right to a fair hearing, as they may limit an applicant's opportunity to present their case if they are subject to such an order, "this limitation is reasonable and proportionate to the legitimate aim of preventing harm to the respondent through continuous litigation" (emphasis added). See also the references to "proceedings" and "further proceedings" in paragraphs 319 and 320 of the Notes on Clauses of the Explanatory Memorandum, above, in Fowles [2025] FedCFamC1A 147.
4. Further, paragraph 321 of the Notes on Clauses states that harmful proceedings orders "require the court to consider the impact that the repetitive and litigious nature of the applicant's filings would have on the respondent" (emphasis added). Similarly, paragraph 324 states that the list in s 102QAC(2):

... is intended to provide examples of when repetitive and litigious filing by an applicant has or may result in a significant negative impact on the respondent's wellbeing to the point where the making of a harmful proceedings order is appropriate for the protection of the respondent and/or any children involved in the proceedings.

(Emphasis added)

1. Of course, resort is had to the Explanatory Memorandum when such a course is helpful in resolving any ambiguity in statutory provisions. It cannot be used as a means of rewriting the provision.
2. The provisions in Division 1B of Part XIB of the FLA ("Harmful Proceedings Orders"), namely, ss 102QAC to 102QAG are quite clear and refer to the institution of "proceedings", and not merely applications, as the applicant contends.
3. The term "proceedings" in the FLA is relevantly defined in s 4(1), in paragraph (b) thereof, to mean:

... a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.

1. Section 26(1)(b) of the FCFCOA Act provides that, subject to s 28, the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine appeals from a judgment of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction. That clearly includes the exercise of jurisdiction under the FLA.
2. Section 28(3)(e)(i) of the FCFCOA Act relevantly provides that leave of the Full Court is required to appeal from a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge.
3. Regulation 4.02(1) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) ("Regulations") relevantly provides that for the purposes of, inter alia, s 28(3)(e) of the FCFCOA Act, the following judgments are prescribed:

(a) an interlocutory decree (other than a decree in relation to a child welfare matter);

(b) an order under ss 102PE, 102QF or 102QG of the FLA.

1. Relevantly, for present purposes, s 102QF provides for the dismissal of applications for leave by persons subject to vexatious proceedings orders, whilst s 102QG provides for the granting of applications for leave by persons subject to vexatious proceedings orders. Whilst, in the case of harmful proceedings orders, grants of leave to institute proceedings pursuant to s 102QAE and the dismissal of applications for leave pursuant to s 102QAF are not prescribed decrees pursuant to reg 4.02(1) of the Regulations, nevertheless, s 102QB, which provides for the making of vexatious proceedings orders and to which s 102QF and s 102QG relate, applies where "a court exercising jurisdiction in proceedings under this Act" is satisfied of the matters specified in subsection (1), in which case, pursuant to subsection (2):

The court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

(c) any other order the court considers appropriate in relation to the person.

(Emphasis added)

1. Thus, the interplay, for present purposes, between the FLA and the FCFCOA Act, in relation to appeals is clear, and the applicant's contention that appeals under the FCFCOA Act are not caught by harmful proceedings orders under the FLA is difficult to sustain.
2. However, we consider the definitive answer to the applicant's contention lies in the definition of proceedings in both Acts.
3. As we have observed above, the definition of "proceedings" in s 4(1) of the FLA is, relevantly, in paragraph (b) thereof:

... a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connection with a proceeding.

(Emphasis added)

1. The definition of "proceeding" in s 7(1) of the FCFCOA Act is, relevantly, in paragraph (a) thereof:

... a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

(Emphasis added)

1. Thus, when a harmful proceedings order is made under s 102QAC(1) "prohibiting a party ... from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG", such proceedings include an incidental proceeding in connection with those proceedings.
2. In Markoska v Markoska [2011] FamCA 833; (2011) 46 Fam LR 598 at [96], Murphy J considered what constitutes an "incidental proceeding" for the purposes of the FLA and said:

The word "incidental" should bear its natural meaning: "happening or likely to happen in fortuitous or subordinate conjunction with something else" or "to happen in connection with" or "naturally appertaining to" (S Butler, (Ed), Macquarie Dictionary, 5th ed, Macquarie, 2009) or "liable to happen" or "naturally attaching" (Shorter Oxford English Dictionary, 4th ed, Oxford University Press, 1993)...

