Kosti� & Vaughan (No 3) [2025] FedCFamC1A 221 (28 November 2025)

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

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

1. The substantive proceedings involve both parenting and financial proceedings between the first respondent ("the wife") and the second respondent ("the husband").
2. This appeal, for which leave is required,[1] is by a third party, Ms Kostić ("the applicant").
3. The applicant seeks leave to appeal against a judgment of the Federal Circuit and Family Court of Australia (Division 1) of 6 August 2025 which compelled the applicant to withdraw a caveat lodged in her name on Lot 1 D Street, Town E, in the State of South Australia ("Lot 1"). A previous interlocutory order on 10 July 2025 required the sale of Lot 1 and Lot 2 D Street, Town E ("Lot 2") (collectively referred to as the "Town E property"). By the orders of 6 August 2025, the applicant was also restrained from lodging any further documents or assisting or aiding or abetting any person to lodge a document at the office of Land Services SA upon either Lot 1 or Lot 2.
4. The husband supports the proposed appeal. The wife and the Independent Children's Lawyer filed submitting notices.
5. On the day prior to the appeal hearing, the applicant was granted leave to rely upon her Fourth Amended Notice of Appeal filed on 13 November 2025 and was excused from attending the appeal hearing, at her request.[2] The order made on 17 November 2025 noted that the applicant relied upon a written Summary of Argument filed on 29 September 2025 and that she adopted the written submissions filed by the husband on 14 October 2025 and any oral submissions made by the husband at the appeal hearing.
6. For reasons which will be explained leave to appeal will be refused.

1. Numerous interlocutory orders have been made in the proceedings between the husband and the wife, including an interim order on 27 March 2024 requiring the husband to pay the wife $50,000 by way of partial property settlement. A default mechanism, in the event the husband failed to pay the $50,000, required the sale of their former matrimonial home in which the husband was and continues to reside.
2. It is common ground that the $50,000 has not been paid to the wife.
3. A finding was made in the judgment of 10 July 2025, that "on [the husband's] own evidence he has frustrated the default mechanism".[3]
4. On 10 July 2025, the wife succeeded in her application to vary the interim order made on 27 March 2024 by substituting the Town E property for the former matrimonial home to facilitate the payment to her of the $50,000. As noted, the Town E property is held over two separate titles, Lots 1 and 2.
5. The husband's position in relation to any order involving the sale of the Town E property was discussed by the primary judge in the 10 July 2025 judgment:
   1. As earlier identified, at the hearing on 9 May 2025, the [husband] submitted in opposition to the orders sought by the [wife] for the sale of the [Town E] blocks, that the "non-caravan block" be transferred to the [wife] to do with as she pleases and that the [husband] either personally or that the self-managed superannuation fund retain the "caravan block". This however was not the position advanced by the [husband] when he filed his Amended Response on 27 May 2025 (annexed to the [husband's] affidavit filed 23 May 2025).
   2. Whatever the position of the [husband] now is (that advanced at the hearing on 9 May 2025, or that contained in the Amended Response "placed on the court file"), the [husband] has put no cogent evidence before the Court capable of satisfying the Court with any certainty as to how the [Town E] blocks are held (for example no certificates of title and/or financial statements for the self-managed superannuation fund evidencing which block is held by the superannuation fund and which is not), and his Financial Statement filed 7 May 2025 is of no assistance in this regard. Indeed, at the hearing on 9 May 2025 the [husband] could not, when asked, identify which of the [Town E] blocks is the "caravan block" and which is the "non-caravan block". The [husband] seemingly attempted to deal with this latter difficulty by annexing a "Decision Notification Form" relating to "[...]" (presumably claiming this to be the "caravan block") to his affidavit filed 23 May 2025, however this document does not change the position that the Court does not know how each block is held.
6. The reference in the 10 July 2025 judgment to the "caravan block" and the "non-caravan block" related to the husband's assertion that he intended to develop the caravan block, notwithstanding his alleged "parlous financial position".[4]
7. The order made on 10 July 2025 also restrained the husband from taking any action to attempt to delay or frustrate the sale of the Town E property and further, the husband was prohibited without leave of the Court from instituting proceedings under the Family Law Act 1975 (Cth) ("the Act") in any court having jurisdiction under the Act, against or in relation to the wife.
8. Within hours of the order being made on 10 July 2025, the husband lodged a caveat over the title of Lot 1 to prevent its sale by the wife.
9. On 21 July 2025, the wife filed an urgent interlocutory application seeking, among other things, the removal of the caveat in circumstances where an auction was to take place in August 2025. The matter was listed for hearing on 28 July 2025.
10. The husband withdrew his caveat shortly before the hearing.
11. On 28 July 2025, the husband and wife agreed to vary the order made on 10 July 2025 as follows:
    1. By consent order 12 made 10 July 2025 be varied to read as follows:

"Upon the sale of the [Town E] property, the proceeds of sale shall be disbursed as follows:

(a) Payment of all sales costs and commissions;

(b) To discharge any mortgage or any other charges secured or registered over the [Town E] property;

(c) Payment to the [wife] in the amount of FIFTY THOUSAND DOLLARS ($50,000) by way of partial property settlement in accordance with Order 2 made 27 March 2024;

(d) Payment to the respondent [husband] in the amount of $45,000 by way of partial property settlement; and

(e) The balance to be held in the Trust Account of [WW Lawyers] for and on behalf of the parties pending further order of the Court or agreement between the parties in writing."

(Emphasis in original)

1. On 29 July 2025 at 3.16 pm, the applicant lodged a caveat over the title of Lot 1, and at 8.35 pm, the husband sent an email to the wife enclosing a "Membership Application" for the Vaughan Super Fund ("SMSF") from the applicant.
2. The applicant describes herself as a good friend of the husband whom she met on 1 January 2025.
3. The applicant and the husband assert that the SMSF has an interest in Lot 1 and that upon purportedly becoming a member of the SMSF at the end of July 2025 and a trustee of the SMSF, the applicant has a caveatable interest requiring protection.
4. On 31 July 2025, the wife filed an Application in a Proceeding seeking a mandatory injunction against the applicant compelling her to withdraw the caveat over Lot 1 and (by an amendment made with leave on 6 August 2025) seeking to restrain the applicant from lodging any further documents, or assisting or aiding or abetting any person to lodge any document at the office of Land Services SA upon either Lot 1 or Lot 2.
5. On 5 August 2025, the applicant and the husband each filed a Response in which they sought identical relief, namely, to restrain the wife from dealing with Lot 1 until the matter is finally determined including any appeal. The applicant's Amended Response filed with leave on 6 August 2025 indicated her support for the sale of Lot 2. As there is no suggestion that the applicant has any possible interest in Lot 2 it is curious that the applicant made that amendment.
6. On 6 August 2025, an order was made compelling the removal of the caveat lodged by the applicant on Lot 1 and restraining her from lodging any further documents or assisting or aiding or abetting any person to lodge any document at the office of Land Services SA upon either Lot 1 or Lot 2.

1. The application for leave to appeal requires the applicant to establish two matters. Firstly, that "the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court" and, secondly, that "substantial injustice would result if leave [to appeal] were refused, supposing the decision to be wrong".[5]

1. The primary judge delivered an ex tempore judgment on 6 August 2025, and, correctly with respect, identified, at [30]-[31] of the judgment, that the Court had power to grant the injunctions sought by the wife against the applicant pursuant to s 114 of the Act in relation to the property of parties to a marriage and binding a third party pursuant to s 90AF(2) to s 90AF(4).
2. At [31] of the judgment, the primary judge set out the relevant parts of s 90AF, namely, s 90AF(2) to s 90AF(4) of the Act, which are reproduced below:

(2) In proceedings under section 114, the court may make any other order, or grant

any other injunction that:

(a) directs a third party to do a thing in relation to the property of a party to the marriage; or

(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.

(3) The court may only make an order or grant an injunction under subsection (1) or (2) if:

(a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and

(b) if the order or injunction concerns a debt of a party to the marriage - it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and

(c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and

(d) for an injunction or order under subsection 114(1) - the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and

(e) for an injunction under subsection 114(3) - the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and

(f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).

(4) The matters are as follows:

(a) the taxation effect (if any) of the order or injunction on the parties to the marriage;

(b) the taxation effect (if any) of the order or injunction on the third party;

(c) the social security effect (if any) of the order or injunction on the parties to the marriage;

(d) the third party's administrative costs in relation to the order or injunction;

(e) if the order or injunction concerns a debt of a party to the marriage - the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;

(f) the economic, legal or other capacity of the third party to comply with the order or injunction;

(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters - those matters;

(h) any other matter that the court considers relevant.

