Gambetto & Farrelli
[2023] FedCFamC1F 465
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gambetto & Farrelli [2023] FedCFamC1F 465
File number(s): SYC 4559 of 2021 Judgment of: ALTOBELLI J Date of judgment: 8 June 2023 Catchwords: FAMILY LAW – PARENTING – Where the father sought to vary interim parenting orders – Where no substantive change in circumstances was established – Where it is not in the best interests of the child to vary current parenting orders – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the father sought leave to use material before this Court for the purposes of civil proceedings against the mother and her solicitor – Where none of the exceptions under r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) applies – Where the burden to the mother of granting leave outweighs the benefit to the father – Application dismissed.
FAMILY LAW – COSTS – Where the father sought for all costs orders to be stayed until determination at final hearing – Where there is no basis to grant the stay – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the father sought leave under s 338(1)(c) of the Crimes Act 1900 (NSW) (“the Crimes Act”) to be able to prosecute the mother for perjury – Where the father sought for the Court to find that the mother committed perjury under s 327 of the Crimes Act – Where the Court’s jurisdiction to make such a finding is questionable – Where the mother’s evidence has not been tested and the Court makes no such finding – Application dismissed.
FAMILY LAW – EVIDENCE – Expert evidence – Where the father sought for there to be a preliminary hearing in relation to the admissibility of the single joint expert report – Where the father’s evidence does not demonstrate why the single joint expert report should be inadmissible – Where the father has not availed himself of the procedures under Division 7.1.6 of the Rules – Where the issue can be dealt with at the commencement of the final hearing – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the father sought for the Independent Children’s Lawyer to be dismissed and referred to the Law Society of NSW for disciplinary action – Where this is the third Independent Children’s Lawyer – Where the father’s complaints are unsubstantiated and subjective – Where the Independent Children’s Lawyer has discharged their duties professionally and appropriately – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Injunctions – Where the Independent Children’s Lawyer sought for the father to be restrained from instituting any further interim proceedings without leave from the Court – Where there have been numerous unsuccessful applications filed by the father – Where the Court, of its own volition, exercises the power that it has to make an order under Part XIB of the Family Law Act 1975 (Cth) (“the Act”) – Where the father is declared a vexatious litigant and prohibited from instituting further interim proceedings pursuant to s 102QB(2) of the Act – Where the father is restrained from serving upon the mother and the Independent Children’s Lawyer any application for leave to institute any further interim proceedings pursuant to s 114(3) of the Act – Independent Children’s Lawyer’s application allowed.
Legislation: Crimes Act 1914 (Cth)
Family Law Act 1975 (Cth) ss 4AB, 102Q, 102QB, 102QE, 121
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 6.04, 7.26, 7.27
Crimes Act1900 (NSW) ss 327, 338
Cases cited: Canavan & Dowd [2023] FedCFamC1F 207
Carlson & Fulvium [2012] FamCA 32
Chakora & Bhander [2023] FedCFamC1F 127
Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020
Fisher & Fisher [2021] FamCA 236
Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202
Gambetto & Farrelli(No 3) [2022] FedCFamC1A 224
Gambetto & Farrelli (No 4) [2023] FedCFamC1A 22
Gambetto & Farrelli (No 5) [2023] FedCFamC1A 43
Gambetto & Farrelli (No 9) [2023] FedCFamC2F 281
Gambetto & Farrelli [2022] FedCFamC1A 196
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Kipling & Netis [2020] FamCAFC 79
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
Mohareb v Palmer (2016) 264 A Crim R 148; [2016] NSWCA 378
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210
Potier v Attorney-General (2015) 89 NSWLR 284; [2015] NSWCA 129
Soulos & Sorbo [2019] FamCAFC 231
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720
State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423
Division: Division 1 First Instance Number of paragraphs: 101 Date of hearing: 5 May 2023 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Worland Family Lawyers Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors
Table of Corrections 15 June 2023 At [9] “Outline of Case Document filed 1 May 2023” has been added. 15 June 2023 At [10] “Outline of Case Document filed 4 May 2023” and “Her affidavit filed 12 April 2023” have been added and “Her affidavit filed 1 May 2023” has been deleted. 15 June 2023 At [12] “Outline of Case Document filed 4 May 2023” has been added. 15 June 2023 At [13] “Outline of Case Document filed 1 May 2023” has been added”. 15 June 2023 At [14] “Outline of Case Document filed 4 May 2023” has been added. ORDERS
SYC 4559 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GAMBETTO
Applicant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
8 june 2023
Amended pursuant to r 10.13(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 19 June 2023
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 father 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 father 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 father 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.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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).
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 15 June 2023
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in relation to competing Applications in a Proceeding involving the father (“the father”), mother (“the mother”) and Independent Children’s Lawyer in this case. In the substantive proceedings the father is the applicant and the mother is the respondent.
BACKGROUND
The substantive proceedings relate to the child, X, born in 2013 and who is now nine years old (“the child”). The current orders in place relating to the child dated 28 September 2021, read in conjunction with orders dated 20 December 2022, provide for the child to live with the mother and spend time with the father each Thursday from 10.00 am until 6.00 pm, each alternate weekend, on special occasions, and from 3.00 pm on Fridays to 10.00am on Thursdays each alternate week during the school holidays. The orders also include provisions for the child to communicate with either parent at the child’s request, for the parents to notify each other in the case of serious illness or injury of the child, for the mother to provide the father with copies of documents such as school and medical reports, and for a restraint on the father changing the child’s name. There are competing proceedings between the parents about where the child shall live and how much time he will spend with the other parent. The matter is listed before me for final hearing for four days commencing 4 September 2023. Apart from the substantive parenting proceedings, there was a Contravention Application that had been filed by the mother on 11 October 2022, but this was withdrawn and dismissed by consent when the matter came before me on 5 May 2023. There will be trial directions as part of the orders that the Court will make.
