The Application arises from Mr Gambetto's attempts to file applications, in which Mr Gambetto alleges breaches by his former wife of final parenting orders made by the FCFCOA (Division 1) and brings an application for the purposes of locating and recovering his child.
On 13 October 2023 a Justice of the FCFCOA (Division 1) (Altobelli J) made final parenting orders which, inter alia, granted sole parental responsibility to Mr Gambetto's former wife with respect to the child's education and health. His Honour made an order pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) ("the Act") prohibiting Mr Gambetto from instituting further proceedings under the Act in a court having jurisdiction under the Act without first obtaining leave under s 102QE ("the vexatious proceedings order"). His Honour also ordered each of Mr Gambetto and his former wife to pay half the costs of the independent children's lawyer who acted in the proceedings ("the costs order").
On 18 October 2024 Mr Gambetto filed an application seeking leave under s 102QE of the to commence proceedings against his former wife in respect of alleged contraventions of the orders made on 13 October 2023. On 18 November 2024 Mr Gambetto attempted to file another application seeking leave under of the , this time to commence proceedings "for the purpose of locating and recovering" his child.
On 27 November 2024 the FCFCOA (Division 2) ordered that Mr Gambetto file an affidavit within 14 days deposing to his compliance or non‑compliance with the costs order. On 28 November 2024 Mr Gambetto advised the FCFCOA (Division 2) that he "respectfully decline[d] [h]is Honour's offer to adduce further evidence" and reiterated the alleged urgency of his application.
On 5 December 2024 Judge Shoebridge dismissed the application filed on 18 October 2024. His Honour noted that the application Mr Gambetto attempted to file on 18 November 2024 was not filed but instead referred directly to his Honour. His Honour ordered that, to the extent that leave might be required to file the application, it was declined but in any event the application was dismissed. In fact, leave was not required to file the application. Section 102QE(2) enabled Mr Gambetto to "apply to the court for leave to institute proceedings that are subject to the" vexatious proceedings order. His application for leave to institute a proceeding was to be made in accordance with r 10.24 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). If leave were granted, Mr Gambetto could then "institute" the substantive proceeding in accordance with the Rules.
His Honour dismissed the applications because of Mr Gambetto's failure to comply with the costs order. His Honour referred to s 69F of the Act, which provides that a court vested with jurisdiction under the Act "may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or of another court having jurisdiction under this Act." His Honour treated this power as permitting the Court either to hear or to refuse to hear a proceeding in circumstances where there has been a failure to comply with an order of the court or of another court having jurisdiction under the Act. His Honour referred to authority treating the exercise of that discretion as "depend[ing] upon the balance which must be struck between the applicant's right to procedural justice and countervailing public policy considerations" bearing in mind that it is a "serious step" to "[l]ock[] an applicant out of procedural access to a court".[2] Implicit in his Honour's reasoning is that where s 69F is relied on to refuse to proceed with a hearing the Court may dismiss the proceedings.
On or around 4 February 2025 Mr Gambetto filed another application seeking leave under s 102QE to commence proceedings in relation to the "[l]ocation and recovery of children" and in relation to alleged "contraventions of child-related orders". The application was listed for hearing before Judge Shoebridge on 30 April 2025. In the meantime Mr Gambetto filed written submissions.
Judge Shoebridge dismissed the application on 30 April 2025. In his reasons, his Honour noted that there had not been a material change in circumstances from those that existed when the previous applications were dismissed on 5 December 2024.
[2]
The discretion to refuse leave to issue or file a document will ordinarily be exercised where the document appears "on its face to be an abuse of the process of the Court, to be frivolous or vexatious or to fall outside the jurisdiction of the Court".[3] The concept of abuse of process includes "an attempt to invoke the original or appellate jurisdiction of the High Court [of Australia] on a basis that is confused or manifestly untenable".[4] The exercise of the discretion to refuse leave "is appropriate only in the clearest of cases".[5]
Mr Gambetto's application raises six grounds said to justify the relief sought. The first is that in his Honour's reasons for making the order on 30 April 2025 Judge Shoebridge failed to "address his assumption" in his judgement dated 5 December 2024 that Mr Gambetto failed to comply with the costs order and thereby displayed "bias". The sixth ground makes a similar contention in relation to his Honour's judgment and orders of 5 December 2024. However, from at least 27 November 2024 Mr Gambetto had every opportunity to address whether he had complied with the costs order and his Honour was more than entitled to conclude that he had not. In any event, these grounds are a manifestly untenable basis for a claim of apprehended much less actual bias.
Mr Gambetto's other four grounds are that, in dismissing his applications, his Honour: relied on an irrelevant consideration, namely Mr Gambetto's failure to comply with the costs order, when neither the independent children's lawyer nor the "Legal Aid Commission NSW" was a party to the proceedings he sought to institute; failed to apply the mandatory principles for conducting child‑related proceedings formerly found in s 69ZN of the Act;[6] supposedly wrongly prioritised the question of costs over questions of parental access and violence against a child; and otherwise failed to have regard to the best interests of the child.
While it was open to Judge Shoebridge to address Mr Gambetto's applications by reference to s 102QF, the question raised by the Application is not whether Mr Gambetto has raised a claim that is not manifestly untenable that Judge Shoebridge erred in dismissing his applications. Rather, the question is whether Mr Gambetto has raised a claim that is not manifestly untenable that his Honour committed a jurisdictional error in rejecting those applications. In circumstances where there is no attempt to address the authority of his Honour to rely on s 69F in the manner in which his Honour did or the fact that his Honour did not consider Mr Gambetto's applications by reference to s 102QF, these complaints at best rise no higher than a complaint of an error within jurisdiction**[7]** that could potentially be raised if an appellate process is available.[8] They do not however raise a tenable claim of jurisdictional error. This conclusion renders it unnecessary to address the relevance of the failure of Mr Gambetto to invoke any avenue of appeal from Judge Shoebridge's orders that may be available upon whether he should be granted leave to file his Application.
Leave to issue or file the document is refused and Mr Gambetto's ex parte Application is dismissed without an oral hearing.
[7] See Craig v South Australia[1995] HCA 58; (1995) 184 CLR 163 at 178-180; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 571-573 [66]‑[70].