Gambetto (No 2)

Case [2023] FedCFamC1A 199

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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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:

  1. 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

  2. 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.

  3. 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…

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Details
AGLC
Gambetto (No 2) [2023] FedCFamC1A 199
Case
[2023] FedCFamC1A 199
Decision Date

CaseChat Overview and Summary

The case of Gambetto (No 2) involved an application by the applicant for leave to appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1). The applicant sought leave to appeal out of time and to circumvent a vexatious litigant injunction that was imposed on him. The court had to determine whether the applicant's proposed appeal had reasonable grounds and whether it was vexatious.

The court noted that the applicant's affidavit was accepted as an earnest attempt to comply with the statutory requirements. However, the court found that the applicant's proposed appeal lacked reasonable grounds and was vexatious. The court dismissed the application for leave to appeal, and the applicant's appeal was dismissed.

The court's reasoning was based on the fact that the applicant had previously 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 subsequently seek such leave. Additionally, the court found that the applicant's current draft Notice of Appeal related only to the orders made on 13 October 2023, so any residual grievance he harboured about the orders made on 8 June 2023 was now irrelevant.

The court also noted that the grant or refusal of leave was governed by the provisions of ss 102QE, 102QF, and 102QG of the Act, and that the applicant's affidavit was accepted as an earnest attempt to comply with the statutory requirements. However, the court found that the applicant's proposed appeal lacked reasonable grounds and was vexatious.

In conclusion, the court dismissed the application for leave to appeal, and the applicant's appeal was dismissed. The court found that the applicant's proposed appeal lacked reasonable grounds and was vexatious, and that the applicant had previously 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.

Orders

Orders of the court

NAA 308 of 2023

SYC 4559 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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