The competing applications before the Court are as follows.
The father’s Amended Application in a Proceeding filed 22 March 2023 seeks the following orders:
1.Applicant have leave to use record of the interview on 12 April 2022 between NSW Education Standards Authority and respondent, [Ms Farrelli], in defamation, criminal and tortious actions against [Ms Farrelli] and Ms Worland.
2.All costs orders be stayed until determination at the final hearing.
3.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 [the] SJR […] on 20 December 2022.
4.Applicant have leave from FCFCOA under section 338 (1)(c) of the Crimes Act 1900 (NSW).
5.Hearing be set in respect of admissibility of single expert’s report prepared by [Ms Y].
6.Parenting orders 3 and 12 made on 28 September 2021 be set aside.
7.Mr Holmes be removed from this matter as ICL and be referred to the Law Society of NSW for disciplinary action.
Both the mother and the Independent Children’s Lawyer seek orders dismissing the father’s Application in a Proceeding.
1.By way of an Application in a Proceeding filed 17 March 2023 the Independent Children’s Lawyer seeks a number of injunctions in the following terms: That pending further, the father be and is hereby restrained by injunction from filing any further Interlocutory or interim Applications (defined, in this instance, to include Contempt Applications and Contravention Applications) without first obtaining the leave of a Judge of Division 1 of this Court.
2.That, pending further order, the Father be and is hereby restrained by injunction from sending, serving or in any way conveying to the Mother and/or the Independent Children’s Lawyer any unfiled Application as referred to in Order 2 above, without leave of a Judge of Division 1 of this Court.
3.That the costs of this Application be reserved to Trial.
The father opposes these orders in his Response to an Application in a Proceeding filed 29 March 2023 and in effect reiterates that the Independent Children’s Lawyer should be removed and referred to the Law Society of New South Wales for disciplinary proceedings.
The mother supports the orders sought by the Independent Children’s Lawyer.
ISSUES FOR DETERMINATION
The issues for determination thus include: whether documents produced to the Court for these proceedings should be used by the father for his own purposes; whether existing parenting orders should be varied; whether existing costs orders should be stayed; whether the Court is able to grant leave under s 338(1)(c) of the Crimes Act1900 (NSW) (“the Crimes Act”) for the father to commence perjury proceedings; an issue about the single joint expert evidence; whether the Independent Children’s Lawyer should be discharged; and whether various injunctions should be made against the father.
EVIDENCE BEFORE THE COURT
The father’s Amended Application in a Proceeding filed 22 March 2023
In support of his case, the father relied upon:
(1)Outline of Case Document filed 1 May 2023;
(2)Amended Application in a Proceeding filed 22 March 2023;
(3)His affidavit filed 14 March 2023;
(4)His affidavit filed 22 March 2023;
(5)His affidavit filed 29 March 2023; and
(6)Various exhibits received via email on 4 May 2023.
In support of her case, the mother relied upon:
(1)Outline of Case Document filed 4 May 2023;
(2)Response to an Application in a Proceeding filed 12 April 2023; and
(3)Her affidavit filed 12 April 2023.
In support of his case, the Independent Children’s Lawyer relied upon:
(1)Outline of Case Document filed 4 May 2023.
The Independent Children’s Lawyer’s Application in a Proceeding filed 17 March 2023
In support of his case, the Independent Children’s Lawyer relied upon:
(1)Outline of Case document filed 4 May 2023;
(2)Application in a Proceeding filed 17 March 2023; and
(3)His affidavit filed 17 March 2023.
In support of his case, the father relied upon:
(1)Outline of Case Document filed 1 May 2023;
(2)Response to an Application in a Proceeding filed 29 March 2023; and
(3)His affidavit filed 29 March 2023.
In support of her case, the mother relied upon:
(1)Outline of Case Document filed 4 May 2023;
(2)Response to an Application in a Proceeding filed 12 April 2023; and
(3)Her affidavit filed 12 April 2023.
ISSUE ONE: LEAVE TO USE MATERIAL BEFORE THIS COURT FOR THE PURPOSES OF CIVIL PROCEEDINGS AGAINST THE MOTHER AND HER LAWYER
The evidence of the father in this regard is found in his affidavit filed 14 March 2023. Annexed to his affidavit is a file note dated 12 April 2022 recording a telephone conversation between an officer of the NSW Education Standards Authority (“NESA”) and the mother, relating to the child’s home schooling. The father contends that the document contains defamatory statements and, presumably, he wishes to use the document in defamation proceedings against the mother as well as, apparently, in defamation, criminal and tortious actions against the mother’s lawyer. The alleged defamatory statement is as follows: “She stated that there is a history of family violence and she has been advised by her lawyer to have no contact with [the child’s] father and therefore not in communication with him at all”.
In an email dated 21 December 2022, also annexed to the said affidavit, the father writes to the mother explaining that as a result of inspecting documents produced on subpoena by NESA, he had discovered the record of the telephone conversation containing the alleged defamatory statement.
Notwithstanding this assertion, at paragraph 3 of his affidavit the father states that he came into possession of documents containing defamatory statements made by the mother separately to the subpoenaed material.