1. In Markoska v Markoska, there were property proceedings between spouse parties. The incidental proceeding in that case was an application by a third party, namely, the legal firm that had previously acted on behalf of the husband, against the husband and/or the wife to pay, by way of reimbursement, its costs of complying with a subpoena issued by the wife. Justice Murphy found that the application for costs against the wife pursuant to r 15.23 of the then Family Law Rules 2004 (Cth) was incidental to the property proceedings (cf Viola & Latham and Ors [2016] FamCA 354).
2. We consider that when a harmful proceedings order is made under s 102QAC(1) "prohibiting a party ... from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG", an appeal is manifestly an incidental proceeding in connection with proceedings the subject of that order, such that leave is required.
3. Such conclusion is also consistent with the objects of the FCFCOA Act, which are specified in s 5 to include:

(a) to ensure that justice is delivered by federal courts effectively and efficiently; and

(b) to provide for just outcomes, in particular, in family law or child support proceedings; ...

1. In Electoral Commissioner of the Australian Electoral Commission v Laming [2024] FCAFC 109; (2024) 304 FCR 561, Perry J (with whom Logan J agreed on this issue) said at [59]-[61]:
   1. The first issue turns on a question of statutory construction. The relevant principles are well-established and were not in issue. As McHugh, Gummow, Kirby and Hayne JJ explained in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [69]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos [(1955) [1955] HCA 27; 92 CLR 390 at 397], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

(Citations omitted.)

1. The importance of commencing with the text in its statutory context was also emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) in the following passage (at [14]):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(Citations omitted.)

1. Context "in its widest sense", as referred to in this passage, includes "such things as the existing state of the law and the mischief which ... one may discern the statute was intended to remedy": CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with approval in SZTAL at [14]). To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act 1901 (Cth) ... that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained, the approach required by interpretive provisions of this kind "allows a court to consider the purposes of an Act in determining whether there is more than one possible construction": ibid; see also the discussion in Pearce DC, Statutory Interpretation in Australia (10th ed, LexisNexis Butterworths, 2024) at [2.22]-[2.26]; Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) at [7.20]-[7.30], [7.50].

(Original emphasis omitted, bold emphasis added)

1. Further, in Nevins & Urwin [2022] FedCFamC1A 57; (2022) FLC 94-084 at [33], the Full Court said:

...In instances of ambiguity, the construction avoiding irrational and unjust consequences should be adopted (Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 350).

If it were considered necessary, it is permissible to imply words into legislation which go beyond correcting obvious printing or drafting errors if it is apparent the text of the legislation does not conform to the actual intention of the Parliament (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 305 and 321; Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; (2009) 238 CLR 642 at [9]; Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 ("Taylor") at [37]-[39]).

1. We are, therefore, fortified in our conclusion that an appeal is manifestly an incidental proceeding in connection with proceedings the subject of the relevant order, such that the leave of the Court under s 102QAG is required, such conclusion being consistent with the objects of the FCFCOA Act and modern principles of statutory construction.
2. Were it otherwise, bizarre results would ensue. The applicant was impelled to admit that, were his submission accepted, the need for the grant of leave to appeal would irrationally depend upon the remedial orders sought in the appeal, which form of remedy is liable to change as the appeal hearing proceeds, even though the need for the grant of leave to appeal is an anterior issue demanding a definitive answer. To illustrate the point, suppose an appeal succeeds and the appealable error is to be corrected by the re-exercise of discretion under the FLA, then such re-exercise would necessarily be "proceedings under the Act" caught by the injunction and hence leave to appeal under s 102QAG of the FLA would be required. But if, conversely, the proceeding is instead to be remitted for re-hearing within the original jurisdiction, the appellate proceeding would be concluded wholly under the FCFCOA Act, so the appeal would not be caught by the injunction and leave to appeal under s 102QAG of the FLA would not be required. Such an illogical dichotomy cannot be countenanced.
3. Further, we consider that an appeal from the exercise of jurisdiction under the FLA is a proceeding under the FLA. This is because the subject matter is the correctness of the orders made under the FLA.

