Fowles & Fowles (No 13) [2025] FedCFamC1F 835 (18 November 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The issue before the Court was contained in an Application in a Proceeding filed 30 October 2025 ("the stay application") by the applicant husband ("the husband"). The husband sought a stay of the orders made 19 September 2025, the husband having been granted leave to file the stay application on 30 October 2025 pursuant to s 102QAG of the Family Law Act 1975 (Cth) ("the Act"). The husband had, on 27 October 2025, filed an Application in an Appeal seeking leave pursuant to s 102QAG of the Act to file a Notice of Appeal of the orders of 19 September 2025.
2. The husband was required to seek leave to file both the stay application and the appeal due to there being a harmful proceedings order in force against the husband pursuant to s 102QAC of the Act. That harmful proceedings order was made on 16 July 2025 and upheld by the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction on 21 August 2025, the husband having unsuccessfully sought leave pursuant to s 102QAG of the Act to appeal that order.
3. On 19 September 2025, I delivered judgment in respect of the wife's contravention application. The orders of 19 September 2025 were as follows:

THE COURT FINDS THAT:

1. The respondent, MR FOWLES born in 1962, is found guilty without reasonable excuse of contravening:

(a) Order 1(a) of the final orders made by Justice Bennett on 6 October 2023 ("the Final Orders");

(b) Order 3 of the Final Orders;

(c) Order 4 of the Final Orders;

(d) Order 5 of the Final Orders;

(e) Order 6(b) of the Final Orders;

(f) Order 6(d) of the Final Orders; and

(g) Order 10 of the Final Orders.

THE COURT ORDERS THAT:

1. The respondent, MR FOWLES born in 1962, do all acts and things and sign all documents necessary to forthwith comply with his obligations pursuant to the Final Orders as follows:

(a) to pay to the applicant via her solicitor's trust account the sum of $1,240,231 as required by Order 3 of the Final Orders;

(b) to pay to the applicant via her solicitor's trust account the sum of $137,326.09 as required by Order 5 of the Final Orders as the calculated amount owing as at 29 November 2024 and any such further amounts due and payable pursuant to Order 5 of the Final Orders;

(c) to pay to the applicant via her solicitor's trust account all sums payable by way of outstanding spousal maintenance as required by Orders 4 and 6(b) of the Final Orders;

(d) to pay to the applicant via her solicitor's trust account the sum of $6,250 as required by Order 10 of the Final Orders; and

(e) to repay the Westpac loan account ending #...99 and cause the discharge of the mortgage numbered ... registered to the Westpac Banking Corporation secured on title to the property situate at X Street and known as Volume [...] Folio [...]; (together, "the Obligations").

1. In the event that the respondent, MR FOWLES born in 1962, does not comply with all of the Obligations set out in Order 2 above within 60 days hereof then, pursuant to section 112AD(2)(d) and section 112AE of the Family Law Act 1975 (Cth), the respondent, MR FOWLES born in 1962, is sentenced to a term of imprisonment for twelve months (365 days), commencing from the date of arrest and ceasing on the earlier of:

(a) 12 months (being 365 days) after the respondent has been taken into custody; or

(b) upon the respondent complying with the Obligations; or

(c) until further order.

AND THE COURT NOTES THAT:

1. In the event the chambers of Justice Hartnett are notified by the wife's solicitors that Order 2 of these orders has not been complied with by the respondent, MR FOWLES born in 1962, within 60 days from the date of these orders, a Warrant of Arrest will be issued in chambers.

(Emphasis in original)

1. The husband relied upon the Application in a Proceeding and his affidavit of evidence both filed 30 October 2025, and an Outline of Case Document filed 14 November 2025.
2. The wife did not participate in the hearing or file any material in respect of the stay application. On 5 November 2025, the solicitors acting for the wife wrote to the Court to advise that the wife did not oppose the Court making orders as sought by the husband in the stay application, including that the wife did not oppose such orders being made in chambers without the need for an oral hearing. On 13 November 2025, the Court granted leave for the wife to be excused from attendance at the in-person hearing to determine the stay application.

1. Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is as follows:

(1) The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.

(2) If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.

(a) be filed in the registry in which the order under appeal was made; and

(b) be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.

1. The principles relevant to the stay application made are those set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at [18]:

The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known. The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

• the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;

• a person who has obtained a judgment is entitled to the benefit of that judgment;

• a person who has obtained a judgment is entitled to presume the judgment is correct;

• the mere filing of an appeal is insufficient to grant a stay;

• the bona fides of the applicant;

• a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

• a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay;

• some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;

• the desirability of limiting the frequency of any change in a child's living arrangements;

• the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

• the best interests of the child the subject of the proceedings are a significant consideration.

(Citations omitted) (Emphasis added)

1. Curial intervention by the grant of a stay should not take place lightly as Bryson JA held in Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 at [18] as follows:

...The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy or otherwise so adversely severe in its impact that intervention by the Court of Appeal should take place notwithstanding that there has not yet been an opportunity for full consideration.

1. The wife does not oppose, nor consent to, the husband being granted a stay of the orders of 19 September 2025.
2. The husband has an arguable case.
3. There is a risk that, if the husband is not granted a stay of the orders of 19 September 2025, he will be deprived of his liberty from 19 November 2025 until the Full Court determines the husband's Application in an Appeal for leave to file a Notice of Appeal in respect of those orders. That period of time could be some months. The effect of the husband being deprived of his liberty for that period of time would be that the appeal may be rendered nugatory.
4. Once the husband has spent time in prison, it is "impossible...to restore the previously existing situation if the appeal were successful".[1] The importance of the liberty of an individual in relation to stay applications was emphasised by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v B (Infants) & B (Intervener) [2003] FamCA 591; (2003) FLC 93-142.
5. I shall accede to the stay application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

[1] Kelly & Kelly [1980] FamCA 88; (1981) FLC 91-007 at 76,105.