Fox v Percy

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

1. These reasons explain the dismissal of two applications to review the decisions made by an appeal registrar in two related appellate proceedings on 6 October 2025, refusing the applicant permission to bring applications for leave to appeal out of time.

1. The parties to these proceedings are former de facto partners.
2. In September 2022, with the parties' consent, final orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 2) to determine the financial cause between them under Pt VIIIAB of the Family Law Act 1975 (Cth) ("the Act"), commenced in 2020.
3. In part, the property adjustment orders required the applicant to pay sums of money totalling $905,000 to the respondent. The applicant defaulted in performance of the orders so, in May 2023, the respondent applied to enforce the orders by selling real property.
4. Shortly thereafter, in June 2023, the applicant filed a fresh application seeking to vary or set aside the final orders by alternate reliance upon s 90SN(1)(a) or s 90SN(1)(c) of the Act.
5. The applicant's s 90SN application was listed for final hearing before the Court in February 2024 but, by reason of the applicant's failure to file supportive evidence as directed, the respondent applied to summarily dismiss the applicant's application. The applicant countered by seeking an adjournment of the hearing, but that was refused.
6. The respondent's summary dismissal application was entertained in February 2024, after which judgment was reserved and not then delivered until 29 January 2025. The applicant's s 90SN application was summarily dismissed (Svetovit & Lucila [2025] FedCFamC2F 54). The primary judge relevantly made this order:
   1. The applicant's application filed on 2 June 2023, and amended on 5 June 2023, is dismissed.
7. The respondent then pressed ahead with her application to enforce the final orders, which was heard in March 2025, with judgment delivered on 3 April 2025 (Svetovit & Lucila (No 2) [2025] FedCFamC2F 402). Relevantly, the applicant was ordered to give the respondent vacant possession of two parcels of real property, in respect of which she was appointed the trustee for sale.
8. Months later, on 28 August 2025, the applicant filed two Applications in an Appeal seeking an extension of time within which to appeal from both the January 2025 judgment and the April 2025 judgment.
9. In passing, it should be noted both judgments were interlocutory in nature, so the applicant had no absolute right of appeal and had to seek an extension of time within which to apply for leave to appeal, but he does not seek such leave in his draft Notices of Appeal.
10. The two applications were promptly heard together by the appeal registrar in September 2025 and were dismissed by orders made on 6 October 2025 in these terms:
    1. That the Applications in an Appeal filed 28 August 2025 in NAA409 of 2025 and NAA410 of 2025 are dismissed.
    2. That in respect of the said applications, the Application pay the Respondent's combined costs fixed in the sum of $3,000 within 60 days.
11. On 27 October 2025, the applicant filed two Applications in an Appeal seeking to review the appeal registrar's decisions in both proposed appeals.
12. In support of his review applications, the applicant relied upon:

(a) the affidavit he filed on 28 August 2025 in support of his applications to extend time;

(b) the written submissions he filed on 8 September 2025 in support of an application he made to the primary judge to stay the April 2025 orders;

(c) the written submissions he filed on 9 September 2025 in support of his applications to extend time;

(d) the affidavit he filed on 28 October 2025 (which annexes another affidavit he filed on 10 September 2025, upon which the appeal registrar refused him permission to rely due to its late filing); and

(e) the affidavit he affirmed and tried to file yesterday (2 November 2025).

1. The review process entails an original hearing of the applicant's applications for an extension of time within which to apply for leave to appeal from the January 2025 judgment and the April 2025 judgment. The applicant's assertions of error made by the appeal registrar are disregarded because they are irrelevant. The extension applications are now heard afresh.
2. The applicant sought that the two applications be determined in the absence of the parties in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but the applications were instead listed for hearing to give the applicant every opportunity to be heard. The applicant appeared and was assisted by a McKenzie friend. He did not supplement the contents of his multiple affidavits and written submissions by any oral submissions.
3. The respondent appeared and resisted the review applications. She relied upon the written submissions she filed on 9 September 2025 to oppose the applicant's applications to extend time to appeal.

1. The legal principles which govern the disposition of applications for leave to bring an appeal (or application for leave to appeal) out of time were expressed in summarised form as follows in Whitmore & Whitmore [2022] FedCFamC1A 75:
   1. Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516.
   2. Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.
2. Those principles are applied.

1. The time for filing any Notice of Appeal from this judgment expired on 26 February 2025.
2. The application to extend time was therefore six months late.
3. As an overall proposition, the applicant submits this to warrant an extension of time within which to apply for leave to appeal:

3. The Application respectfully submits that:

1. the delay was neither lengthy nor strategic, and arose from mental health incapacity, solicitor obstruction, and lack of access to key documentation;

2. the Respondent suffers no prejudice, as her entitlement under the Consent Orders remains fixed and protected; and

3. the Applicant would suffer irreparable prejudice if leave is refused, as the enforcement process has led to the extinguishment of equity of redemption, destruction of livelihood, and ongoing insolvency risk.