1. When prosecuting an application under s 102QAE(2) of the FLA for leave to institute further proceedings, it is obligatory to file an affidavit containing certain evidence (s 102QAE(3)) and, absent substantial compliance with the requirements of s 102QAE(3) of the FLA, the application may be dismissed (s 102QAF(1)).
2. However, the application must be dismissed if the proposed further proceeding falls within the definition of "vexatious proceedings" (s 102QAF(2)) or if the applicant fails to satisfy the Court that the further proceedings are not vexatious (s 102QAG(1)). The distinction between the counterparts of those two provisions (s 102QF(2) and s 102QG(1)) was explained by the Full Court in Darley (No 4) [2023] FedCFamC1A 158 at [13]-[22].
3. 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 FLA (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.

1. Sub-paragraph (c) of the definition makes clear that, if the proposed application for leave to appeal in this instance is "without reasonable ground", it is characterised as vexatious and the application for leave to file a Notice of Appeal pursuant to s 102QAE of the FLA must be dismissed.

1. In support of his application, the applicant relies upon:

(a) his affidavit filed on 16 September 2025, pursuant to s 102QAE(3) of the FLA;

(b) his draft further amended Notice of Appeal dated 5 December 2025, which differs from the draft amended Notice of Appeal dated 18 September 2025, which in turn differs from the draft Notice of Appeal dated 16 September 2025 annexed to his supporting affidavit; and

(c) written submissions filed 5 December 2025 and amended following the hearing to include Court Book references.

1. The draft further amended Notice of Appeal properly seeks leave to appeal from the dismissal order, as it is interlocutory in nature, and pleads six proposed grounds of appeal. At the hearing of the application, Senior Counsel for the applicant abandoned proposed Grounds 1-3 and pressed the remaining grounds which are:

Ground 4. Indefinite Travel Injunction - Ultra Vires & Failure to Hear Discharge

f)c) The primary judge erred in maintaining indefinite travel restraints (orders of 9 August 2024 and 12 December 2024) without reconsideration, and in failing to hear the [applicant's] 30 April 2025 application to discharge those restrains.

• Section 114 FLA does not authorise indefinite restrains absent live justification ([Fowles & Fowles] (No 2) [2021] FedCFamC1F 209).
• The Registrar's 12 June 2025 dismissal was a procedural error; failure to correct it denied jurisdiction and natural justice.
• The injunction is inconsistent with proportionality requirements and freedom of movement principles (Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51).

Ground 5. Consideration of restraint applications in relation to the respondent's counsel

(a) The learned primary judge made the wrong finding of fact.

(b) The learned primary judge erred in the exercise of her discretion by failing to consider relevant evidence advanced by the applicant in support of the restraint applications.

(c) The learned primary judge gave inadequate reasons in respect of the application's restraint application against the respondent's counsel.

Ground 6. Consideration of restraint applications in relation to the respondent's solicitors

(a) The learned primary judge made the wrong finding of fact.

(b) The learned primary judge erred in the exercise of her discretion by failing to consider relevant evidence advanced by the applicant in support of the restraint application.

(c) The learned primary judge gave inadequate reasons in respect of the application's restraint application against the respondent's solicitors.

(d) The primary failed [sic] erred in law in failing to have regard to the appropriate legal test

1. The grounds are not usefully addressed in the applicant's affidavit, which is little more than a narrative of why some (but not all) of his dismissed interlocutory applications had merit. However, they are further addressed in the applicant's amended submissions, albeit ultimately unsuccessfully.

1. This proposed ground of appeal comprises two complaints: first, improperly making travel injunctions against the applicant in August and December 2024; and secondly, failing to hear the applicant's application (filed on 30 April 2025) seeking to discharge those injunctions.
2. Relevantly, the applicant deposes:
   1. On 19 August 2025, [the primary judge] dismissed my 30 April 2025 Application, in which I sought to discharge the ex parte travel orders made on 9 August 2024 and re-made on 12 December 2024. She grouped it with other applications as "frivolous, vexatious and an abuse of process." No separate reasons were given for maintaining the travel restraints, and the Court did not address my submissions that [a registrar] had dismissed in error.

...

1. On 9 August 2024, [the primary judge] made ex parte orders in Division 1 restraining my travel and requiring me to surrender my passports. A true copy of those orders is annexed and marked Exhibit B 4.