1. It is apparent from the authorities quoted and cited at [32]-[33] of the judgment,[6] that the primary judge was aware of the applicable principles when considering whether to grant an injunction against a third party, including when considering a mandatory injunction requiring the withdrawal of a caveat. In particular, that s 90AF did not contemplate "some arbitrary invasion of the rights of a third party but an alteration of those rights where they are sufficiently connected to the division of the property between parties to the marriage" and "must be for the purpose of effecting the division of a property between the parties, and cannot be used for the purpose of increasing the property of the parties".[7]
2. In the discussion as to the application of the principles, which thereafter follows at [34]-[45] of the judgment, it can be discerned that the following matters were relevant and ultimately determinative to the granting of the relief sought by the wife:

(a) There were significant concerns that, in concert with each other, the husband and the applicant were taking steps to frustrate the sale of the Town E property;

(b) All of the steps taken by the husband since 10 July 2025, were ones taken since the making of the order for sale of the Town E property;

(c) An apprehension that the husband may have deliberately ensured that the circumstances of the SMSF were "opaque";

(d) There was a dispute between the parties as to whether the wife is a trustee of the SMSF, whether she has a member balance in the SMSF and whether Lot 1 is even an asset of the SMSF;

(e) The possibility that a Ms VV was a trustee of the SMSF and that she had a member balance with the husband merely asserting that she is nowhere to be found;

(f) The 10 July 2025 order provides for the wife to instruct accountants to bring the affairs of the SMSF up to date;

(g) Even accepting the dubious validity of the applicant's admission as a trustee and member of the SMSF, it was not accepted that her interests would be prejudiced by the sale of the Town E property;

(h) There will be ample proceeds from the sale of the Town E property to preserve an equivalent amount on account of the applicant's member balance of $1,500;

(i) The injunctions sought by the wife to facilitate the sale of the Town E property are reasonably necessary to effect a division of property between the husband and the wife;

(j) There is no prejudice to the applicant;

(k) The applicant had been afforded procedural fairness;

(l) In all of the circumstances, and noting that the applicant had not offered any undertaking as to damages, the balance of convenience favoured the granting of the injunctions;

(m) As the Town E property is unencumbered there would be sufficient proceeds from the sale to meet all legitimate taxation and reasonably incurred expenses;

(n) In the absence of any successful appeal, or indeed an appeal having been commenced by the husband against the order made on 10 July 2025, there is no basis for the Court to revisit the order;

(o) On the evidence of the husband and the applicant, the events that have occurred since the 10 July 2025 order have occurred with the full knowledge of that order and "have been confected to frustrate the orders of the Court" (at [45]); and

(p) Those circumstances do not give rise to any reasonable foundation for the Court to revisit the earlier orders made.

IS THE DECISION AT FIRST INSTANCE ATTENDED BY SUFFICIENT DOUBT?

1. When determining whether the decision is attended by sufficient doubt to warrant reconsideration, it is generally of assistance to consider the merits of the appeal by reference to the grounds relied upon.[8]

1. Ground 1 contends that the primary judge erred by not finding Lot 1 was partly owned by the SMSF.
2. At [36]-[37] of the primary judgment it is observed:
   1. As discussed in the reasons of 10 July 2025, the circumstances of the SMSF are opaque. The Court apprehends that this is deliberately so on the part of the husband.
   2. Significantly, there is a dispute between the parties as to whether the wife is a trustee of the SMSF, whether she has a member balance in the SMSF and whether [Lot 1] is even an asset of the SMSF.
3. The applicant and the husband submit that as the dispute was "significant", the primary judge was obliged to resolve the issue as to the ownership of Lot 1 at an interim hearing and that it should have been resolved in favour of the SMSF holding a 53 per cent interest.
4. It is submitted by the applicant and the husband that a title search dated 25 July 2025 supports their assertion that the SMSF holds a 53 per cent interest in Lot 1. Relevantly, the registered proprietor for Lot 1 is recorded as follows:[9]

Registered Proprietor

[The husband]

[The wife] ·

...

53 / 100 SHARE WITH NO SURVIVORSHIP

[The husband]

...

12 / 100 SHARE

[The wife]

...

35 / 100 SHARE

1. Even if, as asserted by the husband, the reference on the title to the husband and the wife "with no survivorship" is a reference to them in their capacities as trustees of the SMSF, there is no evidence that the wife is or has ever been a trustee of the SMSF. The trust deed for the SMSF dated 12 April 2000 names as the trustees the husband and Ms VV, not the wife.
2. The husband merely asserted in a scribbled note on his affidavit filed 5 August 2025, that "[Ms VV] has been uncontactable for at least 15 years. I requested prior to that date for her to transfer her membership funds out and had no response. I no longer have her contact details".
3. The evidence, such as it was, was insufficient for the primary judge to make a finding that the SMSF had an interest in Lot 1.
4. The primary judge was not obliged on 6 August 2025, to resolve the issue as to whether the husband and the wife held their interest as to 53 per cent as trustees for the SMSF. That is a matter for trial.

