Monfort & Bade (No 3)
[2024] FedCFamC1F 169
•8 March 2024
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 2024 whether or not the Applicant wife and/or the Respondent husband have forwarded a written submission.
IT IS NOTED:
A.That Order 2 is necessary to ensure clarity because the Applicant had filed the Amended Application in a Proceeding on 5 March 2024 without the leave of the Court.
B.That Order 3 is necessary to ensure clarity – noting that the wife may yet have Applications outstanding before the Appeal Division of this Court.
C.That the intention of Order 3 is to finalise all outstanding Applications filed by the Applicant wife in the Trial Division of this Court.
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 or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monfort & Bade has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J
A. These reasons were delivered ex tempore on 8 March 2024 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.
The matter before the Court today is an Application brought by the wife, Ms Monfort under s 102QE(2) of the Family Law Act 1975 (Cth)(“the Act”) for leave to institute a proceeding. In particular, leave is sought by the wife to file an Application for a Stay in respect of final Orders made by this Court on 1 March 2024. The Application brought by the wife today is necessary because of the fact that, on 25 January 2024, this Court made an Order under s 102QB of the Act that the Applicant wife is a vexatious litigant (a Vexatious Proceedings Order).
The Application by the wife seeking the leave of the Court to file the Stay Application was filed at 10.09am on 7 March 2024. Prior to that time, the wife had actually filed an Amended Application in a Proceeding seeking a Stay of the Orders of, first of all, 25 January 2024, and then, subsequently, the Orders of 1 March 2024. I posited a view during argument today that the filing of the Application for a Stay, more particularly the Amended Application in a Proceeding filed 5 March 2024 at 1.22 pm, which was the Application for a Stay – the filing of that Application, in my view, is of no effect because the wife did not have leave to file that Application.
Leave is required. That is accepted by the applicant wife, the respondent husband and the Trustee. Because of the Vexatious Proceedings Order that was made on 25 January 2024, the wife needs leave of this Court before filing a Stay Application. That this is correct is confirmed, it seems to me, by earlier decisions of this Court, including; Valdez & Frazier [2018] FamCA 873 (“Valdez”), a decision of Benjamin J where a somewhat similar situation arose. A person who wanted to apply for a Stay of Orders was subject to a Vexatious Proceedings Order and needed the leave of the Court before being able to file the Application for a Stay.
Some further history needs to be referred to. More particularly, the Orders that the Court made on 25 January 2024, as I said earlier, included the Vexatious Proceedings Order, and other Orders were made requiring the drafting of a proposed final Order (on the other issues) by the Trustee and then hearing from the parties as well. After those Orders were delivered, the wife filed an Application in an Appeal on 16 February 2024, and the Application in an Appeal was in respect of proposed Appeal Number 34 of 2024. Accompanying the Application in an Appeal was an affidavit filed on the same date by the wife, where the wife set out her proposed grounds of appeal, being grounds numbered one to ten.
This morning, the Full Court delivered judgment in respect of the wife’s Application for Leave to Appeal the Orders of 25 January 2024. Many of the grounds of appeal referred to in the wife’s affidavit filed 16 February 2024 related not only to the Orders made on 25 January 2024, but in relation to the outcome of the case more broadly. The view of the Full Court in relation to the proposed grounds of appeal was that the Court was not satisfied that any of the grounds contained in the wife’s proposed Notice of Appeal were reasonable, and the conclusion was, therefore, the proposed Notice of Appeal was vexatious under s 102QF(2) of the Act and leave to file the Notice of Appeal was refused and the Application in an Appeal was dismissed.
When Court started this morning here in Brisbane at about 10.45am, a copy of those Reasons for Judgment of the Full Court was provided to the parties, and then the Court stood down until 12 noon to give the parties a chance to read not only those Reasons for Judgment of the Full Court, but a chance was given the Trustee and the husband to read the wife’s Applications in an Appeal and the accompanying affidavits, those two Applications having been filed, respectively, on 16 February 2024 and 5 March 2024.