...

1. On 12 December 2024, after the matter was transferred to Division 2 and then back to Division 1, the same travel orders were re-made by [the primary judge]. I was not given an opportunity to be heard. A true copy of the 12 December 2024 orders is annexed and marked Exhibit B 5.

...

1. On 15 April 2025, I filed an Application in a Proceeding concerning the travel orders.

2. On 30 April 2025, I filed an Application in a Proceeding and affidavit seeking to discharge the travel orders. On 12 June 2025, [a registrar] dismissed that application in error, treating it as an appeal rather than an application to discharge. A true copy of [the registrar's] orders of 12 June 2025 is annexed and marked Exhibit B 7.

3. I then sought to vacate [the registrar's] dismissal orders, and the matter was referred back to Division 1 and to [the primary judge], who did not address it at all.

(Emphasis in original)

(Applicant's affidavit filed 16 September 2025)

1. This ground is rejected and the evidence is unhelpful for four reasons.
2. First, the application filed by the applicant on 30 April 2025 was not one of the 10 applications dismissed by the primary judge. That application was dismissed by an earlier order made by a registrar on 12 June 2025, which dismissal order the applicant did not apply to review. He contended the Application in a Proceeding he filed on 25 June 2025 should have been favourably construed by the primary judge to be an Application for Review seeking review of the orders made on 12 June 2025, but the submission is rejected. The Application in a Proceeding filed on 25 June 2025 sought a suite of interlocutory orders covering a range of issues and her Honour was entitled (if not obliged) to treat the interlocutory application as being exactly what it was. It was a fresh interlocutory application. It was not a review application.
3. Secondly, none of the 10 dismissed applications sought the discharge of injunctions made in August or December 2024. Contrary to the applicant's evidence, the application he filed on 15 April 2025 did not seek the discharge of any orders made in August or December 2024 (at [12(4)] and [40]-[41]).
4. Thirdly, this current application brought under s 102QAE of the FLA concerns a prospective application for leave to appeal from orders made on 19 August 2025 - not from orders made in August or December 2024.
5. Fourthly, save for the disqualification application which was heard and dismissed for lack of merit (at [16]-[30]), the primary judge did not substantively hear and determine any of the applicant's 10 applications as they were all summarily dismissed for being frivolous, vexatious, an abuse of process, or futile (at [48], [57], [63] and [72]). The process of summary dismissal is an abridged determination, not a comprehensive analysis, of the supposed merit of the subject application (Spencer v Commonwealth (2010) HCA 28; (2010) 241 CLR 118 at [25] and [47]; Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117; (2009) 178 FCR 401 at [28]).

