Iwata & Otxoa (No 3)
[2024] FedCFamC2F 1402
•9 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Iwata & Otxoa (No 3) [2024] FedCFamC2F 1402
File number(s): ADC 4450 of 2021 Judgment of: JUDGE PARKER Date of judgment: 9 October 2024 Catchwords: FAMILY LAW – COURTS AND JUDGES – Disqualification
FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal
Legislation: Family Law Act 1975 (Cth) ss 64B, 65DAAA 69VA, 69ZB, 102QAB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited: Beck & Beck [2004] FamCA 92; (2004) FLC ¶93-181
Bienstein & Bienstein [2003] HCA 7; (2003) FLC ¶93-124
Bigg & Suzi [1998] FamCA 14; (1998) FLC ¶92-799
British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76
Ebner & Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Elmi & Munro [2019] FamCAFC 138
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
In re Simpson; Ex parte M [1984] HCA 25; (1984) 154 CLR 101
Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419
Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Re Lusink; Ex parte Shaw (1980) FLC ¶90-884
Scott & Munayallan [2022] FedCFamC1A 44
Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Tomlinson v Ramsey Food Processing Proprietary Limited [2015] HCA 28
Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41
Webster v Lampard [1993] HCA 57] (1993) 177 CLR 598
Division: Division 2 Family Law Number of paragraphs: 58 Date of hearing: 12 September 2024 Place: Adelaide Counsel for the Applicant: Self represented Counsel for the Respondent: No appearance ORDERS
ADC 4450 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OTXOA
Applicant
AND: MS IWATA
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
12 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The oral application that Judge Parker be disqualified from further hearings in these proceedings is dismissed.
2.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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE PARKER
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.
BACKGROUND
This matter and the applications presently before the Court have had an extensive history, which is set out in the following paragraphs.
On 16 December 2021, orders were made by a Senior Judicial Registrar, which were expressed to be made by consent (‘the December 2021 orders’). Those orders included a declaration pursuant to section 69VA of the Family Law Act1975 (Cth) (‘the Act’) providing that the Applicant, MR OTXOA, is a parent of the child the subject of these proceedings, X, born in 2020 (‘the child’). The child is the child of the Respondent Mother, MS IWATA.
The December 2021 orders were made on the Applicant’s own application, he having sought by way of his Response to Initiating Application filed on 15 November 2021, that the Court make a parentage declaration pursuant to section 69VA to the same effect as that ultimately contained in the December 2021 orders.
Prior to the making of the December 2021 orders, a DNA parentage testing procedure had been carried out, the results of which were relied upon by both parties. A copy of the results of that test was annexed to the Mother’s affidavit filed on 13 September 2021, which was before the Court when the December 2021 orders were made. The test appeared, on its face, to be compliant with section 69ZB of the Act and the applicable regulations. The test confirmed a 99.9999996 per cent probability that the Applicant is the child’s father.
The Applicant’s own 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.
Notwithstanding this evidence, the Applicant subsequently mounted a number of challenges to the December 2021 orders and has repeatedly sought to distance himself from the parentage test result. He has repeatedly asserted, amongst other things, that he did not consent to the making of the December 2021 orders, and that the assertion that he consented was made by his solicitor without his instructions. This assertion has been made notwithstanding the fact that the December 2021 orders reflected the outcome he had sought from the Court by way of his own Response.
Following the making of the December 2021 orders, the Applicant claimed to hold concerns about the accuracy of the paternity test based on a variety of matters including 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 Applicant did not point to any asserted deficiency in the testing process itself other than complaints as to lack of witnesses to the sample collection and delay in receiving the results, neither of which gave rise to any basis for the Court to hold concerns about its accuracy.
On 1 April 2022, the Applicant filed an Application in a Proceeding seeking orders for further parentage testing.
On 17 May 2022, a Notice of Discontinuance was filed with respect to the Application in a Proceeding filed on 1 April 2022, but it subsequently emerged that the Notice of Discontinuance had erroneously been filed by the solicitor then acting for the Applicant in lieu of a Notice of Ceasing to Act, and had not been filed on the Applicant’s instructions.
On 26 April 2022, the Applicant filed an Amended Response in the original proceedings. By that document, he continued to seek parenting orders in the same form as his Response filed on 15 November 2021, and, somewhat curiously, continued to seek a declaration that he was the father of the 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. As this is not a valid method of seeking interim orders while proceedings are on foot, this amendment did not have the result of leading to a listing.
On 27 June 2022, the Applicant filed both an Application for Review (in relation to which an extension of time was sought) and an Application in a Proceeding seeking to challenge the December 2021 orders. Both applications came before me on 2 September 2022.
