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…

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: [2023] FedCFamC1F 465
Decision Date

CaseChat Overview and Summary

The matter before the court involves a dispute between the father and the mother concerning the parenting arrangements for their child, X, born in 2013. The current orders provide for the child to primarily live with the mother, with the father having visitation rights. The father has filed an amended application seeking various orders, including permission to use a record of a conversation between the mother and the NSW Education Standards Authority for civil proceedings against the mother and her lawyer. Both the mother and the Independent Children’s Lawyer have filed applications seeking to dismiss the father’s application and impose certain injunctions against the father.

The court was required to determine several key legal issues, including whether the father could use documents produced in these proceedings for his own purposes, whether existing parenting orders should be varied, whether existing costs orders should be stayed, and whether the court could grant leave under the Crimes Act for the father to commence perjury proceedings. Other issues included the admissibility of a single expert’s report, the discharge of the Independent Children’s Lawyer, and the imposition of injunctions against the father.

The court carefully considered the evidence and submissions from all parties. Regarding the use of the record of the conversation, the court found that the father could not use it for civil proceedings against the mother and her lawyer. The court also considered the other applications filed by the father, the mother, and the Independent Children’s Lawyer, and determined that the father’s application should be dismissed. The court imposed certain injunctions against the father to prevent him from filing further interlocutory applications without leave and from sending unfiled applications to the mother and the Independent Children’s Lawyer.

The court made orders dismissing the father’s application and imposing injunctions against him. The court also made orders staying the costs until the final hearing and extending the operation of a previous order. The orders reflect the court’s determination that the father’s application was not in the best interests of the child and that certain restrictions on the father’s actions were necessary to manage the proceedings effectively.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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 COURTThe 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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…