Monfort & Bade (No 5)
[2024] FedCFamC1F 189
•25 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Monfort & Bade (No 5) [2024] FedCFamC1F 189
File number(s): BRC 4638 of 2014 Judgment of: HOWARD J Date of judgment: 25 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
Monfort & Bade [2024] FedCFamC1F 16
Monfort & Bade(No 3) [2024] FedCFamC1F 169
Monfort & Bade (No 4) [2024] FedCFamC1F 181
Monfort [2024] FedCFamC1A 23 (Full Court)
Monfort (No 2) [2024] FedCFamC1A 27 (Full Court)
Valdez & Frazier [2018] FamCA 873
Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: Determined in Chambers on the papers on 25 March 2024. Place: Brisbane (Chambers) Counsel for the applicant: Litigant in person Solicitor for the first respondent: National Legal 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:
25 MARCH 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by the applicant wife on 18 March 2024 (the application seeking leave to file an application for a stay of orders made on 1 March 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 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
There is an extensive history to this litigation. In the Reasons for Judgment delivered on 25 January 2024 (Monfort & Bade [2024] FedCFamC1F 16) the Court has already provided details of the history of litigation. In the interests of brevity I do not propose to restate the history of the litigation.
On 25 January 2024 at the same time that the Reasons for Judgment were delivered – the Court made a Vexatious Proceedings Order against the wife (Ms Monfort).
On 1 March 2024 the matter was listed before me and I heard further submissions from the parties in relation to the wording of the balance of the final orders that were to reflect the Reasons for Judgment that had been delivered on 25 January 2024. Later that same day, on 1 March 2024, the Court delivered Reasons for Judgment and made the balance of the final orders. Those reasons were brief – because they only needed to be brief. See Monfort & Bade(No 2) [2024] FedCFamC1F 109.
On 5 March 2024 the wife filed an application for a stay of the final orders that were made on 25 January 2024 and 1 March 2024. The filing of that application for a stay was of no effect because the wife had not obtained the leave of the Court to institute such an application. The leave of the Court was required because of the existence of the Vexatious Proceedings Order (dated 25 January 2024) (s 102QD(1) of the Family Law Act 1975 (Cth) (“the Act”)).
On 7 March 2024 the wife filed her first application seeking leave to file a stay application. On 8 March 2024 the Court heard that application. The Court heard submissions from the wife, the husband and the trustee. The application was dismissed on 8 March 2024 and reasons were delivered ex tempore at that time (Monfort & Bade (No 3) [2024] FedCFamC1F 169).
On 20 March 2024 the Court delivered Reasons for Judgment in relation to an application that had been made by the trustee under the slip rule. The Cout granted the application of the trustee (see Monfort & Bade (No 4) [2024] FedCFamC1F 181).
THE CURRENT APPLICATION
On 18 March 2024 the wife forwarded to the Registry of the Federal Circuit and Family Court of Australia (Division 1) an application for leave pursuant to s 102QE(2) of the Act to institute a proceeding. The wife sought leave to file an application for a stay of orders made 1 March 2024. By forwarding the documents in this way the wife “applied” to the Court as she is entitled to do pursuant to s 102QE(2).
This current application for leave to institute proceedings was determined on the papers in Chambers (s 102QF(3) and s 102QF(4) of the Act). I have had regard to the application. I have also had regard to the affidavit of the wife which accompanied the application. That affidavit was also forwarded to the Court on 18 March 2024. It was affirmed on 18 March 2024 by the wife.
THE PRESENT APPLICATION FOR LEAVE TO INSTITUTE PROCEEDINGS PURSUANT TO S 102QE(2)
When seeking leave to institute proceedings a vexatious litigant is required to file an affidavit which, amongst other things, lists all of the occasions in which the vexatious litigant has applied for leave under s 102QE(2) and, in addition, the affidavit must list all other proceedings that the vexatious litigant has instituted in any Australian Court or Tribunal – including proceedings instituted before the commencement of the section.
I am satisfied that the wife’s affidavit sworn 18 March 2024 complies with s 102QE(3)(a) and s 102QE(3)(b).
As to whether the affidavit affirmed on 18 March 2024 “discloses all relevant facts about the Application, whether supporting or adverse to the Application, that are known to the applicant” have been included in the affidavit – that is not so clear. The affidavit does contain a recitation of facts – many of which appear to have no relevance to the current application. I note, however, that there is a subjective element to s 102QE(3)(c) by the inclusion of the words “that are known to the applicant”. It is a near run thing – but I will give the applicant the benefit of the doubt and proceed on the basis that her accompanying affidavit complies with s 102QE(3)(c).
Section 102QF(2) of the Act states:
“(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.”
The next relevant section is s 102QG(4) of the Act. That subsection states –
“(4) The court may grant leave only if it is satisfied the proceedings are not vexatious proceedings.”
