FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Monfort [2024] FedCFamC1A 23
Appeal from: Monfort & Bade [2024] FedCFamC1F 16 Appeal number: NAA 34 of 2024 File number: BRC 4638 of 2014 Judgment of: ALDRIDGE, AUSTIN & HARPER JJ Date of judgment: 8 March 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant –
Where the wife seeks leave to appeal against the dismissal of her application before the primary judge – Where the wife requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) – Where the Court is not satisfied any of the grounds contained in the wife’s proposed Notice of Appeal are reasonable and therefore are vexatious under s 102Q(1) of the Act – Leave refused –
Application in an Appeal dismissed.Legislation: Family Law Act 1975 (Cth) Pts VIIIAA, XIB, XIIIA, ss 79, 79A, 80, 90AE, 90AF, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit Court Rules 2001 (Cth) r 13.04 and r 16.05
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364
Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1; [2022] HCA 16
Darley (No 4) [2023] FedCFamC1A 158
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
McDonald and McDonald (1976) FLC 90-047; [1976] FamCA 29
Monfort & Bade [2018] FamCAFC 163
Newett & Newett (No 8) (2023) FLC 94-128; [2023] FedCFamC1A 7
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Potier v Attorney General (NSW) (2015) 89 NSWLR 284; [2015] NSWCA 129
Ravasini and Ravasini (1983) FLC 91-312; [1982] FamCA 62
Reichel v Magrath (1889) 14 App Cas 665
Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66
Santos v Delhi Petroleum Pty Ltd (2002) 225 LSJS 1; [2002] SASC 272
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Number of paragraphs: 41 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 34 of 2024
BRC 4638 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MONFORT
Applicant
ORDER MADE BY:
ALDRIDGE, AUSTIN & HARPER JJ
DATE OF ORDER:
8 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 16 February 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical…
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- AGLC
- Monfort [2024] FedCFamC1A 23
- Case
- [2024] FedCFamC1A 23
- Decision Date
CaseChat Overview and Summary
The case of Monfort involves a wife, Ms Monfort, seeking leave to appeal against the dismissal of her application for property settlement in the Federal Circuit Court of Australia. The husband, Mr Bade, had previously been granted an order appointing a trustee to sell jointly owned properties. The wife had not appealed this order but now sought leave to appeal the dismissal of her application for property settlement. The central legal issue was whether the wife's proposed grounds for appeal were reasonable and not vexatious under section 102Q(1) of the Family Law Act 1975 (Cth).
The court examined the wife's application to determine if any of the proposed grounds for appeal were reasonable. The court found that the wife had not demonstrated that the findings of the primary judge regarding her capacity to refinance one of the properties were not reasonably open on the evidence, glaringly improbable, or contrary to incontrovertible facts. Furthermore, the court held that the wife's failure to obtain a refinance, as contemplated by the 2017 orders, did not undermine the primary judge's orders. The court concluded that the proposed appeal was vexatious because the wife had not shown that her appeal would be brought on reasonable grounds.
In light of the above, the court dismissed the wife's application for leave to appeal. The court found that the wife's proposed appeal was not reasonable and therefore vexatious. Consequently, the application in an appeal was dismissed, and the wife's attempt to appeal the primary judge's orders was unsuccessful.
The court examined the wife's application to determine if any of the proposed grounds for appeal were reasonable. The court found that the wife had not demonstrated that the findings of the primary judge regarding her capacity to refinance one of the properties were not reasonably open on the evidence, glaringly improbable, or contrary to incontrovertible facts. Furthermore, the court held that the wife's failure to obtain a refinance, as contemplated by the 2017 orders, did not undermine the primary judge's orders. The court concluded that the proposed appeal was vexatious because the wife had not shown that her appeal would be brought on reasonable grounds.
In light of the above, the court dismissed the wife's application for leave to appeal. The court found that the wife's proposed appeal was not reasonable and therefore vexatious. Consequently, the application in an appeal was dismissed, and the wife's attempt to appeal the primary judge's orders was unsuccessful.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 16 February 2024 is dismissed.
