Monfort & Bade (No 3)

Case [2024] FedCFamC1F 169

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Monfort & Bade (No 3) [2024] FedCFamC1F 169

File number(s): BRC 4638 of 2014
Judgment of: HOWARD J
Date of judgment: 8 March 2024
Catchwords: FAMILY LAW – PROPERTY – Vexatious litigant –Application for leave to institute Proceedings – Proposed Proceedings for a Stay of Orders – Application for leave to institute Proceedings dismissed.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Darley (No 4) [2023] FedCFamC1A 158

Valdez & Frazier [2018] FamCA 873
Division: Division 1 First Instance
Number of paragraphs: 26
Date of last submission/s: 8 March 2024
Date of hearing: 8 March 2024 
Place: Brisbane
Counsel for the applicant: Litigant in person
Solicitor for the first respondent: Mr Porter
Counsel for the second respondent: Ms Downes
Solicitor for the second respondent: Ellison Moschella & Co

ORDERS

BRC 4638 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MONFORT

Applicant
AND:

MR BADE

First Respondent

MR FLANNAN

Second Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS:

1.That the Application in a Proceeding filed by the Applicant wife on 7 March 2024 (the Application seeking leave to file an Application for a Stay of Orders made on 25 January 2024 and 1 March 2024) be dismissed pursuant to s 102QF(2) of the Family Law Act 1975 (Cth).

2.That the Amended Application in a Proceeding filed by the Applicant wife on 5 March 2024 (the Application for a Stay of Orders made on 25 January 2024 and 1 March 2024) be dismissed.

3.That all other outstanding Applications filed by the Applicant wife in these proceedings in the Trial Division of this Court be dismissed. 

4.That pursuant to s 121 of the Family Law Act 1975 (Cth), that the Second Respondent be permitted to provide a copy of the Orders dated 1 March 2024 to the National Australia Bank and the Titles Queensland to give effect to the Orders contained therein.

5.Noting that the Second Respondent has (in accordance with the Liberty to Apply Provision granted in his favour in the Orders of 25 January 2024) sought the leave of the Court to amend certain Orders made on 1 March 2024 pursuant to the Slip Rule (r 10.13) and noting that on 8 March 2024 at 3:10pm the Court received written submissions from the Second Respondent in relation to the Slip Rule matters:

(a)In the event that the Applicant wife and/or the Respondent husband wish to make a written submission  concerning the amendments proposed to the Orders of 1 March 2024 by the Second Respondent – then the Applicant wife and/or the Respondent husband must do so by forwarding such a written submission to the Court and to the other parties by no later than 5.00pm on Tuesday, 12 March 2024; and

(b)The Court shall proceed to determine the Application under the Slip Rule in Chambers after 5.00pm on Tuesday, 12 March…

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Monfort & Bade (No 3) [2024] FedCFamC1F 169
Case
[2024] FedCFamC1F 169
Decision Date

CaseChat Overview and Summary

The case of Monfort & Bade (No 3) involved a family law dispute between Ms Monfort, the applicant, and Mr Bade, the first respondent, with Mr Flannan as the second respondent. Ms Monfort sought leave to institute proceedings for a stay of orders made on 25 January 2024 and 1 March 2024, which were previously issued in her family law proceedings. The Federal Circuit and Family Court of Australia (Division 1) was tasked with determining whether to grant Ms Monfort the leave to institute these proceedings.

The legal issues before the court centred on the discretionary nature of granting a stay of orders in family law proceedings and the criteria to be applied in such decisions. The court had to assess whether Ms Monfort had established a proper basis for the stay, considering factors such as the strength of the proposed appeal, the balance of convenience, and the risk of rendering an appeal nugatory. The Full Court had already deliberated on the merits of the proposed grounds of appeal, finding them to be without merit.