The Court infers, however, that the father would not have made the present application for leave to use the material if the foregoing statement were correct.
The father explains in his affidavit that he has filed previous defamation proceedings against the mother and her lawyer in the District Court of New South Wales and his application was dismissed, with costs.
Without the leave of the Court, the use by the father of the document in question could possibly constitute a breach of s 121 of the Family Law Act 1975 (Cth) (“the Act”), but is almost certainly a breach of r 6.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). This rule states:
6.04 Use of documents
(1) A person who inspects or copies a document, in relation to a proceeding, under these Rules or an order:
(a) must use the document for the purpose of the proceeding only; and
(b) must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court's permission.
(2) However:
(a) a solicitor may disclose the contents of the document or give a copy of the document to the solicitor's client or counsel; and
(b) a client may disclose the contents of the document or give a copy of the document to the client's solicitor or counsel; and
(c) this rule does not affect the right of a party to use a document or to disclose its contents if that party has a common interest in the document with the party who has possession or control of the document.
None of the exceptions apply on the facts of this case.
The father was aware of the principal enunciated in Harman v Secretary of State for Home Department [1983] 1 AC 280 (“Harman”), namely the implied undertaking not to disclose. The scope of the implied undertaking was described by the High Court of Australia in Hearne v Street (2008) 235 CLR 125 (“Hearne”) at [96] as follows:
96. Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits…
(Footnotes omitted)
In Kipling & Netis [2020] FamCAFC 79 at [9] the Full Court observed the purpose of the Hearne obligation (and the corresponding rule) was to prevent the use of documents for “an ulterior motive” (confirmed by Carew J in Earnshaw & Farella (No 2) [2022] FedCFamC1F 1020 at [30]). In this case the father’s motives are anything but ulterior. However, the motive has very little to do with the current proceedings.
The permission to which r 6.04(1)(b) of the Rules is directed has been described as requiring the establishment of special circumstances (Schonell J in Chakora & Bhander [2023] FedCFamC1F 127 at [12]).
In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225 the Federal Court identified the following considerations relevant to the exercise of the discretion:
225.… For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
In Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 the Full Court of the Federal Court of Australia said at [31]:
[31]…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes…
Justice Johns in Canavan & Dowd [2023] FedCFamC1F 207 at [8] identified the factors relevant to the question of whether the Court ought to exercise its discretion to release parties from the Harman obligation, including:
·the nature of the document;
·the circumstances under which the document was created;
·the prejudice to the writer of the document;
·the commonality of the subject matter between the two sets of proceedings, and whether the document sought to be released could assist in determining an issue in dispute in the second proceedings;
·the interrelationship between the parties involved in the two proceedings;
·whether the party seeking to be released from the undertaking would be at a disadvantage if they were unable to use the documents in the second proceedings;
·whether there is an inconsistency between the documents to which the implied undertaking applies and pleadings or documents provided in the second proceedings;
·whether the matters set out in the documents to which the implied undertaking applies are personal matters, and if so whether they are not already in the public domain;
·whether the documents sought to be released could assist the second court in determining issues of credit; and
·the likely contribution of the document to achieving justice in the second proceedings.
The Court declines to grant the leave sought by the father. When the benefit to him of granting leave is weighed against the burden to the mother of granting leave, the disparity becomes apparent. The mother would need to meet yet another round of litigation about defamation even though the first round was unsuccessful. The stressful and time consuming nature of this additional litigation is likely to have an impact on her parenting capacity, and thus indirectly adversely impact on the child. In any event, the forensic weight that would be given to this document is questionable given that it is not the mother’s document but a record made by a third person about what the mother allegedly said. The attitude of the author of the document is not known. No evidence is led by the father about why any litigation about an allegedly defamatory comment that he perpetrated family violence cannot wait until the conclusion of the present parenting proceedings when findings can actually be made.
The issue of family violence is obviously a very important one to the father. Amongst other issues, he is concerned that he has suffered reputational damage. It might be useful to the father for the Court to set out the definition of family violence that is set out in section 4AB of the Act:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
Without in any way anticipating arguments that may be made at the final hearing, and purely to potentially assist the father as a self-represented litigant in his consideration and understanding of how others might view his behaviour, the Court makes the following observations. The definition of family violence includes threatening behaviour that coerces or controls a family member. Adopting a purposive interpretation of the section, it is possible that threats which are intended to, or attempt to control or coerce, constitute family violence even if they do not have that actual effect. The father is encouraged to review the material that he himself has filed in support of the present application and to consider whether such material potentially contains examples of such threatening behaviour.
ISSUE TWO: STAY OF COSTS ORDERS UNTIL DETERMINATION AT FINAL HEARING
The father gives evidence about this aspect of his application in his affidavit filed 14 March 2023. Doing the best the Court can to understand the husband’s evidence, the stay application is related to the alleged defamation which, according to the father, breaches “the overarching purpose enshrined in the Family Law” (father’s affidavit filed 14 March 2023, paragraph 26). At paragraph 28 of his affidavit the father explains that he infers that any costs orders that have been made against him are the result of conduct that (presumably) relates to the defamation proceedings, and that this has been misinterpreted by the Court as the father filing too many unnecessary applications.
The father’s case outline document filed 1 May 2023 explains that the costs orders in question were made on 13 September 2022 and 28 September 2022. On 13 September 2022 Judge Murdoch ordered the father to pay costs in the sum of $4,320 in respect of hearings on 7 and 8 July 2022. On 28 September 2022 Judge O’Shannessy ordered the father to pay costs of $12,416 in respect of the hearing on 3 June 2023.