1. This proposed ground comprises a pastiche of alleged errors of fact, of discretion (namely, a failure to consider) and of failure to give reasons.
2. This proposed ground of appeal complains about the dismissal of the applicant's application to restrain the wife's barrister. However, he filed two applications on 28 March 2025, both only one minute apart. The applications overlap to a considerable degree.
3. The first application (filed at 8.09 am) relevantly sought that the wife's barrister be restrained from acting for her (Order 1) and also be referred to Victoria Police and the Victorian Legal Services Board for investigation of his alleged unprofessional conduct (Order 3).
4. The second application (filed at 8.10 am) relevantly sought that the wife's barrister's conduct in the litigation be declared an "abuse of the Court's process" (Order 1), that the Court refer the barrister to the Victorian Bar for his alleged unprofessional conduct (Order 4), and an order granting the applicant leave to cross-examine the wife's barrister regarding his conduct at the "enforcement hearing on 4 October 2024" (Order 6).
5. This ground drives at the supposed unfairness of the decision to dismiss only one aspect of the first application, being the application to restrain the wife's barrister from acting for her. The intended appeal on that premise is nonsense.
6. The primary judge recorded how the applicant withdrew his application for the wife's barrister to be referred to either Victoria Police or the Victorian Legal Services Board (at [36] and [38]). The applicant did not abandon his application for an order restraining the wife's barrister from acting for her, but the primary judge observed there was no proper principled basis to restrain the barrister from acting for her in the pending contravention application (at [52]-[54]), which was undoubtedly correct. Her Honour's reasoning in this respect is pellucid and the contention that she failed to give adequate reasons is devoid of any merit. The applicant did not engage any of the principles which would warrant such an order (Osferatu & Osferatu [2015] FamCAFC 177; (2015) FLC 93-666 at [20]-[29]). Aside from the applicant's febrile allegations of misconduct, there was no evidence to verify whether the barrister breached the applicant's confidence, breached a fiduciary duty, or otherwise acted unethically. The applicant must be taken to accept that is so, given the withdrawal of his application to refer the barrister to the police and the state professional regulatory body.
7. Further, in his affidavit filed on 28 March 2025 (at 1.04 pm), the applicant deposed at paragraph 11 that he first met the wife's barrister in 2001 and that, between 2001 and 2014, they interacted socially approximately every two months, in the course of which he alleges they discussed business, regulatory issues and legal strategy, as well as financial and legal concerns regarding his business and personal affairs, which he asserted gave the wife's barrister "a substantial and unfair advantage in cross-examination" (at paragraph 13). However, the primary proceedings were instituted in 2015 and the applicant remained legally represented until at least 12 December 2024, during which period the primary judge recorded at [5] that he "engaged senior counsel and junior counsel throughout the trial and his subsequent appeals and other hearings", only filing a Notice of Address for Service, which specified that he had become a self-represented litigant, on 27 March 2025. The wife's barrister, the subject of the applicant's application, first appeared on her behalf on 5 October 2015.
8. In this regard, the primary judge took into account at [53] of her reasons that the wife's solicitors and counsel, the subject of belated complaint by the applicant, had acted for her throughout the many years of the litigation; that the substantive litigation and its consequent appeal process had concluded; and that at no time was an order made (or, we would interpolate, sought) restraining them from acting for her because of any conflict with the applicant. In the circumstances, her Honour correctly concluded that the applicant had put forward nothing that would support an order restraining the wife's solicitors and/or counsel from continuing to act on her behalf.
9. Even if the applicant had any basis to object (which suggestion we reject), he must clearly be deemed to have waived same. See Dalton & Dalton [2017] FamCAFC 78; (2017) FLC 93-773 at [17]-[20] per Ainslie-Wallace and Ryan JJ (Murphy J dissenting).

1. As with the preceding proposed ground of appeal, this proposed ground similarly comprises a pastiche of alleged errors of fact, of law (including discretion, namely, a failure to consider) and of failure to give reasons.
2. Many of the matters relevant to this proposed ground of appeal overlap with, and are considered under the rubric of, the preceding proposed ground and do not bear repetition.
3. Relevantly, the gravamen of the applicant's complaint is that a solicitor previously in the employ of his former firm of solicitors had (he asserted) taken up employment with the wife's firm of solicitors, in the same practice group. In his affidavit filed 2 April 2025, which was before the primary judge, the applicant merely deposed, without more, that the solicitor was "privy to confidential information" (at paragraph 3) and that any subsequent employment by the wife's firm of solicitors (together with the employment by that firm of two associates to the earlier judge who heard and determined the trial) "gives rise to a perception of procedural unfairness and undermines the integrity of the proceedings" (at paragraph 5). However, beyond those bald (and bold) assertions, his particularised complaints regarding the wife's solicitors had nothing to do with the employment of the solicitor in question. In any event, there was no evidence - then or now - to prove the solicitor in question even took up the employment opportunity with the wife's solicitors, as the applicant suspected she would.
4. At the hearing before the primary judge on 22 July 2025, the applicant informed her Honour he no longer pursued the application to disqualify the wife's solicitors in two of the applications (at [39]-[41]), but it seems the applicant did not expressly abandon his pursuit of the application to disqualify the wife's solicitors in two other applications (at [35] and [43]).
5. The primary judge said at [52] that "the [applicant] could, where there was a proper basis, which there is not, seek that the wife's solicitors and barrister or either of them be restrained from acting for the wife" but the Court had no proper basis to do so (at [53]). Rather:

...[The applicant] simply wants them to cease acting. It appears (one needs only to look at the orders he seeks) that he has great animus toward them. He claims they have likewise toward him. I make no finding about those matters.

