Gambetto & Farrelli (No 2)

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Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202

Appeal from: Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007
Appeal number: NAA 187 of 2022
File number: SYC 4559 of 2021
Judgment of: AUSTIN J
Date of judgment: 9 December 2022
Catchwords:

FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from orders dismissing his Application for Review of a registrar’s decision and an application to set aside interim parenting orders and seeks leave to appeal from an order dismissing his application to review another decision out of time – Procedural fairness – Where there can be no prejudice when there appellant was not entitled to reply to an affidavit filed by the respondent – Allegations of bias – Where the appellant did not make any application for the primary judge’s disqualification – Assertions of errors of fact – Where even if the primary judge misconstrued the appellant’s evidence the error is inconsequential – Leave to appeal from Order 2 refused – Appeal from Orders 1 and 3 dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the additional material upon is voluminous – Where the abstention from use of material available at the time of the hearing before the primary judge is grounds to refuse its admission – Where a decision made by the primary judge not the subject of the appeal could not realistically bear upon the appeal – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.06, 5.07, 10.13

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02

Crimes Act 1900 (NSW) s 338
Cases cited:

CDJ v VAJ (1998) 197 CLR 172

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

De Winter and De Winter (1979) FLC 90-605

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Newett & Newett (No.2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Wentworth v Rogers (No.5) (1986) 6 NSWLR 534
Number of paragraphs: 70
Date of hearing: 1 December 2022
Place: Heard in Sydney, delivered in Melbourne
The Appellant: Litigant in person
Solicitor for the Respondent: Worland Family Lawyers (Submitting Notice filed on 10 November 2022)
Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors (Submitting Notice filed on 11 October 2022)

ORDERS

NAA 187 of 2022
SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

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Details
Case
[2022] FedCFamC1A 202
Decision Date

CaseChat Overview and Summary

The matter of Gambetto & Farrelli (No 2) involves an appeal against interim parenting orders made in September 2021. The appellant sought to set aside these orders due to the respondent's alleged fraud. The court was required to determine whether the appellant could introduce additional evidence to support their claim of fraud and if the appeal registrar's decision to limit the contents of the Appeal Book was appropriate. The appellant filed an application to include numerous documents in the Appeal Book, which were not previously tendered in evidence during the proceedings below. The appeal registrar had restricted the contents of the Appeal Book, leading to a dispute over the inclusion of certain documents. The appeal court had to consider whether the exclusion of these documents was justified and if the appellant could rely on them in their appeal.

The court held that the appellant's application to include additional evidence was not permissible as it sought to introduce documents that were not used during the original proceedings. The court emphasised the importance of maintaining the distinction between the original jurisdiction and appellate jurisdiction. The appellant's attempt to introduce new evidence related to the respondent's alleged deceptive and fraudulent conduct was rejected as it did not pertain to the question of whether the primary judge made an appealable error. The court found that the appeal registrar's decision to limit the contents of the Appeal Book was reasonable, and no error was demonstrated in the primary judge's evidentiary ruling. The appeal court concluded that the appellant's attempt to introduce new evidence was an abuse of process and did not warrant an extension of the appeal process.

The court's decision reinforces the principle that appellate courts should not be used as a platform to introduce new evidence or arguments that were not considered in the original proceedings. The court also highlighted the importance of preserving the distinction between original and appellate jurisdiction. The appeal was dismissed, and the orders made by the primary judge remained in place. The court's decision underscores the importance of adhering to the rules and procedures governing appeals to ensure that the appellate process remains efficient and effective.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Leave is not required to appeal from Order 3, as it is an interlocutory order made “in relation to a child welfare matter”. The appellant applied to set aside the interim parenting orders made in September 2021 by reason of the respondent’s alleged fraud, relying upon r 10.13(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The order dismissing that application was therefore related to a “child welfare matter”.Application to adduce further evidence The appellant wanted to include many more documents within the Appeal Book than the appeal registrar was willing to reasonably allow. The appellant filed an Application in an Appeal on 2 November 2022 to review the procedural order made by the appeal registrar on 12 October 2022 about the restricted contents of the Appeal Book. On 3 November 2022, orders were made requiring the appeal registrar to compile a Contested Appeal Book containing the documents wanted by the appellant and adjourning his separate application to adduce those documents as further evidence in the appeal to be heard in conjunction with the substantive appeal. The additional material upon which the appellant wishes to rely is voluminous, but may be categorised as follows:(a)documents produced to the Court in answer to subpoenas issued in the proceedings below (items 12–20), all of which were apparently produced to the Court in advance of the hearing before the primary judge in June 2022, but none of which was tendered in evidence;(b)a collection of Applications, Responses, an affidavit, Case Outline documents, and written submissions (items 3–11), all filed in the period between September 2021 and May 2022, but none of which was relied upon in the review hearing before the primary judge in June 2022; and(c)transcript of a hearing conducted on 28 September 2022 by the primary judge, together with orders made and reasons for judgment published on that date by his Honour in relation to a costs dispute (items 1, 2 and 21), none of which have anything to do with the review hearing in June 2022 and the consequent orders made in August 2022. In the affidavit filed in support of the application, the appellant deposed this in respect of the documents in the first two categories:5.In my view the documents that were excluded by [the appeal registrar] contain important evidence of deceptive and fraudulent conduct by the respondent, which was subject of the hearing on 3 June 2022.(Appellant’s affidavit filed 2 November 2022) The appellant then deposed this in respect of the third category of documents:7.Both documents provide an insight into the mind of the primary judge at the original hearing on 3 June 2022 and when making Orders on 2 August 2022 which are subject to this appeal. Both documents were refused for inclusion into the appeal book by [the appeal registrar] for reasons unexplained.(Appellant’s affidavit filed 2 November 2022) The allegedly “deceptive and fraudulent conduct” of the respondent has nothing at all to do with the question of whether the primary judge fell into appealable error by making the orders on 2 August 2022. The availability, but deliberate abstention from use, of the material within the first two categories in the hearing before the primary judge in June 2022 is good enough reason to refuse its admission as further evidence in the appeal, as the distinction between original and appellate jurisdiction should be preserved (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116] and [186.9]). To the extent that the primary judge can be understood to refuse the appellant’s application to rely upon more documents than the multiple affidavits identified in the reasons for judgment (at [11]), no error in that evidentiary ruling is demonstrated.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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