Again, doing the best the Court can to understand the father’s submissions, it seems that he is unhappy with the costs orders, believes they should not have been made, and will seek to set them aside as being unfair and unjust at the final hearing.
There is no discernible basis for granting the stay that the father seeks. In any event, the balance of convenience does not favour him. Why should the beneficiaries of those costs orders be disadvantaged? If he was unhappy with the costs decisions he had avenues available to him, including appeal, a process with which the father is quite familiar: see Gambetto & Farrelli [2022] FedCFamC1A 196; Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202; Gambetto & Farrelli(No 3) [2022] FedCFamC1A 224; Gambetto & Farrelli (No 4) [2023] FedCFamC1A 22; and Gambetto & Farrelli (No 5) [2023] FedCFamC1A 43.
The father’s application in this regard is dismissed.
ISSUE THREE: VARIATION OF PARENTING ORDERS
The practical effect of the order proposed by the father is that he would spend the same time with his son during the school term as he does during school holidays. The current school holiday order made on 20 December 2022 provides for the child to spend time with the father each alternate week from 3.00 pm on Friday until 10.00 am on Thursday. The effect of the father’s proposed order would be to extend the child’s time with him by four nights.
The father also seeks to set aside parenting Orders 3 and 12 made on 28 September 2021. These orders provide:
3.The Father ensure that during all periods of time that [X] spends with him he continue to attend his activities as per the schedule attached to the Mother’s Affidavit filed 24 September 2021.
12.That without admitting the necessity for this order [X] shall be known as [X] and the father is restrained by injunction from taking any steps to formally change his name or any part of with the NSW Registrar of Births, Deaths and Marriages or otherwise engaging in the use of a different name or any part of it, pending a determination of the Court on a final basis of the father’s application to change his name.
The final hearing of this matter is listed on 4 September 2023 subject, of course, to the potential implications arising from the father’s application about the Single Joint Expert Report of Ms Y.
The father’s evidence in support of this application is found in his affidavit filed 22 March 2023. He deposes to the extensive range of educational and other activities that the child is able to enjoy with the father when spending time with him. It is a rich and varied program. The father describes the child as living in limbo, awaiting the finalisation of these proceedings, and likewise that he himself requires certainty in his life. The Court observes that most children and parents are likely to feel the same way. A further interim hearing which may, or may not, lead to a variation of the parenting orders for the limited period until the final hearings is determined by judgment and orders, will not necessarily remove limbo or provide certainty.
The application is strongly opposed by both the mother and the Independent Children’s Lawyer, principally on the basis that the father has not established any changed circumstances, or that it is otherwise not in the best interests of the child to reconsider, once again, the parenting orders that are in his best interests.
The Court agrees. No substantive change in circumstances has been established on the evidence led by the father that would warrant reconsideration of the existing orders. Other than the father’s assertions, there is nothing to objectively suggest that it is otherwise in the child’s best interests to vary the existing order.
Indeed, the Court’s concern is that the father’s present application is, in fact, an abuse of process given the litigation history of this matter. The orders made on 28 September 2021 were made after a contested interim hearing. The father again attempted to vary the orders by filing an Application in a Proceeding on 22 December 2021, which was heard on 9 March 2022 and dismissed on 25 March 2022. The father filed an application to review that decision on 15 April 2022, which went before Judge O’Shannessy and who dismissed the same on 2 August 2022. On 30 August 2022 the father filed an appeal against that dismissal which was heard by the Full Court on 1 December 2022. On 9 December the appeal was dismissed. On 23 August 2022 the father filed an Application in a Proceeding once again seeking to vary the orders, this time with success in relation to time over the school holiday period. The above history, which is only a small portion of the litigation that has occurred throughout these proceedings, confirms the Court’s concern that the present application is an abuse of process. This will be further discussed later in these reasons for judgment.
There is no discernible basis to vary the other parenting orders sought by the father. All orders sought by the father in relation to parenting are dismissed.
ISSUE FOUR: LEAVE UNDER SECTION 338(1)(C) OF THE CRIMES ACT 1900 (NSW)
Section 338 of the Crimes Act states:
338 Restrictions on prosecutions for perjury
(1) A person is not to be prosecuted for perjury except—
(a) by the Director of Public Prosecutions, or
(b) at the direction of the Attorney General, or
(c)by any other person with leave of the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed.
(2)If it is impossible or impracticable to apply for leave to prosecute in accordance with subsection (1) (c), the prosecution may be instituted with leave of the Supreme Court.
(3)A person is not to be prosecuted for perjury (except by the Director of Public Prosecutions or at the direction of the Attorney General) unless notice of the proposed prosecution has been given to the Director of Public Prosecutions.
The offence of perjury is created by s 327 of the same Act:
327 Offence of perjury
(1)Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years.
(2)A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.
(3)The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement.
(4)The question of whether any matter is material to a proceeding is a question of law.
The father’s evidence in this regard is found in his affidavits filed 14 and 22 March 2023. At paragraph 27 of his affidavit filed 22 March 2023, the father lists a number of offences under both the Crimes Act 1914 (Cth) and the Crimes Act1900 (NSW) for which he seeks to prosecute the mother, her solicitors, counsel and the Independent Children’s Lawyer. He does not include perjury under s 327 of the Crimes Act to which s 338 of the same Act applies.
Although not an order sought in the application, the father stated in his affidavit that he is asking that the Court make a finding that the mother committed perjury and then that leave be granted for him to pursue an application pursuant to s 338 of the Crimes Act.
