Fowles & Fowles (No 11) [2025] FedCFamC1F 658 (19 September 2025)

(1) her contravention application filed 27 November 2024;

(2) her affidavit of evidence filed 27 November 2024;

(3) written submissions filed 8 September 2025; together with

(4) oral submissions made 11 September 2025.

(1) his affidavits of evidence filed 25 November 2024 and 11 September 2025; together with

(2) the husband's oral submissions made 11 September 2025.

1. I observe the husband was informed by the Court of the provisions of rule 11.67 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). The husband determined that he wished to rely upon the affidavits as described above and indicated that he understood that he could be cross-examined by the wife's counsel consequently.

1. On 27 November 2024, the contravention application was filed by the wife in the Federal Circuit and Family Court of Australia (Division 2).
2. On 3 December 2024, the contravention application was transferred, pursuant to s 149(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act"), from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).
3. The hearing of the contravention application was listed to 9 April 2025. At the commencement of the hearing, the husband, then a litigant in person (as and from 27 March 2025), sought a s102NA of the Act order. A final intervention order was then, and remains, in operation, in favour of the wife as against the husband. The Court made the s 102NA of the Act order as sought, and as was mandatory. An adjournment period of the substantive application of approximately 12 weeks was granted to allow the s 102NA Victoria Legal Aid ("VLA") Commonwealth Family Violence and Cross-Examination of Parties Scheme ("cross-examination of parties scheme") to allocate legal representation to the husband. The contravention application was listed to 4 July 2025. The further consequences of the making of the section 102NA order are canvassed hereafter.
4. On 3 July 2025, the husband filed an affidavit seeking an adjournment of the hearing on the basis that he remained unrepresented and was unwell and unable to attend the court proceedings of the following day. The affidavit included annexures being two medical certificates, the first certificate, as signed by Dr FR and the second certificate as signed by Dr FS. Those certificates are referred to below.
5. The first certificate, undated, said as follows:

This is to certify that [Mr Fowles] attended for a consultation on 17/06/2025 regarding a medical condition. I note [Mr Fowles] is highly stressed regarding a court hearing on 04/07/2025 and is planning to attend for a follow-up consultation on 03/07/2025, regarding his fitness to attend the court hearing.

(As per the original)

1. The second certificate, dated 2 July 2025, said as follows:

This is to certify that [Mr Fowles] had a telehealth consultation with me on 02/07/2025 because of his recent hospital admission with pneumonia and grieving due to the sudden death of his friend overseas.

I concluded by reason of the above [he] was unable to attend court hearing on 04/07/2025.

(As per the original)

1. The wife did not consent to an adjournment of the proceeding and indicated that she wished for Dr FS to be available at the hearing to be cross-examined as to the contents of his report. The wife, however, also acknowledged the difficulty in the Court proceeding with the contravention application on 4 July 2025, in the circumstances of the husband not being legally represented. The hearing of the contravention application was further adjourned.
2. On 16 July 2025, the Court made, pursuant to s 102QAC(1) of the Act, a harmful proceedings order against the husband. That order was, relevantly, as follows:
   1. Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) ("the Act"), the respondent husband is prohibited from instituting proceedings under the Act against the applicant wife without the leave of the Court pursuant to s 102QAG of the Act.

I observe that the husband had, between 28 March 2025 and 8 July 2025, filed approximately 17 Applications in a Proceeding, he asserting they were relevant to the contravention application.

1. On 13 August 2025, the husband filed an Application in an Appeal seeking leave to appeal Order 1 of the orders made 16 July 2025.
2. On 19 August 2025, the Court dismissed 10 Applications in a Proceeding as filed by the husband.
3. On 21 August 2025, the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction dismissed the husband's Application in an Appeal filed 13 August 2025. Austin J said as follows:[2]

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)).

1. On 28 August 2025, the Court held a mention of the matter for the purpose of further listing the contravention application for hearing. The contravention hearing was listed to be heard on 11 and 12 September 2025. At that mention, the husband submitted that the pursuit by the wife and/or her lawyers of the contravention application was "just intimidation" and that "it should all be thrown out". The husband was again put on notice that he would not be permitted to cross-examine the wife, and that he would need to seek representation by a lawyer if he wished to so cross-examine the wife.

The husband's complaint of a denial of procedural fairness in the context of the existence of the s 102NA order

1. On 11 September 2025, at the commencement of the hearing of the contravention application, the husband complained about a lack of procedural fairness to him in the failure of VLA to afford him legal representation. He asserted that the hearing should be further adjourned. I considered this submission on the hearing as a first consideration because, if the husband was denied a fair hearing, then the only remedy is a rehearing.[3]
2. The following facts and circumstances are pertinent to that complaint.
3. On 9 April 2025, when the hearing of the contravention application was first to proceed, the final intervention order in favour of the wife as a protected person, as against the husband, and made on 7 October 2022 by the Melbourne Magistrates Court, was in operation. I note that the final intervention order does not expire until 6 October 2025.
4. The s 102NA of the Act order made 9 April 2025 was, relevantly, as follows:
   1. Pursuant to s 102NA(1)(c)(ii) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the respondent husband, [Mr Fowles], must not cross examine the applicant wife personally.
   2. For the purposes of the preceding order, the respondent husband do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable his representation on the hearing of the Contravention Application filed 27 November 2024 by the applicant wife.

1. By 4 July 2025, VLA had unsuccessfully approached 33 panel firms to legally represent the husband on the contravention application. At that time, the husband remained unrepresented. The Court did not proceed with the wife's contravention application in those circumstances.
2. On or about 24 July 2025, GG Law Firm, the 48th lawyers approached by VLA, accepted the offer made to them by the VLA Commonwealth Family Violence and Cross-Examination of Parties Scheme to represent the husband in the contravention application proceeding. Accordingly, GG Law Firm filed a Notice of Address for Service on behalf of the husband on 24 July 2025.
3. On 5 August 2025, GG Law Firm filed a Notice of Ceasing (to Act).
4. On 6 August 2025, XX Law Firm, the 49th lawyers approached by VLA, filed a Notice of Address for Service on behalf of the husband. XX Law Firm were also engaged pursuant to a s 102NA of the Act order, but their engagement was pursuant to the s 102NA of the Act order as made on 21 July 2025 by Bennett J. That order pertained to a costs application as pursued by the wife in respect of the costs of the trial which concluded in October 2023. XX Law Firm were never engaged for the purpose of providing the husband with legal representation in relation to the wife's contravention application.
5. On 29 August 2025, XX Law Firm filed a Notice of Ceasing (to Act).
6. On 4 September 2025, XX Law Firm contacted my chambers via email and sought leave to be excused from attending the contravention hearing listed before me on 11 September 2025. Their seeking of leave was not necessary given that XX Law Firm had been engaged, pursuant to the s 102NA of the Act order made by Bennett J on 21 July 2025, specifically and solely in relation to the wife's costs application proceeding on 25 September 2025.
7. Each of GG Law Firm and XX Law Firm filed a Notice of Ceasing (to Act) within four weeks of filing a Notice of Address for Service. Both firms indicated to VLA that their withdrawal was due to a 'breakdown of relationship' with the husband. The husband did not agree with that description.
8. I concluded that the husband was not denied procedural fairness given all the above matters. He had been given legal representation pursuant to the VLA cross-examination of parties' scheme. He had also the opportunity, as I find it, to engage legal representation of his choice, by privately funding same. He was entitled to, and did, proceed as a litigant in person. He was simply not permitted to cross-examine the wife. I observe that he conceded the breaches as alleged but asserted a reasonable excuse for them.
9. In the running of the matter, I was mindful of the husband being a litigant in person and attempted to impartially redress that position by assisting him where appropriate, and without justifiable complaint being made by the applicant wife's counsel.

