Otxoa & Iwata (No 2)

[2024] FedCFamC1A 184

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Otxoa & Iwata (No 2) [2024] FedCFamC1A 184

Appeal from:

Iwata & Otxoa (No 3) [2024] FedCFamC2F 1402

Appeal number:

NAA 256 of 2024

File number:

ADC 4450 of 2021

Judgment of:

AUSTIN J

Date of judgment:

15 October 2024

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the applicant was invited to show cause why the appeal should not be summarily dismissed – Where the applicant requires leave to appeal from the primary judge’s dismissal of his disqualification application – Where the primary judge dismissed all extant proceedings in reliance upon s 102QAB of the Family Law Act 1975 (Cth) – Where the grounds of appeal lack merit – Where the appeal is an abuse of process – Appeal summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 69VA, 102QAB

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.31

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Cases cited:

Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

Iwata & Otxoa [2022] FedCFamC2F 1491

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Otxoa & Iwata [2023] FedCFamC1A 183

Rogers v R (1994) 181 CLR 251; [1994] HCA 42

Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Number of paragraphs:

18

Date of hearing:

15 October 2024

Place:

Newcastle (via Microsoft Teams)

The Applicant:

Litigant in person (did not participate)

The Respondent:

Litigant in person (did not participate)

ORDERS

NAA 256 of 2024
ADC 4450 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR OTXOA

Applicant

AND:

MS IWATA

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	15 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 4 October 2024 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Otxoa & Iwata has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 12 September 2024, two orders were made by a judge of the Federal Circuit and Family Court of Australia (Division 2) to finalise parenting proceedings between the parties in respect of their only child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Her Honour dismissed the father’s disqualification application (Order 1) and dismissed all extant proceedings in reliance upon s 102QAB of the Act (Order 2).

2. The father appealed from both those orders by a Notice of Appeal filed on 4 October 2024, which appeal was promptly listed for hearing on 15 October 2024 for the purpose of him being given the chance to submit why the appeal should not be summarily dismissed. The parties were notified of both the listing and its purpose by an email sent to them on 8 October 2024. Neither party appeared electronically at the designated time.

3. An appeal may be summarily dismissed if it has no reasonable prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)) and this appeal is summarily dismissed for that reason. The following reasons explain why. The appeal is not dismissed simply because the father failed to appear and prosecute it diligently (r 13.31(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).

   Background

4. The mother first commenced proceedings between the parties under Pt VII of the Act in 2021.

5. The father initially denied paternity of the subject child but, in December 2021, after a positive paternity test, a declaration of his paternity was made under s 69VA of the Act by a senior judicial registrar with the parties’ consent.

6. Later, in June 2022, the father filed an application for an extension of time within which to review the consent declaration, but the application was dismissed in September 2022 (Iwata & Otxoa [2022] FedCFamC2F 1491). The father’s application for an extension of time to appeal from that judgment was then dismissed (Otxoa & Iwata (Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction, unreported, 29 November 2022)).

7. The father did not thereafter usefully participate in the litigation as it progressed and, immediately following an undefended hearing in June 2023, final parenting orders were made to determine the parenting cause, for which judgment the primary judge gave ex tempore reasons. The father’s appeal from those orders was then dismissed by Tree J in October 2023 (Otxoa & Iwata [2023] FedCFamC1A 183).

8. In March 2024, the father filed fresh original proceedings seeking to have all prior orders “removed from the court record”, costs against the mother, and a refund of all child support payments. The application was listed for hearing before the primary judge in September 2024 for consideration of its summary dismissal. The father was self-represented, but the mother did not appear as she was excused. Her Honour first dismissed the oral application made by the father for her Honour’s disqualification (Order 1) and then dismissed the application filed in March 2024 (Order 2).

9. In respect of Order 2, her Honour referred within the reasons for judgment to both s 102QAB(2) and s 102QAB(4) of the Act – both of which provisions allow for the summary dismissal of proceedings, though for different reasons – and concluded this:

   57.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.

   (Emphasis added)

10. Evidently, the father’s March 2024 application was dismissed because both ss 102QAB(2) and 102QAB(4) of the Act were engaged.

    Disposition

11. The father needs leave to appeal from the dismissal of his disqualification application (s 26(1)(h) and s 28(1)(b) of the FCFCA Act; reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”)), yet he does not seek it.

12. As the Regulations currently stand, the father does not currently require leave to appeal from the dismissal of his substantive application pursuant to s 102QAB of the Act, which is perhaps anomalous given the need to apply for leave to appeal from an order made under s 102QB of the Act (reg 4.02(1)(b)).

13. The grounds of appeal lack merit and so the application for leave to appeal from Order 1 should be dismissed and the appeal from Order 2 should be dismissed.

14. The grounds are pleaded as follows:

    1.Disregard of Evidence: I believe that the judge ignored or improperly weighed important evidence that was presented during the proceedings.

    2.Prejudice or Bias: there are clear evidence to suggest that the judge displayed bias or prejudice against me or failed to provide an impartial hearing.

    3.Violation of Constitutional Rights: I believe that my constitutional rights were violated during these family court proceedings, such as my right to due process or equal protection under the law.

15. The grounds of appeal fail to come to terms with the underlying flaw in the father’s case. His March 2024 application was an abuse of process because it impermissibly sought to go behind prior orders from which he had already unsuccessfully appealed or tried to appeal. His intention to appeal from the orders made by the primary judge in September 2024 is also an abuse of process because it drives at the same impermissible objective, as can be seen from the remedial orders he seeks in the appeal in these terms:

    1.        That my appeal application be granted in order to restore justice in this case.

    2.I seek orders to revoke all orders in this case and dismiss the entire case…

16. Even if imagined the appeal was competent and successful, it would be impossible to revoke all former orders and to dismiss the entire cause of action. The widest remedy available would be the re-determination of the father’s March 2024 application, either in the appeal within the exercise of appellate jurisdiction or by remitter to another judge exercising original jurisdiction. But the same result would inevitably follow because the application was incompetent. That means the primary judge’s alleged bias is irrelevant.

17. This Court has power to make orders that prevent an abuse of its process and protect its own functions (Williams v Spautz (1992) 174 CLR 509 at 518). What amounts to an abuse of court process is insusceptible of a formulation comprising closed categories (Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 265), however, one established category of abuse is where the use of the court’s procedures would bring the administration of justice into disrepute (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [89]; Batistatos at 267; Rogers v R (1994) 181 CLR 251 at 286). The administration of justice is brought into disrepute when judgments pronounced by the Court do not finally quell controversy between litigants. It is well accepted the doctrine of abuse of process is informed by considerations of finality and fairness, so making a claim or raising an issue which was made or raised and determined in an earlier proceeding can constitute an abuse of process even where the earlier proceeding might not give rise to an estoppel (Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507 at [24]–[26]).

18. Here, the orders made between the parties in the parenting cause in December 2021 and June 2023 were affirmed by orders made in the exercise of appellate jurisdiction in November 2022 and October 2023 respectively. The father’s application filed in March 2024, seeking to go behind those orders, was an abuse of process and so is his current appeal from the order dismissing that incompetent application.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       15 October 2024