The application for an extension of time within which to review was refused, and the Application in a Proceeding was dismissed. The Applicant unsuccessfully sought an extension of time to appeal those orders.[1]
[1] Otxoa & Iwata (Unreported, Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, 29 November 2022).
On 7 October 2022, the Applicant 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 Applicant was granted leave to withdraw the Notice of Discontinuance insofar as it related to the application for final orders contained within his Response to Initiating Application, but not insofar as it related to the Application in a Proceeding filed on 1 April 2022. This was in part on the basis that the issues to which that application related had already been determined by the Court.
On 5 June 2023, the Mother’s application for parenting orders was determined on an undefended basis. The Applicant refused to engage with the parenting aspects of the proceedings until the parentage issue, which, in his view, remained unresolved, was determined to his satisfaction. The Applicant appeared at the hearing that day and sought once again to re‑agitate the parentage issue and impugn the December 2021 orders. Final parenting orders were made, and the proceeding was finalised. The orders made on 5 June 2023 expressly did not discharge the parenting declaration contained within the December 2021 orders.
The Applicant appealed the orders of 5 June 2023 and sought to use the appeal process as a means of challenging the parentage declaration again. His appeal was dismissed on 26 October 2023.[2]
[2] Otxoa & Iwata [2023] FedCFamC1A 183.
On 27 March 2024, the Applicant filed the Initiating Application which is presently before the Court. That application seeks orders in the following terms:
1.The document known as "Consent Orders" dated December 16, 2021, should be removed from the court record because it does not reflect any agreement between the two parties. It is biased towards the Applicant/[Ms Iwata] and lacks any acknowledgment or signature from the Respondent party/[Mr Otxoa], file number ADC4450 of 2021.
2.All previous orders pertaining to the same document should also be removed from the court record to ensure fairness and justice in these proceedings, file number ADC4450 of 2021.
3.The Respondent is responsible for paying all incident costs to the Applicant. This includes funds received through Child Support Account number […].
The application has been listed before the Court this day for consideration on the Court’s own motion of whether the application should be summarily dismissed.
By way of a notation to orders dated 7 May 2024, the Applicant was given notice that the purpose of the listing was consideration of whether the proceeding should be summarily dismissed pursuant to section 102QAB of the Act. A copy of that section was also provided to him by email.
The Respondent was excused from filing responding material or appearing at the hearing this day, and she has not done so.
DISQUALIFICATION
The Applicant has made an oral application at the hearing this day seeking that I be disqualified from the further hearing of these proceedings (‘the disqualification application’). That application has been heard and is being determined prior to the hearing or consideration of the balance of the matters listed before me this day.
The disqualification application is based broadly on an argument that because I have ruled against the Applicant on several previous occasions and have not accepted the assertions that he has put before the Court, I must be biased against him. He complains that he has ‘done everything right,’ but says that his applications have ‘not been considered’ and have instead been dismissed. The Applicant asserts that he has not been treated fairly and concludes, as a consequence, that I must be biased against him.
Although it is correct to say that his past applications have been dismissed, it is not accurate to suggest that they have not been considered. In each case, the Applicant has been heard and reasons have been given for the Court’s determination.
It is plain that the Applicant’s grievance arises from the fact that his previous applications have been decided adversely to him.
The applicable tests with respect to disqualification of a judicial officer were explained to the Applicant at the commencement of the hearing. Although he did not clearly articulate whether he alleged actual or apprehended bias, in fairness to the Applicant, noting that he is self-represented, I will treat the application as being one based on apprehended bias, which is the category of application with the lower threshold. If an application with respect to apprehended bias would not succeed, it follows that an application based on actual bias would meet the same fate.
Applicable legal principles
The principles which apply to applications that a judge be disqualified for apprehended bias are set out in the oft-cited passage from Ebner & Official Trustee in Bankruptcy (‘Ebner’)[3] as follows:
...a judge is disqualified if a fair-minded lay observed might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
[3] [2000] HCA 63; (2000) 205 CLR 337 at [6]. See also Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; British American Tobacco Australia Services Limited v Laurie [2011] HCA 2; (2011) 242 CLR 283; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427.
The application of these principles, as set out in Ebner, involves a two-step process. First, the identification of what is said might lead a decision-maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits.[4] Once those two steps have been taken, the reasonableness of the asserted apprehension of bias can be assessed.[5]
[4] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8].
[5] Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135.
The requirement that there must be a logical connection operates to empower the Court to proceed notwithstanding that a party ‘wrongly and irrationally suspects bias.’[6]
[6] In re Simpson; Ex parte M [1984] HCA 25; (1984) 154 CLR 101.