1. On 6 October 2023, Bennett J made the final property orders in the parties' substantive property proceedings.
2. Bennett J, in her reasons for judgment dated 6 October 2023, made various findings adverse to the husband. Some of those are relevantly:[4]

The husband was in the witness box for a total of 53 hours over a period of 22 days. The husband was a problematic witness. A great deal of Court time was wasted because the husband was non-responsive and disruptive. The husband gave evidence with an apparent intention to confuse and add complexity. He is an unreliable witness.

In November 2012 [W Pty Ltd] was acquired by [SS Company], an investment company established for the husband by his father. The husband is the sole director and shareholder of [SS Company]. The husband is also the sole director and shareholder of [L Pty Ltd] a service company for [W Pty Ltd]. [W Pty Ltd] is owned by [SS Company] which is owned by the [Fowles Family Trust].

The husband asserts that the interim orders were made by Hartnett J in the absence of evidence as to his finances. The husband claims he had given instructions for and had prepared an affidavit about his finances which his previous lawyer failed to file. The husband in his affidavit of 16 February 2018 states that he was then financially unable to maintain the level of support which the interim orders of Hartnett J required of him. Notably, the husband proceeded to spend in excess of $2.7 million on legal fees in these proceedings, the overwhelming proportion of which were applied after Hartnett J's maintenance order. This was the first of many instances of the husband claiming not to be able to afford an expenditure for the direct or indirect benefit of the wife but then accessing funds or resources for his own direct or indirect benefit, frequently from undisclosed sources.

The husband alleges that [Mr G Fowles]'s advance of the whole of the purchase price of the [X Street] Apartment was made by way of an interest-bearing loan. By way of context, in 2000 [W Pty Ltd] and [T Inc] were in the sole ownership of the husband as was [L Pty Ltd]. In 2000 the husband's father gifted him [SS Company] Inc, its subsidiary companies [EC1 Company] and [EC2 Company] and [BK Inc] and the husband became sole director and shareholder of [SS Company]. In July 2000 the husband's father transferred his balance of shares in [T Inc] to the husband. The husband deposes that "my father effectively gifted me the balance of the shares and I became a 100% shareholder". At [9.4.4] of the husband's 9 February 2018 affidavit he deposes that "in 2000 [T Inc] and [W Pty Ltd] were prospering and had assets of around US$1 million in the bank."

On [late] 2001 the husband applied for a loan of $500,000 from Westpac for 'personal investment purposes'. A mortgage was taken by Westpac and registered on 6 March 2002. The wife deposes that she was not aware the husband had secured a mortgage over the property until a title search was conducted, and a subpoena was issued to Westpac following separation. Furthermore, the husband had not disclosed the alleged loan from his father to Westpac at the time of applying for the loan.

The parties do not agree on the value of the husband's interest in the [Fowles Family Trust]. The husband contends that his interest in the [Fowles Family Trust] is nil. The husband maintains he has no beneficial interest in the corpus of the trust and cannot without the say of the Distribution Committee, namely his sister, make distributions from the trust in favour of any person. The wife contends that the husband's interest in the [Fowles Family Trust] is not known. The wife submits, correctly in my view, that based on the husband's evidence and non-disclosure a precise value of the trust assets cannot be inferred...

I find that the [Fowles Family Trust] is the puppet of the husband. Neither his sister nor the trustee exercise any control over the Trust or the assets of the Trust. I cannot attribute a value to the Trust because of the husband's non-disclosure. From the manner in which the husband has conducted these proceedings, so as to deflect any meaningful assessment of the Trust assets, I infer that the Trust assets are substantial.

The wife contends that the court should find that there is a moral obligation or mutual understanding between members of the [Fowles] family that the portion of assets of the [2017 DD Trust] which is attributable to the 1960 Trust, is an entitlement of the husband. Various values are attributed to the husband's interest in the [2017 DD Trust] from an entitlement to cash and assets of "at least $1,175,909" to a financial resource of $12,880,954. I am satisfied that the husband exercises control over the [2017 DD Trust] and I do not accept [Mr Y]'s evidence to the contrary. I have no idea about what is in the [2017 DD Trust] I cannot infer a value to the husband of or with respect to the [2017 DD Trust]. However, I am satisfied that it, along with is antecedents, the [Fowles Family Trust], the 1960 Family Trust and the [2003 DD Trust], are all entities in respect of which the husband has deliberately failed to make disclosure in the sense of In the Marriage of Weir [1992] FamCA 74; (1993) FLC 92-339 and successive cases to which will come later.

Much can be said (and has been said in the parties' outline of argument and final submissions respectively) about the husband's contention that prospective income tax liabilities should be taken into account as between himself and the wife. The husband fails to make out a case in this regard in his lack of disclosure about his financial affairs. The husband bears the onus of satisfying the court that each of the claimed liabilities exist, that regard has been had to any available offsets and that payment of the liability will actually occur. By depriving the wife and the court of a comprehensive picture of his financial circumstances, the husband precluded himself from being able to satisfy the court that the liabilities are real and imminent. Relevant acts and omission of the husband included instructing [Mr HH] not to file his personal 2020 Australian taxation returns and the 2019 and 2020 Australian tax returns for [L Pty Ltd] and [W Pty Ltd] and failing to call [Mr NN] to give evidence.

I am satisfied that the husband has failed in his duty of full and frank disclosure to the wife and to the court. A great deal of time and money was wasted by virtue of his intentional concealment and obfuscation.

I am satisfied that the husband has an income earning capacity considerably in excess of that of the wife. He has not disclosed its source or its dimensions, but I find that over these very lengthy proceedings the husband has been unable to disguise that he has the wherewithal to obtain funds when it suits him. [Mr DD]' evidence, in January 2017, was to the effect that the records of [T Inc] showed that the husband had drawn over $600,000 to meet "his commitments which includes his commitments to [Ms Fowles]." In June 2018 [Mr DD] reported that between 1 January 2018 and 22 June 2018 "the Husband borrowed from [L Pty Ltd] an amount totalling $459,156 USD paid towards his legal fees". However, there is no transparency to the arrangement (if there be any arrangement at all) no schedule of repayments or parent accountability. These statements by [Mr DD] are as uninformative as his later table of the husband's liabilities without a table of his assets and financial resources.

