Iwata & Otxoa (No 2)
[2023] FedCFamC2F 744
•5 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Iwata & Otxoa (No 2) [2023] FedCFamC2F 744
File number(s): ADC 4450 of 2021 Judgment of: JUDGE PARKER Date of judgment: 5 June 2023 Catchwords: FAMILY LAW – PARENTNG – undefended hearing – refusal of Respondent to engage with parenting issues Legislation: Family Law Act (1975) (Cth) ss 60B, 60CA, 60CC, 61DA, 62B, 65DA, 69VA, 69ZB, 69ZW, 102NA, 117
Federal Circuit and Family Court of Australia (Family Law) Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33, 2.01, 10.26
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth), schedule 1
Division: Division 2 Family Law Number of paragraphs: 45 Date of hearing: 5 June 2023 Place: Adelaide Solicitor Advocate for the Applicant Ms Dansie, Stevens Law Counsel for the Respondent: Appeared in Person ORDERS
ADC 4450 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS IWATA
Applicant
AND: MR OTXOA
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
5 JUNE 2023
UPON APPLICATION MADE TO THE COURT BY MS DANSIE FOR THE APPLICANT AND THE RESPONDENT IN PERSON.
UPON NOTING:
A.Pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.
THE COURT ORDERS THAT:
1.All previous orders be discharged save for orders 1 and 2 of the orders contained in the minute of orders expressed to have been made by consent on 16 December 2021.
2.The Mother have sole parental responsibility of the child X born in 2020 (“the child”).
3.The child live with the Mother.
4.The Respondent spend time with the child as agreed in writing between the parties.
5.The Respondent pay the Mother’s costs in the sum of $3,349, such sum to be paid to the Mother’s solicitor’s trust account within sixty (60) days of today’s date.
6.All extant applications are 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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE PARKER
INTRODUCTION
These reasons were delivered ex tempore and have been settled from the transcript. Grammatical errors have been corrected, citations have been added and amendments have been made to make the orally delivered reasons clear and easy to read.
The application before the Court is the Mother’s application for final parenting orders in relation to the child, X, born in 2020, who is aged two. The Mother seeks to proceed on an undefended basis.
BACKGROUND AND HISTORY
The child is the child of the Applicant Mother. The Respondent asserts that there is doubt surrounding the paternity of the child. The Respondent has refused to engage in the proceedings insofar as they relate to parenting matters and has attributed his lack of engagement to his assertions of doubt as to parentage. He has also failed to take any steps to engage with the child, despite orders having been made enabling him to do so, and has not met her. Again, he has attributed this to what he says is doubt about the child’s parentage.
On 16 December 2021, orders were made by a Senior Judicial Registrar which were expressed to have been made by consent and which included a declaration pursuant to section 69VA of the Family Law Act1975 (Cth) (‘the Act’) providing that the Respondent is the father of the subject child. Those orders were made on the Respondent’s own application, he having sought in his response to an initiating application filed on 15 November 2021 that the Court make a parentage declaration pursuant to section 69VA to the same effect as the one contained in the orders.
Prior to the making of the orders of 16 December 2021, a DNA parentage test had been carried out. The result of that test was relied upon by both parties at the time of the hearing before the Senior Judicial Registrar. A copy of the test result was annexed to the Mother’s affidavit filed on 13 September 2021. It would appear on its face to be compliant with section 69ZB of the Act and the relevant regulations. The test confirms a 99.9999996 percent probability that the Respondent is the child’s father. The Respondent’s sworn evidence before the Court at the time the orders were made, which was contained at paragraph 11 of his affidavit filed on 15 November 2021, was that a DNA test had been conducted and had demonstrated that he was the father of the child.
The Respondent subsequently mounted a number of challenges to the orders of 16 December 2021 and sought to distance himself from the parentage test result. He asserted, amongst other things, that he had not consented to the orders made on 16 December 2021 and that the indication made to the Court that he consented had been made by his solicitor without his instructions. This assertion was made by the Respondent notwithstanding the fact that the orders made reflected the orders he had sought from the Court by way of his Response.
The Respondent deposed to having some concerns about the accuracy of the paternity test based on the likely date of conception, an assertion that the child does not look like him, and his opinion of the motivation of the Mother. The Respondent did not point to any asserted deficiency in the testing process itself other than to make complaints as to the lack of witnesses to the sample collection and delay in receiving the results. Neither of these issues gave rise to any basis for the Court to be suspicious of the accuracy of the test.
On 1 April 2022, the Respondent filed an Application in a Proceeding seeking orders for further parentage testing. On 17 May 2022, a Notice of Discontinuance was filed in relation to that Application in a Proceeding (amongst other things). It subsequently emerged that the Notice of Discontinuance had erroneously been filed by the solicitor then acting for the Respondent in lieu of a Notice of Ceasing to Act and that it had not been filed on the Respondent’s instructions.