There are four separate but potentially overlapping categories of apprehended bias:[7]
(a)Disqualification by interest;
(b)Disqualification by conduct;
(c)Disqualification by association; and
(d)Disqualification by extraneous information.
[7] Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at [12].
In the present case, the applicable category can only be disqualification by conduct, being conduct in the earlier determination of previous applications brought by the Applicant.
The following propositions can be distilled from the relevant authorities:
(a)The inquiry is objective.[8]
(b)The inquiry does not require a conclusion about the judge’s actual state of mind.[9]
(c)All circumstances must be considered.[10]
(d)The inquiry is concerned with ‘possibility, real and not remote, and not probability.’[11]
(e)‘It is the court’s view of the public’s view, not the court’s own view’ that is determinative. [12]
[8] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12].
[9] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 at [68]. See also CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76.
[10] Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342.
[11] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [7].
[12] Webb & Hay v The Queen [1994] HCA 30; (1994) 181 CLR 41 at [11].
An application for a judge to disqualify him or herself should not be acceded to lightly, and this should not occur merely because it is requested by an unhappy or unsuccessful litigant. Substantial grounds must be established.[13] In Re JRL; Ex parte CJL,[14] Mason J said:
…It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than in an impartial or unprejudiced mind in the sense in which the expression is used in the authorities or that his previous decisions will provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be "firmly established".
[13] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Bienstein & Bienstein [2003] HCA 7; (2003) FLC ¶93-124; Re Lusink; Ex parte Shaw (1980) FLC ¶90-884.
[14] [1986] HCA 39; (1986) 161 CLR 342.
As the High Court held in Ebner:
Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases, and litigants do not choose their judges. If one party to a case objects to a particular judge sitting or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
In Scott & Munayallan,[15] the Full Court of the Federal Circuit and Family Court of Australia (Division 1) said as follows:
The High Court of Australia has made plain it would be both an abdication of judicial function and an encouragement of procedural abuse for a judge to impulsively or too readily disqualify him or herself whenever requested by one party to do so (Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300 at 302). A judge should not disqualify him or herself for reasonable apprehension of bias unless substantial grounds exist (Bienstein v Bienstein (2003) 195 ALR 225 at 233; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 584–585; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352).
[15] [2022] FedCFamC1A 44 at [25].
What might lead the decision-maker to decide the case other than on its merits
As to what is said might lead the decision-maker to decide the case other than on its legal and factual merits, in the present case, the basis of the application is a complaint that previous applications brought by the Applicant were not determined in the manner sought by him. The authorities to which I have referred made it very clear that this is not a proper basis for a disqualification application.
The Applicant has drawn the conclusion from the history of these proceedings, which I have outlined, that further applications brought by him are unlikely to be determined in his favour. This is not a legitimate basis for an apprehension that such further applications would be determined on anything other than their merits.
I emphasise that the test is objective and that the Court is concerned with the perspective of an independent observer and not the perspective of the Applicant himself.
I have regard to the fact that the substantive application before the Court has been listed this day for consideration of summary dismissal on the Court’s own motion, and I acknowledge that this is indicative of doubts held by me as to its viability. This is different, however, from a suggestion that the case would be determined other than on its merits and indeed goes directly to the issue of its merits.
Logical connection between the matter and the feared deviation from deciding the case on its merits
As to the logical connection between the matter identified and the feared deviation from deciding the case on its merits, in the present case no logical connection has been identified. The Applicant is simply aggrieved by past determinations which have been unfavourable to him and fears that he will continue to be unsuccessful in future applications. This is precisely the situation which the authorities make clear is not a basis for a disqualification application.
Conclusion
For these reasons, I do not consider that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question I am required to decide.
As a result, the oral application that I be disqualified from the further hearing of this matter is dismissed.
SUMMARY DISMISSAL
The Applicant made lengthy submissions before the Court this day, which focused heavily on his belief that he is not the father of the child, his assertion that he did not consent to the December 2021 orders, and his grievances with the outcome of his numerous previous applications. For the following reasons, those submissions did not persuade me that the application should be permitted to continue beyond the hearing this day.
The Applicant has, in summary, unsuccessfully attempted to obtain the same outcome from this Court and from the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) by various formal and informal means on no less than seven prior occasions. The present application represents the eighth such attempt.
The Applicant submitted that the application presently before the Court was substantively different from his past applications, but despite having been invited several times to do so, he was unable to point to any meaningful difference and merely repeated submissions to the same effect as those he has been making throughout the history of the proceedings.
