Gambetto
[2023] FedCFamC1A 119
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gambetto [2023] FedCFamC1A 119
Appeal from: Gambetto & Farrelli [2023] FedCFamC1F 465 Appeal number(s): NAA 180 of 2023 File number(s): SYC 4559 of 2021 Judgment of: ALDRIDGE J Date of judgment: 26 July 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks to review the decision of an appeal judicial registrar refusing to file a Notice of Appeal – Where the primary judge ordered that the applicant be prohibited from instituting interim proceedings without first obtaining leave pursuant to s 102QE of the Family Law Act 1975 (Cth) – Where the applicant’s proposed appeal is against that order and other interim parenting orders – Where the applicant required leave under s 102QE before any application seeking interim parenting orders could be filed – Where no such leave had been obtained and thus the appeal could not be filed – No error established – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt XIB Div 2, ss 102Q, 102QE, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Harrell [2021] FamCAFC 119
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
SCVG (2020) FLC 93-967; [2020] FamCAFC 147
Number of paragraphs: 35 Date of hearing: 13 July 2023 Place: Sydney The Applicant: Litigant in person ORDERS
NAA 180 of 2023
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Applicant
order made by:
ALDRIDGE J
DATE OF ORDER:
26 july 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 3 July 2023 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 Gambetto has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in an Appeal filed on 3 July 2023, the applicant seeks to review the decision of an appeals judicial registrar made on 3 July 2023 refusing to file the Notice of Appeal that had been lodged by the applicant.
The parties are engaged in a parenting dispute in this Court. On 8 June 2023, the primary judge made the following orders:
THE COURT ORDERS THAT:
1.The Amended Application in a Proceeding filed by the Applicant father (“the father”) on 22 March 2023 is dismissed.
2.Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the [applicant] is prohibited from instituting interim proceedings in a Court having jurisdiction under this Act for interim parenting orders, or any other orders in relation to the child, including contempt or contravention applications, without first obtaining leave pursuant to s 102QE of the Act.
3.Pursuant to s 114(3) of the Act, the [applicant] is restrained from serving upon the Respondent mother and the Independent Children’s Lawyer any application for leave to institute any further interim parenting proceedings or any other orders relating to the child.
4. The costs of all parties are reserved to the final hearing.
Trial directions
5.By no later than 4pm on 11 August 2023, each party is to file and serve any amended Application or Response on which they seek to rely.
6.By no later than 4pm on 11 August 2023, each party is to file and serve one consolidated affidavit in support of the orders sought by them, together with any other witnesses’ affidavits.
7.By no later than 4pm on 21 August 2023, each party is to serve exhibits to affidavits and tender bundles of all documents that might be tendered or relied upon in cross-examination on each other, and provide an electronic copy of the same to my Associate.
8.In respect to exhibits to affidavits and tender bundles, only documents which are successfully tendered during the hearing shall be in evidence.
9.By no later than 4pm on 28 August 2023 the parties shall have conferred, settled and forwarded to my Associate in electronic form a joint trial plan which allows for the trial to be completed within four days.
10.By no later than 4pm on 28 August 2023, each party is to file and serve a Case Outline document, setting out:
(a) a list of documents to be read in their case;
(b) a precise Minute of Orders Sought; and
(c)a brief summary of argument touching upon the relevant matters set out in the Family Law Act 1975, with reference to the evidence relied upon, and any other considerations relevant to the decision.
11.Leave is granted to the parties to apply to relist the proceedings on short notice to deal with anything that may jeopardise the hearing dates, provided that in the event that such liberty is exercised the person seeking to relist the proceedings shall:
(a)Forthwith notify all other parties of the intention to make the request and the reason for same;
(b)Make the request for relisting in accordance with the Federal Circuit and Family Court of Australia protocol as to communication with chambers; and
(c)Contemporaneous with any notice of relisting serve upon all other parties a minute of orders to be sought together, in the case of the parties, with such evidence as is relied upon by the party in seeking such orders.
12.No further subpoenas be issued by either party without leave of the Court. Subject to any objection being raised by any person to whom a subpoena has been issued, photocopy access be granted to the parties’ legal representatives and the Independent Children’s Lawyer for the purposes of providing exhibits to affidavits and provisional tender bundles. The self-represented [applicant] may inspect the subpoena documents at the registry and is permitted to take notes, but must not photocopy or photograph these documents.