The applicant asserts that the Court has the power to make such a finding under its original jurisdiction. This is a questionable proposition. For present purposes, however, the Court assumes it has jurisdiction.
The evidence of the mother which seems to cause the father concern is discussed from paragraphs 24 to 35 of his affidavit filed 22 March 2023 and from paragraphs 51 to 67 of his affidavit filed 14 March 2023. The evidence relates to alleged examples of perjury by the mother, including in relation to expert fees, breaches of orders, the amount of time the father spent with the child, payment for extra-curricular activities, and the father’s alleged violence towards the Country Z school principal and teachers. The mother’s lawyer is apparently complicit in this. In essence the father’s case is that the mother has perjured herself by making allegations, presumably on oath, in the course of these proceedings. He asks the Court to make a finding that the mother has committed perjury.
The Full Court in Soulos & Sorbo [2019] FamCAFC 231 at [82] affirmed the proposition in Carlson & Fulvium [2012] FamCA 32 at [165] that:
165. … civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
In Mohareb v Palmer (2016) 264 A Crim R 148 the Court of Appeal said:
[31] The elements of the offence of perjury in s 327, each of which must be proved beyond reasonable doubt are as follows: there must be a statement made on oath; the statement must have been made in or in connection with judicial proceeding; the statement must concern a matter which is material to that proceeding; the statement must be false; and the person who made the statement must know the statement to be false or not believe it to be true…
The offence of perjury requires proof of deliberate falsehood. Thus in Mackenzie v R (1996) 190 CLR 348 Gaudron, Gummow and Kirby JJ stated, at 373–374, that:
... honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved.
No finding has been made. The mother’s evidence has not been tested. No perjury is established. The father’s application is premature and misconceived.
The order sought under s 338 of the Crimes Act is dismissed, and the Court makes no finding that the mother has committed perjury.
ISSUE FIVE: THE ADMISSIBILITY OF THE SINGLE JOINT EXPERT REPORT OF MS Y
The father seeks an order that there be, in effect, a preliminary hearing in relation to the admissibility of the Single Joint Expert Report prepared by Ms Y and dated 4 December 2022 (“the Report”).
The Court notes that Ms Y’s main concern for the child is the parental conflict and his exposure to that conflict. Indeed, she was concerned that if this continued, then at some time in the future the child will likely vote with his feet and decide for himself where he lives and when he spends time with the other parent. In short, however, the Report suggests that an order for the child to live with the mother and spend substantial and significant time with the father may be in his best interests. This could be implemented by way of the child spending time with the father from Friday morning to the following Monday morning each alternative weekend, as well as one full day in the other week, together with block time in the school holidays. Given the high level of conflict, however, a parallel parenting approach is likely to be necessary. This would mean that the parents would interact as little as possible with each other, whilst maintaining their relationships with the child.
Presently, however, the final proposals of the parents seem polarised. The father proposes equal time. The mother proposes no time, except “at times, and in such circumstances, that have been initiated by the Mother first contacting the Father concerning these occasions” (mother’s Amended Response to Initiating Application filed 18 May 2022).
The father’s concerns with the manner in which the Report was prepared are set out in his affidavit filed 14 March 2023 and in his case outline document. The main concern is that Ms Y declined to read what the father describes as the “majority” of the documents referred to in the relevant order. The father does not identify the documents in question.
In the Report under the heading “Sources of Information” Ms Y writes:
Limitations to this report relate to the veracity of the information provided during interview and in affidavit material. The parties had wanted the writer to read more of the material on file, however [Mr Gambetto] was responsible for payment of that invoice and has not paid. The writer does not think that material was necessary to read to complete the report and does not see that as a limitation.
Despite this statement, the father makes no reference to this in his material.
The father contends that the orders relating to the preparation of the Report are dated 27 September 2022 and 31 October 2022.
The father contends that Ms Y ignored all communications in respect of clarifying her Report, but provides no evidence of such communications.
His concern is that it is impossible to find out the basis of her Report. His preference is that the Report be deemed inadmissible save for those parts where Ms Y makes direct physical observations or refers to her own conversations with the parties.
Both the mother and the Independent Children’s Lawyer oppose the order.
The father does not mention in his material that he is seeking to have Ms Y dealt with for contempt. The Independent Children’s Lawyer drew this to the Court’s attention. This matter is before another judge of this Court but will not be heard until 4 August 2023.
Division 7.1.6 of the Rules deals with clarification of single expert witness reports. Rule 7.26 of the Rules sets out a regime for a party who seeks to clarify a report to ask questions of the single expert. Rule 7.27 of the Rules requires the single expert to answer questions. There is no evidence before the Court that the father has availed himself of the procedures provided by the Rules. There is still time for him to do so.
The issue can otherwise be dealt with at the commencement of the hearing. For the time being, it is by no means clear how exclusion of the Report is warranted on the material put before the Court by the father.
ISSUE SIX: THE REMOVAL OF THE INDEPENDENT CHILDREN’S LAWYER AND REFERRAL TO THE LAW SOCIETY OF NEW SOUTH WALES
The evidence of the father in support of this order is found in his affidavit filed 29 March 2023. His Outline of Case Document filed 1 May 2023 contains submissions in support.
The application is opposed by the mother. The Independent Children’s Lawyer appropriately adopts a neutral position.
The father outlines a litany of complaints including, in general terms: incompetence; disinterest in the child’s welfare; bias towards the mother; inadequate preparation; improper delegation of duties to a junior lawyer; misrepresentation of the father’s position; ignoring the child’s evidence; lack of objectivity and generally not enjoying the confidence of the father.