The grounds of appeal about which the Full Court had much to say in their Reasons for Judgment delivered today were replicated by the wife in her next Application in an Appeal that was filed on 5 March 2024, where she is seeking the leave of the Full Court to file a Notice of Appeal, and as matters currently stand, they are the same ten grounds of appeal that appeared in the wife’s Application for leave to Appeal that was filed 16 February 2024. In addition, this Court had before it the wife’s proposed Application for a Stay, and in the affidavit supporting the proposed Application for a Stay the wife included in that affidavit, from paragraph two onwards, ten grounds of appeal.
Those proposed grounds of appeal are identical to the ten grounds of appeal included in the wife’s Applications in an Appeal filed 16 February 2024 and 5 March 2024. The Court today has to determine, firstly, the Application for leave to file an Application for a Stay. Ms Monfort, who continues as a self-represented litigant, argued that the Court today, on 8 March 2024, should grant her leave to file the Application for a stay and the Court should then grant the Stay Application on the basis that she will, in the future, amend her proposed grounds of appeal.
It seems to me that the granting of leave to file the Stay Application must be determined on the basis of the material before the Court today. When considering whether or not to grant leave to the applicant to file the Application for a Stay, I have considered a number of cases, including the one which I referred to earlier, the matter of Valdez & Frazier [2018] FamCA 873. I have also taken into account the decision of Darley (No 4) [2023] FedCFamC1A 158, as well as Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. I have gained a good deal of assistance from the decision of Benjamin J in Valdez, because his Honour was there dealing with a similar situation.
In Valdez a person who was a vexatious litigant was seeking the leave of the Court to file a Stay Application. I note s 102QF. That section states:
“102QF Dismissing application for leave
(1)The court may make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the affidavit does not substantially comply with subsection 102QE(3).
(2)The court must make an order dismissing an application under section 102QE for leave to institute proceedings if it considers the proceedings are vexatious proceedings.
(3)The court may dismiss the application without an oral hearing (either with or without the consent of the applicant).
(4)The court may make an order under this section in Chambers.”
By s 102QF(2), on the hearing of an Application for Leave to institute a proceeding (in this case, an Application for a Stay) the Court must make an order dismissing the Application if it considers the proceedings are vexatious proceedings. There are a number of matters that the Court must taken into account, and a number of considerations. As Benjamin J did in Valdez, it is necessary for the Court here to consider the proposed Stay Application.
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.
I note it was said in Valdez that such Stay Applications are to be heard by the first instance judge, unless that judge is not available. So whereas in many of the other cases dealt with by the Court, the judge at first instance is left to make some sort of an assessment of the grounds of appeal – I have the very great advantage of having the Full Court’s view of the proposed grounds of appeal – it is a very dim view.
One of the wife’s arguments is that she may want to argue that a Stay should be granted because a failure to grant a Stay would render an appeal nugatory. If I have not already said so, it is important to keep in mind that the current Application before the Court for leave to file a Stay is only in respect of a proposed stay of the Orders made 1 March 2024. In relation to the nugatory argument, I agree with the submission made by counsel for the Trustee (the second Respondent). At the core of the wife’s case from the outset in this Court has been her desire to retain Property B. The applicant wife has provided no evidence in addition to what was before the Court in the hearing and, frankly, nor did she present any cogent argument that she would be able to obtain finance and, even if she did obtain finance, there is no evidence that she would be able to repay the loan. They were the conclusions made at first instance by this Court. There is no other evidence since that hearing, and certainly no evidence before me on this Application, that would convince the Court that she does have the ability to obtain finance and that she would be able to repay the loan.