13.By no later than 4pm on 1 September 2023, each party is to file a notification as to costs pursuant to rule 12.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (including complying with rule 12.06(2)).
THE COURT NOTES THAT:
A. Section 102QE of the Act provides:
Application for leave to institute proceedings
(1) This section applies to a person (the applicant) who is:
a)subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
b)acting in concert with another person who is subject to an order mentioned in paragraph (a).
(2)The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3) The applicant must file an affidavit with the application that:
a)lists all the occasions on which the applicant has applied for leave under this section; and
b)lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
c)discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
(4)The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.
In the Amended Application in a Proceeding referred to in the orders, the applicant had sought interim parenting orders as well as procedural orders.
The appeal judicial registrar formed the view that Order 2 required leave under s 102QE of the Family Law Act 1975 (Cth) (“the Act”) before any application seeking interim parenting orders could be filed and that the proposed appeal was an application seeking interim parenting orders and that as such, no leave had been obtained and the appeal could not be filed.
In this application, the applicant challenges the reasoning of the appeal judicial registrar. He also relies on advice given to him by the chambers of the primary judge and by the Independent Children’s Lawyer that leave was not required.
These reasons explain why the appeal judicial registrar was entirely correct. The Application in an Appeal will be dismissed.
It is important to note at the outset that the provisions of s 28(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) do not apply. Regulation 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) prescribes that leave is required to appeal against “an interlocutory decree (other than a decree in relation to a child welfare matter)”.
Some of the orders sought in the Amended Application in a Proceeding filed on 22 March 2023 were parenting orders which fell within the definition of “child welfare matters” set out in reg 4.02(2) of the Regulations.
Rather, the matter is governed by Pt XIB Div 2 of the Act. The regulations relating to leave to appeal do not apply as they are subservient. Further, s 102QB(5) provides that an order under the section is a final order obviating the need for leave under s 28(3) of the FCFCOA Act.
Section 102QB relevantly provides:
Making vexatious proceedings orders
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a)a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b)a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a)an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b)an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c)any other order the court considers appropriate in relation to the person.
The section permits the court to fashion an order under it as the court sees fit. In particular, relevant to the present issue, the court may, in the order itself, exempt any appeal from the order and from the need to seek leave. If not, then the order extends to any appeal from it and before an appeal can be filed, leave under s 102QG(3) must be obtained.
This has been well established by a number of Full Court decisions.
In Pencious & Searle (2017) FLC 93-805, the Court referred to the definition of “institute” in s 102Q of which includes:
81.…
(d)for civil or criminal proceedings or proceedings before a tribunal—the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings.
The Court found that the word “proceeding” in s 102QB “is of itself, apt to include an appeal” (at [81]) and concluded:
84.Section 102QD(1) prohibits an applicant who is subject to a vexatious proceedings order from instituting proceedings, or proceedings of the type described in the order, without leave of the Court under s 102QG. Hence the husband requires leave to “take a step necessary to start an appeal”, which in accordance with the Act is the filing of a Notice of Appeal.
In SCVG (2020) FLC 93-967, the Court followed the same approach saying:
24.The taking of any step or the making of an application to start an appeal is itself defined in s 102Q(1) of the Act as a form of fresh proceedings (par (a) of the definition of “institute”), the institution of which is caught by Part XIB (Pencious & Searle (2017) FLC 93-805 at [77]–[88]) and, since the proposed appeal is from an order which prevents another application being made in relation to the children without leave, it is caught by the terms of the February 2015 injunction.
That case also explains that in some cases, two different sets of leave may be required – one under s 102QG and one under s 28(3) of the FCFCOA Act and reg 4.02(1)(b) (at [6]–[8] and [26]–[29]).
The position was clearly explained in Harrell [2021] FamCAFC 119 as follows:
7.The Act expressly contemplates an application being made for the grant of leave to institute fresh proceedings to circumvent the effect of a vexatious proceedings order (s 102QE(2)).
8.Unless the Pt XIB injunction expressly carves out and exempts appeals from it, the injunction operates to restrain the commencement of any fresh proceedings, including an appeal from the injunction itself (Pencious & Searle (2017) FLC 93-805 at [77]–[88]).