For reasons that I have already stated, I have found that the husband has failed in his duty to make full and frank disclosure of his financial circumstances. It is apparent that he has access to funds when it suits him to have access to funds. Examples are his legal costs of $2.7 million, the costs he paid for the Supreme Court proceeding and for BTC's participation none of which can be sourced or was explained by any transparent, accountable or verifiable evidence. Throughout the proceedings the husband has continued to draw large sums of money.

This case was made infinitely more complicated than it needed to be by the husband's resolute financial non-disclosure.

1. On 3 November 2023, the husband filed a Notice of Appeal against the final orders. An Application in an Appeal (seeking a stay) was filed on 1 December 2023, together with an Amended Notice of Appeal.
2. On 20 December 2023, in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, Austin J made orders on the application of the husband and pending the appeal determination, for a stay of: Order 1(b) of the final orders, requiring the husband to transfer to the wife the X Street apartment; and Order 3 of the final orders requiring the husband to pay to the wife the sum of $1,240,231 pending the determination of the appeal. His Honour declined to stay Order 1(a) which required the husband to pay all loans secured by the X Street apartment and discharge the mortgage secured on the X Street apartment.
3. On 19 January 2024, the wife cross-appealed.
4. On 12 July 2024, the Full Court dismissed the husband's appeal and the wife's cross-appeal. A sum of $100,000 as held as security for costs was ordered to be released back to the husband. The husband applied these funds to his own legal costs. He offered no, nor made any, payment to the wife in partial satisfaction or otherwise of his obligations under the final orders.
5. The Full Court affirmed Bennett J's findings, some as set out above, at [149] and [173] of the reasons for judgment of the Full Court stating:[5]

As these reasons amply demonstrate, [13] is entirely accurate.

...

Further, we are comfortably satisfied that the conclusionary finding at [383] was satisfactorily explained when regard is had to the reasons as a whole and in particular to [52], [153], [156], [249], [281], [306], [340], [375], [380], [435], [477], [511].

1. Further, the Full Court also observed that the Husband had attempted to lead the trial judge "down rabbit holes" and pushed "the boundaries of proper conduct".[6]
2. On 15 August 2024, the husband filed an Application for Special Leave to Appeal in the High Court of Australia.
3. On 12 September 2024, the husband filed a further Application in an Appeal seeking the stay of Orders 1 to 18 of the final orders. The application was listed before the Full Court in Sydney on 3 October 2024. The husband attended in person, along with a senior solicitor from GC Lawyers and his junior and senior counsel who all travelled to Sydney for the hearing. The wife's lawyers appeared, and the wife attended remotely from Melbourne, with approval from the Full Court.
4. On 3 October 2024, the matter proceeded before the Full Court in Sydney. The husband pressed only his application for a stay of the operation of Orders, 1, 3 and 13 of the final orders. That is, the husband did not press his application to stay any of the other orders, including those for the payment of spousal maintenance arrears, ongoing maintenance pending compliance with the final orders, or the net costs payment to the wife of $6,250. On determining the application, the Full Court did not grant a stay of Order 1(a) of the final orders (requiring the payment of any loans secured by the X Street apartment and discharge of the mortgage). The Full Court otherwise ordered, relevantly, that:
   1. Order 1(b) of the orders of 6 October 2023 is stayed pending the hearing of the application for special leave to appeal to the High Court of Australia and any subsequent appeal or further order of this Court.
   2. Upon the applicant paying the sum of $1,240,231 to the respondent's solicitors to be held on trust in a controlled monies account until further order of this Court, or upon securing payment of that sum to the written satisfaction of the respondent, Order 3 of the orders of 6 October 2023 is stayed pending the determination of the application for special leave to the High Court of Australia and any subsequent appeal or further order of this Court.
5. The husband did not act in accordance with Order 2 above and accordingly Order 3 of the final orders was not stayed.
6. On 17 October 2024, an order for costs in the wife's favour was made by the Full Court with respect to the second stay application in the sum of $13,122,41 to be payable within 28 days. The husband has not made payment to the wife of this costs order.
7. On 7 November 2024, the husband's Application for Special Leave was refused, with costs.
8. The husband was represented by solicitors and legal counsel, including senior and junior counsel, throughout the entirety of the above proceedings. I conclude that the husband is aware of the terms of the final orders, has a comprehensive knowledge of them, and that he understands and has always understood, the obligations that such orders impose on him.

The Respondent, without reasonable excuse, failed to pay the Applicant the sum of $1,240,231 by 5 November 2023.

Order alleged to have been contravened ...

Order 3 of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 6 November 2023. No location applicable.

The Respondent, without reasonable excuse, failed to pay the Applicant the sum of $1,240,231 by 13 July 2024 following the dismissal of the Respondent's Appeal and the lifting of the stay of Order 3 of the final orders of Justice Bennett dated 6 October 2023, on 12 July 2024.

Order alleged to have been contravened ...

Order 3 of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 13 July 2024. No location applicable.

1. In essence, Count 2 was pleaded in the alternative to Count 1. Count 1 does not consider the stay of Order 3 of the final orders as made by Austin J on 20 December 2023. The husband made an application for that stay by filing his Application in an Appeal on 1 December 2023, having filed his Notice of Appeal on 3 November 2023 (and an Amended Notice of Appeal on 1 December 2023). The stay order as made by Austin J remained operative until 12 July 2024. Whilst the husband may have been technically in breach of Order 3 of the final orders in the period between 5 November 2023 and the granting of the stay, I am mindful that a judge in the Appellate Jurisdiction granted a stay which was operative until 12 July 2024. The husband, thereafter, unsuccessfully sought a further stay of the order as is referred to in [44] above. In the exercise of my discretion, I determine that I shall make no finding as to breach in respect of Count 1 but, rather, proceed to consider the matter in respect of Count 2 which deals with the same payment sum.
2. In respect of Count 2, the wife gave evidence that the husband, without reasonable excuse, has failed to pay to the wife, from 13 July 2024, the sum of $1,240,231 or any part thereof.
3. The entirety of the payment remains unpaid, as conceded by the husband.

The Respondent, without reasonable excuse, has failed to pay the loan secured by the property situate at [X Street], Melbourne, Victoria ([X Street] Apartment) and known as Volume [...] Folio [...] and otherwise cause the discharge of the mortgage [...] registered to the Westpac Banking Corporation by 4 January 2024.

Order alleged to have been contravened ...

Order 1(a) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

• 12.01 m on 5 January 2024. No location applicable.