On 26 April 2022, the Respondent filed an Amended Response. By that document, he continued to seek final parenting orders in the same form as in his original Response filed on 15 November 2021 and, somewhat curiously, he continued to seek a declaration that he is the father of the subject child. However, he purported to amend the interim orders sought in that document, such as to seek that a further DNA parentage testing procedure be carried out. It is noted that this is not a valid method of seeking interim orders while proceedings are on foot,[1] and as such, it did not have the result of leading to a listing.
[1] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 2.01(4).
On 27 June 2022, the Respondent filed an Application for Review with respect to the orders of 16 December 2021 and an Application in a Proceeding seeking to discharge those orders. Both applications came before me on 2 September 2022. The Respondent was denied an extension of time within which to review, and the Application in a Proceeding was dismissed. He unsuccessfully sought leave to appeal from those orders out of time.
On 7 October 2022, the Respondent filed an application seeking to withdraw the Notice of Discontinuance that had been filed on 17 May 2022. That application came before me on 27 January 2023. The Respondent was not granted leave to withdraw the Notice of Discontinuance insofar as it related to the Application in a Proceeding filed on 1 April 2022. This was in part on the basis that the issue to which that application related had already been determined by the Court.
RESPONDENT’S LACK OF ENGAGEMENT AND UNDEFENDED HEARING
The Respondent has repeatedly indicated to the Court that his pursuit of his application with respect to parenting orders is conditional upon the resolution of the parentage testing issue. This remains the Respondent’s position, notwithstanding the fact that the parentage testing issue has already been determined, a fact which has been explained to the Respondent on multiple occasions. It is clear from the manner in which the Respondent has approached the proceeding that, notwithstanding the contents of his Amended Response, he does not intend to pursue any parenting orders or engage with the child unless the parentage issue is determined in his favour, which has not occurred. The Mother seeks to proceed in relation to parenting matters on an undefended basis in light of the Respondent’s lack of engagement with the proceedings beyond his repeated unsuccessful challenges in relation to the issue of parentage and his lack of intention to engage with the child.
On 28 March 2023, the Mother filed an Application in a Proceeding seeking that the matter be set down for an undefended hearing. On 6 April 2023, the Respondent filed a Response to that Application in a Proceeding opposing the application. His affidavit filed in support of his Response did not engage with issues relating to parenting and remained focused on his asserted concerns in relation to the parentage test and the orders of 16 December 2021.
At a hearing on 1 May 2023, the Mother pressed her application for a listing for an undefended hearing. The Respondent was present at that hearing and once again sought to ventilate his doubts with respect to the issue of parentage and his assertion that he had not consented to the orders of 16 December 2021. He refused to take any position in relation to parenting orders, and the Court was unable to obtain from him any form of commitment to engagement either with the child or with the proceedings insofar as they related to parenting orders. On that date, the matter was listed for an undefended hearing this day.
The Respondent was granted liberty to seek to vacate the undefended hearing upon, firstly, taking steps to engage with a supervised contact centre for the purpose of spending time with the child, as had been provided for in the orders of 16 December 2021, and secondly, filing, within 30 days, an application in proper form seeking to vacate the undefended hearing, an affidavit confirming that he had engaged with the contact centre and confirming his intention to engage with the proceedings insofar as they related to parenting orders, and an Amended Response to Initiating Application setting out with particularity the parenting orders he sought.
The Respondent made no application to vacate the listing and took no steps to engage with the child, and as such, the matter remained listed for undefended hearing this day. The Mother filed a Case Outline document on 1 June 2023 setting out the orders that she sought, which were that the Mother have sole parental responsibility for the child; that the child live with the Mother; and that the Respondent spend time with the child as agreed in writing between the parties. The Mother also sought an order for costs.
The Respondent attended at the hearing this day and was clearly on notice that it was taking place and of the orders sought by the Mother. He did not change his position with respect to parenting issues and persisted in his refusal to give consideration to issues pertaining to the child’s best interests or parenting arrangements. He again sought to air his grievances with respect to the issue of paternity testing and the issue of whether he consented to the orders of 16 December 2021. That persisted despite multiple indications from the Court that the issues to be determined this day related to parental responsibility, living arrangements, and time with the child.
The Respondent sought an adjournment, purportedly for the purpose of obtaining a legal advice and also on the basis that he had filed or intended to file an appeal in relation to the listing orders of 1 May 2023. The Respondent had not sought a stay of those orders. However, as the adjournment application proceeded, it was clear that what the Respondent really sought was a further opportunity to agitate his grievances in relation to the parentage issue at a later date.