Applicable legal principles
By virtue of the operation of subsection 64B(1) of the Act, the declaration as to parentage contained within the December 2021 orders is not a parenting order, and as a result, it does not fall within the scope of section 65DAAA of the Act, which deals with the circumstances in which parenting orders can be reconsidered. It is my view that the Court is functus officio, its jurisdiction with respect to the issue of parentage having been spent, and that the application should be dismissed on that basis. As a result of the same subsection, I am also of the view that it is likely that, although as established by the Full Court in Elmi & Munro,[16] the doctrine of res judicata does not apply to parenting cases, it would apply to the present issue and would operate to preclude the present application.
[16] [2019] FamCAFC 138.
In case I am wrong in relation to those issues, noting that this is an application pursuant to Part VII of the Act, I will consider whether the application should, in any event, be summarily dismissed pursuant to section 102QAB of the Act.
Subsection 102QAB(2)(b) of the Act provides, relevantly, and in summary, that the Court may make a decree for one party against another in relation to proceedings if it is satisfied that the other party has no reasonable prospect of successfully prosecuting those proceedings. Subsection 102QAB(4) provides that the Court may dismiss all or any part of proceedings at any stage if it is satisfied that the proceedings are frivolous, vexatious or an abuse of process.
The Applicant was provided with a copy of section 102QAB of the Act prior to the hearing this day and was on notice of the need to address the Court with respect to its contents. He was also specifically invited to do so at the commencement of the hearing today.
Summary dismissal of an application on the basis that it is frivolous, vexatious or an abuse of process, or on the basis that it enjoys no reasonable likelihood of success, is also provided for in rule 10.09(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The principles governing summary dismissal have been considered in a number of authorities.[17] They are as follows:
[17] Bigg & Suzi [1998] FamCA 14; (1998) FLC ¶92-799; Beck & Beck [2004] FamCA 92; (2004) FLC ¶93-181; Webster v Lampard [[1993] HCA 57] (1993) 177 CLR 598; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118.
(a)The power to order summary dismissal is discretionary.
(b)The power is to be exercised with caution.
(c)Relief is rarely and sparingly provided.
(d)It is a serious matter to deprive a person of access to the courts.
(e)A weak case, or one that is unlikely to succeed, is not sufficient to warrant termination.
(f)The power should not be exercised unless it is clear that there is no real question to be tried.
(g)If there is a serious legal question to be determined, it should ordinarily be determined at a trial.
(h)If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.
(i)The overriding guiding principle remains doing what is just.
It is no longer the case that in order to an order for an application for summary dismissal to succeed, the application in question must be doomed to fail.
In a summary dismissal application, the applicant’s evidence must be taken at its highest and the determination made only on the basis of the material relied upon by the applicant and on non-contentious facts. Unless it is inherently incredible, the Court must assume, when determining a summary dismissal application, that the applicant’s evidence would be accepted at a final hearing.[18] I have had regard to the evidence filed by the Applicant in the present proceedings in that manner.
[18] Bigg & Suzi [1998] FamCA 14; (1998) FLC ¶92-799; Beck & Beck [2004] FamCA 92; (2004) FLC ¶93-181; Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541; Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169.
A recognised category of abuse of process is an application which seeks to re-litigate something that has already been determined in previous proceedings. This is the case with the present application.
In Tomlinson v Ramsey Food Processing Proprietary Limited,[19] the High Court said as follows:
24.To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25. Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
[19] [2015] HCA 28.
Discussion
As I have mentioned, this is the eighth attempt by the Applicant to disturb the December 2021 orders. He has attempted to do so by various different legal devices, all of which have failed. The issue as to the parentage of the child has been determined. It has not been determined in the manner sought by the Applicant, but that is not to the point. The Court has already heard and determined the issues that are raised by the present application.
The evidence relied upon by the Applicant in support of the present application simply constitutes expressions of his grievances with the court process and the parentage testing process. His submissions were in the same vein. As was the case with his previous applications, the Applicant has adduced no evidence which, even at its highest, could sustain a conclusion that would justify the discharge of the earlier orders even if there was power to do so. Even if this were not the case, however, the fact remains that the issue raised by the present application has already been determined by the previous proceedings.
The present application has no legitimate legal foundation but, rather, arises from ongoing dissatisfaction on the part of the Applicant with the previous determination of the same issue which he has persistently refused to accept. That is not a proper foundation for the application he seeks to press.
Conclusion
For these reasons, I am satisfied that the application both enjoys no reasonable prospect of success and is an abuse of process. As a consequence, the application is dismissed.
For all of the reasons outlined above, I make the orders as set out at the commencement of these reasons.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Parker. Associate:
Dated: 9 October 2024
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