1. In respect of Count 3, the wife gave evidence that the husband, without reasonable excuse, failed to pay the loan secured by the X Street apartment and otherwise cause the discharge of the mortgage [...] registered to the Westpac Banking Corporation by 4 January 2024, pursuant to Order 1(a) of the final orders. That order provides that:

1. As and by way of alteration of property interests, within 90 days, the husband do all things and sign all documents to:

(a) repay any loan secured by the property situate at [X Street], Melbourne, Victoria and known as Volume [...] Folio [...] ("[X Street] Apartment'; and otherwise cause the discharge of the mortgage numbered [...] registered to the Westpac Banking Corporation ("the mortgage")...

2. The husband conceded that he has not paid the loan secured by the FQ Bank (a division of Westpac Banking Corporation),[7] and nor has he discharged the mortgage numbered [...] registered to the Westpac Banking Corporation.[8]

The Respondent, without reasonable excuse, has failed to pay to the Applicant all amounts due by way of outstanding spousal maintenance due pursuant to paragraph 2 of the Order made on 5 October 2015 or paragraph 6 of the Order made on 5 July 2018 by 4 January 2024.

Order alleged to have been contravened ...

Order 4 of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

• 12.01 m on 5 January 2024. No location applicable.

1. The wife gave evidence that the husband, without reasonable excuse, failed to pay to the wife all amounts due by way of outstanding spousal maintenance pursuant to Order 4 of the final orders, by 4 January 2024. Order 4 of the final orders requires the payment of maintenance by the husband to the wife by reference to Order 2 of the orders made on 5 October 2015 and Order 6 of the orders made on 5 July 2018.
2. Order 4 of the final orders provides that:

Within 90 days the husband pay to the wife all amounts due by way of outstanding spousal maintenance due pursuant to paragraph 2 of the Order made on 5 October 2015 ("the 2015 Order") or paragraph 6 of the Order made on 5 July 2018 ("the 2018 Order").

1. Order 2 of the orders made 5 October 2015 is as follows:

Until further order, the husband is to pay to the wife for her ongoing maintenance, the sum of $800 per week, by electronic transfer into the wife's maintenance account and further pay all the wife's medical, hospital, dental and/or pharmaceutical and/or treatment costs and expenses to the extent not covered by health insurance.

1. Order 6 of the orders made 5 July 2018 is set out at [77] hereafter.
2. The wife gave evidence of an amount in funds garnisheed by Services Australia and paid to the wife in the sum of $41,548.72 (the wife having registered her maintenance order in February 2024). The wife gave evidence that the husband had made no payments to her pursuant to Order 4 of the final orders (save for the garnisheed funds) and that the total sum owing to her on 27 November 2024 (after deduction of the garnisheed funds) was $82,068.05. The wife tendered in evidence, on the hearing of the contravention application, a document from Services Australia, being a certificate under s 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth), as evidence of the remainder due to her pursuant to Order 4 of the final orders as at 4 September 2025, being a date outside the contravention periods of this contravention application, being $58,682.69.
3. The husband conceded that he has made no voluntary payments pursuant to Order 4 of the final orders.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of November 2023.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 12 November 2023. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of December 2023.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 12 December 2023. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of January 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 12 January 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of February 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 12 February 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of March 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 12 March 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of April 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 12 April 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of May 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 12 May 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of June 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 12 June 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of July 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 12 July 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of August 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 12 August 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of September 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01 am on 12 September 2024. No location applicable.

The Respondent, without reasonable excuse, has failed to make payment of $2,200 in spousal maintenance to the Applicant pending full compliance of all of his obligations under the final orders of Justice Bennett dated 6 October 2023, for the month of October 2024.

Order alleged to have been contravened ...

Order 6(b) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 12 October 2024. No location applicable.

1. The wife gave evidence that the husband, without reasonable excuse, has failed to make payment of spousal maintenance to the wife of $2,200 per calendar month since his obligations commenced in November 2023 pursuant to Order 6(b) of the final orders which is as follows:
   1. That pending the compliance by the husband with regard to any and all obligations pursuant to these Orders ("the Obligations"):-

(b) paragraph 6 of the 2018 Order continue in full force and effect...

1. Order 6 of the orders made 5 July 2018 is as follows:

6. The husband pay to the wife:

1. the sum of $2,200 per calendar month (in advance) commencing on 11 July 2018 such monies to be deposited in the bank account of the wife styled as the Commonwealth Bank Smart Access account BSB [...] Acc. No [...] and each party be at liberty to argue for the characterisation of such payments at the final hearing as either spousal maintenance or periodic child support or arrears of either of those...

1. The wife's evidence with respect to the orders for the payment of spousal maintenance (Orders 4 and 6(b) of the final orders) was that the husband had made no payment to her; no part-payment to her; and nor had he made any attempt at all to comply with the final orders, showing a flagrant disregard for his obligations pursuant to the orders of the Court. The wife further gave evidence that this was particularly so given the husband clearly had funds available to him, evidenced by payment of significant legal fees by him to his legal representatives in the period following the making of the final orders. The wife referred to the following:

(1) The husband had paid $985,274 to AK Law Firm and GC Lawyers since the date of the final orders (I observe that to be in the period between 6 October 2023 and 11 November 2024 when the wife affirmed her affidavit of evidence).

(2) The above legal fees did not include other legal expenditure incurred by the husband (and/or entities under his control which include W Pty Ltd; T Inc.; and L Pty Ltd) with AN Law Firm and with J lawyers, who had the carriage of the Federal Court of Australia proceeding before AN Law Firm were instructed, in respect of:

(i) his Application for Special Leave to appeal the orders of the Full Court;

(ii) the foreclosure proceedings issued by Westpac in the Supreme Court of Victoria;

(iii) the Federal Court of Australia proceedings [...] (being conducted in the husband's name together with W Pty Ltd and T Inc).

1. Additionally, when the wife's legal representatives were required to transfer $100,000 in security for costs held by them to GC Lawyers at the request of the husband, the wife's legal representatives wrote to GC Lawyers by letter dated 27 August 2024 stating, amongst other things, that:[9]

... [the husband] has no basis to continue prioritising the payment of his legal fees, or indeed any other expense, above his obligations under the Final Orders. We therefore put your client on notice that should he instruct you to disburse those funds transferred to your firm's trust account in any way other than to meet his outstanding obligations to our client under the Final Orders, including in payment of any costs or disbursements incurred with your firm, our client may bring a contravention or contempt of court application against him.

It was the wife's evidence that it is apparent from the disclosure of GC Lawyers trust account on 11 October 2024, that those funds were applied to the husband's legal fees and disbursements.

1. The husband conceded that he, voluntarily, has made no payment of spousal maintenance to the wife.

The Respondent, without reasonable excuse, has failed to pay to the Applicant the sum of $6,250 by 5 November 2023.

Order alleged to have been contravened ...

Order 10 of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 6 November 2023. No location applicable.

