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:

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…

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.

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Details

Case: [2022] FedCFamC1A 196
Decision Date

CaseChat Overview and Summary

The case of Gambetto & Farrelli involved an appeal against an order made on 7 July 2022. The order was set aside for nullity, but the appeal was dismissed for futility. The underlying matter was a parenting dispute concerning a child, now aged nine, which was initiated by the appellant against the respondent in June 2021. The Family Law Act 1975 (Cth) was invoked, and an Independent Children's Lawyer was appointed to represent the child's interests on 15 September 2021. Several applications were filed by the appellant in May and June 2022, including applications for review and in proceedings, as well as applications for contempt against the respondent, her lawyers, and the Independent Children's Lawyer. Some of these applications were rejected due to incorrect formatting, and the appellant sought to review the decision to reject the applications. The primary judge listed the applications for hearing on 8 July 2022, but later rescheduled the hearing to 7 July 2022 to allow the appellant to make submissions regarding the fourth application. The appeal against the order made on 7 July 2022 was dismissed for futility as the order had no effect on the outcome of the case. The court found that the appeal was an abuse of process and that the appellant had no real prospect of success in the appeal. The court also found that the order made on 7 July 2022 was null and void due to a jurisdictional error, as the primary judge had no jurisdiction to make the order as the fourth and fifth applications had not been filed. The appeal was dismissed, and the order made on 7 July 2022 was set aside for nullity.

Orders

Orders of the court

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Background

Background to the litigation

The order made on 7 July 2022 is set aside for nullity, but the appeal is dismissed for futility. Background 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. On 15 September 2021, an order was made appointing an Independent Children’s Lawyer (“the ICL”) to represent the child’s interests. 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”). It is unnecessary to presently discuss the content and purpose of the first three applications. The fourth and fifth applications were masquerading as something they were not when the appellant tried to file them electronically. They were rejected. The fourth application comprised an Application in a Proceeding “cover sheet” annexing an Application-Contempt, alleging the contempt of the ICL. 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. 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) 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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

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

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