The current Independent Children’s Lawyer, Mr Holmes, is now the third Independent Children’s Lawyer in this case. On 23 May 2022 the father filed a contempt application against the second Independent Children’s Lawyer, but this was rejected by the Court. The father has previously sought to discharge that Independent Children’s Lawyer without success. The father has also approached the Legal Aid Commission of New South Wales to discharge the current Independent Children’s Lawyer, again without success.
Other than many assertions, there is little evidence to support the father’s contentions. There is no doubt that he perceives his allegations to be based on fact but, more objectively, it reflects his subjective experience. Many of the father’s concerns appear long standing, and yet they are raised over 10 months since the appointment of the current Independent Children’s Lawyer.
The relevant law was very helpfully and comprehensively set out by Williams J in Fisher & Fisher [2021] FamCA 236 at [15]–[20]:
15 An Independent Children's Lawyer is appointed pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”).
16Section 68LA of the Act prescribes the general nature of the role of the Independent Children's Lawyer as follows:…
17The specific duties of the Independent Children’s Lawyer are prescribed by s. 68LA(5) in the following terms:…
18In Dickens & Dickens [2016] FamCA 115, Justice Watts referred to the relevant legal principles applicable to applications for removal of an Independent Children's Lawyer.
19 At paragraphs [46]–[53] His Honour said as follows:
Legal principles in respect of the removal of an Independent Children's Lawyer
[46] In Lloyd & Lloyd and Child Representative (2000) FLC 93-045, Holden CJ discussed the court's power to discharge an order for separate representation and the role of the separate representative. His Honour said at [11]:
11.Without attempting to be exhaustive, there are certain circumstances, which, in my view, would lead the Court to consider discharging a separate representative. Some of those circumstances are:
(i)if there is evidence that the separate representative had, in any way, acted contrary to the children's interests;
(ii)if there is evidence before the Court that the separate representative had acted incompetently in a professional sense;
(iii)if it is apparent that the separate representative has demonstrated a lack of professional objectivity; or
(iv) if to continue to act would involve a breach of a fiduciary duty or a conflict of interest.
[47] At [30] of his Reasons, Holden CJ sets out what he describes as "a number of very good reasons" why the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. In that discussion, His Honour says:
30(ii) The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step. It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not "on side" or that the tide was not running in his or her favour. In my opinion, it is only in cases where actual, rather than perceived or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.
[48] In Knibbs & Knibbs [2009] FamCA 840, Murphy J referred to the last sentence and said:
[40] With the greatest respect to His Honour I do not myself necessarily agree with the last of the statements there made that it is only in cases of actual, as opposed to perceived, impartiality that "consideration" ought be given to removing a child representative. However, the matters otherwise referred to by His Honour are in my view, with great respect, all extremely important and are applicable to the facts of this case.
[49] Consequently, there is disagreement between Holden CJ and Murphy J as to whether or not the test to discharge an order for the appointment of an Independent Children's Lawyer is similar to the test for the disqualification of a judge as earlier set out in these reasons. That is, whether or not the test is not only actual bias but also perceived bias.
[50] If it is perceived bias, is it the reasonable apprehension of a fair-minded lay observer that is the test or is it the perception of the father?
[51] In T & L (2000) FLC 93-056, Chisholm J, in the unusual facts of that case, made an order restraining the child's representative from further representing the children in the proceedings. His Honour said:
The critical question … is whether a person in the father's position might reasonably believe that the child's representative would not be impartial, but would be prejudiced against the father …
[52] The test that I shall apply is that the father needs to establish that the Independent Children's Lawyer actually lacks impartiality or alternatively, a fair-minded lay observer might reasonably apprehend that the Independent Children's Lawyer lacks impartiality. That test of perceived lack of impartiality however, is to be judged having regard to the role and duties imposed upon the Independent Children's Lawyer by s 68LA of the Act. That "rubric" is discussed by Murphy J at [41]-[61] of Knibbs where His Honour sets out, amongst other things, the duty of the Independent Children's Lawyer to argue firmly and fearlessly for what the Independent Children's Lawyer contends are findings or results consistent with the best interests of particular children and describes the precarious position an Independent Children's Lawyer is in when fulfilling that role because it may be that the Independent Children's Lawyer is required to challenge the position of one or other of the parents.
[53] It is usually the case that the Independent Children's Lawyer will not announce their position in relation to competing parenting orders until they have heard all the evidence, but that is not necessarily the case, and in certain cases the Independent Children's Lawyer will form a preliminary view at the commencement of the final stage of the hearing. It should be observed that Independent Children's Lawyers on occasions reach a concluded view about what orders should be made based on the evidence that they have available at the time. In respect of interlocutory matters however, there is a duty on the Independent Children's Lawyer to form a view in relation to particular interlocutory matters. That does not mean that the Independent Children's Lawyer's independence to continue to act in the best interests of the children as their advocate in the final proceedings is fatally compromised in a way that means that the parent who did not like the position they took on a particular interlocutory matter can have them removed.
