Gambetto & Farrelli (No 4)
[2023] FedCFamC1A 22
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Gambetto & Farrelli (No 4) [2023] FedCFamC1A 22
Appeal from: Gambetto & Farrelli (No 8) [2022] FedCFamC2F 1302 Appeal number(s): NAA 237 of 2022 File number(s): SYC 4559 of 2021 Judgment of: TREE J Date of judgment: 9 March 2023 Catchwords: FAMILY LAW – APPEAL – COSTS – Where the father appeals a costs order made against him following an unsuccessful review application – Where the grounds of appeal lack particularity – Allegations of bias on the part of the primary judge – Whether the primary judge failed to apply the principles in s 117 of the Family Law Act 1975 (Cth) – Where the Full Court has made it clear that there is nothing to prevent any factor in s 117(2A) being the sole foundation for an order for costs – Where none of the grounds of appeal are made out – Appeal dismissed – Application in an Appeal dismissed. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)
Cases cited: Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202
Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Stasiuk & Guild [2021] FamCAFC 62
Number of paragraphs: 38 Date of hearing: 7 March 2023 Place: Cairns (via video link) The Appellant: Self-represented litigant Solicitor for the Respondent: Worland Family Lawyers (did not participate) Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors (did not participate) ORDERS
NAA 237 of 2022
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Appellant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
9 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 21 February 2023 is dismissed.
2.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
Mr Gambetto (“the father”) appeals from a costs order made against him by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 28 September 2022. That order is in the following terms:
1.That in respect to the application for review and/or extension of time to review filed 15 April 2022 and heard on 3 June 2022, the Father, Mr Gambetto, pay the Mother’s costs fixed in the sum of $12,416, on or before 4.00 pm Wednesday 30 November 2022.
In his Notice of Appeal, the father also seeks to appeal an “oral order to dismiss my application for stay of the Orders made at the time of the delivery of judgement”. However a review of the transcript of 28 September 2022, shows that the primary judge made no such oral order dismissing the father’s application for a stay, nor did the father press an oral application for a stay, but rather raised the issue, in response to which the primary judge invited him to file a stay application in the usual course upon filing his appeal.
Ms Farrelli (“the mother”) and the Independent Children’s Lawyer (“ICL”) both filed submitting notices in the appeal, and neither wish to be heard on the question of costs.
For the short reasons that follow (Federal Circuit and Family Court of Australia Act 2021 (Cth), s 36(2)), the appeal will be dismissed.
background
The relevant background to this matter is found in the primary judge’s earlier reasons for judgment in relation to the review determination: Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007, as follows:
1.This is an interim parenting orders dispute between the parents, Mr Gambetto born in 1983 (‘the Father’) and Ms Farrelli born in 1981 (‘the Mother’). There is one child of the relationship, X, born in 2013 (‘the child’), who is home schooled. The Father filed an initiating application for parenting orders on 21 June 2021.
…
6.The Mother works as a part-time professional for two companies. The Father is a co-founder of a small business and a company director. They both reside in [...] Sydney.
7.The parties commenced cohabitation in 2006 and were married in 2010. In December 2015, the parties moved together to Perth. They separated in January 2016, and continued to reside together in a family home in Perth until October 2016, when the Mother moved out. The parties were divorced on 24 December 2017. The Mother moved back to Sydney in April 2018, and the Father flew back and forth regularly until March 2020, when he moved back to Sydney. The parties both lived in [...] Sydney, only a short drive between their respective houses, until early 2022, when the Mother moved to [another part of Sydney]. The Father moved nearby shortly after.
8.After separation, the parties agreed, acquiesced or muddled through an arrangement that the Father would not have overnight time with the child while the child was breastfeeding. It is not disputed that the child was breastfed until he was about 7½ years. In his first affidavit filed 2 September 2022 and his affidavit filed 22 September 2021, the Father complained that the child had only spent one night in his home, ever, and a total of 11 nights overnight during holidays in the previous 5 years. The Father claims that he regularly requested overnight time between separation and weaning.
9.Since separation, there have been multiple disputes about various parenting decisions, including the child's diet, parenting styles, extra-curricular activities, home schooling, medical decisions (including therapy) and living arrangements. There have also been accusations of family violence from both parties.
10.It is clear enough that it is common ground that the child had not spent any regular overnight time with the Father at the time of the 28 September 2021 hearing.
