Naisby [2026] FedCFamC1A 164

Summary

The parties married in 1990 and finally separated in 2015, and their property dispute has now run for more than a decade. The primary judge’s orders of 10 July 2026 followed the third final hearing, the first two judgments having been set aside on appeal in 2021 and 2022. His Honour found a pool of about $3.31 million, assessed contributions at 52/48 in the wife’s favour and made a 15% adjustment for her future needs under s 75(2), producing an overall division of 67/33. In November 2024 the husband had consented to a harmful proceedings order under s 102QAC of the Family Law Act 1975 (Cth), prohibiting him from instituting further proceedings without leave. That restraint extends to appeals (Pencious & Searle; Fowles (No 2)), so he applied to the Full Court for leave, relying on 14 proposed grounds.

Under s 102QAG, leave may be granted only if the Court is satisfied that the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success, with the onus on the applicant (Darley (No 4)); the application may be decided on the papers under s 102QAF. The Full Court treated most of the grounds as particulars of a single complaint that the contributions assessment was unreasonable in the House v The King sense, and was persuaded that complaint had reasonable prospects given the husband’s post-separation financial contributions, weighed against the wife running the business and caring for the children while he received substantial insurance and income protection payments ([15]–[18], [28]). The 15% adjustment, operating as a 30-percentage-point differential worth about $497,000, also had reasonable prospects, although the Court noted it could be seen as largely equalising the parties’ future positions ([32]–[34]). The remaining grounds, alleging double counting of a trust interest, failures to consider evidence about the wife’s management of the business and inadequate reasons, failed because the husband’s affidavit did not identify the evidence or error relied on ([23], [26]–[27], [29], [31]). Because the leave application was lodged within the 28-day appeal period, time to file the Notice of Appeal was extended by seven days ([35]–[36]).

The decision shows how the harmful proceedings regime operates at the appellate level. It filters the proposed grounds one by one, and only those supported by specific reference to the evidence and the error survive. It also confirms the practical point that a leave application lodged within time will generally carry an extension, so the delay while leave is determined does not prejudice the applicant.