Otxoa & Iwata
[2023] FedCFamC1A 183
•26 October 2023
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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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
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.
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]).
The primary judge then addressed the relevant additional considerations, ultimately weighing all those matters as demonstrating that the orders proposed by the mother were in the child’s best interests. The parenting orders then made were as follows:
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…
3. The child live with the Mother.
4.The [father] spend time with the child as agreed in writing between the parties.
…
Her Honour then addressed the mother’s application for costs and ordered the father pay her costs in the sum of $3,349 within 60 days.
THE APPEAL
Generally
Quite remarkably, given that the primary judge’s reasons only extend to some 10 pages, the father’s Notice of Appeal contained no less than 32 grounds. As a preliminary observation, a court is entitled to be circumspect about the merit of all grounds of appeal when they are so voluminous and assert many different errors in respect of a short first instance judgment such as that under consideration here (Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [20]–[22]).
That circumspection is well warranted in this case, as many of the grounds are clearly specious, perhaps most obviously the complaint of “unreasonable delay … in the delivery of the judgment” (Ground 27) which is patent nonsense. Moreover the orders which the father sought in the event the appeal succeeded were misconceived, and only serve to demonstrate that his focus remains on the issue of paternity. Particularly what he seeks is:
1.That my appeal application be granted in order to reveal the truth and restore justice in this case.
2.I seek orders for a parentage DNA test to accurately determine the biological parentage.
3.I seek orders to dismiss all orders mentioned in the misleading document referred to as “Consent Orders of the 16 December 2021” to ensure a fair proceeding and have my filed applications heard.
4.I seek orders for the appointment of an independent children's lawyer to advocate for and protect the best interests of the child involved.
(As per the original)
Worse, the father’s Summary of Argument, which only ran to two pages, did not specifically address the grounds seriatim, but only addressed four matters, as I shall shortly detail. Arguably those four matters are encompassed in some grounds of appeal.
It is important to recognise that this appeal is from orders made in the exercise of a judicial discretion, such that the principles enunciated in House v The King (1936) 55 CLR 499 at 504–505 (“House”) are engaged. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Further, as I have already noted, the reasons for judgment of the primary judge were given ex tempore. It is well established that “[a]n ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]) and that “[a]ppellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked” (Perdicari & Perdicari (2019) FLC 93-914 at [25]).
Some grounds contend apprehended bias and procedural unfairness, and hence ordinarily ought be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611). That said, no elaboration of the alleged bias was ventured in the father’s Summary of Argument or orally, and therefore I will address it briefly later.
I will deal with the appeal by reference to the four headings in the father’s Summary of Argument.
“Procedural Fairness and Misconduct”
The entirety of the father’s argument under this heading in his Summary of Argument filed 11 September 2023 is as follows:
1.The court did not adequately consider the arguments and evidence I presented in both of my Responds Applications, Review Application and Application in a Proceeding. It is important that all parties involved have a fair opportunity to present their case and have their arguments reviewed diligently.
2.I have been falsely assumed to be the father and am being asked to pay child support for a child who is not biologically mine. Despite my multiple requests, the child's mother has refused to grant me access to the child for a DNA test, which could accurately determine the biological parentage. I strongly believe that without this essential test, the accuracy of determining child support payments is compromised, especially since I have not registered for the birth certificate up to this date.
3.The court have refused to consider my application for a DNA test without any valid legal basis. They claim that a consent orders agreement exists between me and the other party, but there is no supporting evidence of this agreement in the court portal. This lack of evidence raises serious concerns about the transparency and integrity of the proceedings.
4.I must bring to your attention the conduct of [the father’s former lawyer] from [law firm]. [The father’s former lawyer], the lawyer who I relied on to advocate for my rights, disregarded my instructions and advised against the DNA test, emphasizing that it would jeopardize the mother's child support privilege. Her actions not only violated my rights as an individual seeking justice but also raised questions about her professional conduct and impartiality in this matter.
5.To my dismay, the court dismissed my appeal application to invalidate the misleading documents referred to as "consent orders," without providing any justification for this decision. Furthermore, [the father’s former lawyer] was not called upon to testify in court, depriving me of the opportunity to present evidence and question the basis of the alleged agreement. This denial of due process undermines the fairness and credibility of the proceedings.
6.I would like to draw your attention to the fact that another lawyer involved in this case— [the father’s second former lawyer] of [law firm] submitted a notice of discontinuance in an attempt to prevent my application for a DNA test from being heard. This action further raised doubts about the integrity and impartiality of the legal process. However, [the father’s second former lawyer] of [law firm] admitted to filing a wrong document without client instructions.
(As per the original)
It is convenient to address each of those paragraphs.
Paragraph 1 asserts errors in previous hearings, not in the one from which this appeal actually arises. It is misconceived.
Paragraph 2 is again quite unrelated to what the primary judge actually decided on 5 June 2023, as indeed is paragraph 3.
Paragraph 4 relates to the 16 December 2021 orders, not those of the primary judge made 5 June 2023.
Paragraph 5 is a collateral attack on the refusal of leave to review the 16 December 2021 orders out of time, and in turn, the refusal to extend time to appeal from that refusal. This appeal is not a vehicle to revisit those issues.
Paragraph 6 requires a little more background, conveniently found in the primary judge’s reasons:
8.On 1 April 2022, the [father] 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 [father] in lieu of a Notice of Ceasing to Act and that it had not been filed on the [father’s] instructions.
…
11.On 7 October 2022, the [father] 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 [father] 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.
Plainly the complaint now raised relates to the 27 January 2023 determination of the primary judge, and not her 5 June 2023 orders, even if those matters were referred to by her Honour so as to give her reasons relevant context.
No errors by the primary judge in her 5 June 2023 orders arise from the matters complained of under this heading.
“Dismissal without proper justification”
Under this heading, the father’s Summary of Argument contends:
7.The court orders dismiss all of my applications without providing a detailed explanation or justification for such dismissal. It is reasonable to argue that the court should provide a thorough analysis of the evidence and legal arguments before dismissing my applications.
(As per the original)
This complaint may be swiftly dealt with. Indeed Order 6 of the primary judge was:
6. All extant applications are dismissed.
However the hearing before the primary judge was the final hearing of the mother’s application and proceeded on an undefended basis for reasons explained by the primary judge at [23]–[26]. The orders made on 5 June 2023 concluded the proceedings in their entirety. It was therefore appropriate to dismiss all extant applications. In any event, I cannot identify any application of the father which then remained unresolved.
“Cost Allocation”
The father’s Summary of Argument contends under this heading:
8.The order me/the Alleged Father to pay the Mother’s costs of the applications may be seen as unduly harsh, especially considering the dismissal of his applications. It can be argued that the court should have considered the merits of the applications before assigning costs and should have taken into account the financial circumstances of both parties.
(As per the original)
The primary judge succinctly set out her reasons for the costs order at [36]–[45], including an explicit discussion of the merits of the mother’s application and the parties’ financial circumstances (at [38]). No error of the kind identified in House is established.
“Lack of Clarity”
The father’s Summary of Argument relevantly contends:
9.The court orders are subject to ambiguity and require further clarification. It is reasonable to argue that the court should provide more specific reasons for the dismissal and the amount of costs assigned. This would help ensure transparency and accountability in the judicial process.
10.It can be argument against the given excerpt from the Court Orders is that it lacks specificity and clarity regarding the details of the obligations and consequences mentioned. While it references Section 65DA(2) and Section 62B of the Family Law Act 1975, it does not provide a clear description of what those sections entail or how they relate to the orders being made. This lack of specific information may lead to confusion and potential misinterpretation of the orders.
11.Additionally, the orders themselves are relatively vague. For example, Order 4 states that the [father] should spend time with the child as agreed in writing between the parties. This leaves room for interpretation and potential disagreements between the parties involved. It would be more beneficial to provide specific guidelines and arrangements for the time spent between the [father] and the child to avoid potential disputes or misunderstandings.
12.Furthermore, the mention of "extant applications" being dismissed in Order 6 is unclear without further context. It would be important to provide more information about the nature of these applications and why they are being dismissed. Without this clarity, parties involved may be led uncertain about the status of their applications and any potential implications.
(As per the original)
Again, it is convenient to address each of those paragraphs individually.
As to paragraph 9, the orders are the very model of clarity, and the primary judge’s reasons are more than adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266), and indeed, given they were delivered ex tempore, exemplary.
As to paragraph 10, this appears to be a complaint about a notation to the orders as follows:
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.
A notation is not amenable to appeal as it is not a judgment (ss 26(1) and 7(1) of the Federal Circuit and Family Court of Australia 2021 (Cth)).
As to paragraph 11, the orders were not at all vague; to the contrary they could scarcely have been clearer. Moreover, given that the father has not ever had, and is unlikely to ever pursue, any kind of relationship with the child, the complaint is clearly vexatious.
Paragraph 12 has been adequately addressed earlier in these reasons.
Other challenges in the father’s Notice of Appeal
There are many other challenges advanced in the father’s Notice of Appeal filed 29 June 2023, but not addressed in his Summary of Argument. However most are generally expressed, and few have any, much less adequate, particularity. One suspects they were sourced from the internet, as they do not appear to really engage with this matter.
As I had already touched on, some allege bias (Grounds 8 and 13), but there is no specificity whatsoever to those claims such that they must fail. Others claim a denial of procedural fairness, perhaps in ways not captured by the father’s arguments under that heading in his Summary of Argument (for example, Ground 16), however all are misconceived.
Others are far more flamboyant, including “Violation of Constitutional Rights” (Ground 11).
Some are simply repetitious (Grounds 12 and 31 are identical and almost precisely mirrored in Ground 18), some just plain nonsense, of which Ground 20 is perhaps the highwater mark (“Inadequate consideration of Child Support”).
It is simply a waste of judicial resources to address them individually, given the failure of the father’s Summary of Argument to even begin upon any elucidation of many of them.
None enjoy merit, and all fail.
OUTCOME
The appeal fails, and is dismissed.
COSTS
In the event the appeal was dismissed, the legally aided mother sought costs in the sum of $4,191, however contrary to Order 8 of the procedural orders made on 7 August 2023 by an Appeal Judicial Registrar (and indeed r 13.53(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), no costs schedule, whether claiming that sum or at all, was filed by the mother. Each party will bear their own costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 26 October 2023
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