Marino & Bello & Anor (No.2)
[2020] FamCAFC 317
•11 December 2020
FAMILY COURT OF AUSTRALIA
| MARINO & BELLO AND ANOR (NO.2) | [2020] FamCAFC 317 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Stay of earlier Full Court orders – Application allowed – Order made to stay earlier orders. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Review of Appeal Registrar’s decision to reject filing of documents – One application vexatious, doomed to fail and an abuse of process – Applications dismissed – Applicant to pay the costs of the first and second respondent’s in a fixed sum. |
| Marino & Bello and Anor [2020] FamCAFC 314 |
| APPLICANT: | Mr Marino |
| FIRST RESPONDENT: | Mr Bello |
| SECOND RESPONDENT: | Ms Bello |
| FILE NUMBER: | PAC | 437 | of | 2020 |
| FIRST APPEAL NUMBER: | EAA | 106 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 136 | of | 2020 |
| DATE DELIVERED: | 11 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 11 December 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 26 June 2020; and 15 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 1727; [2020] FCCA 2203 |
REPRESENTATION
| APPLICANT: | Litigant in person |
| COUNSEL FOR THE FIRST AND SECOND RESPONDENTS: | Ms Dart |
| SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS: | Rowlandson & Co Solicitors |
Orders made on 11 December 2020
The Application in an Appeal filed on 23 November 2020 is allowed.
Orders 5 and 6 made on 6 November 2020 are stayed.
The Applications in an Appeal filed on 20 November 2020 and 1 December 2020 are dismissed.
The applicant pay the first and second respondents’ costs of and incidental to his application filed on 1 December 2020 in the sum of $2,500 which costs are to be paid within one (1) month.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Marino & Bello and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EAA 106 of 2020 & EAA 136 of 2020
File Number: PAC 437 of 2020
| Mr Marino |
Applicant
And
| Mr Bello |
First Respondent
And
| Ms Bello |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ainslie-Wallace J
On 6 November 2020 the Full Court heard and determined Mr Marino’s (“the applicant”) appeals in relation to two sets of orders made by a judge of the Federal Circuit Court. Those appeals were allowed and those orders were set aside. We reserved our decision for those findings which we now publish (Marino & Bello and Anor [2020] FamCAFC 314).
Having set aside the orders of the primary judge, what remained on foot was the applicant’s application for orders in relation to Mr Bello’s and Ms Bello’s (“the respondents”) children, and the respondents’ application for the summary dismissal of the applicant’s application on the basis that he lacks standing to seek parenting orders.
Having concluded the appeal on 6 November 2020 and in considering the disposition of the application from which the appeal was brought, the parties agreed that the issue of the applicant’s standing to bring the parenting proceedings could be re-determined by the Full Court subject to the Full Court taking into account further brief Summaries of Argument provided by the parties on the point; the evidence before the Federal Circuit Court and evidence which the applicant sought to introduce in the appeal as further evidence. To that end, orders were made on 6 November 2020 for the filing of the additional Summaries of Argument (Orders 5 and 6 made on 6 November 2020).
On 17 November 2020 the applicant discontinued his proceedings for parenting orders in the Federal Circuit Court.
On 19 November 2020 the applicant unsuccessfully attempted to file a Notice of Discontinuance of the appeals which was rejected by an Appeal Registrar. He then on 20 November 2020, filed an Application in an Appeal seeking that the Full Court Review the Registrar’s Decision to reject the filing.
On 23 November 2020 the applicant filed an Application in an Appeal seeking a stay of Orders 5 and 6 made by the Full Court on 6 November 2020 which required him and the respondents to file submissions on the re-exercise.
On 1 December 2020 the applicant attempted to file an Application in an Appeal seeking an order that the respondents and the respondents’ solicitor attend before the Full Court for cross-examination in relation to two Notices to Produce served by him on the respondents’ solicitor on 29 November 2020 and 1 December 2020. The Notices to Produce relate to offers of settlement made by the applicant to the respondents in relation to the proceedings in the Federal Circuit Court. The Appeal Registrar refused to accept the application for filing and on 1 December 2020, the applicant filed an Application in an Appeal that the Full Court review the registrar’s refusal to accept the application for filing.
The applicant’s applications were listed for hearing by the Full Court today, 11 December 2020.
The Applications in an Appeal
Application to discontinue the appeals
Because on 6 November 2020 we allowed both appeals brought by the applicant and reserved delivery of our reasons for allowing the appeals, there is, in our view, nothing to discontinue, a point with which the applicant agreed and that application will be dismissed.
Application to stay the orders requiring submissions on the re-exercise
The principal proceedings in the Federal Circuit Court having been discontinued, there is, we agree, nothing for this Court to determine on a re-exercise and the orders for the filing of submissions were to no effect. We will stay Orders 5 and 6 made on 6 November 2020.
That application will be allowed and those orders stayed.
Application to cross-examine the respondents and their solicitor
The affidavit in support of the application filed on 1 December 2020 asserted that the applicant had made a number of offers to the respondents to settle the proceedings in the Federal Circuit Court and he asserted that the respondents’ solicitor had failed to pass those offers on to the respondents. The applicant’s affidavit attached correspondence between him and the respondents’ solicitor. The correspondence demonstrates that on 19 November 2020 the applicant requested that he be provided with “evidence of all [his] settlement offers presented to the [respondents]” and requested a copy of all of the emails sent by the solicitor to the respondents conveying the offers and replies rejecting those offers. The applicant topped off the request with a threat to the respondents’ solicitor that failure to comply with his request would cause him to initiate proceedings against the solicitor for contempt.
Unsurprisingly the solicitor responded by rebuffing the request.
The applicant continued to write to the solicitor repeating his request for documents and maintaining his threat to bring contempt proceedings.
Also attached to the affidavit are the offers, or perhaps some of the offers, that the applicant made to settle the proceedings, effectively contending that he would withdraw the Federal Circuit Court proceedings on condition that the respondents’ older son and the applicant and first respondents’ mother were permitted to see the respondents’ children.
In discussion with the applicant in Court today, it has become apparent that the annexures to the affidavit in support of the application, which reveal an imbroglio about offers and whether they were conveyed to the respondents, concern the proceedings in the Federal Circuit Court, now withdrawn. They have no relevance to the Full Court proceedings and the Application in an Appeal filed on 1 December 2020 for the Review of the Registrar’s Decision not to accept the application for filing will be dismissed.
Costs and conclusion
At the conclusion of the argument the respondents’ counsel sought an order for costs against the applicant in the sum of $2,500 on the basis that they attended to argue against the application for cross-examination.
The applicant opposes that order and points to allegations that he makes against the respondents of bad conduct in areas unrelated to the appeal.
In our view, the application to cross-examine on the Notices to Produce was vexatious, doomed to fail and an abuse of process and we will make the order sought.
We will therefore make the following orders:
(1)The Application in an Appeal filed on 23 November 2020 is allowed.
(2)Orders 5 and 6 made on 6 November 2020 are stayed.
(3)The Applications in an Appeal filed on 20 November 2020 and 1 December 2020 are dismissed.
(4)The applicant pay the first and second respondents’ costs of and incidental to his application filed on 1 December 2020 in the sum of $2,500 which costs are to be paid within one (1) month.
Ryan J
I agree.
Aldridge J
I agree.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 11 December 2020.
Associate:
Date: 15 December 2020