20Paragraph 10 of Horner & Horner [2018] FamCA 487, His Honour Justice Tree, distilled the principles from the relevant authorities as follows:
[10] A number of authorities have considered the removal of an Independent Children's Lawyer, and specifically, the circumstances which may justify such a course. From those, the following points may be discerned:
•It is not inconsistent with the independent and professional discharge of an Independent Children's Lawyer's obligations for her or him to advocate that a particular course of action adverse to, or inconsistent with, the position of a party, ought be taken by the court;
•Whilst in a unique position, the Independent Children's Lawyer owes the same professional obligations to the court as does any licenced legal practitioner; all
•On occasion, the Independent Children's Lawyer will be in an invidious position, but nonetheless they should be no less courageous, no less firm and no less cogent, in advocating for results or findings;
•Inevitably the role of the Independent Children's Lawyer involves an exercise of professional judgment which may, on occasion, be precarious and difficult;
•It is not appropriate for a litigant to endeavour to micro-manage the Independent Children's Lawyer, or critique every step that they take;
•It is certainly not the case that, even if an Independent Children's Lawyer does make a mistake, the court will necessarily accede to an application to have them discharged. Significantly more than that is required;
•It is inevitable that the high standards of competence which the court expects of Independent Children's Lawyers are not always met. Independent Children's Lawyers are, like anybody, liable to human frailty;
•A court should be slow to discharge an Independent Children's Lawyer on the basis of largely unsubstantiated complaints of one of the parties.
It is the view of this Court that the present application is based on unsubstantiated and entirely subjective complaints of the father. This is complex litigation rendered more so by the father’s behaviour both towards the mother and the Independent Children’s Lawyer which seems to be experienced by them as belligerent. This is evident from the matters discussed in these reasons so far. Viewed objectively, the Independent Children’s Lawyer has discharged his duties both towards the child, and to the Court, appropriately and professionally. The Court notes, however, that the Private Lawyer Quality Standards Unit at Legal Aid NSW advised the father that “…breaches of the Legal Aid Quality Standards and Service Agreement [by the Independent Children’s Lawyer] have been substantiated, and we are taking appropriate steps to address those breaches”. However, they also stated that they “will not remove the ICL from this matter” and that the father would need to make an application to the Court to have the Independent Children’s Lawyer removed.
The orders sought by the father in this regard is dismissed.
ISSUE SEVEN: INJUNCTIONS AGAINST THE FATHER
In the Independent Children’s Lawyer’s application filed 17 March 2023 he seeks the following orders:
2. That pending further, the father be and is hereby restrained by injunction from filing any further Interlocutory or interim Applications (defined, in this instance, to include Contempt Applications and Contravention Applications) without first obtaining the leave of a Judge of Division 1 of this Court.
3. That, pending further order, the Father be and is hereby restrained by injunction from sending, serving or in any way conveying to the Mother and/or the Independent Children’s Lawyer any unfiled Application as referred to in Order 2 above, without leave of a Judge of Division 1 of this Court.
The submissions filed in support state that the power relied on is s 118(1) of the Act and Part 10.5 of the Rules. However s 118 was repealed effective 1 September 2018, and Part 10.5 of the Rules does not provide an obvious relevant head of power. Part XIB of the Act, which came into effect on 11 June 2013, establishes a regime for managing vexatious proceedings and does provide the requisite power.
The Court is satisfied that there is no disadvantage or prejudice to the father that is caused by some confusion about the relevant head of power. None of his material specifically addresses the law. Indeed, the father demonstrates his awareness about the provisions of Part XIB in his case outline document because he describes it as an application that he be declared vexatious, a clear reference to the said Part. Indeed, his response to the Independent Children’s Lawyer’s application is that the application be declared vexatious and dismissed.
The Court accepts that the powers under Part XIB of the Act are potentially wider than the orders sought by the Independent Children’s Lawyer whose application is limited to any further interlocutory or interim applications (including contempt and contravention applications). Any disadvantage to the father in this regard can be dealt with by limiting any exercise of power to further interlocutory or interim applications, a matter which is clearly contemplated by s 102QB(2) of the Act.
In any event, the Court wishes to make it clear that, of its own volition, it exercises the power that it has to make an order under Part XIB of the Act in its own right.
The evidence relied on by the father in his opposition to the application is found in his affidavit filed 29 March 2023. It is largely unhelpful but the thrust of his argument is that he was merely asserting his statutory rights and/or was responding to the mother’s applications.
In support of the application, the Independent Children’s Lawyer refers to a number of observations made in published reasons for judgment by other judicial officers. For example, page 5 of the Independent Children’s Lawyer’s case outline filed 5 May 2023 refers to the reasons of Aldridge J in Gambetto & Farrelli(No 5) [2023] FedCFamC1A 43 at [1]:
“[Mr Gambetto] (the appellant) and [Ms Farrelli] (the respondent) have been engaged in various proceedings in the Federal Circuit and Family Court of Australia (Division 2) for some time. The proceedings are marked by the many Applications in a Proceeding which have been filed by both parties but by the appellant in particular”.
Indeed, as previously referred to in these reasons for judgment the father has filed five appeals in respect of interim decisions of the Court, four of which were dismissed in their entirety. One appeal was partially successful in that the sum of a costs order was reduced because the primary judge considered an application that did not in fact exist and should not have been the subject of proceedings (Gambetto & Farrelli (No 5) [2023] FedCFamC1A 43).
