Gambetto & Farrelli

[2022] FedCFamC1A 196

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Gambetto & Farrelli [2022] FedCFamC1A 196

Appeal from:

Gambetto & Farrelli (No 4) [2022] FedCFamC2F 942

Appeal number:

NAA 168 of 2022

File number:

SYC 4559 of 2021

Judgment of:

AUSTIN J

Date of judgment:

24 November 2022

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Where the primary judge made an order purporting to dismiss an Application in a Proceeding – Where the Application in a Proceeding had been rejected for filing by the registrar and was the subject of an Application for Review – Where the application was never filed and so did not exist to list before the primary judge – Where the dismissal order was an inadvertent error – Error identified – Order set aside – Where the appeal is futile because the appealed order was overtaken by a later order dismissing the Application for Review – Where there is no appeal from those later orders – Appeal dismissed – Costs – Where the appellant’s application for a costs certificate is refused.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 138

Federal Proceedings (Costs) Act 1981 (Cth)

Number of paragraphs:

21

Date of hearing:

24 November 2022

Place:

Sydney

The Appellant:

Litigant in person

The First Respondent:

Filed Submitting Notice 15 September 2022

The Second Respondent:

Filed Submitting Notice 15 September 2022

The Independent Children's Lawyer:

Filed Submitting Notice on 16 September 2022

ORDERS

NAA 168 of 2022
SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR GAMBETTO

Appellant

AND:

MS FARRELLI

First Respondent

MR L

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:	AUSTIN J
DATE OF ORDER:	24 November 2022

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The order made on 7 July 2022 is set aside.

3.The appellant’s application for a costs certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) 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 & Farrelli has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 7 July 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made an order purporting to dismiss an Application in a Proceeding, supposedly but not actually filed on 23 May 2022, from which judgment the appellant now appeals by an Amended Notice of Appeal filed on 5 October 2022.

2. The order made on 7 July 2022 is set aside for nullity, but the appeal is dismissed for futility.

   Background

3. The underlying parenting proceedings, invoking jurisdiction under Pt VII of the Family Law Act 1975 (Cth), concern a child, now nine years of age, and were commenced by the appellant against the respondent in June 2021.

4. On 15 September 2021, an order was made appointing an Independent Children’s Lawyer (“the ICL”) to represent the child’s interests.

5. Several events in the litigation spawned a multitude of applications by the appellant in May and June 2022, including these:

   (a)an Application for Review, filed on 10 May 2022 (the “first application”);

   (b)an Application in a Proceeding, filed on 12 May 2022 (the “second application”);

   (c)an Application for Review, filed on 23 May 2022 (the “third application”);

   (d)two Applications in a Proceeding, which the appellant unsuccessfully attempted to file on or about 23 May 2022 (the “fourth application” and “fifth application”); and

   (e)an Application for Review, filed on 14 June 2022 (“the sixth application”).

6. It is unnecessary to presently discuss the content and purpose of the first three applications.

7. The fourth and fifth applications were masquerading as something they were not when the appellant tried to file them electronically. They were rejected.

8. The fourth application comprised an Application in a Proceeding “cover sheet” annexing an Application-Contempt, alleging the contempt of the ICL.

9. The fifth application similarly comprised an Application in a Proceeding “cover sheet” annexing an Application-Contempt, alleging the contempt of both the respondent and her lawyers.

10. The registrar refused to file the fourth and fifth applications, which decision was communicated to the appellant in an email on 26 May 2022 saying, in part:

    [The registrar] has rejected the attached applications…on its face, the applications appear to be an abuse of process. They are not in the correct format (sic)

11. Accordingly, by the sixth application, the appellant sought to review that decision, seeking remedial relief by way of permission to file the fourth and fifth applications, in these terms:

    1.Applications by the applicant father alleging contempt by the respondent, respondent’s legal representatives and [the ICL] be allocated a substantive hearing.

12. By procedural orders made on 25 May 2022, the first, second and third applications were listed for hearing before the primary judge on 8 July 2022. It seems from the face of the orders that it was presumed the fourth, but perhaps also the fifth, application had already been filed and it (or they) too were listed for hearing on 8 July 2022, but to that extent the orders were in error. As unfiled applications, they had no status and could not be listed.

13. On 6 July 2022, the primary judge noted the first, second, third, fourth and sixth applications were listed for hearing before her Honour on 8 July 2022, but ordered the proceeding be listed the next day (7 July 2022) to afford the appellant the chance to make submissions about why the fourth application should not be dismissed as an abuse of process. It seems apparent from the face of the orders that the primary judge mistakenly believed the fourth application had already been filed and, in addition, her Honour was unaware of the separate fifth application.

14. The unfiled fourth application could not have been listed before the Court for any purpose as it was null. Its fate had to await the outcome of the sixth application, due to be heard on 8 July 2022. As it transpired, on 7 July 2022, the primary judge ordered the dismissal of the fourth application. The accompanying reasons for judgment reveal the application was dismissed as an abuse of process but, since the fourth application did not validly exist, there was nothing to dismiss and so the dismissal order is also null.

15. At the subsequent hearing on 8 July 2022, the appellant withdrew the second application, but judgment was reserved by the primary judge in respect of the remaining filed applications. Judgment was delivered a week later on 15 July 2022. The first application was dismissed (Order 5), the third application was dismissed in part (Orders 6 and 7), and the sixth application was dismissed (Order 8). No appeal was filed from those orders.

16. The dismissal of the sixth application on 15 July 2022 vindicated the registrar’s earlier refusal to accept and file both the fourth and fifth applications.

    Disposition

17. Returning to the dismissal order made on 7 July 2022 and the present appeal from it, there is no point served by traversing the appellant’s contentions of error, not least because they are premised upon a factual narrative unproven by any evidence.

18. Since the fourth application was never filed, it did not exist to list before the primary judge and there was nothing for her Honour to dismiss on 7 July 2022. The dismissal order was an inadvertent error and may be set aside pursuant to s 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), otherwise it would remain ostensibly valid on the Court record (s 138).

19. However, the appeal is dismissed for futility because the appealed order was overtaken by the order later made by her Honour on 15 July 2022, dismissing the sixth application, by which application the appellant had sought to have the fourth and fifth applications accepted for filing and then listed for hearing. There was no appeal from the orders made on 15 July 2022 and the limitation period has expired.

20. The two respondents to the appeal filed Submitting Notices, so no question of costs against them arises.

21. The appellant sought a costs certificate for the appeal pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) on the basis that he had demonstrated an error of law. In the exercise of discretion, the application is refused due to the futility of the appeal and the only relevant disbursement was the appeal filing fee.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 November 2022