9.An appeal from an injunction made against a litigant under s 102QB(2) of the Act, without any express appeal exemption, may only be brought with leave granted under Pt XIB of the Act (s 102QG), but does not require an additional grant of leave under Pt X of the Act because the order is final (s 102QB(5)) and not a “prescribed decree” (s 94AA; reg 15A(1) of the Family Law Regulations 1984 (Cth)). Conversely, if the injunction expressly preserves the litigant’s right of appeal from it, no leave to appeal is required under either Pt X or Pt XIB of the Act.
10.The situation is different in respect of appeals from orders which either dismiss (s 102QF) or grant (s 102QG) applications for leave to institute proceedings contrary to the terms of an existing Pt XIB injunction, because such orders are prescribed decrees (reg 15A(1)(b)) and therefore require the grant of leave under both Pt X and Pt XIB of the Act.
Order 2 made by the primary judge prohibited the applicant “from instituting interim proceedings in a Court having jurisdiction under this Act for interim parenting orders”.
The substance of the proposed appeal is not only against that order, but also the dismissal of the Amended Application in a Proceeding which sought interim parenting orders. The orders sought in the appeal include:
2.Operation of Order 2 (d) (ii) made 28 September 2021 be extended from 6pm on Sunday to 10am on Thursday, in line with subsequent orders made by SJR [...] on 20 December 2022.
…
5. Parenting Orders 3 and 12 made on 28 September 2021 be set aside.
These are interim parenting orders.
The proposed appeal is therefore an interim application seeking interim parenting orders.
It follows that leave under s 102QG(3) is required before an appeal can be filed.
That may not have been the case had the appeal only been against Orders 2 and 3 which could well be regarded as neither interim nor parenting orders, although it is not necessary to decide that question.
The applicant submitted that such an approach was not warranted because:
·An appeal arises against s 102QB orders as a right, and to limit that right is an abuse of jurisdiction; and
·A denial of natural justice.
Such a submission cannot stand in the light of the above authorities. The purpose of such an order is to prevent vexatious and oppressive proceedings. Appeals of that kind should not be permitted.
The approach of the Courts and the Act does not deny the possibility of an appeal but merely imposes a requirement of leave. Leave is likely to be given readily to prevent an obvious injustice.
The applicant also submitted that seeking leave under s 102QE would be unfair because he would have to comply with s 102QE(3) which would, in effect, require him to give evidence against himself. Whether that be so or not, the section is mandatory and the Court cannot relieve an applicant from the need to comply with it.
The fact that Order 1 was made immediately before Order 2 does not assist the applicant. The latter order operated from the moment it was made to prevent applications that fell within its terms from being implemented without leave.
It is necessary to deal with the correspondence from the primary judge’s chambers and the Independent Children’s Lawyer, upon which the applicant, most understandably, placed great weight.
On 27 June 2023, the applicant wrote to the associate of the primary judge in the following terms:
Dear Associate,
I am seeking clarification from His Honour in respect of the following:
1.Does Order 2 made by [the primary judge] on 8 June 2023 require me to obtain leave to file an appeal against that same order? If no, please state so.
2.If the answer to question 1 is yes, then I seek leave from [the primary judge] to file a Notice of Appeal against Order 2 made by [the primary judge] on 8 June 2023.
(Applicant’s affidavit filed 3 July 2023, Annexure “MG-02”)
On 28 June 2023, the associate to the primary judge replied saying:
Chambers confirms that you do not need to seek leave to file an appeal against Order 2 made on 8 June 2023.
(Applicant’s affidavit filed 3 July 2023, Annexure “MG-02”) (Emphasis in the original)
With great respect to all involved, it is not the function of a judge’s chambers to provide legal advice to litigants, or indeed, at all. Indeed, a judge should not do so by communication with a party. Even in open court such a course is “generally undesirable” (Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [224]).
It is doubly unfortunate in that this correspondence took place only between the applicant and chambers. Neither the other party to the proceedings nor the Independent Children’s Lawyer was involved.
It is also unfortunate that whilst the opinion might turn out to be correct, it lacked the context of the precise appeal that the applicant proposed to file which required leave under s 102QE and that the applicant has relied upon it. This highlights the danger of judges or their chambers providing legal advice.
That however cannot change the outcome which is determined by the operation of the relevant provisions of the Act, the terms of the primary judge’s order and the content of the proposed Notice of Appeal.
The Application in an Appeal will be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 26 July 2023