And possibly at the risk of repeating myself, but I do note that in the primary judgment I came to the conclusion that the wife, as early as 2018 when she swore the affidavit in the District Court, was well-aware of the fact that she would not be able to obtain finance and was unlikely to obtain finance to refinance Property B and, even if she did, she made it clear she would not be able to repay the loan, and she swore as much in the District Court proceedings. And not only that, in the judgment of Judge McGill QC – his Honour took into account what the wife had sworn to in relation to her inability to raise the necessary finance. His Honour took that into account in determining that the wife should recover in respect of that Testators Family Maintenance claim.
In the primary judgment, one of the arguments run by the wife was that her inability to raise finance is the fault of the Trustee, because he was on the title deed and she did not think he should be there. But the history of the case actually shows – and I said as much in the reasons delivered 25 January 2024 – that the wife consented to the appointment of a Trustee for Sale, and such an order necessitated the registration of the Trustee on the deed, as is the usual practice. And in any event, the wife was represented on the day in question, in February 2019, and the Order was made by consent.
And I note that the Full Court in their reasons were not in any way critical of Judge Willis for the making of that Order on 1 February 2019. So the nugatory argument, it seems to me, is without merit, because even if for some currently unknown reason the wife was able to successfully mount an appeal on some ground, my question which I would ask rhetorically is, “To what end?”, because the wife’s aim all along has been to retain Property B, but, on the evidence, she does not have the ability to do it, so the granting of a stay would be futile. So it seems to me the nugatory argument run by the wife today is without merit.
On the material before me today, it seems to me more likely than not that the Application for Leave to file the Stay is, again, further evidence of delay, that is to say – delaying tactics for the wife to avoid what, it seems to me, is the inevitable. As with Benjamin J in Valdez, I am not satisfied of the wife’s bona fides in this Application. The onus is on her to establish that circumstance. Even if I am wrong in that regard, it would not impact for one minute my view as to what should happen today.
In Valdez, it occurred that the judge concluded that the proposed grounds of the appeal were not particularly strong. As I have said earlier, in this case now, we can go much further and say the proposed grounds of appeal as currently pleaded are bound to fail. I am well-aware that an appeal could probably be dealt with reasonably quickly, given how efficient appeals have been dealt with by this Court in recent times. The husband has been kept out of his money and delayed for many, many years.
In a final oral submission, the wife read to the Court some of the areas where she considered she might amend her grounds of appeal. But my view is that the Court must decide this case today on the material before it, and not on some possible future event, such as the wife drafting and submitting proposed amended grounds of appeal. To the extent that she read some of those to the Court, they are all, one way or another, topics that are included in the grounds of appeal that were before the Full Court.
Under s 102QF(2), the Court must now make an order dismissing the Application for Leave to file a Stay, that is, the Application that was made under s 102QE, because the conclusion I have reached is that the proposed Application for a Stay is vexatious – especially having taken into account what the Full Court said about the proposed grounds of appeal.
Having taken into account the other factors that the Court if required to take into account when considering a Stay Application, my view is that the Stay Application was bound to fail on the material before the Court, so it would be futile to grant a stay in any event and it would be futile to grant leave to institute the Application for a Stay. To the extent that the wife has argued that her financial position is now worse than what it was at the time of the making of the final Orders in October 2017, noting the findings made by the Court at first instance, leads me to conclude that the wife in that respect has been the author of her own misfortune because her continued filing of applications and delaying tactics (outlined in the primary judgment) led to significant increases in costs for both the husband and the Trustee, and the primary judgment explains this at some length.
Having taken into account the relevant matters, the view that I have formed is that the Application for Leave to file the Stay Application must be dismissed. Therefore, it is, of course, not necessary for the Court to determine the Stay Application per se. And I would note, finally, that at no point in time did any party seek an adjournment of today’s matter. That was not under consideration by the Court.
The Trustee also sought leave today for the making of a further Order pursuant to s 121 of the Family Law Act 1975 (Cth). The Order sought is completely appropriate. It is often necessary to grant an Order such as this to ensure that s 121 of the Act is not breached. The proposed Order has become Order 4 made on 8 March 2024.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 8 March 2024
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