Enforcement Won’t Wait: Stay Refused Where s 79A Case Looked Like a Re-Run

In Arata & Rex (No 9) [2025] FedCFamC1F 920, the Federal Circuit and Family Court of Australia (Division 1) refused the wife’s attempt to stay enforcement of final property orders while she pursued a s 79A application (and pointed to an ASIC referral). The Court treated the stay bid as another effort to delay the “fruits of litigation” where the wife’s “new” material was largely old ground, her prospects under s 79A were poor, and sale of the home was the predictable consequence of her non-payment under the final orders.

Facts:

Final parenting and property orders were made on 1 November 2024 (“2024 Final Orders”). The property orders required the wife to pay the husband $1,043,248 within 30 days, failing which the former matrimonial home would be sold (Orders 31(a), 35) ([1]–[3]). The wife’s stay pending appeal was dismissed, her initial appeal was struck out as vexatious/oppressive, and her amended appeal was dismissed ([4]–[5]). When she still did not pay and resisted sale, the husband obtained enforcement orders on 17 October 2025 setting out a sale mechanism, vacancy/possession arrangements, payments (including costs and lenders), s 106A relief, and fixed costs of $13,200 ([6]–[9]). The wife then amended her initiating application to seek a stay of the enforcement orders pending her s 79A application (and referenced ASIC/police material) ([10]–[17]). A Judicial Registrar gave her an opportunity to file a further affidavit strictly for the stay, which she did not do ([25]–[26]). On the hearing date she attempted to rely on numerous historic affidavits at the last minute; the Court refused that course as unfair and non-compliant with directions ([27]–[29]). The stay application was dismissed ([94] + Orders).

🧩 Facts and Issues

Key Facts

• Final property structure: pay $1,043,248 or the home is sold ([3]).
• Appeal path exhausted: stay pending appeal dismissed; original appeal struck out; amended appeal dismissed ([4]–[5], [76]).
• Enforcement orders made: sale/vacancy/warrant mechanisms, payments, costs/lenders, and fixed costs to husband ([8]).
• Wife’s stay case: framed around s 79A themes (fraud/non-disclosure/valuation/ASIC referral) that the Court considered well-worn and largely not new ([12]–[17], [55]–[62]).
• Procedural non-compliance: wife did not file the “one further affidavit” allowed by Registrar; attempted late reliance on historical affidavits; Court refused ([25]–[29]).

Issues

1. Stay discretion: Should enforcement of final property orders be stayed pending the wife’s s 79A application (and asserted ASIC-related developments)? ([39]–[42])
2. Prospects / “arguable case”: Does the wife’s s 79A case show sufficient merit, or is it a re-litigation of trial/appeal issues? ([42]–[62])
3. Fruits of litigation vs. nugatory risk: Where does the balance of convenience lie, including the risk of the s 79A application being rendered nugatory if the home is sold? ([73]–[94])

⚖️ Applicable Law – Legislation, Regulations, Rules

• Family Law Act 1975 (Cth)
• s 79 (property settlement power underpinning final property orders) ([54], [71]).
• s 79A (setting aside/varying property orders for miscarriage of justice reasons incl fraud/non-disclosure/suppression/false evidence; discretionary relief) ([54]).
• Judiciary Act 1903 (Cth) s 78B
• Notice provisions raised but not pressed with evidence at hearing ([33]–[34]).
• Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)
• r 8.15(3)(e) (annexures admitted as Exhibit 1) ([32]).
• (The Court also emphasised compliance with filing directions and procedural fairness when refusing late reliance on historical affidavits) ([27]–[29]).

📚 Precedents Relied On

(As cited and applied in the Reasons)

• Friscioni & Friscioni [2009] FamCAFC 43 — stay is discretionary; onus on applicant to establish proper basis ([40]).
• Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 — settled principles for stays (onus; fruits of litigation; presumption judgment correct; balance of convenience; nugatory risk; preliminary merits) ([40]).
• Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 — reasons need not address every argument ([38]).
• Massalski & Riley (No 2) [2021] FamCAFC 152 — cited as an analogy for repetitive, merit-poor post-judgment strategies designed to delay enforcement; applied to “finality” and “fruits of litigation” reasoning ([85], [93]).
• Samaras & Allen [2021] FedCFamC1F 20 — “nugatory” concept; right rendered worthless/seriously undermined ([89]).
• Langley & Mirza [2025] FedCFamC1A 226 — judge’s role: decide cases presented; not “verify the evidence” as a system-auditor ([82]).
• Arata & Rex (No 8) [2025] FedCFamC1F 727 — prior detailed analysis of wife’s “new evidence”/s 79A themes adopted and relied upon extensively ([14], [47]–[55]).
• Arata & Rex (No 5) [2025] FedCFamC1A 120 and Arata & Rex [2024] FedCFamC1A 242 — appeal history/validation of trial outcomes and finality ([5], [52], [76], [80]).

Analysis

Issue

Whether the wife demonstrated a proper basis to stay enforcement of the final property orders (and enforcement orders) pending the determination of her s 79A application (and her emphasis on ASIC/police referral material).