1. The wife gave evidence that the husband, without reasonable excuse, failed to pay a cost order pursuant to Order 10 of the final orders made in the wife's favour in the sum of $6,250 by 5 November 2023. Order 10 is as follows:

By way of costs and reimbursement of expenses:

(a) The husband be liable for and pay the wife $40,000 on account of her costs of his recusal application;

(b) The wife be liable for and pay the husband $20,000 on account of his costs of her application to tender documents;

(c) The wife pay the husband $13,750 by way of reimbursement of valuation expenses - such payments to be effected by the husband paying to the wife the sum of $6,250 in 30 days with the effect that the liabilities referred to in (a), (b) and (c) of this Order are not recoverable independently of one another.

1. The husband conceded that he has not paid this sum to the wife.

The Respondent, without reasonable excuse, has failed to make payment of the default interest due to the Applicant.

Order alleged to have been contravened ...

Order 5 of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 6 December 2023. No location applicable.

1. The wife gave evidence that the husband, without reasonable excuse, failed to make payment of the default interest due to the wife under Order 5 of the final orders, which is as follows:
   1. If the whole of any payment, including the Payment and/or arrears due under the 2015 Order and/or the 2018 Order due pursuant to this Order has not been made by the due date for such payment, then penalty interest at the rate specified in the Family Law Rules accrue in respect of so much of the payment as remains outstanding, such interest to be calculated with monthly rests.
2. The wife gave evidence that default interest is owed on the following payments due to her under the final orders that remain in default:

(1) Default interest on the payment of $1,240,231 owing to the wife in accordance with Order 3;

(2) Default interest on the spousal maintenance arrears owing to the wife in accordance with Order 4;

(3) Default interest on the costs order of $6,250 owing to the wife in accordance with Order 10; and

(4) Default interest on the ongoing spousal maintenance due under Order 6(b), commencing on 11 November 2023 and accruing on the additional amounts falling due each month.

1. The husband's admissions that he has not made payments to the wife in accordance with the final orders renders him liable for default interest on those payments.

The Respondent, without reasonable excuse, has failed to execute a Resignation as Director or Secretary with regard to any entity in which he holds an interest in Australia, including after such documents were requested to be executed by the Respondent in a letter dated 25 January 2024.

Order alleged to have been contravened ...

Order 6(d) of the final orders made by Justice Bennett on 6 October 2023.

Date, time and location of alleged act or omission

12.01am on 9 February 2024. No location applicable.

(Emphasis added)

1. That pending the compliance by the husband with regard to any and all obligations pursuant to these Orders ("the Obligations"):-

(a) the wife have sole use and occupation of the [X Street] Apartment and the husband to pay and be responsible for all mortgage repayments in respect of the loan secured over the title to the [X Street] Apartment, owners levies, body corporate charges, rates taxes and like apportionable outgoings during the wife's occupation;

(b) paragraph 6 of the 2018 Order continue in full force and effect;

(c) the wife retains a right of charge against any and all instruments of ownership (including shares) held by the husband in respect of the husband's interest in corporation or entity in Australia;

(d) the husband is to execute a Resignation as Director or Secretary with regard to any entity referred to in the preceding paragraph, to be held in escrow pending any default by the husband with regard to such obligations.

(Emphasis added)

1. The wife gave evidence that the husband, without reasonable excuse, failed to execute a resignation as director or secretary with regard to any entity in which he holds an interest in Australia pursuant to Order 6(d) of the final orders, and nor had he provided the wife's solicitors with these documents to be held in escrow, including with respect to L Pty Ltd.
2. The husband conceded at the contravention application hearing that he has not acted in accordance with Order 6(d) of the final orders.

1. The contraventions alleged by the wife against the husband occurred in the period between November 2023 and October 2024. In that period, and on 6 May 2024, the provisions of Pt VII, Div 13A of the Act were amended by the Family Law Amendment Act 2023 (Cth) ("the Amendment Act"). The Amendment Act did not contain any transitional provision to regulate the timing of the operation of the old Pt VII, Div 13A or the new Pt VII, Div 13A of the Act. The Rules were also amended on 6 May 2024 by the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No. 1) Rules 2024 (Cth) ("the Rules Amendment Act").
2. The approach to adopt, in these circumstances, is as described by Austin J in Hatfield & Rivas [2024] FedCFamC1A 202 ("Hatfield") at [72]:

It logically follows then that, absent express legislative intention for the new provisions of Pt VII, Div 13A to apply to contraventions alleged to have occurred whilst the old Pt VII, Div 13A was operable, the old provisions must still apply to such historic contraventions.

1. Hereafter, where they appear, the relevant sections of the Act and the Rules are included by reference to the operation of each before and following the Amendment Act and the Rules Amendment Act.
2. Counts 1, 3 to 10, and 17 to 19, of the alleged contraventions occurred in the period whilst the old Pt VII, Div 13A of the Act, and the old Rules, were in operation, and Counts 2, and 11 to 16, of the alleged contraventions occurred in the period after the Amendment Act and the Rules Amendment Act became operative.
3. Section 112AB of the Act is, relevantly, as follows:

(1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:

(a) where the person is bound by the order--he or she has:

(i) intentionally failed to comply with the order; or

(ii) made no reasonable attempt to comply with the order; or

The Amendment Act made no change to this section. The section is applicable to each of the contraventions as alleged.

1. Rule 11.69 of the Rules as they apply to Counts 1, 3 to 10, and 17 to 19 of the alleged contraventions is applicable and as follows:

At the hearing of an application referred to in item 2, 3, 4 or 5 in Table 11.1, the court must:

(a) inform the respondent of the allegation; and

(b) ask the respondent whether the respondent wishes to admit or deny the allegation; and

(c) hear any evidence supporting the allegation; and

(d) ask the respondent to state the response to the allegation; and

(e) hear any evidence for the respondent; and

(f) determine the proceeding.

Note: For the orders that may be made by the court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Family Law Act.

1. Rule 11.69 of the Rules as they apply to Counts 2, and 11 to 16 of the alleged contraventions is as follows:

At the hearing of an application referred to in Table 11.1, the court must:

(a) inform the respondent of the allegation; and

(b) ask the respondent whether the respondent wishes to admit or deny the allegation; and

(c) hear any evidence supporting the allegation; and

(d) ask the respondent to state the response to the allegation; and

(e) hear any evidence for the respondent; and

(f) determine the proceeding.

Note: For the orders that may be made by the court, see sections 67X, 70NBA, 70NBB, 70NBC, 70NBD, 70NBF, 70NCA, 70NCB, 112AD, 112AE, 112AF, 112AG, 112AH and 112AP of the Family Law Act.

