Monfort & Bade (No 5)

Case [2024] FedCFamC1F 189

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

  1. 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.

  2. 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).

  3. On 1 March 2024 the matter was listed before me and I heard further submissions from the…

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AGLC
Monfort & Bade (No 5) [2024] FedCFamC1F 189
Case
[2024] FedCFamC1F 189
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Monfort & Bade (No 5) involved an application by Ms Monfort, the applicant, seeking leave to institute a stay application against orders made on 1 March 2024. Mr Bade, the first respondent, and Mr Flannan, the second respondent, were parties to the original proceedings. The central legal issue before the court was whether the application for leave to institute the stay application should be dismissed as vexatious, pursuant to section 102QF(2) of the Family Law Act 1975 (Cth). Additionally, the court had to determine if the applicant had met the threshold for granting leave under section 102QG(4) by proving the proposed proceedings were not vexatious.

The court found that the applicant's affidavit did not clearly disclose all relevant facts known to her, though it leaned towards accepting that the affidavit complied with the requirements of section 102QE(3)(c). The court noted that the distinction between sections 102QF(2) and 102QG(4) was critical in its analysis, with the former imposing an obligation to dismiss vexatious proceedings and the latter requiring the applicant to satisfy the court that the proceedings were not vexatious. The court applied the principles from Darley (No 4) to understand these distinctions and considered the applicant's prospects of success in the proposed stay application. The court found that the applicant had not discharged the onus to establish a proper basis for a stay, as outlined in Aldridge & Keaton (Stay Appeal).

Based on the findings, the court dismissed the application for leave to institute the stay application. The court concluded that the proceedings were vexatious and thus dismissed the application under section 102QF(2). The court emphasized the importance of the applicant meeting the necessary criteria to avoid dismissal. The decision was made in accordance with the statutory provisions and relevant case law, ensuring that the court's discretion was exercised appropriately.

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:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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