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:

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…

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.

Continue reading Otxoa & Iwata (No 2)

Details

AGLC: Otxoa & Iwata (No 2) [2024] FedCFamC1A 184
Case: [2024] FedCFamC1A 184
Decision Date: 15 October 2024

CaseChat Overview and Summary

In the case of Otxoa & Iwata, the applicant, Mr Otxoa, sought to appeal the dismissal of his application for the disqualification of the primary judge and the dismissal of his subsequent application to remove prior orders from the court record. The appeal was heard and dismissed by Austin J in the Federal Circuit and Family Court of Australia’s appellate jurisdiction. The respondent, Ms Iwata, was excused from appearing as she had not participated in the proceedings leading to the dismissal of the father’s applications. The father, who was self-represented, filed a notice of appeal on 4 October 2024, challenging the dismissal of his applications. The court was required to determine whether the appeal had a reasonable prospect of success and whether it was an abuse of process.

The court held that the appeal lacked merit and was an abuse of process. The father had not sought leave to appeal from the primary judge’s dismissal of his disqualification application, which is a prerequisite under s 26(1)(h) and s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth). Furthermore, the grounds of appeal did not demonstrate a reasonable prospect of success. The primary judge had correctly dismissed the father’s applications under s 102QAB(2) and s 102QAB(4) of the Family Law Act 1975 (Cth), as the applications lacked merit and were an abuse of process. The court concluded that the appeal was an abuse of the court’s process.

The court dismissed the appeal, stating that it had no reasonable prospect of success and was an abuse of process. The Notice of Appeal filed on 4 October 2024 was dismissed. The father’s failure to seek leave to appeal from the primary judge’s dismissal of his disqualification application and the lack of merit in the grounds of appeal were key factors in the court’s decision. The appeal was therefore properly dismissed under s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

Orders

Orders of the court

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).

Background

Background to the litigation

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 The mother first commenced proceedings between the parties under Pt VII of the Act in 2021. 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. 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)). 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). 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). 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) Evidently, the father’s March 2024 application was dismissed because both ss 102QAB(2) and 102QAB(4) of the Act were engaged.Disposition 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.

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.

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

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)

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