The matter has only recently been transferred from Division 2. On 30 January 2023 Judge Kemp transferred the matter to Division 1, noting in his reasons for judgment (Gambetto & Farrelli (No 9) [2023] FedCFamC2F 281) at [3]:
3My Associate has printed up a list of applications, which, I think, Mr Gardiner or Mr Holmes made reference to last week, but the Court did not have before it, at the time. The Applicant seems to have filed 12 applications. There was an application for review on 10 May 2022, one (1) on 15 April, one (1) on 14 June, one (1) on 23 May. Then there was one (1) filed by the mother on 3 May; a contempt application by the Applicant on 1 February; then back to the Applicant, one (1) on 23 August, one (1) on 12 May 2022, one (1) on 23 May 2022, one (1) on 18 March 2022, one (1) on 4 March 2022, one (1) on 4 February 2022 and one (1) on 27 December 2021; and then the mother filed one (1) on 11 October 2022, being a contravention application. Now, apart from the contravention application and, obviously, the initiating application, all of the other matters have been finalised, but, the filing of a large number of applications impacts on the timing for the conclusion of a matter.
A search of the Court file indicates published reasons in Division 2 of the Court by Judges Kemp, O'Shannessy, Murdoch, Young and Campbell. There is one published set of reasons for judgment by a Senior Judicial Registrar. In each of these judgments the father was substantially unsuccessful. However, the Court notes that in Gambetto & Farrelli (No 5) [2022] FedCFamC2F 918 before Judge Murdoch, the father was successful in two out of four review applications (with the remaining two review applications and one Application in a Proceedings being dismissed). Further, in Gambetto & Farrelli (No 9) [2023] FedCFamC2F 281 before Judge Kemp, the matter was transferred to Division 1 without the applications being dealt with, so this cannot necessarily be said to be unsuccessful.
This is the first decision by a Division 1 judge, and all the orders sought by the father have been dismissed. The Court will now consider whether it should make a vexatious proceedings order against the father.
The definition of “vexatious proceedings” is found in s 102Q of the Act as follows:
vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b)proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d)proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
The word “proceedings” is defined in s 4 of the Act as follows:
Proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
Section 102QB of the Act states:
102QB 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.
Note:Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3)The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney‑General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c)a person against whom another person has instituted or conducted vexatious proceedings;
(d)a person who has a sufficient interest in the matter.
(4)The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a)proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b)orders made by any Australian court or tribunal; and
(c)the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The consequences on a person who is declared to be a vexatious litigant is set out in s 102QE of the Act:
102QE 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 often cited authority of State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81–423, Giles CJ (Supreme Court of NSW Commercial Division) provides a helpful review of the authorities relating to abuse of process. In summary, a proceeding may be an abuse of process where:
(1)The proceedings are unreasonably oppressive and unfair to the other party;
(2)The proceedings will bring the administration of justice into disrepute; and/or
(3)The party seeks to re-litigate an issue that has already been determined in previous proceedings.
The assessment of whether vexatious proceedings have been frequently instituted or conducted is not determined solely, or even necessarily, by the number of proceedings. As the Court of Appeal, Supreme Court of NSW in Potier v Attorney-General (2015) 89 NSWLR 284 concluded at [114] and [116]: “…“frequently” is a relatively low threshold” and “…both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency”.
The Full Court of the Family Court in Pencious & Searle (2017) FLC 93-805 cited with approval the decision of Perram J in the Federal Court of Australia in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at 77,694–77,695 (“Gargan”), in which his Honour identified some well-established principles and indicia relevant to the determination of whether or not to make a “vexatious proceeding order”. They are:
First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.
Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
Fourthly, the qualities of vexation…in the commencement by the litigant of proceedings which lack reasonable grounds...
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
Seventhly, ['frequently' institutes or conducts vexatious proceedings].
Eighthly, each of these notions — the want of reasonable grounds…[and the frequent] institution — are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court's power to make the order, once enlivened, should be exercised.
Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise.
When these principles are applied to the facts of the present case the following becomes apparent. It is not an extreme remedy to merely require the father to seek leave from a judge of this Court before he commences further proceedings. The purpose of making a vexatious proceedings order is to protect the mother directly, the child indirectly, the Independent Children’s Lawyer and the Court from unnecessary proceedings which consume substantial public and private cost, and in the context of a Court which has limited resources available to meet the needs of the litigating public. The quality of being vexatious is that the litigation lacks reasonable grounds. The present application is an example of that – the husband succeeded in none of the orders that he sought. Indeed, on one view some of the orders he sought were manifestly devoid of any merit.
A vexatious litigant order will be made, the effect of which is to prevent the father from instituting any further interim proceedings under the Act for interim parenting orders or any other orders relating to the child without the leave of the Court.
The Independent Children’s Lawyer also sought an injunction under s 114(3) of the Act restraining the father from serving on the mother and Independent Children’s Lawyer any application for leave to institute any further interim proceedings or any other orders in relation to the child. In many ways this is ancillary to the order that is made above. Both the Independent Children’s Lawyer and mother’s case is, in substance, that they are metaphorically swamped with material from the father. If the Court determines that any application for leave cannot be determined without hearing from the other parties to the litigation, then the Court will make a direction that the father’s documents be served on the mother and Independent Children’s Lawyer. Apart from that, an order will be made in terms of that proposed by the Independent Children’s Lawyer. It is just and convenient to do so.
ORDERS
The father’s Amended Application in a Proceeding filed 22 March 2023 is dismissed in its entirety.
An order will be made pursuant to s 102QB(2) of the Act prohibiting the father from instituting any interim proceedings in a Court having jurisdiction under the Act for interim parenting orders or any other orders in relation to the child, including any contempt or contravention applications, without first obtaining leave pursuant to s 102QE of the Act.
Pursuant to s 114(3) of the Act, the father is restrained from serving upon the 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.
The costs of all parties will be reserved to the final hearing.
Filing directions for the final hearing will be made in the orders above in these reasons for judgment.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 8 June 2023
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