The difference between s 102QF(2) and s 102QG(4) was explained by the Full Court in Darley (No 4) [2023] FedCFamC1A 158. At paragraph 13 the Full Court stated –
“13. It can be seen that s 102QF(2) of the Act requires the Court to dismiss an application for leave under s 102QE “if it considers the proceedings are vexatious proceedings”, while s 102QG(4) of the Act permits the Court to grant leave “only if it is satisfied the proceedings are not vexatious proceedings”. The difference between the two subsections appears to be that s 102QF(2) imposes an onus to establish that the given proceedings are vexatious, while s 102QG(4) imposes an obligation on an applicant seeking leave to satisfy the Court the proposed proceedings are not vexatious. A failure to satisfy the Court means the discretion to grant leave is not enlivened. This is the import of the phrase “only if” used in s 102QG(4).”
The Court is required to dismiss an application for leave under s 102QE if it considers the proceedings are vexatious proceedings (s 102QF(2)). In that subsection note the use of the word “must”.
Further, s 102QG(4) of the Act permits the Court to grant leave to institute proceedings “only if” the Court is satisfied the proceedings are not vexatious proceedings.
In considering the wife’s application pursuant to s 102QE(2) for leave to institute a stay application – it is necessary for the Court to consider the wife’s prospects of success in the proposed stay application. This is the approach adopted by Benjamin J in Valdez & Frazier [2018] FamCA 873.
In considering the prospects of success of the proposed stay application I note the relevant principles were enunciated in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (“Aldridge & Keaton”) at paragraph 18. I included those principles in paragraph 12 of Monfort & Bade (No 3) [2024] FedCFamC1F 169. I will not repeat them here. It is important to note that the onus to establish a proper basis for a stay is on the applicant.
One of the matters for consideration in a stay application is a preliminary assessment of the strength of the proposed appeal.
On 18 March 2024 when the wife made her current application for leave to institute proceedings for a stay – the wife sent the following documents to the Court: -
(a)An application for leave to institute a proceeding;
(b)A supporting affidavit affirmed 18 March 2024;
(c)A proposed application for a stay of the orders made 1 March 2024 pending determination by the Full Court of the applications in proposed appeal number NAA52/2024 (filed in the Northern Appeals Registry of this Court on 5 March 2024 and amended on 11 March 2024); and
(d)An affidavit affirmed 18 March 2024 to be relied upon in the event that the stay application proceeds.
In the affidavit prepared by the wife and provided to the Court on 18 March 2024 in support of her proposed application for a stay she included from paragraph 23 to paragraph 32 ten grounds of appeal.
The proposed grounds of appeal provided to the Court on 18 March 2024 are identical to the proposed grounds of appeal which the wife provided to the Full Court in her affidavit affirmed and filed on 11 March 2024 in proposed appeal number NAA52/2024. The 11 March 2024 affidavit was relied upon by the wife in her application to the Full Court for leave to institute an appeal against the orders of this Court made on 1 March 2024.[1]
[1] This was the wife’s second application to the Full Court (Monfort (No 2) [2024] FedCFamC1A 27). The wife’s first application to the Full Court for leave to institute an appeal was dismissed on 8 March 2024 (Monfort [2024] FedCFamC1A 23).
In my view, the better approach would have been for the wife to await the outcome of her application for leave to institute an appeal – before the wife applied to this Court for leave to institute a stay application.
On 22 March 2024 the Full Court dismissed the wife’s application for leave to institute an appeal against the orders of 1 March 2024. The Reasons for Judgment delivered by the Full Court are reported as Monfort (No 2) [2024] FedCFamC1A 27.
In the Reasons for Judgment delivered by the Full Court on 22 March 2024 the Full Court came to the conclusion that none of the ten proposed grounds of appeal were meritorious. The Full Court came to the conclusion that the wife’s proposed appeal evinced no reasonable grounds. The Full Court came to the conclusion that the wife had failed to demonstrate that her proposed appeal was not “vexatious” within the meaning of s 102Q(1) of the Act and the Full Court dismissed the wife’s second application for leave to institute an appeal against the orders of 1 March 2024.
Having had the benefit of the Full Court’s Reasons for Judgment delivered on 22 March 2024 – I am able to categorically state that the wife has no prospects of success in her proposed appeal. There will be no appeal.
Despite the fact that I have had regard to all of the relevant considerations outlined in Aldridge & Keaton – there is now one overriding consideration relating to the proposed prospects of success of the wife’s proposed appeal. As I have stated, there will be no appeal and hence there are no prospects of successfully prosecuting the appeal. There is no need for this Court now to provide any further reasons.
I have come to the conclusion that I am not satisfied that the proposed proceedings (the proposed application for a stay) are not vexatious proceedings (s 102QG(4)).
Further, in my view, the wife’s proposed application for a stay amounts to a vexatious proceeding (s 102QF(2)).
For the reasons stated, the wife’s application that was forwarded to the Court on 18 March 2024 seeking leave to file a stay application in respect of the orders made on 1 March 2024 is dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 25 March 2024
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