1. As can be observed from the above, the Rules Amendment Act made no change to the manner of hearing of a contravention application.
2. The standard of proof in civil proceedings is on the balance of probabilities.[10] In Hatfield, Austin J noted that "the procedure for hearing [a contravention application] ... is quasi-criminal, with an expectation that [the applicant] be put to strict proof of the allegations".[11]
3. The wife's contravention application filed 27 November 2024 alleged 19 counts of the husband's breach of the final property orders. The wife prosecuted all 19 counts (Count 2 in the alternative) in support of which she relied on her affidavit material.
4. The wife's evidence was unchallenged and is accepted by the Court. The burden of proving the contravention of each and/or every of the orders as asserted by the wife is, pursuant to the legislation, discharged by her proving the husband had either intentionally failed to comply with an order, or that he had made no reasonable attempt to comply with the order in question.[12] I am satisfied that the wife discharged her burden of proof in this proceeding by proving, on her unchallenged evidence, the husband's contraventions as defined.
5. Further, whilst the husband formally denied each allegation put to him, being the 19 counts of contravention, in his evidence and submissions the husband conceded the contraventions as alleged but maintained, with respect to each breach, that he had a reasonable excuse for his contravention of the final orders. Further, the husband conceded in respect of the payment orders that he had made no voluntary payment of any description to the wife since the making of the final orders in October 2023. The only payments as have been received by the wife, as stated earlier, are those as received by garnishee by Services Australia pursuant to the registered maintenance order, being Order 4 of the final orders.

1. Section 112AC of the Act is, relevantly, as follows:

Meaning of reasonable excuse for contravening an order

(1) The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).

(2) A person (in this subsection called the respondent) shall be taken to have had a reasonable excuse for contravening an order under this Act if:

(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.

The Amendment Act made no change to this section.

1. Section 112AC of the Act also leaves open that a person may be able to satisfy the Court as to other matters or circumstances that amount to a reasonable excuse.
2. Rule 11.67 of the Rules as they apply to Counts 1, 3 to 10, and 17 to 19 of the alleged contraventions is as follows:

A respondent to an application referred to in item 2, 3, 4 or 5 of Table 11.1 may file an affidavit but is not required to do so.

1. Rule 11.67 of the Rules as they apply to Counts 2, and 11 to 16 of the alleged contraventions is as follows:

A respondent to an application referred to in Table 11.1 may file an affidavit but is not required to do so.

1. As can be observed, the principle remains the same regardless of the time of the contravention.
2. The husband bore the burden of proving that he had a reasonable excuse for his breaching of the final orders as set out in the contravention application.
3. Whilst the fact of the husband not being required to put affidavit evidence before the Court was made clear to him, and the consequences of doing so if he determined to place evidence before the Court, the husband elected to rely on two affidavits of evidence and to be cross-examined.
4. The husband pleaded not guilty in his assertion that he had a reasonable excuse, as defined, because he had no money with which to meet his obligations under the final orders. Further, that his evidence demonstrated that he was not financially capable of complying with his payment obligations.
5. Justice Bennett made the following findings as to the husband's financial capacity: [13]

There is ample evidence that the husband has assets and financial resources which cannot be identified with precision or valued...

I accept that the husband has control of the [Fowles Family Trust] in his capacity as the Investment Committee and that he exercises that control in fact...

I find that the [Fowles Family Trust] is the puppet of the husband. Neither his sister nor the trustee exercise any control over the Trust or the assets of the Trust. I cannot attribute a value to the Trust because of the husband's non-disclosure. From the manner in which the husband has conducted these proceedings, so as to deflect any meaningful assessment of the Trust assets, I infer that the Trust assets are substantial...

I am satisfied that the husband has an income earning capacity considerably in excess of that of the wife. He has not disclosed its source or its dimensions, but I find that over these very lengthy proceedings the husband has been unable to disguise that he has the wherewithal to obtain funds when it suits him...

1. The husband's evidence was challenged by cross-examination.
2. Under cross-examination, the husband admitted that:

(1) W Pty Ltd is owned by the Fowles Family Trust ultimately.

(2) W Pty Ltd is currently involved in two appeals in the Federal Court of Australia, the first being in the matter of W Pty Ltd v Mr AO, and the second the matter of W Pty Ltd v Mr AU. By order made in mid-2025, and in the proceeding involving Mr AO, W Pty Ltd was required to pay into the Federal Court of Australia by 12 September 2025 the sum of $132,191 to abide the outcome of leave to appeal in that proceeding and, if leave to appeal is granted, to abide the outcome of any appeal brought by such leave. By order made 21 August 2025, and in the proceeding involving Mr AU, W Pty Ltd was required to pay into the Federal Court of Australia by 12 September 2025 the sum of $206,257.54 to abide the outcome of leave to appeal in that proceeding and, if leave to appeal is granted, to abide the outcome of any appeal brought by such leave. In respect of these payments of security for costs, the husband conceded that such payments had been made. I observe the total sum to be $338,448.54. I further note that in fact, the husband personally, or via an entity of which he has control and ownership, is engaged in three proceedings in the Federal Court of Australia.

(3) W Pty Ltd has engaged AN Law Firm to act in respect of the above Federal Court of Australia proceedings (the two appeals) and in the calendar year 2025, the company had paid more than $500,000 in legal costs to AN Law Firm.

(4) The legal costs of W Pty Ltd in respect of some or all of the proceedings (as described above) in the Federal Court of Australia have probably exceeded $2 million.

(5) The husband is the only shareholder of T Inc., a United States firm.

(6) The husband spent more than $750,000 in legal costs pursuing his Full Court appeal.

(7) The husband pays personal rent of $2,000 per month in respect of his current rental in Suburb GD, and W Pty Ltd pay a further $2,000 per month, with the total rental being $4,000 per month.

(8) The husband has drawn funds, in the 2025 calendar year, from L Pty Ltd, a company which he owns and of which he is a director. He described those advances variously as follows:

(a) When asked by counsel whether the amount was $100,000, he responded "I may have taken more than that".

(b) When asked by counsel whether the amount was more than $200,000, he responded "I don't remember".

(c) When asked by counsel for his best estimate, the husband responded "$30,000".

(9) The husband obtained legal advice in respect of the contravention application.

(10) The husband's deceased father's home property had a value of considerably more than USD3,000,000 at the time of the trial before Bennett J. The husband's father died in 2019. When asked by counsel whether the husband had inherited his father's home property as a tenant in common with his brother, and in or about 2022, the husband denied any knowledge as to his ownership, simply saying that he did not know if he had such an interest. Nor was he interested in finding that out, at the time.

1. The husband was often untruthful in the giving of his evidence, or was evasive, irrelevant, and at times, combative. He provided non-responsive answers when it suited him. He was generally not a credible witness.
2. The husband asserted that he was prevented from complying with Order 1(a) of the final orders because the wife's litigation funder, FH Finance, had a caveat registered on the title of the X Street apartment despite evidence that the litigation funder had confirmed that it would remove the caveat to enable the transfer of the X Street apartment to the wife.
3. The position of FH Finance was confirmed to the husband's previous solicitors by letter dated 15 October 2024, which enclosed an email from FH Finance of the same date.
4. The husband failed to discharge the Westpac mortgage secured against the X Street apartment (and transfer his interest in the X Street apartment, free of encumbrance, to the wife). As a result, in or about November 2024, Westpac Banking Corporation obtained default judgment in the Supreme Court proceedings for recovery of the X Street apartment in which the wife currently resides.
5. The husband adduced no evidence as to his parlous financial circumstances by reference to any production of his United States taxation returns, nor by production of any T Inc. financial documents including taxation returns, that being a company which he admitted to ownership and control of.
6. I conclude that the husband adduced no evidence to support that which he claimed, namely his impecuniosity and consequent inability to meet his obligations to the wife pursuant to the final orders. Furthermore, I conclude that the husband has had ample funds available to him from entities which he controls, including W Pty Ltd, and that he can direct those funds where he chooses.
7. The Court infers on the evidence that the husband continues to hide assets overseas and in Australia and refuses to apply those assets to satisfy the final orders of the Court. He refuses to prioritise his obligations to the wife pursuant to the final orders.
8. I find that the husband has intentionally failed to comply with the final orders. I also take into account in this consideration of a 'reasonable excuse' my findings in [48] above.
9. There being no evidence before the Court to support a finding that the husband has or had a reasonable excuse for his contravention of the final orders pursuant to section 112AC of the Act, the husband is, accordingly, guilty of contravening the final orders as alleged.

1. Section 112AD of the Act is, relevantly, as follows:

Sanctions for failure to comply with orders

(1) If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.

...

(2) The sanctions that are available to be imposed by the court are:

(a) to require the person to enter into a bond in accordance with section 112AF; or

(b) to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or

(c) to fine the person not more than 60 penalty units; or

(d) subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.

(2A) The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent.

(3) An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event.

(4) Where a court makes an order under subsection (1), the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened.

The Amendment Act made no change to this section.

(1) A sentence of imprisonment imposed on a person pursuant to paragraph 112AD(2)(d) shall be expressed to be:

(a) for a specified period of 12 months or less; or

(b) for a period ending when the person:

(i) complies with the order concerned; or

(ii) has been imprisoned pursuant to the sentence for 12 months or such lesser period as is specified by the court;

(2) A court shall not sentence a person to imprisonment pursuant to paragraph 112AD(2)(d) unless the court is satisfied that, in all the circumstances of the case, it would not be appropriate for the court to deal with the contravention pursuant to any of the other paragraphs of subsection 112AD(2).

(3) If a court sentences a person to imprisonment pursuant to paragraph 112AD(2)(d), the court shall:

(a) state the reasons why it is satisfied as mentioned in subsection (2); and

(b) cause those reasons to be entered in the records of the court.

(4) The failure of a court to comply with subsection (3) does not invalidate a sentence.

(4A) A court that sentences a person to imprisonment under paragraph 112AD(2)(d) may:

(a) suspend the sentence upon the terms and conditions determined by the court; and

(b) terminate a suspension made under paragraph (a).

(5) A court, when sentencing a person to imprisonment under paragraph 112AD(2)(d) may, if it considers it appropriate to do so, direct that the person be released upon the person entering into a bond described in subsection (6) after he or she has served a specified part of the term of imprisonment.

(6) A bond for the purposes of subsection (5) is a bond (with or without surety or security) that the person will be of good behaviour for a specified period of up to 2 years.

(7) Without limiting the circumstances in which a court may discharge an order under section 112AK, a court that has sentenced a person to imprisonment for a period expressed as provided by paragraph (1)(b) may order the release of the person if it is satisfied that the person will, if he or she is released, comply with the order concerned.

(8) To avoid doubt, the serving by a person of a period of imprisonment under a sentence imposed on the person under paragraph 112AD(2)(d) for a failure to make a payment under a maintenance order does not affect the person's liability to make the payment.

The Amendment Act made no change to this section.

What is the most appropriate sanction in the circumstances?

1. The overarching requirement for the Court when imposing a sanction or sanctions is "what sanction or sanctions ... the court considers to be the most appropriate in the circumstances".[14] Whilst this should be directed primarily to securing compliance with the subject orders of the Court, [15] if that is not possible, then the husband's breaches should not be without consequence in the circumstances and on the facts of this case.[16]
2. I observe that included "in the circumstances" is that the husband's contraventions are deliberate, serious, longstanding and ongoing, and that the husband has exhibited no remorse in respect of them. He has deprived the wife of her entitlements and caused her life, for some years, to be lived in the shadow of his unmeritorious litigation. The personal cost to her, as well as the financial cost to her, has been extreme and horrifically unimaginable. The financial cost to the wife has been the entirely unnecessary incurring of costs by her to defeat the husband's unmeritorious, vexatious and harmful proceedings. The fact that her solicitors and counsel have not requested funds up front from the wife, but rather have supported her, at their own costs' exposure in substantial sums, has both infuriated the husband and made them the subject of his ridicule. He has engaged in further unjustified and costly (to the wife) proceedings in his attempts to have them no longer act for the wife.
3. As required by s 112AE(2) of the Act, the Court must not impose a sentence of imprisonment pursuant to s 112AD(2)(d) of the Act unless it is satisfied, in all the circumstances of the case, that it would not be appropriate for the court to deal with the contravention pursuant to any of the other parts of s 112AD(2) of the Act. The Court is overwhelmingly so satisfied as is explained hereafter.
4. The wife's evidence that the husband has not made any payments to her of the maintenance orders as contained in the final orders, save for funds that Services Australia garnished from the husband under a registered maintenance order,[17] whilst continuing to pay for his own substantial legal fees in these proceedings, and various other proceedings as described above, in priority to meeting his Court-ordered obligations, together with the husband's ability to obtain funds at short notice from those entities under his control, satisfies the Court that the husband's contravention of the maintenance orders was intentional, for the purposes of s 112AD(2A) of the Act.

1. I find there is no utility in requiring the husband to enter a bond, pursuant to s 112AE(5). The Court cannot be satisfied that, if the husband informed the Court he would enter a bond, the husband would comply with any conditions of the bond, considering the husband's history of contraventions of the final orders as canvassed in these reasons. It is probable that requiring the husband to enter a bond would result in further Court hearings, oppressive to the wife, and have the effect of avoiding finality in this matter. Importantly, the seriousness, extent and horrendous consequences to the wife of the contraventions as committed by the husband render the imposition of a bond with or without conditions as an inappropriate sanction according to law.
2. Neither party contended that a bond would be an appropriate, let alone the most appropriate, sanction, in the circumstances.

1. I find there is no utility in imposing a fine on the husband, pursuant to s 112AD(2)(c). The maximum fine the Court can impose is $356,400 (being the maximum fine of $19,800 for each of the 18 counts of the husband's contravention), noting that the Full Court has said that "it is better for the primary judge to impose a separate sanction for each count, representing the ideal balance between relevant objective and subjective factors".[18] The Court has no confidence that the husband would comply with any fine imposed on him given his ongoing and egregious breaches of the final orders, and his attitude to the wife, being one of intent to cause her financial, mental and physical harm. A fine would be of no benefit to the wife and an inappropriate sanction where the contraventions remain unremedied.
2. Neither party contended that a fine would be an appropriate, let alone the most appropriate sanction, in the circumstances.

