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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gambetto

Details

AGLC: Gambetto [2023] FedCFamC1A 119
Case: [2023] FedCFamC1A 119
Decision Date

CaseChat Overview and Summary

The applicant, Mr Gambetto, appealed against the decision of an appeals judicial registrar who refused to file the Notice of Appeal he had lodged. This appeal arose from a parenting dispute in the Federal Circuit and Family Court of Australia. The primary judge had previously made several orders, including a prohibition on Mr Gambetto from instituting interim proceedings without leave, as well as restraining him from serving any applications for leave to institute further interim parenting proceedings. Mr Gambetto sought to challenge these orders through an appeal, arguing that he did not need to obtain leave to appeal against the prohibition order.

The legal issues before the court were whether Mr Gambetto needed to obtain leave under s 102QE of the Family Law Act 1975 (Cth) to appeal the primary judge's orders and if the proposed appeal constituted an interim application seeking interim parenting orders. The court found that the primary judge's orders were governed by Pt XIB Div 2 of the Act, and not by the Federal Circuit and Family Court of Australia Act 2021 (Cth) or the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth). The court held that Mr Gambetto required leave under s 102QG before filing an appeal, as the proposed appeal was an interim application seeking interim parenting orders. The court dismissed the appeal, finding that the applicant had not established any error in the appeal judicial registrar's decision.

The court further addressed Mr Gambetto's submissions that an appeal against a s 102QB order arises as a right and that denying him the right to appeal was an abuse of jurisdiction and a denial of natural justice. The court found these arguments to be unconvincing, as they were contrary to established authorities. The court also dismissed the applicant's concern that seeking leave under s 102QE would require him to give evidence against himself, stating that the section was mandatory and the court could not relieve the applicant from complying with it.

Finally, the court addressed the correspondence from the primary judge's chambers and the Independent Children's Lawyer, which suggested that Mr Gambetto did not need to seek leave to file an appeal against the primary judge's orders. The court emphasised that it was not the function of a judge's chambers to provide legal advice to litigants, and the opinion given in the correspondence lacked the context of the precise appeal proposed by the applicant. The court concluded that the outcome was 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.

In conclusion, the court dismissed Mr Gambetto's Application in an Appeal, finding no error in the appeal judicial registrar's decision to refuse to file the Notice of Appeal. The court held that Mr Gambetto required leave under s 102QG before filing an appeal, as the proposed appeal constituted an interim application seeking interim parenting orders.

Orders