Background
Background to the litigation
In accordance with the Court’s practice, the wife’s application for leave to institute proceedings was heard before it had been served upon the husband or the trustee. The application for leave to institute proceedings was determined on the papers in chambers (s 102QF(3) and s 102QF(4) of the Act).BACKGROUND For the purposes of this judgment, we adopt the relevant parts of the history recorded by the primary judge as follows:1. The applicant wife is Ms Monfort. The respondent husband is Mr Bade. The parties commenced cohabitation in late 1991 and married in late 1992. The parties separated on a final basis somewhere between 2012 and 2014. The wife filed an Application for property settlement under s 79 of the Family Law Act 1975 (Cth) (“the Act”) in the Federal Circuit Court of Australia in Brisbane in May 2014. The matter was transferred to the City S Registry. The matter came on before her Honour Judge Willis for final hearing on 27 October 2016. Judgment was delivered on 13 October 2017. The final orders made by her Honour on 13 October 2017 have not yet been fully executed.2. By the time that Judge Willis made the [2017 orders], the parties had two properties remaining which they owned jointly – [Property A]; and [Property B]. The [2017 orders] state:“THE COURT ORDERS THAT:1. That the overall property division is to be divided 75% to the wife and 25% to the husband. 2. To achieve the division the following orders will apply. 3. The parties (and the Trustees referred to in the Orders) are granted liberty to apply in relation the mechanical provisions of these Orders. Sale of [Property A]4. The parties are to do all acts and things to forthwith effect a sale of the property situated at [Property A] more properly described as Lot […] of RP […], County […], Parish of […] Title Reference […] ([Property A]) pursuant to Order 5 herein. Trustee for Sale5. To effect the sale of [Property A], the parties are to do all acts and things to forthwith appoint [F Lawyers] as Trustee for sale (“the Trustee”). The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property A].…22. To effect the sale of [Property B], the parties are to forthwith do all acts and things to appoint [F Lawyers] as Trustee for sale … of [Property B]. The husband and wife are to do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property B].…3. The firm of lawyers known as F Lawyers refused to act as Trustee. That situation eventually led to the parties consenting to the Order of 1 February 2019. That Order was made by her Honour Judge Willis and that Order states:“BY CONSENT IT IS ORDERED:1. Order 5 of the Final Orders be varied to become:“(5)To effect the sale of [Property A], [the trustee] is appointed, forthwith, pursuant to section 80(1)(e) of the Family Law Act 1975 as Trustee for sale (“the Trustee”). The husband and wife do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title of [Property A].”2. Order 22 of the Final Orders be varied to become:“(22)To effect the sale of [Property B], [the trustee] is appointed, forthwith, pursuant to section 80(1)(e) of the Family Law Act 1975 as Trustee for sale (“the Trustee”). The husband and wife do all acts and things necessary and sign all such documents as may be required to register the Trustee on the title to [Property B].3. Orders 12(a) and 29(a) of the Final Orders be varied to insert the words: “…, including the Trustee’s fees, costs and outlays.”4. Orders 10 and 26 of the Final Orders be varied to insert an extra paragraph to read:“(b)If either party fails to follow a direction of the Trustee then any additional costs of the Trustee arising from or incidental to the failure shall be borne by that party.”5. There be no order as to the costs.”4. At the time of the making of the 1 February 2019 Order, the wife was represented by Mr G, solicitor and Mr Chinyelu appeared as the solicitor for the husband. The transcript of the hearing before Judge Willis on 1 February 2019 reveals that her Honour was very careful to ensure that the wife was consenting to the appointment of [the trustee] as the Trustee for Sale of [Property A] and [Property B]. The transcript of that hearing is in evidence. It is annexed to the affidavit of [the trustee] filed 21 November 2022. Furthermore, the transcript of that day makes it clear that the wife’s solicitor informed the Court that [the trustee] was being appointed as the Trustee for Sale of both properties. 5. The wife never sought to appeal the order of 1 February 2019…(Footnotes omitted) (Emphasis in original)
Evidence
Evidence Before The Court
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Decision
Reasons for decision
A challenge to a factual finding must demonstrate the finding was either not reasonably open on the evidence, glaringly improbable or contrary to incontrovertible facts (Edwards v Noble (1971) 125 CLR 296; Fox v Percy (2003) 214 CLR 118 at [28]–[29]). The primary judge dealt with the question of the wife’s capacity to refinance at [45], [59]–[60] and [138]–[139]. There is nothing in the material provided by the wife in support of her application for leave which demonstrates any findings in this regard were not reasonably open, glaringly improbable or contrary to other incontrovertible facts. Moreover, the wife has not demonstrated any basis to conclude the impugned factual finding, taken with all the other evidence before the primary judge, was material in some way to his conclusions about the vexatious nature of her proceedings. Quite apart from the wife’s failure to obtain a refinance of Property B, as contemplated by the 2017 orders, there was ample evidence to support the primary judge’s orders. Ground 10 has no reasonable prospect of succeeding. CONCLUSION We are not satisfied that the proposed appeal is not vexatious. The wife has not demonstrated her proposed appeal would be brought on reasonable grounds and the application for leave to bring it must be dismissed (s 102QF(2) of the Act).
Ratio Decidendi
Legal Principle Established
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