It was submitted on behalf of the Mother that the Respondent had had multiple lawyers in the past and had had numerous opportunities to seek advice in relation to parenting matters, being the matters before the Court. I accept that submission. It was apparent to the Court that the Respondent had no intention of engaging with the parenting aspect of the proceedings, and that there was no reasonable prospect of there being any change to his position if an adjournment were granted.
I could see no legitimate purpose in requiring the Mother to continue to engage in the litigation and to continue to use her legal aid funding allocation for that purpose in circumstances in which the Respondent is not engaging properly or at all with the parenting aspects of the proceedings, being the only issues remaining for determination. I was not satisfied that it was in the interests of justice to adjourn the hearing, and the adjournment application was refused.
The Respondent was given the opportunity to make submissions in relation to the parenting issues before the Court following the dismissal of his adjournment application. He was unable to be redirected from issues pertaining to parentage, child support and whether he had consented to the orders of 16 December 2021. With respect to the parenting issues, after numerous unsuccessful attempts to engage him, the Respondent simply said, ‘I am not getting involved in that.’
These proceedings have been on foot since 13 September 2021. Although the Respondent’s Response filed on 15 November 2021 sought orders with respect to parenting matters, including orders for parental responsibility and time, and despite the fact that he did not depart from that application when his Amended Response was filed on 26 April 2022, no substantive progress whatsoever has been made during the course of these proceedings, and there has been no meaningful engagement by the Respondent with respect to parenting matters. It is noted that although parenting orders were made on 21 December 2021, it is the Respondent’s position that he did not consent to them. That is, if the Respondent’s assertion that he did not consent to the orders of 16 December 2021 is to be accepted, he has not pursued his extant application in relation to parenting matters for a period in excess of 18 months.
As I did at the hearing on 1 May 2023, I have regard to the overarching purpose as set out in section 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible; and its objects, which include the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload and the disposal of proceedings in a timely manner.
I have regard to the fact that the Respondent is in default of a costs order made against him in these proceedings on 2 September 2022, which enlivens a discretion pursuant to rules 1.33 and 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to determine the proceeding on an undefended basis. I have also had regard to the principles espoused by section 69ZN of the Act, in particular, the principle of proceeding without undue delay. It is very unlikely to be serving the child’s best interests to be the subject of ongoing parenting proceedings where one of the parties is not prosecuting his application or taking any steps whatsoever towards engagement with her, particularly having regard to the likely stress being caused to her primary caregiver.
It is also contrary to the interests of justice to require the Mother to continue to engage with parenting proceedings in circumstances in which the Respondent is not taking appropriate, or indeed any, steps to progress them, particularly in circumstances where the Respondent continues to bring interim applications in multiple forms seeking to agitate an issue that has already been determined. The Mother is funded by legal aid and expresses concern that her funding will reach the cap if the proceedings continue.
The Respondent has had ample opportunity to pursue his parenting application and has declined to do so, refusing to engage with the proceedings other than repeatedly trying to agitate the issues in relation to DNA testing with which the Court has already dealt. In all of the circumstances, I remain satisfied that it is appropriate to permit the Mother to proceed on an undefended basis; that is, with the Court having regard only to the evidence filed by the Mother and determining only her application.
The Respondent was present at the hearing this day, but in circumstances in which an order was made pursuant to section 102NA of the Act on 1 May 2023 and he has not obtained legal representation, he was not permitted to cross-examine the Mother. He was invited to make submissions in relation to parenting issues, but as I have said, he once again refused to deviate from his grievances with respect to the parentage testing issue and his position that he had not consented to the orders of 16 December 2021, and he refused to make any submissions with respect to the orders sought by the Mother regarding the child. The Mother’s evidence was not challenged. It is not inherently improbable or implausible, and as such, I accept it.
LEGAL FRAMEWORK AND CHILD’S BEST INTERESTS
I am required to have regard to the child’s best interests as the paramount consideration pursuant to section 60CA of the Act. I am guided in my determination by the objects and principles in section 60B. Section 61DA(1) of the Act provides that subject to certain exceptions, when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The Mother alleges that the Respondent subjected her to family violence, and given that the Mother’s unchallenged evidence has been accepted, the presumption therefore does not apply. In any event, given the Respondent’s refusal to engage in relation to the child, equal shared parental responsibility would be completely unworkable and, therefore, contrary to the child’s best interests, and as such, the presumption, had it applied, would have been rebutted.
In determining the child’s best interests, I have regard to the factors in section 60CC of the Act. There are two primary considerations set out in section 60CC(2), being the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. Subsection (2A) of section 60CC provides that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b). In other words, the Court must give more weight to the need to protect a child from harm than to the benefit to the child of having a meaningful relationship with each parent. In this case, the Respondent does not have any relationship with the child whatsoever, and there is no realistic prospect of a meaningful relationship being formed, in light of the Respondent’s refusal to engage. There is no present need to protect the child from harm arising from abuse, neglect or family violence, given that the Respondent is having no engagement with her, and there is no evidence to suggest that she is in any risk in her Mother’s care.
