Monfort (No 3)
[2024] FedCFamC1A 63
•18 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Monfort (No 3) [2024] FedCFamC1A 63
Appeal from: Monfort & Bade [2024] FedCFamC1F 16
Monfort & Bade (No 2) [2024] FedCFamC1F 109
Appeal numbers: NAA 34 of 2024
NAA 52 of 2024File number: BRC 4638 of 2014 Judgment of: AUSTIN J Date of judgment: 18 April 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL –Where the applicant previously filed two applications seeking the grant of leave to appeal – Where those applications were dismissed by the Full Court respectively on 8 March 2024 and 22 March 2024 (the “dismissal orders”) – Where the applicant filed an application for special leave to appeal in the High Court of Australia (“the High Court”) only in respect of the orders made on 8 March 2024 – Where the applicant seeks a stay of both dismissal orders pending the High Court’s determination of her special leave application in respect of only the first orders – Where, on the day before these applications were filed, the High Court dismissed the applicant’s stay application – Where it is an abuse of process for the applicant to maintain identical stay applications before an inferior appellate court – Applications dismissed. Legislation: Family Law Act 1975 (Cth) Pt XIB, ss 102QB, 102QE, 102QF
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Pt 5.3, r 13.38
Cases cited: Monfort (No 2) [2024] FedCFamC1A 27
Monfort [2024] FedCFamC1A 23
Monfort [2024] HCASJ 15
Number of paragraphs: 21 Date of hearing: Determined in chambers on the papers Counsel for the Applicant: Litigant in person
Table of Corrections 19 April 2024 In paragraph 7, delete the sentence “Although the applicant may want her applications determined in open court, irrespective of her desire, the application for leave to appeal under Pt XIB of the Act is instead determined on the papers in chambers as the Act permits (s 102QF(3) and s 102QF(4))” and replace with, “Although the applicant may want her applications determined in open court, irrespective of her desire, the applications for the grant of leave under Pt XIB of the Act to bring the stay applications are instead determined on the papers in chambers as the Act permits (s 102QF(3) and s 102QF(4)).” ORDERS
NAA 34 of 2024
NAA 52 of 2024
BRC 4638 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MONFORT
Applicant
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
18 APRIL 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 17 April 2024 in Appeal NAA 34/2024 is dismissed.
2.The Application in an Appeal filed on 17 April 2024 in Appeal NAA 52/2024 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Monfort (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 19 April 2024
AUSTIN J
The applicant in these proceedings is bound by vexatious litigant injunctions made against her pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 25 January 2024.
On 8 March 2024, in Appeal NAA 34/2024, the Full Court dismissed the applicant’s application for the grant of leave under s 102QE(2) of the Act to bring an appeal from orders made by the primary judge on 25 January 2024 in the underlying proceedings (Monfort [2024] FedCFamC1A 23).
On 22 March 2024, in Appeal NAA 52/2024, the Full Court dismissed the applicant’s second application for the grant of leave under s 102QE(2) of the Act to bring an appeal from more orders made by the primary judge on 1 March 2024 in the underlying proceedings (Monfort (No 2) [2024] FedCFamC1A 27).
The applicant thereafter filed, on 10 April 2024, an application in the High Court of Australia (“the High Court”) seeking special leave to appeal from the Full Court’s decision on 8 March 2024. As an integral part of that application, the applicant applied for a stay of the Full Court’s orders, which stay application was heard and dismissed by the High Court on 16 April 2024 (Monfort [2024] HCASJ 15).
No application for special leave to appeal has been made to the High Court in respect of the Full Court’s decision on 22 March 2024.
Now, by way of two Applications in an Appeal filed respectively on 17 April 2024 in the two separate appellate causes, the applicant seeks the stay of the Full Court’s orders made on both 8 and 22 March 2024, pending the determination by the High Court of her application for special leave to appeal only the first of those decisions.
Within Pt C of the two applications, the applicant ticked the box indicating her wish for the applications not to be dealt with in her absence in accordance with r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Although the applicant may want her applications determined in open court, irrespective of her desire, the applications for the grant of leave under Pt XIB of the Act to bring the stay applications are instead determined on the papers in chambers as the Act permits (s 102QF(3) and s 102QF(4)). As required (s 102QE(4)), the applications are determined without being served upon the other parties to the underlying proceedings, who have the benefit of the vexatious litigant injunctions.
Background
The following history is extracted from Monfort (No 2):
3.Property settlement proceedings between the applicant and her former spouse (“the husband”) were concluded by orders made under Pt VIII of the Act on 13 October 2017.
4.The applicant’s appeal from those orders was dismissed on 24 August 2018 (Monfort & Bade [2018] FamCAFC 163).
5.Despite the finalisation of the financial cause between the parties, more litigation ensued due to their dispute over the implementation of the property settlement orders. Applications for consequential orders and contempt proceedings followed.