1. Her Honour concluded at [54] that there was nothing the applicant put forward in evidence that would support an order restraining the wife's solicitors from acting for the wife in her contravention application. The applicant contends that this was contrary to the evidence. However, the only evidence comprised the bald, unparticularised assertions at paragraph 3 of his affidavit filed 2 April 2025. Insofar as reference was made in that paragraph to a letter from his former solicitors to the wife's solicitors, which was annexed to that affidavit, r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("Rules") provides that a document that is to be used in conjunction with an affidavit must not be accepted as evidence in the proceeding unless and until it is separately tendered into evidence at the hearing of the application and accepted into evidence by the Court. It was not suggested before us by Senior Counsel for the applicant, nor does it otherwise appear, that the letter referred to in paragraph 3 was tendered. Accordingly, the primary judge was correct in concluding that there was no proper basis to restrain the wife's solicitors from continuing to act for her because there was nothing the applicant put before the Court in evidence that would support such an order.
2. However, even if the said letter were in evidence, it added little, if anything, of substance. It merely asserted that the solicitor:

...has had ongoing and direct communications and engagement with [the applicant] as well as Counsel, and is privy to highly confidential information regarding the matter and [the applicant]. It follows that [the applicant] is extremely concerned by the risk of his material and confidential information being disclosed to you and/or others to the detriment of his case.

(Emphasis in original)

(Exhibit "[MRF]-1" to the applicant's affidavit filed 2 April 2025)

1. In Dalton & Dalton at [14], Ainslie-Wallace and Ryan JJ said:

It is well settled that the jurisdiction to restrain a solicitor from acting for a client is exceptional and to be exercised with caution, having regard to the totality of the evidence (Billington & Billington (No 2) [2008] FamCA 409). Due weight is to be given to the public interest in a client not being deprived of their lawyer of choice without due cause. The public interest is also predicated on a client knowing that confidential information imparted to a lawyer will not be given to an opposing party unless the law requires its production. These public interests lie at the heart of the system of justice (Asia Pacific Telecommunications Ltd v Optus Networks Pty Limited [2007] NSWSC 350 at [42]).

1. In Osferatu & Osferatu at [20], the Full Court said:

There are three established categories on the basis of which solicitors may be restrained from acting against their client or former client. They are: breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process. Each category has its own principles which guide its operation. The third category may be involved in conjunction with either of the first two so there is clearly an overlap; nonetheless, the basis for the exercise of the jurisdiction in each is different (Kallinicos v Hunt [2005] NSWSC 1181).

1. In that case, the Full Court considered the first category, namely, the risk of the misuse of confidential information. It is unclear, from the applicant's evidence, both before the primary judge and us, as well as the written and oral submissions on his behalf before us, which of the bases is relied upon; however, we infer from paragraph 3 of his affidavit filed 2 April 2025 that the gravamen of his complaint is similarly the risk of misuse of confidential information.
2. In Osferatu & Osferatu, after considering the decisions in Thevenaz & Thevenaz [1986] FamCA 44; (1986) FLC 91-748, S & S [1997] FamCA 65 and McMillan & McMillan [2000] FamCA 1046; (2000) FLC 93-048, the Full Court said at [26]:

It is, however, important to recognise that McMillan, as were Thevanez and [S & S], was a case where the applicant was seeking to restrain a solicitor or a clerk to whom they had recently, and directly, given instructions from acting, or the firm to which they had moved, from acting, in those proceedings. Because the applicants in those cases had given instructions to the solicitor about the very matter in issue, it follows easily that there would be a finding that the solicitor who had moved was in possession of confidential information which is or may be relevant to that matter. It is for that very reason that the passage of Lindenmayer J in [S & S] commenced with the words "All that is necessary is that ...". His Honour was simply saying that, in such circumstances, the burden borne by the applicant was discharged by such evidence. Nothing that appears in [S & S], Thevanez or McMillan obviates the need for an applicant seeking such relief from discharging his/her burden of proof by adducing cogent and persuasive evidence. This is particularly so where, as here, the circumstances differ from McMillan. In this case Mr F had never taken instructions from the wife.