1. The sentencing alternatives as set out in s 112AG of the Act are not appropriate sanctions in the circumstances of the case, and there is no evidence or information otherwise before the Court to consider any other sentencing alternative.

1. The wife sought orders that the husband be imprisoned for a term of 12 months. The husband suggested that the wife instead, bankrupt him.
2. Additional to a term of imprisonment, the Court can also make orders as it considers necessary to ensure compliance with the order that was contravened, pursuant to s 112AD(4) of the Act, as is sought by the wife.
3. Counsel for the wife submitted the following as to a term of imprisonment being the most appropriate sanction in the circumstances, to be imposed on the husband:

(1) the quantum of arrears relating to all the payment obligations under the final orders the husband has contravened considerably exceed $1,000,000;

(2) since the making of the final orders, the husband has elected to use funds for his own purposes, including paying his own personal legal fees in the sum of at least $985,274.15, in priority to meeting his Court-ordered obligations;[19]

(3) the husband has not made any payments to the wife in accordance with his obligations under the final orders (save for funds that Services Australia has garnished from the husband under a registered maintenance liability);[20]

(4) the husband has not adduced any evidence that he is contrite and has not offered to rectify his contraventions, save for an offer to sit down with the wife and "resolve some issues";[21]

(5) the husband has attempted to deal with the X Street apartment by purporting to offer it as 'indicative security' to the ATO for his business debts as recently as 6 May 2025, despite being aware of the wife's entitlement pursuant to the final orders;

(6) the husband has not put any plausible evidence before the Court that there was any practical impediment to his compliance with the final orders; and

(7) the contraventions are serious, substantial and enduring. The husband's deliberate defiance of the final orders shows a stubborn and wilful disobedience toward the Court.

1. I agree with every part of that submission.
2. Counsel for the wife also submitted that, when considering deterrence, the imposition of a serious penalty is more likely to secure the husband's compliance with future orders made by the Court and that, in relation to general deterrence, a term of imprisonment would provide a clear and appropriate message to litigants that Court orders for property settlement must be complied with. The authority of the Court to make effective orders must be upheld. I agree with those submissions.
3. I find the husband's conduct a flagrant challenge to the authority of the Court. The husband has had ample opportunity to comply with even any one of the final orders. He has not done so. The husband's abject failure to comply with the final orders, are not explained by any financial incapacity of his.
4. His contraventions are deliberate and I conclude that there is no other sanction that can be appropriately imposed other than a sentence of imprisonment. And a significant one. That is so, even absent the contraventions that relate to spousal maintenance payments as payable by the husband to the wife. They simply add to the fact of the extremity of this case, by comparison with others.
5. The Court has had regard to sentences imposed in other matters, to ensure even-handedness.

(1) In Coalter & Loxton [2021] FedCFamC1F 283, the Court found the respondent guilty of three counts of contravention and made orders, relevantly, that a term of imprisonment for six months be served by the respondent which arose from the respondent's serious, ongoing and flagrant breaches of the court orders and obligations of disclosure.

(2) In Woolly & Woolly [2023] FedCFamC1F 634, Carter J made orders, relevantly, that a term of imprisonment of 90 days be served by the respondent if the sum of $200,000 was not paid by the respondent to the applicant's solicitors, arising from a breach of interim injunctive orders for the preservation of assets pending final determination.

(3) In Giddens & Giddens [2016] FCCA 3201, Hughes J made orders, relevantly, that the respondent husband serve a six-month sentence of imprisonment, to be suspended after two months upon the respondent entering a bond in the sum of $5,000 with a condition of good behaviour for twelve months from the date of the bond being entered. In that case, the respondent disposed of much of an approximately $300,000 worker's compensation payment of which the wife was seeking $60,000 by way of property settlement. The wife had filed an urgent application seeking seizure of the respondent's motor vehicle pending the property settlement; Hughes J subsequently made orders restraining the respondent husband from selling, transferring, encumbering or taking any action which would cause diminution in the value of the motor vehicle. The husband then sold the motor vehicle and expended the proceeds of the sale. The Court found that the respondent husband's actions were a "clear, conscious and deliberate contravention of the order" and that the only appropriate sanction in the circumstances was a custodial sentence.[22]

1. The consequences of the husband's contraventions here are enormously significant. Westpac Banking Corporation has obtained a default judgment and can take possession of the X Street apartment in which the wife resides, and which she is entitled to unencumbered ownership of pursuant to the final orders. The wife has suffered huge psychological and financial distress, and she continues to live off minimal Centrelink payments each week with little other assets or resources available to her. The husband has robbed her of any financial security.
2. It is difficult to imagine a more deserving case for the imposition of a 12-month term of imprisonment in respect of the husband's proven contraventions of the final orders. Even this sentence struggles to reflect the seriousness of the contraventions, their intentional and malicious nature, and their adverse impact on the wife's life and wellbeing. It is, however, the maximum that can be imposed. The wife sought a period for the husband to purge his contraventions, and the Court shall accede to her request. If the husband continues with his contemptuous disregard of the orders of the Court, however, a warrant will be issued for his arrest and imprisonment.

1. The wife sought indemnity and other costs. The husband sought dismissal of that application.
2. The Court proposes to consider this matter at the expiration of the appeal period or otherwise. The Court shall require the parties to make limited submissions as to this matter, with some indication as to what the quantum of those indemnity costs as claimed shall be together with the quantum of party party costs.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

[1] Pursuant to Division 11.2.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

[2] Fowles [2025] FedCFamC1A 147 at [36].

[3] Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) ALR 128 at [9].

[4] Fowles & Fowles (No 4) [2023] FedCFamC1F 819.

[5] Fowles & Fowles (No 2) [2024] FedCFamC1A 115.

[6] Fowles & Fowles (No 2) [2024] FedCFamC1A 115 at [92] and [125].

[7] Annexure "PH-8" to the wife's affidavit filed 27 November 2024.

[8] Annexure "PH-7" to the wife's affidavit filed 27 November 2024.

[9] Wife's affidavit filed 27 November 2024 at [45].

[10] Evidence Act 1995 (Cth) s 140.

[13] Fowles & Fowles (No 4) FedCFamC1F 819.

[15] Cluny & Skinner (No 2) [2017] FamCA 547.

[16] Woolly & Woolly [2023] FedCFamC1F 634.

[17] Wife's affidavit filed 27 November 2024 at [16].

[18] Zamir & Zamir [2022] FedCFamC1A 193; (2022) 65 Fam LR 612 at [63].

[19] Wife's affidavit filed 27 November 2024 at [18].

[20] Wife's affidavit filed 27 November 2024 at [16].

[21] Annexure "JF-1" to the husband's affidavit filed 31 March 2025.

[22] Giddens & Giddens [2016] FCCA 3201 at [31].