(Applicant's Written Submissions filed on 9 September 2025)

1. In more detailed explanation of his prolonged delay, the applicant deposed this in his affidavit filed on 28 October 2025:
   1. The Registrar treated the delay as unexplained or unjustified. I say this finding was made in error, because three independent causes prevented me from filing within time:

a) Solicitor obstruction and mis advice

My then-solicitor [named] repeatedly discouraged me from appealing, refused to draft or file appeal papers unless further money was paid into trust, despite out ongoing payment structure being pay as you go, and told me "you can't appeal" immediately after I instructed him to appeal the enforcement decision.

b) Active reliance on solicitor

I relied on him as my legal representative during the entire appeal window. He had carriage of the matter and told me he would advise if appeal rights should be exercised. He later blamed me for being "out of time" despite refusing to file.

1. Mental health impairment

I was not psychologically capable of self-filing an appeal once my solicitor refused to act. I suffer from PTSD, severe anxiety, and panic attacks. I depend heavily on assistance to manage legal processes. My partner [named] prepared all paperwork for me. Without her assistance I could not function. The Registrar assumed capacity merely because there was no new medical report - that is an error of principle.

1. Before moving to consider the central issue of whether there is any "substantial issue" to be raised in the proposed appeal, several things may be uncontroversially observed about the applicant's evidence and submissions.
2. First, there is no evidence of the applicant's mental health "incapacity" or "impairment" at the time of the hearing in February 2024, which hearing was the foundation for the January 2025 judgment.
3. The applicant proffered medical reports which only attest to his mental ill-health up until the later part of 2023. In his affidavit filed on 28 October 2025 (at [14]-[18] and [31]-[33]), the applicant asserts his "functional incapacity" did not vanish after 2023 merely because he cannot afford to update the medical reports to verify the fact, but the fact remains the "incapacity" which the applicant alleges beyond 2023 is only the subject of his self-serving evidence.
4. The applicant had no psychological diagnosis or treatment before August 2022, when he first consulted a psychologist, Ms B, who concluded he had a phobia of confined spaces and PTSD.
5. In July 2023, Dr C, a consultant psychiatrist reported to the applicant's general practitioner that he responded to questions with appropriate answers, there was no evidence of formal thought disorder or perceptual disturbance, and he was well orientated in time and place. Then in September 2023, Dr C reported to the applicant's then solicitors that he agreed with their assessment that the applicant should be represented by a legal guardian.
6. Apparently realising the lack of probative weight carried by the reports of Dr C, the same solicitors referred the applicant to a forensic psychiatrist, Dr D, for another opinion. Dr D was furnished with the reports written by Ms B and Dr C. In October 2023, Dr D: opined the applicant had suffered PTSD, but he had no mood disorder; saw no evidence of "significant cognitive disturbance or disturbance in functioning"; considered the applicant had "capacity to give instructions [to lawyers]"; and did not believe he needed a litigation guardian.
7. The applicant's assertion of his "incapacity" precluding him from filing timely appeals seems wholly inconsistent with three things: the tenor of his own expert psychiatric evidence; his admitted capacity to understand the process and actively instruct his former lawyers, in the face of either their wilful obstruction or negligent disinterest, to file Notices of Appeal within time; and his evident capacity to prepare large and comprehensive documents to prosecute both his extension and review applications without legal assistance.
8. Secondly, at least objectively, the applicant's evidence and submissions about the delinquent professional performance of his former lawyers seems to rise no higher than that they lacked his confidence about the prospects of his proposed appeals and refused to act on his instructions unless properly paid for their services. Without payment, they withdrew their representation of the applicant, which response seems quite unexceptional.
9. Thirdly, the applicant's submission of his "lack of access to key documentation" is a bare proposition not borne out by either his evidence or the voluminous documents upon which he now relies in these review applications. According to his written submissions, the only document withheld from the applicant was the sale contract related to one property, which has no logical connection with his delay in seeking leave to appeal from the January 2025 judgment.
10. It follows that the applicant does not present a strong case to excuse the very lengthy delay in seeking an extension of time within which to seek leave to appeal from the January 2025 judgment.
11. The decision in January 2025 to summarily dismiss the s 90SN application brought by the applicant followed from the conclusion that it had no reasonable prospect of success. In making that assessment, the primary judge took account of the application (in its amended form) and the only supporting affidavit the applicant had filed on 2 June 2023. The reason for the summary dismissal application was the applicant's failure to file and serve further and better supportive evidence, as directed, to capably demonstrate why the September 2022 consent orders should be varied or set aside.
12. Turning then to the nine proposed grounds of appeal which the applicant would prosecute if given leave to do so, they are as follows:

1. Denial of Procedural Fairness -

Her Honour erred by refusing an adjournment, leaving the Applicant unrepresented with minimal evidence. The refusal was based on an unsupported finding of tactical delay, ignoring medical evidence of incapacity and limited literacy. [Applicant's friend] was permitted to speak only because the Applicant could not conduct the hearing himself.

2. Error in Capacity Finding -

Her Honour erred in finding the Applicant had capacity to enter the 2022 Consent Orders and conduct the s 90SN hearing, wrongly treating legal representation as determinative and ignoring evidence of memory loss, dissociation, coercive control, and situational incapacity caused by family violence and litigation stress.

3. Failure to Consider CGT, GST and Realisation Costs -

Her Honour erred in dismissing CGT, GST and business realisation costs as "no evidence", despite tax advice and affidavits showing liability was inevitable on long-held properties and trading stock. Failure to make a contingent order rendered the Consent Orders unjust and inequitable.

4. Misapplication of s 90SN and Consent Orders -

Her Honour erred by treating the application as "buyer's remorse" and limiting review, ignoring incapacity, coercive control, CGT, and bargaining imbalance. Consent was wrongly treated as arms-length, despite [a named judge] approving the orders in chambers without inquiry.

5. Error in Default Rules and Summary Determination -

Her Honour erred by dismissing the application for procedural default and refusing an adjournment finding deliberate non-compliance without basis. This forced a summary determination of the s 90SN application without proper evidence, denying the Applicant a fair opportunity to present his case.

6. Failure to weigh prejudice -

Her Honour erred by prioritising finality over justice and equity. She accepted the Respondent's claims of incapacity to work without evidentiary basis, despite contradictory affidavits, while overlooking the Applicant's catastrophic prejudice in losing his livelihood, [business] and capacity to service debts.

7. Excessive Judgment Delay -

Her Honour erred by delivering judgment nearly 12 months after hearing, exceeding reasonable timeframes and causing prejudice through mounting interest and enforcement pressure, amounting to procedural unfairness.

8. Inconsistent Reasoning Across Judgments -

Her Honour erred with inconsistent findings between January 2025 (assumed windfall, speculative CGT, deliberate delay) and April 2025 (no windfall, genuine concerns, CGT crystallisation due to forced sale without refinance option).

9. Erroneous Inferences and Fact-Finding -

Her Honour repeatedly treated inferences as facts without supporting evidence, and consistently drew them in the Respondent's favour

(Applicant's affidavit filed 28 September 2025, p. 109-110)

1. Grounds 1 and 5 are misconceived as they are directed to an anterior decision to refuse an adjournment, which does not form part of the decision to summarily dismiss the s 90SN application. The respondent's summary dismissal application was determined on the evidence voluntarily adduced by the applicant, taken at its highest. The applicant was given every opportunity to explain why his s 90SN application should not be summarily dismissed and instead permitted to progress to a substantive hearing, but the primary judge found his explanation unconvincing.
2. Grounds 2, 3 and 4 seem hopeless. At the time of the summary hearing in February 2024, the primary judge was obliged to treat the September 2022 orders as being binding and operable. The applicant was legally represented when the consent orders were made in September 2022 and was bound by his lawyers' representations to the Court at that time of his competent assent to the orders. The adversarial system of litigation proceeds upon the assumption that parties are bound by the conduct of their legal representatives (Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 at [114]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [8] and [74]). Any complaint the applicant now has about the adequacy of his representation by those lawyers in September 2022 may be pursued with them directly or the professional bodies which regulate their practice (Smits v Roach (2006) 227 CLR 423 at [46]).
3. Grounds 6, 7, 8 and 9 are not competent grounds of appeal as they do not allege recognisable legal, factual or discretionary appealable errors to vitiate the January 2025 judgment.
4. The applicant fails to demonstrate there is any "substantial issue" to be raised in the proposed appeal from the January 2025 judgment, in which case there is no point served by granting an extension of time within which to apply for leave to appeal. The applicant's relatively weak arguments advanced to excuse his delay fall away.

