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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Iwata & Otxoa (No 3) [2024] FedCFamC2F 1402
Case
[2024] FedCFamC2F 1402
Decision Date
CaseChat Overview and Summary
In ADC 4450 of 2021, the Federal Circuit and Family Court of Australia (Division 2) dealt with an application by Mr Otxoa to disqualify Judge Parker from presiding over further hearings in the proceedings between Mr Otxoa and Ms Iwata. The matter was one of family law, involving issues concerning the legal separation of the parties. Mr Otxoa sought the disqualification of the judge on the basis of perceived bias.
The primary legal issue before the court was whether there were grounds to disqualify Judge Parker from presiding over the case. The court had to consider the standard of proof required to establish bias and whether the application met this threshold. The court was also required to determine whether the application was frivolous or vexatious, which could warrant dismissal under the court’s inherent jurisdiction.
Judge Parker dismissed Mr Otxoa's application for disqualification, finding no evidence of bias or any other grounds warranting disqualification. The judge also found that the application was frivolous and vexatious, as it lacked any credible basis or supporting evidence. Consequently, all extant applications were dismissed. The decision was made in accordance with the principles of natural justice and the court's inherent jurisdiction to manage its own proceedings.
Orders
Orders of the court
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.