The court held that it was not appropriate to grant leave to file a Stay Application if the proposed grounds of appeal were deemed to be without merit. The Full Court's view that the proposed grounds of appeal lacked merit influenced the court's decision. The court further noted that if Ms Monfort amended her proposed grounds of appeal in the future, she could reapply for leave to file a Stay Application. The court dismissed Ms Monfort's application for leave to institute proceedings for a stay of orders, along with her amended application and all other outstanding applications in the proceedings.

The court's orders included dismissing the application seeking leave to file an application for a stay of orders, the amended application for a stay of orders, and all other outstanding applications filed by Ms Monfort in the Trial Division of the court. Additionally, the court permitted the second respondent to provide a copy of the orders dated 1 March 2024 to the National Australia Bank and Titles Queensland to give effect to the orders. The court also set a deadline for written submissions regarding the proposed amendments to the orders of 1 March 2024 by the second respondent.

Orders

Orders of the court

BRC 4638 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MONFORT

Applicant

AND:

MR BADE

First Respondent

MR FLANNAN

Second Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS:

1. That the Application in a Proceeding filed by the Applicant wife on 7 March 2024 (the Application seeking leave to file an Application for a Stay of Orders made on 25 January 2024 and 1 March 2024) be dismissed pursuant to s 102QF(2) of the Family Law Act 1975 (Cth).

2. That the Amended Application in a Proceeding filed by the Applicant wife on 5 March 2024 (the Application for a Stay of Orders made on 25 January 2024 and 1 March 2024) be dismissed.

3. That all other outstanding Applications filed by the Applicant wife in these proceedings in the Trial Division of this Court be dismissed.

4. That pursuant to s 121 of the Family Law Act 1975 (Cth), that the Second Respondent be permitted to provide a copy of the Orders dated 1 March 2024 to the National Australia Bank and the Titles Queensland to give effect to the Orders contained therein.

5. Noting that the Second Respondent has (in accordance with the Liberty to Apply Provision granted in his favour in the Orders of 25 January 2024) sought the leave of the Court to amend certain Orders made on 1 March 2024 pursuant to the Slip Rule (r 10.13) and noting that on 8 March 2024 at 3:10pm the Court received written submissions from the Second Respondent in relation to the Slip Rule matters:

(a) In the event that the Applicant wife and/or the Respondent husband wish to make a written submission concerning the amendments proposed to the Orders of 1 March 2024 by the Second Respondent – then the Applicant wife and/or the Respondent husband must do so by forwarding such a written submission to the Court and to the other parties by no later than 5.00pm on Tuesday, 12 March 2024; and

(b) The Court shall proceed to determine the Application under the Slip Rule in Chambers after 5.00pm on Tuesday, 12 March 2024 whether or not the Applicant wife and/or the Respondent husband have forwarded a written submission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is well-settled that the determination of a Stay Application is a discretionary decision. The relevant principles are well-settled, including in cases such as Aldridge & Keaton [2009] FamCAFC 106 (“Aldridge & Keaton”) at paragraph 18, where the Court set out a number of considerations. Paragraph 18 of the decision in Aldridge & Keaton relevantly states – “The principles to be applied in determining an application for a stay of orders … are … well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;•a person who has obtained a judgment is entitled to the benefit of that judgment;•a person who has obtained a judgment is entitled to presume the judgment is correct;•the mere filing of an appeal is insufficient to grant a stay;•the bona fides of the applicant;•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;…•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; …” What the wife is required to do here is to establish a proper basis for the stay. In this instance, this Court has the benefit of the deliberations of the Full Court delivered today. The view of the Full Court is that the proposed grounds of appeal are without merit. That is, essentially, what they have said. It is not appropriate for this Court to grant leave to file a Stay Application, and then, indeed, grant a Stay on the basis that, at some stage in the future, grounds of appeal might be amended. I agree with the submission made by counsel for the Trustee that, if that does occur in the future, that is to say if the Applicant wife does amend her proposed grounds of appeal, then it seems to me to be correct that she would be permitted to file another Application for leave to file a Stay Application, which would, again, come before this Court, before me, as the first instance judge.

Ratio Decidendi

Legal Principle Established

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