1. The time for filing any Notice of Appeal from this judgment expired on 1 May 2025.
2. The application to extend time was therefore nearly four months late.
3. The applicant's explanation for the delay is exactly as that given in respect of the January 2025 judgment, though one further observation is pertinent. The applicant's submission of him suffering "irreparable prejudice" if deprived of the right to bring an application for leave to appeal out of time from the April 2025 judgment is a bare proposition. No appeal was brought from the final consent orders made in September 2022. The April 2025 judgment simply enabled enforcement of the September 2022 orders, which decision was hardly exceptional given the applicant's default in performance of the orders by then had prevailed for well over two years. Upon enforcement of those orders, each party will receive the proportion of property they agreed to accept, albeit by the sale of real property which would not have been necessary if the applicant had paid the respondent as originally agreed.
4. The primary judge: correctly acknowledged the power of enforcement was a discretionary exercise; acknowledged the extended period of the applicant's default; observed how the appointment of the wife as trustee for sale of the two parcels of real property would be a consequential and not substantive order; and rejected the applicant's entreaties to be given the reprieve of several more months to sell the two properties himself.
5. The 21 proposed grounds of appeal which the applicant would prosecute if given leave to do so, are pleaded as follows:
   1. Trustee Conflict of Interest - Her Honour erred in appointing the Respondent as trustee for sale without safeguards despite her clear conflict of interest as both beneficiary and adversarial party, and her fixed sum payment.
   2. Error in Denying Applicant Control - Her Honour erred in denying the Applicant any role in the sale process, despite him being the only party with any incentive to maximise sale price, thereby stripping him of the ability to protect his equity of redemption.
   3. Failure to Weigh Relative Prejudice - Her Honour erred in prioritising finality over justice and equity, accepting the Respondent's hardship claims without evidence while discounting the Applicant's catastrophic prejudice including loss of [business], livelihood, and risk of bankruptcy.
   4. Enforcement Orders Not Mechanical - Her Honour erred in characterising the enforcement orders as "mechanical" when they fundamentally altered the structure and intent of the consent orders.
   5. Windfall Inference - Her Honour erred in inferring that the Applicant would obtain a windfall from property value increases, inconsistent with later acknowledgment that enforcement would not produce a windfall.
   6. Failure to Provide Refinance or Staggered Sale - Her Honour erred in failing to allow for refinance preserving the Applicant's equity of redemption, staggered sale, or choice of which property was sold first, thereby excluding less prejudicial compliance options.
   7. Failure to Safeguard Sale Process - Her Honour erred in failing to impose safeguards on the sale process, including requirements for valuation, reserve, and Applicant involvement in timing and strategy.
   8. Failure to Consider CGT and Realisation Costs - Her Honour erred in failing to consider the inevitable capital gains tax, GST, and transaction costs arising from forced realisation of the Applicant's long-held assets, imposing liabilities far in excess of the $905,000 settlement sum.
   9. Vacant Possession and Chattels - Her Honour erred in requiring vacant possession and chattel removal within 14 days, causing disproportionate prejudice and risking loss of third-party property.
   10. Delay in Judgment - Her Honour erred in delaying delivery of the 90SN judgment for 12 months, casing substantial additional interest (over $100,000) and compounding enforcement prejudice.
   11. Adverse Inferences Without Evidence - Her Honour erred in consistently drawing adverse inferences against the Applicant while accepting the Respondent's assertions without evidentiary support.
   12. Respondent's Contradictory Evidence - Her Honour erred in relying on the Respondent's uncorroborated claims of incapacity to work and hardship while disregarding contradictory evidence of her work capacity.
   13. Mischaracterisation of Caveats - Her Honour erred in mischaracterising caveats lodged by law firms as "registered" liabilities payable from sale proceeds, elevating untested claims to secured debts.
   14. No Provision for Surplus Proceeds - Her Honour erred in failing to make provision for the Applicant to receive surplus proceeds after satisfaction of the settlement sum and legitimate liabilities, contrary to the structure of the consent orders.
   15. [Business] Debt Mediation - Her Honour erred in failing to account for the Applicant's statutory right to [Business] Debt Mediation with NAB before ordering sale of cross-collateralised properties.
   16. Uncertain Status of Third-Party Chattels - Her Honour erred in failing to determine whether third-party chattels were property encompassed by orders 4-5, creating risk of unjust forfeiture.
   17. Destruction of [Business] and Livelihood - Her Honour erred in failing to weigh the destruction of the Applicant's [business stock] and contracting business, causing irreparable loss of income and livelihood.
   18. History of Family Violence and Threats - Her Honour erred in failing to consider the Respondent's history of family violence and threats to bankrupt and destroy the Applicant when appointed her as trustee for sale.
   19. Failure to Distinguish Property Types - Her Honour erred in treating [Town E] (a residential block) and [Town F] (a working [agricultural business]) alike, ignoring their very different nature and consequences of forced sale.
   20. Mischaracterisation of Delay - Her Honour erred in finding deliberate delay by the Applicant, including in relation to chattels, appeal timing and the 90SN application, when delay was explained by medical evidence, solicitor withdrawal, and reliance on legal advice. This error underpinned the refusal of safeguards and the harshness of the enforcement orders.
   21. Unjust Enrichment / Lack of Safeguards - Her Honour in enabling the Respondent, with a fixed entitlement, to control sale proceeds and benefit from forfeiture of chattels and mischaracterised liabilities, contrary to equitable principles and the Applicant's equity of redemption.