Subsection 60CC(3) sets out a number of additional considerations. Not all of those factors are relevant to the present matter. Those which are relevant include, firstly, the nature of the relationship of the child, with, relevantly, each of the child’s parents. In this regard, I note that the Mother is the child’s sole carer, and there is no relationship at all with the Respondent.
Next, I have regard to the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child or to communicate with the child. In this case, the Respondent has entirely failed to take any opportunity in this regard, despite the fact that orders were made in December 2021 providing for him to spend time with the child.
Next is the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents. In this regard, the Respondent’s relentless pursuit of the parentage issue, in the face of both a DNA test and multiple court rulings, demonstrates a poor attitude, as does his unwillingness to engage either with the child or the parenting matters before the court.
Finally, I give consideration to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. In this regard, putting an end to the proceedings will end the ongoing process of interim applications of various types being made by the Respondent with respect to the DNA testing issue, despite the fact that that issue has been determined.
Having regard to all these circumstances, particularly the Respondent’s refusal to engage with the child, I am satisfied that the orders proposed by the Mother are in the best interests of the child.
COSTS
The Mother seeks costs in the sum of $3,349, being items 3 and 13, for a half-day hearing, in accordance with the scale set out in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth). Item 3 is selected because it is the item that most closely resembles the nature of the application, notwithstanding the fact that it was, in fact, final orders, and not interlocutory orders that were sought.
The general rule, pursuant to section 117(1) of the Act is that each party bears their own costs. Section 117(2) provides that if the Court is of the opinion that there are circumstances that justify it in so doing, the court may depart from that general rule. Considerations relevant to that departure are set out in section 117(2A). I have regard to those which are relevant to this matter.
Firstly, there is the financial circumstances of each of the parties to the proceedings. The Respondent informed the Court that he was in financial hardship because of the need to pay child support. He said that he had lost one of his two jobs as a result of these proceedings, and now earns a variable income of $900 to $1500 per fortnight. He said he pays $700 per fortnight in child support, which he said was based on information that Child Support have informed him they have obtained from the Australian Taxation Office, indicating that his income is $150,000. The Mother is not in paid employment, save for limited casual employment. She is otherwise reliant on Centrelink benefits. The Mother’s resources are limited, to the point where she has qualified for legal aid funding. The Respondent remains in default of previous costs orders.
Secondly, I am required to have regard to whether any party to the proceedings is in receipt of assistance by way of legal aid, and if so, the terms of the grant of that assistance to that party. The Mother in these proceedings is in receipt of legal aid funding. This is not a disqualifying factor, and I take into account the fact that there is a ceiling to the funding available, which could affect the Mother in any future proceedings, and which would operate unfairly in circumstances where a very large number of the hearings and applications in this matter have related to the Respondent’s relentless pursuit of the parentage issues in the face of his lack of success with respect to that issue.
Next, I am to have regard to the conduct of the parties to the proceedings in relation to the proceedings, including the conduct of the parties in relation to pleadings, particulars, discovery, inspection, and directions to answer questions, admissions of fact, production of documents and similar matters. In this regard, the Respondent has refused to engage with the proceedings insofar as they relate to parenting matters in any meaningful way, and has relentlessly pursued the issue of parentage well beyond the determination of his application with respect to that issue.
Notwithstanding his lack of position in relation to parenting issues, the Respondent did not consent to the orders made by the Mother, and required her to continue to pursue the proceedings all the way through to their conclusion on this day. The Mother’s solicitor advised the Court that the Respondent had been offered the opportunity to consent to the orders sought by her earlier this day, prior to the commencement of the hearing, and avoid a costs order, and he had not consent.
Finally, I am to have regard to whether any party to the proceedings has been wholly unsuccessful – in this regard, the Respondent has been wholly unsuccessful.
I also have regard to the overarching purpose imposed by section 190 of the Federal Circuit and Family Court of Australia (Family Law) Act 2021 (Cth). Section 190 relevantly provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes, according to law, and as quickly, inexpensively and efficiently as possible. The overarching purpose includes the following objectives: the just determination of all proceedings before the Court, the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court’s overall caseload, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
Also relevant for present purposes, is section 191 of the Federal Circuit and Family Court of Australia (Family Law) Act 2021 (Cth), which requires parties and their lawyers to act consistently with the overarching purpose. The manner in which the Respondent has conducted these proceedings has been entirely contrary to his obligations in this regard.
I am satisfied that the circumstances justify an order for costs, as sought by the Mother, payable to her solicitors within 60 days.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 5 June 2023
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