1. Ground 2 contends that the primary judge misconstrued the evidence when she "held" the applicant only had one purpose of becoming a member of the SMSF.
2. The primary judge said:
   1. When taken together, it is understood from the affidavit that each the husband and [the applicant] respectively filed, the following:

...

(c) The whole purpose of [the applicant] becoming a member of the SMSF was to enable [the applicant] to "avail of a compelling investment opportunity as [the second respondent] would be appealing the order for the sale of the SMSF only asset, [Lot 1 D Street, Town E]" (affidavit of [the applicant] filed 5 August 2025, paragraph 14).

1. Even if the primary judge misconstrued the applicant's evidence about why she became a member of the SMSF it was immaterial to the order which is the subject of the appeal.[10]

1. Ground 3 contends that the primary judge was in error when she held the SMSF passed a resolution opposing the sale of Lot 2, as the resolution clearly states "[Lot] 1 ("caravan park block")".
2. The primary judge at [29(f)] of the judgment, said:

(f) On 4 August 2025 the SMSF "passed a resolution opposing the sale of [Lot 2]" and a "resolution acknowledging the $1,500 deposit paid into the SMSF bank account on 28 July 2025 was to be credited to [the applicant's] membership account in the SMSF" (affidavit of husband filed 5 August 2025, paragraph 14).

1. As is apparent from the judgment, the primary judge was quoting from paragraph 14 of the husband's affidavit which does state "Lot 2". The husband may have intended to correct that error during the hearing on 6 August 2025 although he did not reference paragraph 14 of his affidavit.[11]
2. Even if the primary judge misconstrued the evidence, it was immaterial given the dispute related to the ownership of Lot 1.[12]

1. Ground 4 contends the primary judge was in error in holding that the requirements of ss 90AF(3)(a), 90AF(3)(d), 90AF(3)(f) and 90AF(4)(h) of the Act (reproduced at paragraph 26 of these reasons) had been made out.
2. In support of this ground the applicant submits the following:

(a) The injunctions were an arbitrary invasion of the rights of the SMSF and the applicant and her "fiduciary duties" and her "investment" in Lot 1 because "it [was] so unnecessary due to [Lot] 2 being an adequate substitute for selling both allotments";[13]

(b) There does not appear to be any financial benefit or any other legitimate reason at this interim stage to the wife insisting on the sale of both Lot 1 and Lot 2;

(c) The primary judge failed to take into account that a sale of Lot 2 alone would be sufficient to meet the payment of $50,000 to the wife and $45,000 to the husband;

(d) The husband wishes to retain Lot 1 as part of a final property settlement, and a sale would render a "claw-back" at final property distribution impossible;

(e) The applicant has "a beneficial ownership" in Lot 1 from the $1,500 contribution made by her which was used in the SMSF's running costs and no longer remains in its bank account;

(f) The performance of the applicant's fiduciary duties as a trustee of the SMSF could not be satisfied merely by cashing out her investment;

(g) No valuation had been obtained by the wife to show that it would be financially deleterious to sell the Town E property as separate lots;

(h) An assertion that the husband had provided evidence that it would be detrimental to sell the lots together;

(i) At a final property settlement the wife's holding in the SMSF could be cashed out by the SMSF selling Lot 1 to the husband using funds from the sale of Lot 2 and the former matrimonial home;

(j) The primary judge considered it a significant factor in granting the injunctions that the husband had not appealed but he was prevented from doing so without leave and his time to appeal had not expired and he indicated he would be seeking to appeal; and

(k) The balance of convenience favoured a sale of Lot 2 alone.

1. It is tolerably clear from the focus of the applicant's submissions that many of her arguments address matters that could only be relevant to the husband's position rather than her own and are therefore not relevant to this appeal.
2. Having regard to the unsatisfactory evidence relating to any interest the SMSF may have in Lot 1, the applicant cannot establish that the injunctions represent an "arbitrary invasion" of her rights either as a member or trustee of the SMSF, even were it to be found that she was validly admitted as a member and trustee.
3. At [186] of the judgment of 10 July 2025, the primary judge found that the husband had not complied with various obligations imposed upon him by orders of the Court, including obtaining valuations for the Town E property pursuant to Order 8 made on 27 March 2024, finalising the financial statements for the SMSF as required by Orders 14 and 15 of that same order, and had failed to comply with his disclosure obligations. The primary judge found that the husband had left the wife and the Court "in the dark as to the [husband's] dealings, particularly as they relate to the [SMSF]".[14]
4. Those findings lend support to the primary judge's conclusion at [42(a)] of the primary judgment:

(a) The Court is satisfied that the injunctions now sought by the wife to facilitate the sale of the [Town E] property are reasonably necessary to effect a division of property between the husband and wife. The granting of those injunctions will enable the sale of the [Town E] blocks to proceed and, consequentially, the crystallisation of the affairs of the SMSF as provided for in the orders of 10 July 2025 (per s 90AF(3)(a)).

