The applicant, subject to a harmful proceedings order under s 102QAC of the Family Law Act 1975 (Cth), required leave under s 102QAE to institute an appeal. He sought to appeal orders made on 19 September 2025 following findings that he had contravened final orders requiring payments for the benefit of the wife and the signing of a document. The primary judge had sentenced him, under ss 112AD(2)(d) and 112AE, to a default term of imprisonment of 12 months, to take effect if he did not comply with his obligations within 60 days. He proposed four grounds of appeal; the central one (Ground 1) contended that the primary judge should have applied the criminal standard of proof rather than the civil standard when determining the contravention application.

The Full Court explained the relevant framework: there are three contravention regimes under the Act. Div 13A of Pt VII applies the civil standard but requires the criminal standard before a fine or imprisonment; Pt XIIIA (under which these orders were made) does not stipulate a standard; and Pt XIIIB deals with contempt by flagrant challenge to the court's authority. The Full Court of the Family Court held in Lindsey (1995) that the civil standard applies to s 112AD, and the primary judge applied Lindsey. However, the High Court in Witham v Holloway (1995) held that all contempt must be proved beyond reasonable doubt, because the distinction between civil and criminal contempt is largely illusory where the outcome is punishment. Lindsey has not been challenged in this Court, and the cases applying it were not taken to the High Court authorities.

Assessing leave under s 102QAG, the Court found Ground 1 was not frivolous, vexatious, or an abuse of process, and had reasonable prospects of success, given the serious impact of imprisonment on individual freedoms and the High Court's principled approach. It declined leave to rely on a late-filed amended application but allowed the related constitutional argument to be advanced as an incident of Ground 1. Grounds 2 (failure to refer to s 140 of the Evidence Act 1995), 3 (admission of earlier findings said to breach s 91), and 4 (refusal of an adjournment) were each found to have no reasonable prospects and were refused. Leave was therefore granted limited to Ground 1, with a Notice of Appeal to be filed within seven days. The substantive standard of proof question remains to be decided and is one for family lawyers to watch closely.