Otxoa & Iwata

Case [2023] FedCFamC1A 183

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Otxoa & Iwata [2023] FedCFamC1A 183

Appeal from: Iwata & Otxoa (No 2) [2023] FedCFamC2F 744
Appeal number(s): NAA 177 of 2023
File number(s): ADC 4450 of 2021
Judgment of: TREE J
Date of judgment: 26 October 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders made following an undefended hearing – Where reasons for judgment are given in short form – Where many of the grounds of appeal were specious and misconceived – Where no ground of appeal enjoys merit and fails – Appeal dismissed – Each party to bear their own costs.
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 69VA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.53
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

House v The King (1936) 55 CLR 499; [1936] HCA 40

Iwata & Otxoa [2022] FedCFamC2F 1491

Maviglia v Maviglia [1999] NSWCA 188

Otxoa & Iwata (Unreported, Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, 29 November 2022)

Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147

Sieger & Department of Communities and Justice [2020] FamCAFC 172
Number of paragraphs: 45
Date of hearing: 24 October 2023
Place: Cairns
The Appellant: Self-represented litigant
Counsel for the Respondent: Mr McQuade
Solicitor for the Respondent: Stevens Law

ORDERS

NAA 177 of 2023
ADC 4450 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR OTXOA

Appellant
AND:

MS IWATA

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

26 OCTOBER 2023

THE COURT ORDERS THAT:

1.The appeal is 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 the pseudonym Otxoa & Iwata has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

  1. On 5 June 2023, for ex tempore reasons then delivered, the primary judge made final parenting orders following an undefended hearing. Now by Notice of Appeal filed 29 June 2023, Mr Otxoa (“the father”) appeals from those orders. Ms Iwata (“the mother”) resists the appeal.

  2. Given…

Continue reading Otxoa & Iwata

Sign in free to access the full text

Details
AGLC
Otxoa & Iwata [2023] FedCFamC1A 183
Case
[2023] FedCFamC1A 183
Decision Date

CaseChat Overview and Summary

The appeal was filed by Mr Otxoa against final parenting orders made by the Federal Circuit and Family Court of Australia. The orders were made in relation to the parenting of the parties' child, X, who is nearly three years old. The father, Mr Otxoa, disputes his paternity of the child, a matter that had been confirmed by DNA testing. Despite this, the court made final parenting orders in favour of the mother, Ms Iwata, who sought, amongst other things, a declaration of paternity. The father's appeal against these orders was dismissed by the court.

The legal issues before the court were whether the appeal had any merit and whether the final parenting orders were appropriate given the circumstances of the case. The court considered the evidence of family violence presented by the mother, the lack of a relationship between the father and the child, and the father's refusal to engage with the child. The court also considered the statutory presumption of equal shared parental responsibility and whether it applied in the circumstances of the case.

The court found that the appeal had no merit. The reasons given by the primary judge were found to be well reasoned and in accordance with the relevant legislation. The court noted that the father had not meaningfully engaged with the mother's proceedings and had focused on the issue of paternity rather than parenting. The court found that the final parenting orders were appropriate given the evidence of family violence, the lack of a relationship between the father and the child, and the father's refusal to engage with the child. The court also found that the presumption of equal shared parental responsibility did not apply in the circumstances of the case.

The court dismissed the appeal and ordered that each party bear their own costs.

Orders

Orders of the court

NAA 177 of 2023

ADC 4450 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR OTXOA

Appellant

AND:

MS IWATA

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

26 OCTOBER 2023

THE COURT ORDERS THAT:

1. The appeal is 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.

Background

Background to the litigation

Given that the appeal raises no question of general principle, for the short form reasons which follow (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), the appeal will be dismissed.BACKGROUND The parties have one child, X (“the child”), who is nearly three years old. The father denies paternity, and has had nothing to do with the child since she was born. In July 2021 a DNA parentage test was carried out, which by report dated 3 August 2021, confirmed that the father was indeed the genetic father of the child. The mother then commenced parenting proceedings on 13 September 2021 seeking, amongst other things, a declaration of paternity. On 16 December 2021, a consent declaration under s 69VA of the Family Law Act 1975 (Cth) (“the Act”) as to the father’s paternity of the child was made by a Senior Judicial Registrar, although subsequently the father has contended that his consent to the order was in fact not given. He has subsequently agitated for a further DNA test to be undertaken. On 27 June 2022, the father filed an application to extend time to review the 16 December 2021 consent orders, together with an Application in a Proceeding to discharge them. Both applications were dismissed by the primary judge on 2 September 2022 (Iwata & Otxoa [2022] FedCFamC2F 1491). The father’s subsequent application to extend time to appeal from those dismissals was unsuccessful (Otxoa & Iwata (Unreported, Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, 29 November 2022)). Because the father’s focus remained on paternity, not parenting, he did not otherwise meaningfully engage with the mother’s proceedings. On 28 March 2023, the mother sought that the matter be set down for an undefended hearing. On 1 May 2023, the primary judge acceded to that application and listed it for hearing on 5 June 2023, although her orders contemplated the vacation of the undefended hearing if the father took certain steps, which he failed to do. Rather, on 5 June 2023 the father sought an adjournment, which was refused. The hearing then proceeded, including the giving of an opportunity to the father to make submissions, and concluded with the final orders and reasons being pronounced that day.THE PRIMARY JUDGE’S REASONS The reasons of the primary judge proceed in an entirely orthodox manner, and even accepting that they were thereafter edited, comprise an excellent example of the utility – indeed necessity – of ex tempore reasons in busy courts. In those reasons, her Honour noted that, given the mother’s unchallenged evidence of family violence, the presumption of equal shared parental responsibility did not apply, and that in any event the father’s refusal to engage in relation to the child meant equal shared parental responsibility would be unworkable (at [29]). Her Honour then, with laudable brevity, undertook a consideration of the two primary considerations under s 60CC(2) of the Act, noting that the father and child had no relationship, and that the father’s refusal to engage with her meant there was no realistic prospect of any meaningful relationship being formed (at [30]).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.