(Applicant's affidavit filed 28 September 2025, p. 117-118)

1. Grounds 1, 2, 3, 6, 7, 9, 10, 13, 14, 15, 16, 17, 19 and 21 are not competent grounds of appeal as they do not allege recognisable legal, factual or discretionary appealable errors to vitiate the April 2025 judgment.
2. Ground 4 implicitly alleges an error of law by asserting the enforcement orders impermissibly alter the terms of the September 2022 orders. The contention is without merit. The enforcement orders dictate the sale of two real properties to ensure the overall division of property between the parties in the way envisaged by the orders upon which they agreed in September 2022 (Order 7). The applicant forfeited the right to control the sale of the properties by failing to do so for more than two years.
3. Ground 5, to the extent it implies an error of fact, must be rejected. Any such inference drawn by the primary judge was immaterial. The two real properties will be sold on the open market. Whether they realise prices greater or lesser than their assumed values at the time the parties struck their agreement in September 2022 is beside the point. The applicant conducted the enforcement hearing in March 2025 acknowledging the two properties had to be sold, but he wanted to instead control the sales (Svetovit & Lucila (No 2) at [19]-[20]). The respondent, as the appointed trustee for sale, bears a duty of fidelity to the applicant to ensure the properties are sold for the best prices attainable. The applicant's personal doubts about the respondent's adherence to that duty is not a premise for an appeal from the April 2025 orders.
4. Ground 8 must be rejected. The distribution of the proceeds realised on the sale of the two real properties is governed by the terms of the September 2022 orders (Orders 7(c) and 7(d)). Those orders make no provision for the payment of any capital gains tax attracted by the sales and in fact require the parties to indemnify one another against liabilities they incur (Order 13), so the enforcement orders made by the primary judge in April 2025 certainly could not make contradictory provision. The enforcement orders could not and do not alter the parties' substantive rights.
5. Ground 11, so far as it comprises a complaint of the primary judge's acceptance of the respondent's evidence, is without merit. To the extent of any inconsistency in the evidence adduced by the parties at the hearing, the primary judge was entitled to prefer the evidence given by one party over the other. Factual findings based upon the acceptance of one party's uncorroborated evidence are immune to challenge unless shown to be "glaringly improbable" or irreconcilable with other incontrovertible facts (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [26]-[31] and [65]-[93]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]).
6. Ground 12 must fail, even if the applicant could show the respondent's evidence about her incapacity for work was glaringly improbable or contrary to other incontrovertible evidence, because any finding made about her capacity for work was immaterial to the enforcement decision. The applicant owed the respondent $900,000 (plus interest) under the September 2022 orders. The sale of the two real properties was the only way in which the orders could be enforced, whether the respondent has the capacity for work or not.
7. Ground 18, which presumably amounts to a complaint of discretionary error by the primary judge's failure to take the respondent's alleged history of past violent behaviour into account, verges on being preposterous. It assumes his allegations of the respondent's violent and threatening behaviour are proven facts when they were not. Neither party was cross-examined at the hearing in March 2025. Furthermore, any such conduct alleged by the applicant against the respondent prior to their agreement in September 2022 must have been factored into his decision to settle the dispute at that time.
8. Ground 20, in so far as it alleges the primary judge fell into error by finding the applicant had deliberately delayed his performance of the September 2022 orders, is without merit. The applicant was certainly in default of the final orders for well over two years. It did not matter whether his delay was deliberate or inadvertent. Uncontroversially, he had been unable to sell the two real properties for more than two years. The only feasible option was to appoint the respondent instead of the applicant as trustee for sale to expedite the process.
9. The applicant fails to demonstrate there is any "substantial issue" to be raised in the proposed appeal from the April 2025 judgment, in which case there is no point served by granting an extension of time within which to apply for leave to appeal. Again, the applicant's relatively weak arguments advanced to excuse his delay fall away.

1. The two review applications are dismissed.
2. The orders made by the appeal registrar on 6 October 2025 stand.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.