On 28 September 2021, a senior judicial registrar made interim parenting orders providing, inter alia, for the child to live with the mother and spend time with the father.
Thereafter, the father filed an application in December 2021 and a second application in February 2022, both of which sought to vary the September 2021 orders. On 25 March 2022, the senior judicial registrar dismissed the father’s applications.
On 15 April 2022, the father filed an Application for Review of the 25 March 2022 orders and also sought leave to review the September 2021 orders. On 3 June 2022, the primary judge heard the father’s review applications, and on 2 August 2022, dismissed them. The father filed an appeal from that decision, which appeal was unsuccessful before Austin J (Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202).
One of primary judge’s orders of 2 August 2022, provided that the parties should file any applications for costs as a result of the father’s unsuccessful review applications within 14 days.
On 16 August 2022, the mother filed an application for costs against the father, seeking indemnity costs or alternatively party/party costs. On 31 August 2022, the father filed a response to that application opposing an order for costs and seeking for any costs order to be deferred to the final hearing.
Ultimately on 28 September 2022, the primary judge ordered the father to pay the mother’s costs in respect of his unsuccessful review applications fixed in the sum of $12,416. The father appeals this order.
application to adduce further evidence
By his Application in an Appeal filed 21 February 2023, the father seeks leave to adduce further evidence in the appeal as contained in his supporting affidavit.
The further evidence in the father’s affidavit seems to relate to the events surrounding the 28 September 2021 hearing. It is not clear at all how it purports to show error of the primary judge’s costs order made on 28 September 2022, or even how it is relevant to that order. To the extent that the father wants to rely upon events of 25 March 2022 before the senior judicial registrar, they are irrelevant, as the review conducted by the primary judge is a hearing de novo.
The Application in an Appeal is dismissed.
application for leave to appeal
Mistakenly in his Notice of Appeal, the father sought leave to appeal the primary judge’s order. However leave is not required, and I will therefore not determine the otiose application.
the appeal
At the outset, it should be noted that appellate courts have generally been reluctant to interfere with a primary judge’s discretion as to costs (Robinson and Higginbotham (1991) FLC 92-209 (“Robinson”)). However that does not mean that there should never be such interference (Stasiuk & Guild [2021] FamCAFC 62 at [6]), but rather an appellate court must interfere “if the result is plainly unjust or if the discretion was exercised on wrong principles” (Robinson at 78,417).
Grounds 2 and 5
These grounds both allege bias on the part of the primary judge and thus should be considered at the outset.
Ground 2 asserts:
2.At the delivery of judgement and simultaneous [sic] refusal of an oral stay application, primary judge exercised actual bias against the [father], as a self-represented party.
The father did not address, much less particularise, this ground of appeal in his summary of argument, and thus what the primary judge did to constitute actual bias is completely unclear. If the father’s complaint is the primary judge’s refusal to order a stay of the costs order upon delivery of the reasons for judgment, then it is misconceived. As already mentioned, the primary judge made no such order dismissing the father’s oral application for a stay, nor did the father forcefully press for it.
The transcript reveals that after delivery of his Honour’s judgment, the father indicated that there was an appeal on foot against the orders of 2 August 2022 and asked how he would go about making an application that the costs order (made 28 September 2022) be stayed until the hearing of the appeal (Transcript 28 September 2022, p.3 lines 5–8). After discussions between the primary judge and the solicitor for the mother, his Honour said the following:
HIS HONOUR: All right. [the father], I think I will give you the opportunity to simply file your notice of appeal, and then you could file your application for a stay and serve that upon [the mother’s solicitor] and the ICL, and I will list it – I will certainly be able to list it and deal with the matter before the 30 November date. Ordinarily, cost orders, [the father], are just made, bang, which would mean that [the mother’s solicitor] would be able to demand the costs this afternoon and then enforce it later on in the afternoon or tomorrow morning. I’ve built in a stay until 30 November. My purpose was to give you an opportunity to organise the funds, because I don’t know much about your financial circumstances. It might be easy for you, it might be difficult for you, but that position of until 30 November is built in already, and so [the mother’s solicitor] can’t enforce the order.
