Polak & Polak (No 4) [2025] FedCFamC1F 291 (2 May 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 Polak & Polak has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. In this matter judgment was delivered this morning, the effect of which was to impose a term of imprisonment upon Mr Polak of six months, but with a requirement that he serve four months on the basis that he enter into a bond to be of good behaviour for a period of 18 months, by virtue of which the last two months of his sentence is stayed. Mr Polak entered into that bond before me and accordingly is currently liable to serve a period of imprisonment for a period of four months.
2. This afternoon a Notice of Appeal was filed along with an application seeking a stay of the orders made this morning, in order to effect the liberty of Mr Polak pending a consideration by the Full Court of this morning's judgment.
3. In Aldridge & Keaton [2009] FamCAFC 106 ("Aldridge & Keaton"), the Full Court identified the principles to be applied in considering a stay noting the discretionary nature of each ruling which should be determined on the merits of each particular case. A number of considerations were identified by the Full Court in which those relevant to this case will be set out now.
4. The first is that the onus to establish a proper basis for the stay is on the applicant, although it is not necessary for the applicant to demonstrate special or exceptional circumstances.
5. The second is that a person who has obtained a judgment is entitled to the benefit of that judgment. In exchange with counsel consideration was given to this particular element in the unusual circumstances that the judgment in this case deals with the imprisonment of a person as a result of his guilty pleas in respect of contempt by failure to comply with court orders. A question arises as to the extent to which the respondent to the current application receives a benefit by virtue of the imprisonment of the applicant. Assuming, for the purposes of this argument, that there is a form of benefit that accrues to the respondent, identified by her counsel to be vindication, the applicant observes that should a stay be granted and the appeal be unsuccessful that whatever benefit accrues now would accrue then, albeit in a delayed fashion. I consider that there is force in that argument.
6. The third consideration identified in Aldridge & Keaton is that a person who has obtained a judgment is entitled to presume the judgment is correct.
7. Fourth is that the mere filing of an appeal is insufficient to grant a stay.
8. The fifth relates to the bona fides of the applicant. I accept for the purposes of today's application that the appeal and the application are made on a bona fide basis by the applicant who, it appears to me, seeks to pursue the appeal to secure his liberty.
9. The next consideration is the terms on which a stay may be granted and whether such may be fair to all parties. This may involve a court weighing the balance of convenience and the competing rights of the parties. It may be observed that the granting of a stay may be on terms that require the appellant in this case to enter relevant undertakings to ensure his attendance before the Court when required to do so.
10. The next consideration is one of the more significant considerations in the circumstances of this particular case, which is the weighing of the risks that an appeal may be rendered nugatory if a stay is not granted. If a stay is not granted it may be observed that the applicant will spend time in custody. It may be observed that any time spent in custody is a significant matter. In the usual course of events, the Full Court would hear a matter such as this, provided the appellant could be ready, at the end of July 2025. The hearing of the matter at that point is a little less than three months of today's date, but represents about three quarters of the period of time that the appellant is liable to serve. However, further information indicates that the Appeal Court would be ready to deal with the matter when the appellant is ready to deal with the matter. I am advised by the solicitor for the appellant that he anticipates that the appellant could be ready within three to four weeks. That three to four weeks would be required, on his account, on the basis that the transcript would need to be acquired to ensure that, on securing the relevant counsel, counsel could be satisfied that he or she is in command of sufficient information to properly prosecute an appeal.
11. While given the nature of the grounds of appeal and the nature of the proceedings which involved no cross-examination of the appellant and was reliant thereby on tender documents, read affidavits and submissions only, it might be thought that transcript will lend little else to the consideration of the appeal. I consider that it is not unreasonable on the part of the appellant in seeking to prosecute the appeal in a fulsome manner that he require the provision of transcript. Under those circumstances I do not regard the estimate given by the appellant of three or four weeks to ready himself as inappropriate. It may be taken then that the appeal could be heard within four weeks of today's date which accordingly, means that to the extent that an appeal may be rendered nugatory is to the extent that the appellant may serve a period of approximately one month in custody out of the total four that he is currently liable to serve. It is to that extent that the appeal may be rendered nugatory if ultimately successful.
12. The final relevant consideration is as to some preliminary assessment of the strength of the proposed appeal and whether the appellant has an arguable case. The appellant identifies three grounds of appeal.
13. The first is that "[t]he sentence imposed with respect to each finding of the contempt is excessive", the second is "[i]n imposing the sentence his Honour failed to properly take into account other sentencing options aside from full time custody and or failed to provide reasons why other sentencing options were not available or suitable", and thirdly that "[h]is Honour erred by failing to take proportionality into account when sentencing".
14. At present none of those grounds appears to me to be arguable. I am not assisted at present by any authority suggestive that the sentences imposed were excessive. That is not said by way of criticism and is not suggestive that the best efforts of counsel may not be able to find relevant authorities. However, as in terms of the present circumstances, I am unable to see how it is arguable that the sentences were excessive or given the direct reference to proportionality, how proportionality was not taken into account. Or, in the instance where specific consideration was given to the imposition of bonds and conclusions were reached that a sentence of imprisonment as the last and only option was the only option available for sentencing of the appellant, that proper consideration of sentencing options was not given. This is a matter of impression rather than an assessment of a fully argued appeal and I note that, in circumstances where the respondent is entitled to presume the judgment is correct, but noting that the refusal of a stay will cause up to a month in custody for the appellant, the absence of what appeared to me to be arguable grounds means that the application for a stay is to be refused.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill.