Gambetto (No 2)
[2023] FedCFamC1A 199
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gambetto (No 2) [2023] FedCFamC1A 199
Appeal from: Gambetto & Farrelli (No 2) [2023] FedCFamC1F 863 Appeal number: NAA 308 of 2023 File number: SYC 4559 of 2021 Judgment of: ALDRIDGE, AUSTIN & HARPER JJ Date of judgment: 22 November 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – Vexatious litigant – Where the applicant requires leave to appeal under s 102QE of the Family Law Act 1975 (Cth) – Where the proposed appeal lacks reasonable ground and is vexatious – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII and Pt XIB, ss 69ZR, 102Q, 102QB, 102QE, 102QF, 102QG
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32 and s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, r 13.38
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gambetto [2023] FedCFamC1A 119
Harrell [2021] FamCAFC 119
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Spencer (No 2) [2023] FedCFamC1A 92
Spencer [2022] FedCFamC1A 131
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 28 Date of hearing: Determined in chambers on the papers The Applicant: Litigant in person ORDERS
NAA 308 of 2023
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Applicant
ORDER MADE BY:
ALDRIDGE, AUSTIN & HARPER JJ
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gambetto has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & HARPER JJ:
These reasons explain the dismissal of an application for leave to appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1).
Background
The applicant formerly contested parenting proceedings in respect of his child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), finalised by orders made on 13 October 2023.
Relevantly, the orders gave the child’s mother sole parental responsibility for decisions about the child’s education and health (Orders 1 and 2), gave the parties equal shared parental responsibility for all other decisions about the child’s long-term care, welfare and development (Orders 3 and 4), directed that the child live with the mother (Order 5), and directed that the child spend substantial time with the father (Orders 6, 7, 8 and 9).
The applicant wishes to appeal from those orders but cannot do so without leave being granted to do so in two respects.
First, he is bound by a vexatious litigant injunction made by the primary judge on 13 October 2023 (Order 25) and so, to circumvent the operation of that injunction, needs leave to appeal under Pt XIB of the Act. The injunction supersedes an earlier injunction made on 8 June 2023 (Order 2) which, though similar, was of more confined effect.
Secondly, supposing leave is granted under Pt XIB of the Act, the applicant now also needs leave to bring the appeal out of time. Any appeal ought to have been filed by 10 November 2023.
The first application should preferably be determined by the Full Court (Harrell [2021] FamCAFC 119 at [14]; Spencer [2022] FedCFamC1A 131 at [9]–[10]; Spencer (No 2) [2023] FedCFamC1A 92 at [8]), though it may be done so without an oral hearing (s 102QF(3) and s 102QF(4) of the Act).
The second application can be determined by a single judge exercising appellate jurisdiction but, since the first application is referred to the Full Court, so is the second if it need be determined (s 32(2)(a) and s 32(2)(g) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).
The application and evidence
The applicant’s Application in an Appeal filed on 8 November 2023 seeks relief in the following form:
1.On the basis that the National Appeals Registry first decides to reject the applicant's notice of appeal dated 7 November 2023 as of right, then by this order the applicant is granted leave under s 102QE Family Law Act to file a notice of appeal against Orders made by [the primary judge] on 13 October 2023 and to serve that notice of appeal and any other relevant documents on the respondents.
2.That this application and the applicant's affidavit dated 7 November 2023 be included in the evidence for the appeal.
3.That all evidence pursuant to hearing on 5 May 2023 and referenced in the judgement made on 8 June 2023 be included in the evidence for the appeal.
In support of the application, the applicant relies upon his affidavit filed on 10 November 2023 (which supersedes an almost identical affidavit filed on 8 November 2023) and the draft Notice of Appeal he furnished to the appeal registrar on 7 November 2023 in the hope of it being filed.
The applicant confirmed within the application form that he desires it be determined on the papers in chambers in the parties’ absence pursuant to r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which course is adopted.
At the outset, it is necessary to clarify what form of relief can potentially be granted.
The third order sought by the applicant is incompetent. He earlier tried to appeal from the orders made by the primary judge on 8 June 2023, but was precluded from doing so as a result of Aldridge J dismissing his review application concerning his right to institute an appeal without anterior leave granted under Pt XIB of the Act (Gambetto [2023] FedCFamC1A 119). The applicant did not then subsequently seek such leave. The applicant’s current draft Notice of Appeal relates only to the orders made on 13 October 2023, so any residual grievance he harbours about the orders made on 8 June 2023 is now irrelevant.
The second order sought by the applicant is also incompetent. If he is granted leave to appeal from the orders made on 13 October 2023, the evidence in the appeal heard by the Full Court will be the same as was placed before the primary judge, together with any further evidence admitted by the Full Court in the appeal pursuant to s 35(b) of the FCFCA Act.
Consequently, it is only the first order sought by the applicant which requires attention.
Leave under Pt XIB of the Act
The grant or refusal of leave is governed by the provisions of ss 102QE, 102QF, and 102QG of the Act.
The application for leave to institute the appellate proceedings, thereby overriding the effect of the vexatious litigant injunction (made pursuant to s 102QB), must be supported by an affidavit containing certain information (s 102QE(3)). If the affidavit does not substantially comply with the statutory requirements, the application may be dismissed on that basis alone (s 102QF(1)). The applicant’s affidavit is accepted as an earnest attempt to comply with that requirement.
However, leave to appeal should not be granted if the proposed appellate proceedings are vexatious (s 102QF(2)).
The term “vexatious proceedings” is defined as follows (s 102Q(1)):
“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.
As can been seen from subparagraph (c) of the definition, it is enough for the intended appeal to be characterised as vexatious if it lacks “reasonable ground”. The appeal which the applicant seeks leave to bring does lack reasonable ground and is therefore vexatious, meaning the application for leave to appeal must be dismissed.
The lack of “reasonable ground” to bring the appeal is evident from the proposed grounds of appeal pleaded within the draft Notice of Appeal. The proposed grounds cover:
(a)actual bias (Ground 1);
(b)apprehended bias (Ground 2);
(c)what is contended to be “gross miscarriage of justice” and “collateral abuse of process” (Ground 3);
(d)inconsistent orders (Ground 4);
(e)error in interpreting evidence about conversation between the child and the single expert (Ground 5); and
(f)miscellaneous arguments about too much weight being attributed to certain pieces of evidence and submissions made by others (Grounds 6 and 7).
The complaint of actual bias is based exclusively upon a complaint that the primary judge, when pronouncing judgment on 13 October 2023, relied upon findings made and expressed within the reasons for judgment delivered on 8 June 2023. The reasons delivered in June 2023 explained the order which dismissed the applicant’s application to vary interim parenting orders, an injunction restraining the applicant from bringing any further applications for either interim or enforcement relief without leave to do so, and a suite of procedural orders to ensure the readiness of the upcoming trial. Of course, when the primary judge later made orders on 13 October 2023, his Honour was entitled to rely upon past findings which remained efficacious (s 69ZR(1)(a) of the Act), in which case the assertion of bias is misguided. The primary judge could not have been biased merely because his Honour did what was permissible and orthodox.
The complaint of apprehended bias arises exclusively out of the applicant’s dissatisfaction with the orders made on 13 October 2023 and the reasons given for them, but no complaint of bias is made good simply by identifying the decision was adverse to the applicant’s interests (Newett & Newett (No 2) (2021) FLC 94-051 at [54]–[80]). Nor can simple error by the primary judge manifest an apprehension of bias (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [116]). In any event, no disqualification application was made by the applicant to the primary judge and so any perceived grounds for such an application must have been waived (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). That is particularly so when the primary judge observed the applicant was represented at trial by an “experienced solicitor” (at [7]).
The dual complaints of “gross miscarriage of justice” and “collateral abuse of process” are particularised to be complaints about the decision reached by the primary judge on 8 June 2023 which, as already stated, is not the subject of this proposed appeal. The decision made on 8 June 2023, which could have been but was not appealed with the grant of leave, cannot be impeached collaterally in an appeal from orders made on 13 October 2023.
The complaint of the primary judge making “inconsistent orders” is demonstrably incorrect upon their inspection. No orders made on 13 October 2023 conflict. The time the child is to spend with the applicant depends upon whether or not the mother decides to continue his home schooling or enrol him at school, but there is no internal inconsistency within the orders.
The complaint of the primary judge falling into error by “interpreting the child’s words” as were expressed by him to the single expert is untenable. The particulars to the ground of appeal reveal how the applicant’s contention of the primary judge’s “unreasonable” interpretation of the child’s representations depends upon the applicant’s own different interpretation of the child’s representations being accepted as correct. The ground is therefore founded on a misconceived premise as there is no obligation to accept the applicant’s interpretation. The primary judge accepted the single expert’s evidence (at [52] and [81]), including as to the child’s demeanour, his reticence to tell the parties about his experiences with the other, and his view about the perpetuation of the current arrangements. Some of the child’s representations were direct quotes (at [38]–[39], [43] and [102]–[104]), meaning interpretative error is most unlikely.
The final complaints about the primary judge giving too much weight to the single expert’s evidence and too much weight to the submissions made by the Independent Children’s Lawyer are not competent grounds of appeal – at least in circumstances where the applicant does not assert the orders are manifestly unreasonable or unjust (Hedlund & Hedlund (2021) FLC 94-065 at [36]–[37]). Here, no such complaint could be made because the result is congruent with the available evidence and falls easily within the parameters of the dispute constructed by the parties. The primary judge decided the applicant should share some, but not all, parental responsibility for the child and that the child should spend substantial time with the applicant, whereas he had applied for equal shared parental responsibility and for the child to live with the parties for equal time. The dispute was quite narrow and the result unsurprising, given it aligned with the single expert’s recommendations and the Independent Children’s Lawyer’s proposals.
Leave to appeal out of time
The applicant did not actually apply for leave to bring the appeal out of time but, given the refusal of leave under Pt XIB of the Act to bring the appeal, it is unnecessary to consider whether an extension of time should be granted.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Harper. Associate:
Dated: 22 November 2023
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