… So I think we will just let the ordinary procedures follow. That will give you, [the father], the opportunity to carefully contemplate your grounds of appeal as opposed to doing it on a kneejerk reaction, and it will also give [the mother] an opportunity to reflect on what you’ve got to say. So I think we will stick to the ordinary procedures despite my initial intention to see if I could speed things up. So thank you for alerting me to that, [the father]. So you will have to file your application in the usual way. Yes, anything else.
(Transcript 28 September 2022, p.5 lines 8–29)
After the father expressed his dissatisfaction with that course, seemingly because filing an additional Notice of Appeal would cause him to incur extra costs, his Honour said:
HIS HONOUR: All I can say is I understand your point and the practical common sense of it, but I’m not going to coach either party as to tactically how they should deal with these matters. I can assist you with procedure, but those issues, from my perspective this morning, verge on or touch on assisting one or other party with legal advice, and I’m not going to enter into that, if for no other reason that off-the-cuff legal advice, even from a judge, is not worth much. Legal advice is a benefit to a party when it’s careful, considered and fully informed.
So apart from that, the number 1 reason is I’m the judge in the middle, not the legal coach to either [the mother] or to you. I’ve got to stay in the middle. And I think to enter into those what I will call conundrums for you would be provision of legal advice, which I can’t do as a judge. And further, if I were to inappropriately give either of you legal advice, it wouldn’t be informed; it would be off the cuff. And some people say that uninformed legal advice is worse than none at all, so I’m just not going to venture into that.
[THE FATHER]: Your Honour, I wasn’t asking for any legal advice. I was just saying that it would be a waste of resources on both sides and the court’s resources given the timeframes.
(Transcript 28 September 2022, p.6 lines 4–22)
From the above extracts of transcript, it cannot be said that the father seriously pressed for an oral application to stay the costs order. However, even if he did, the primary judge’s refusal to entertain it, especially in light of the procedural unfairness it may cause to the mother, is a very long way removed from demonstrating actual bias. This ground fails.
Ground 5 contends:
5.Did the primary judge exhibit apprehended bias and prejudiced the [father] by forming an opinion in advance that the self-represented [father] could not have the same knowledge of the criminal law as the primary judge, the legal counsel and solicitors?
Again, the father failed to address or particularise this ground in his summary of argument. It is not discernible how this ground relates to the primary judge’s decision made on 28 September 2022.
Ground 5 fails.
Ground 1
Ground 1 is in the following terms:
1.In making the orders primary judge failed to properly apply principles under s 117 Family Law Act 1975.
At [7] of the reasons for judgment, the primary judge set out s 117 of the Family Law Act 1975 (Cth) (“the Act”) in full. Thereafter, his Honour made findings on the evidence as to each of the subsections in s 117(2A) (at [8]–[14]). It is therefore obvious that the primary judge applied the principles under s 117 of the Act in coming to his decision.
It is possible that the father contends that the primary judge either failed to take into account relevant considerations or failed to give adequate weight to them when making findings as to the relevant subsections of s 117(2A). However there is simply no reason to think that there is merit in any such challenges.
Moreover, the Full Court has made it clear that there is nothing to prevent any factor being the sole foundation for an order for costs (Fitzgerald v Fish (2005) 33 Fam LR 123 (“Fitzgerald”) at [41]). Nowhere in subsection (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made, nor of comparative weight of the factors set out in subsection (2A) (Fitzgerald at [41]).
This ground fails.
Ground 3
This ground complains of the following:
3.In making the orders primary judge was more concerned with the legal costs of the [mother] rather than administration of justice.
Again, the father did not expand on this ground of appeal in his summary of argument.
It is scarcely not surprising that there was some focus on the legal costs of the mother in the primary judge’s reasons, given his Honour was determining an application brought for her costs.
This ground also fails.
Ground 4
Lastly, Ground 4 alleges:
4.Primary judge made factual errors as to what happenned to [sic] at the original hearing and relied on those errors to make the cost orders.
The father’s summary of argument did not identify what the factual errors were made by the primary judge, or how those impacted upon his costs order. Absent even the vestige of any such elaboration this ground fails.
To the extent that the father wished to go behind the correctness of the primary judge’s review of the senior judicial registrar’s decision, he has already unsuccessfully appealed that review, and this costs appeal is not an opportunity to again revisit it.
outcome
None of the grounds of appeal are made out, and therefore the appeal must be dismissed. Neither the mother nor the ICL sought to be heard on the question of costs of the appeal, so there will be no order as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 9 March 2023
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