27. In Mancini v Mancini [1999] NSWSC 800 Bryson J said at [7]:

It is of importance to observe that information generally is not protected; the protection available relates to confidential information, and is available to the person entitled to the confidence. No circumstances were put forward in which Mrs Mancini herself is entitled to the protection of the law against the use of any particular information by Mr Mancini or by the lawyers whom he has chosen to retain. It is not possible to address in any clear way and to come to a decision on protection of any alleged confidential information without identifying what the confidential information is in a sufficiently specific way to enable it to be identified. Without doing that it is not possible to come to a conclusion on whether the information truly is confidential, to consider and appraise the circumstances in which it came into existence and was communicated, to come to any conclusion about whether protection is appropriate, or to make any enforceable order. A case about confidential information cannot be nebulous. Confidential information which once existed may no longer be confidential; it may no longer be available although it was communicated in the past; it may not be material to any use which might now be proposed to be made of information. Without specificity a claim to protection cannot be defended or decided on any fair procedural basis, and a general allegation of the kind put forward here to the effect that from the nature of the past legal business confidential information must have been communicated should not in my opinion be upheld.

(Emphasis added)

1. The need for this proof is obvious. In Billington & Billington (No 2) [2008] FamCA 409 Coleman J said at [43]:

As the authorities make clear, the jurisdiction to grant relief of this kind "is to be exercised with caution". The court understands caution to be exercisable in relation to the totality of the evidence, and the matters relevant to the exercise of the jurisdiction, and not to be referrable only to the interests of the party seeking the relief. Relevant in that context is the need to give appropriate weight to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause. Also relevant in this context is the cost and inconvenience of requiring the wife to retain new lawyers. Quite apart from the work required to be undertaken by solicitors familiar with the case to adequately represent the wife's interests before the Full Court, realistically, were new solicitors now to be instructed, a far greater level of reading and preparation would be required, and at greatly increased expense to the wife.

1. These are serious and weighty considerations which must, of course, be balanced against the competing interests of the client which were described by Lord Millett in Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222 at 236 as follows:

... It is of overriding importance for the proper administration of justice that a client should be able to have complete confidence that what he tells his lawyer will remain secret. This is a matter of perception as well as substance. It is of the highest importance to the administration of justice that a solicitor or other person in possession of confidential and privileged information should not act in any way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.

1. In relation to consideration of any risk that relevant confidential information will be disclosed, the Full Court said at [32] that "[t]he risk of disclosure 'must be a real one, and not merely fanciful or theoretical. But it need not be substantial': Prince Jefri at 237". The Full Court continued at [39] that there is "a continuum of risk from obvious to remote" and that "[t]he consideration should be whether there is a real risk of misuse as opposed to one which is merely fanciful".
2. The Full Court concluded at [40]-[41]:

40. We return finally to Lord Millett in Prince Jefri:

Accordingly, it is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters. But given the basis on which the jurisdiction is exercised, there is no cause to impute or attribute the knowledge of one partner to his fellow partners. Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case ...

(Emphasis added)

1. It follows from the above discussion that the law requires that an applicant seeking to restrain a solicitor from acting must adduce evidence that establishes the confidential information and the risk of the misuse of that information in the circumstances. The weight and persuasiveness of any evidence adduced depends, of course, on the precision of the evidence called, the nature of the confidential information and the nature of the risk of disclosure.

1. In the present case, on the evidence in the applicant's affidavit filed on 2 April 2025, and even in the relevant letter annexed thereto, as the Full Court said in Osferatu & Osferatu, citing Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222 and Mancini v Mancini [1999] NSWSC 800, whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case and, without specificity, a claim to protection cannot be defended or decided on any fair procedural basis.
2. Following the substantive financial judgment delivered in 2023, nothing known by the wife's solicitors could conceivably have affected the only two live issues in the contravention proceedings in 2025, being: first, whether the applicant was in breach of the substantive orders; and second, if so, whether he had a reasonable excuse for his breach. Moreover, the sanction imposed upon the applicant for his proven breach was only conditional upon his non-performance of the final orders, which have not been disturbed on appeal.
3. In the circumstances, there is no merit whatsoever to this proposed ground of appeal.

1. The applicant's proposed appeal from the dismissal order made on 19 August 2025 is devoid of any prospect of success. Accordingly, the proposed application for leave to appeal falls within the definition of a "vexatious proceeding", such that the applicant's application for the grant of leave under s 102QAE of the FLA must be refused.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Strum.