6.The 2017 orders were consensually varied on 1 February 2019 but, notwithstanding the agreed variation, the substantive property settlement orders have still not been fully implemented.
7.Between November 2022 and March 2023, over seven days, the primary judge heard numerous applications agitated between the applicant, the husband, and the trustee appointed to sell some of the spouses’ property (“the trustee”). Judgment was reserved.
8.On 25 January 2024, the primary judge dismissed one application brought by the applicant (Order 1) and made vexatious litigant injunctions against her (Orders 2–5), as were sought by the husband and the trustee. Reasons were published by the primary judge for those orders, but it was expressly noted further orders would be made once the trustee has filed an updated minute of proposed orders, upon which the applicant and the husband could both comment (at [178]; Orders 7–9).
…
10.On 1 March 2024, the primary judge made a further series of orders, including: a declaration the applicant was in default of the property settlement orders (Order 1); costs orders against the applicant (Orders 2 and 3); orders for the payment of the trustee’s expenses (Order 5); the discharge of a stay order (Order 6); and numerous consequential and enforcement orders between the applicant, the husband, and the trustee to facilitate the implementation of the property settlement orders (Orders 4 and 7–19). The orders were later amended under the slip rule on 20 March 2024, but the amendments make no difference for present purposes.
The applicant’s two former applications to the Full Court seeking the grant of leave under s 102QE(2) of the Act to appeal from the first-instance orders made on 25 January 2024 and 1 March 2024 were both dismissed.
Apparently, the husband and the trustee are presently moving to enforce the operable property settlement orders by evicting the applicant from the property in which she lives for the purpose of its sale and the disbursement of the net proceeds of sale.
The applications
The application filed in Appeal NAA 34/2024 seeks orders in these terms:
1. That leave be granted to institute an Application in an Appeal.
2. That all times be abridged and the matters be given urgent consideration.
3.That the orders of the Full Court delivered on 8 March 2024 in NAA 34 of 2024 be stayed pending determination of the Application filed in the High Court on 10 April 2024 in the matter of an Application by [the applicant] for Special Leave to Appeal.
4.That this application be determined concurrently with the Application in an Appeal in NAA 52 of 2024.
(As per the original)
The application filed in Appeal NAA 52/2024 seeks orders in these terms:
1. That leave be granted to institute an Application in an Appeal.
2. That all times be abridged and the matters be given urgent consideration.
3.That the orders of the Full Court delivered on 22 March 2024 be stayed pending determination of the Application filed in the High Court on 10 April 2024 in the matter of an Application by [the applicant] for Special Leave to Appeal.
4.That this application be determined concurrently with the Application in an Appeal in NAA 34 of 2024.
(As per the original)
Although the applicant only seeks stays of the orders made by the Full Court, which only had the effect of dismissing her applications for leave to bring appeals from first-instance orders, the stay of those appellate orders in isolation would not prevent the implementation and enforcement of the first-instance orders.
In reality, the applicant wants more than that. She wants the first-instance orders stayed, as their implementation or enforcement by the husband and/or the trustee would enable her eviction from and the sale of the property in which she lives.
The applicant relies upon her affidavit filed on 17 April 2024 in support of her two applications.
Disposition
On 16 April 2024, the High Court dismissed the applicant’s stay application, which broadly extended to the stay of both orders and proceedings, including these:
(a)the stay of orders made by the primary judge on 25 January 2024, 1 March 2024 (as amended on 20 March 2024) and 25 March 2024;
(b)the stay of the first-instance proceedings; and
(c)the stay of appellate proceedings in this Court.
In dismissing her stay application, the High Court said this:
13.… Nevertheless, the prospect of a grant of special leave is neither substantial nor sufficient such that in an assessment of the balance of convenience the interlocutory stay orders sought by [the applicant] should not be made.
14.The application must be refused. It is appropriate that the application be determined under r 13.03.1 of the High Court Rules 2004 (Cth) without an oral hearing and disposed of under r 13.04.
As the High Court has already refused the applicant’s stay application, it is an abuse of process for her to maintain an identical application before an inferior appellate court in relation to the same subject matter.
To the extent the High Court decision might be considered to have only determined the stay application in the context of the application for special leave to appeal from the first Full Court decision on 8 March 2024, exactly the same considerations would require the dismissal of the stay application now made in respect of the Full Court’s second decision on 22 March 2024. In any event, there could be no proper basis upon which to stay the orders made by the Full Court on 22 March 2024 (or the underlying first-instance orders to which they relate) when no application for special leave to appeal has been filed to challenge the orders of 22 March 2024.
Those conclusions inexorably follow without having to determine whether the applicant should even be granted leave under Pt XIB of the Act to bring the stay applications in this Court in the face of the vexatious litigant injunctions which bind her.
The two applications must be dismissed, which order may be made by a single judge exercising appellate jurisdiction (ss 32(2)(d), 32(3)(b), 32(5) and 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 April 2024
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