1. At [40] of the judgment, the primary judge observed:
   1. While the admission of [the applicant] as a trustee and member of the SMSF appears dubious as to its validity, and/or appears confected to establish some basis to frustrate the orders of the Court, even if the Court were to accept that [the applicant] was validly admitted as a member of the SMSF, and that she has a member balance of $1,500 in the SMSF and that she has a legitimate caveatable interest, it is not accepted that her interests would be prejudiced by the sale of the [Town E] blocks. Importantly, the funds that she has deposited into the SMSF are nominal and, it appears, serious questions must be asked as to the husband's actions in failing to preserve those funds in the bank account of the SMSF and the consequential impact on any reduction of the member balances of each the husband and the wife in the fund.
2. And at [41]:
   1. Those issues aside, on the evidence before the Court there will be ample proceeds from the sale of the [Town E] blocks to preserve an equivalent amount on account of [the applicant's] member balance in the SMSF following the sale of the [Town E] blocks.
3. It is apparent that the primary judge considered that the injunctions against the applicant were "proper" (s 90AF(3)(d) of the Act). We are also satisfied that the primary judge at [42(e)] of the judgment, considered the matters, so far as they were relevant, in s 90AF(4), as required by s 90AF(3)(f).
4. The primary judge approached the matter, in the most favourable way possible to the applicant, i.e. by assuming that even if the applicant had a caveatable interest, her interest was protected by the retention of the balance of the proceeds of sale pending the finalisation of the proceedings.

1. Ground 5 contends that the primary judge failed to determine if the threshold for an "Interim Financial order to be made had been met".
2. The applicant submits that in determining whether to compel her to remove the caveat and restrain her from lodging any further documents over Lot 1 "it was necessary for the Court to have applied the legal principles relating to Interim Property distribution which Order 7 of the 10 July 2025 [orders] effects".[15]
3. The application before the primary judge on 6 August 2025 concerned injunctions against the applicant, a third party. The legal principles relating to an interim property order were not applicable.

1. Ground 6 contends that the primary judge failed to give adequate reasons as to why the sale of both Town E blocks was required to crystallise the legal and equitable interests in property.
2. At [39] of the judgment, the primary judge said:
   1. Whatever the case in relation to the financial affairs of the SMSF, as discussed in the reasons of 10 July 2025, the orders made for the sale of the [Town E] blocks included orders for the wife to instruct accountants to bring the affairs of the SMSF up to date (Orders 13-15). These orders were made so as to crystalise the parties' legal and equitable interests in property, in order to ultimately make orders adjusting property between them pursuant to s 79 of the Act.
3. The primary judge was referring to the judgment of 10 July 2025. This ground is not relevant to the applicant's proposed appeal against the judgment of 6 August 2025. Any potential interests the applicant has are protected.

1. Ground 7 contends that the primary judge inappropriately withheld her discretion by not asking the applicant to give an undertaking as to damages.
2. The primary judge was under no obligation to seek an undertaking when it was not proffered.

1. We are not satisfied that the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny.
2. There is no merit in any of the proposed grounds of appeal but, even if there were, the applicant has failed to establish that any substantial injustice would result if leave were not granted. The applicant's potential interest of $1,500 will be secured by the retention of the balance of the proceeds of sale.
3. Leave to appeal will be refused.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carew & Behrens.

[1] Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28.

[2] Kostić & Vaughan (No 2) [2025] FedCFamC1A 212.

[3] Vaughan & Vaughan (No 3) [2025] FedCFamC1F 455 ("Vaughan & Vaughan (No 3)") at [181].

[4] Vaughan & Vaughan (No 3) at [166(f)].

[5] Medlow & Medlow (2016) FLC 93-692 at [44]-[57] ("Medlow").

[6] Dovgan & Dovgan [2021] FamCA 306 at [295] ("Dovgan"); Banduka & Banduka [2021] FedCFamC1F 191.

[9] Annexure "[MK]5" to the applicant's affidavit filed 5 August 2025.

[10] De Winter & De Winter (1979) FLC 90-605 at 78,092 ("De Winter").

[11] Transcript 6 August 2025, p.33 lines 10-29.

[13] Applicant's Summary of Argument filed 29 September 2025, paragraph 19.

[14] Vaughan & Vaughan (No 3) at [187].

[15] Applicant's Summary of Argument filed 19 September 2025, paragraph 42.