Rule

A stay is wholly discretionary; the applicant bears the onus of showing a proper basis. Relevant considerations include: entitlement to the benefit of the judgment, presumption the judgment is correct, the insufficiency of merely filing proceedings, bona fides, balance of convenience, risk proceedings will be rendered nugatory without a stay, and a preliminary assessment of arguable merit ([40]–[42]).

For s 79A, it is not enough to allege fraud/non-disclosure etc; the applicant must show a miscarriage of justice and then persuade the Court to exercise discretion. Further, s 79A is not a mechanism to re-litigate or to chase “outstanding queries” after a concluded s 79 determination ([54]).

Application

1) Prospects: the s 79A case looked weak and repetitive

The Court approached the wife’s s 79A case by taking it “at its highest” but still undertaking real evaluation (drawing on the Massalski reasoning adopted earlier) ([54]). It concluded the wife’s themes—pre-action complaints, alleged non-disclosure, fraud/forgery, valuation attacks, “asset stripping” narratives, ASIC/police threads—were not substantively new and had been raised at trial, post-trial, and in the appeal process ([12]–[16], [43]–[53], [55]–[62]). The Court was “most circumspect” about her prospects and stated it did not see she had even an arguable case ([62]).

2) Process matters: late material + ignored directions harmed the stay bid

A Registrar expressly permitted one further affidavit focused on the stay; the wife did not use that opportunity ([25]–[26]). Instead she attempted, minutes before court, to rely on numerous historical affidavits; the Court refused that as procedurally unfair and non-compliant, stressing that court orders are “not options” and portal filing does not mean the Court will entertain material ([27]–[29]). That procedural history fed into the Court’s view of the application’s bona fides and case management fairness.

3) “ASIC referral” and constitutional/forfeiture arguments did not shift the balance

The wife’s emphasis on the police referral to ASIC was treated as carrying little weight because she was the source of the complaints and ASIC had effectively been “seized” of her allegations since at least 2022; there was no evidence ASIC had done anything material ([66]–[69]). The Court rejected the framing that enforcement was an unconstitutional “forfeiture” (Bill of Rights 1688 submission) and characterised the sale as the contractual/operative consequence of non-payment under the final orders, not an unlawful deprivation ([70]–[72]).

What the argument actually was (in the judgment)

The wife’s submission tried to reframe enforcement as a constitutional wrong by invoking the Bill of Rights 1688/1689 (via the Imperial Acts Application Act 1969 (NSW)) and asserting enforcement before “fraud investigations” were resolved amounted to an “unconstitutional deprivation” and an unlawful forfeiture.

Brasch J rejected it on a simple, orthodox basis:

• the trial judge already adjudicated the property dispute and made final orders; and
• this wasn’t “forfeiture” at all — the wife could have paid and kept the house; she didn’t, so the sale was the operative consequence of non-payment under the final orders (the s 79 outcome).

4) Fruits of litigation and balance of convenience: enforcement should proceed

The husband (and the wife) were entitled to the benefit of the final orders; the husband was not obtaining it because of resistance and delay ([73]–[79]). The judgment was presumed correct and had been upheld in substance by the dismissed appeal ([80]–[81]). The Court rejected the suggestion the husband suffered no prejudice by delay; orders were over a year old and both parties remained stalled while interest and liabilities grew ([79], [91]). Importantly, on “nugatory” risk: yes, the home would be sold, but that was a consequence of the wife’s non-payment; and even if she later succeeded under s 79A (contrary to the Court’s view), her own thesis that the business was worth vastly more meant there would be “plenty of money” to adjust ([90]–[92]).

Conclusion

Considering the poor prospects of the s 79A case, the absence of genuinely new material, the finality/appeal history, the prejudice of ongoing delay, and the fact sale followed from non-payment, the balance of convenience lay decisively against a stay. The wife failed to establish a proper basis and the stay application was dismissed ([93]–[94] + Orders).

Take-Home Lessons

• Stays are not automatic: you must show a concrete, credible basis—especially where the underlying orders have survived appeal.
• s 79A is not an appeal-again: it is narrow, miscarriage-focused, and will not reward re-litigation of trial findings dressed up as “new evidence”.
• Case management is substance: ignoring filing directions and trying to ambush with late historical material can be fatal to discretionary relief.
• Non-payment has consequences: if final orders provide “pay or sell,” the sale is typically treated as the foreseeable result of default—not a fresh injustice.

🖼️ Prompt for Banner Image (Horizontal / Wide)

Prompt (Wide 3:1 banner, professional Australian legal infographic style):

A modern Australian family law courtroom scene with a restrained, procedural mood. Foreground: a house title document and a “FOR SALE – ENFORCEMENT” notice beside a stack of papers stamped “STAY REFUSED” and “s 79A APPLICATION.” Midground: a judge’s bench in soft focus, with two self-represented silhouettes at separate tables. Background: subtle scales of justice and faint ledger lines suggesting litigation funding interest accruing. Neutral tones (charcoal, navy, muted gold). No text overlays.