Justice Paul Tottle described the applicant, whose identity has been suppressed under the pseudonym of “Mr Lietzau”, as having “lost all professional objectivity” during the course of parenting proceedings in the Family Court of WA.
The proceedings took place in 2023 after the pair divorced, and while judgement was reserved, his former partner obtained an interim a restraining order in the Magistrates Court.
On June 27, 2023, the former husband unsuccessfully applied to Justice Michael Berry of the WA Family Court and the FCFC for an anti-suit injunction to restrain his former partner from proceeding with her application for a full restraining order.
He also applied to Magistrate Catherine Crawford for a stay of the restraining order application.
Both failed, with the applicant bringing judicial review proceedings in the Supreme Court, claiming that his former wife’s application was an abuse of process.
Justice Berry and Magistrate Crawford were personally sued in the review proceedings as first and second respondents, and the applicant also named his ex-wife, her lawyer, their family court independent children’s lawyer (ILC), the principal of the ILC’s employer firm, and the Legal Aid Commission of Western Australia as other parties to the dispute.
The Attorney General of WA also intervened.
Berry J had also presided over the original parenting proceedings in the WA Family Court. During those proceedings, HH found that the applicant engaged in family violence against his ex-wife by subjecting her, and her lawyers, to “unjustified attacks on their professional reputations” by weaponising the legal profession complaints system.
The applicant made 55 complaints against legal practitioners connected to his ex-wife, leading her to become fearful and distressed about the denigration of her professional reputation.
He also accused her of being a “kidnapper” with an undiagnosed personality disorder.
Because Justice Berry found that there was a high risk of family violence, namely the threatening and coercive behaviour on the part of the applicant, he gave sole parental responsibility to the mother, deciding that was what was in the best interests of their children.
The applicant unsuccessfully appealed this decision and failed in a special leave bid to the High Court.
The former partner was then granted the interim restraining order in the Magistrates Court, which contained extensive limitations on the applicant’s ability to contact her.
During these proceedings, the applicant also made a complaint to the Australian Health Practitioner Regulation Agency about his former partner’s doctors.
The purpose of the restraining order was not to discourage the children from having a relationship with their father, but to restrain him “from using third parties, systems and agencies to disparage [her], harass [her] and to perpetuate his unfounded allegations”.
The judicial review application brought by Mr Lietzau in the Supreme Court was underpinned by the contention that it was oppressive, vexatious and an abuse of process for his former partner to have made the restraining order application in the Magistrates Court, when it was open to her to have sought the restraining order during the parental proceedings in the Family Court.
He also claimed that both Justice Berry and Magistrate Catherine Crawford (the exiled Chrilden’s Court Magistrate) committed errors of law by dismissing his anti-suit injunction and stay of proceedings applications on that same basis.
Justice Tottle affirmed that anti-suit injunctions and stay applications serve to protect the court’s procedures and processes and to restrain vexatious or oppressive proceedings, and that the applicant’s case was entirely without merit.
There was no risk that the integrity of the parenting proceedings would be undermined by the restraining order proceedings. It also could not be said that separate proceedings for the restraining order were vexatious, oppressive or prejudicial to the court’s procedures.
When all else failed, the applicant attempted to argue that each of the respondents, his former partner’s lawyer, the ILC and the ILC’s employer should be ordered to show cause as to why they should not be struck off the roll of practitioners or otherwise disciplined.
Justice Tottle found this ground “vexatious and scandalous” and entirely without basis, adding that the application “should never have been made”.
In respect of Justice Berry and Magistrate Crawford as respondents a Vasta issues raised its head. HH held that the application would “strike at the heart” of judicial independence, and that in this instance, judicial immunity precluded collateral attacks to a judgement by way of civil suit.
Though not cited in the judgment, the case is redolent of Gambotto & Farrelli [2023] FedCFamC1F 465, where the Federal Circuit and Family Court (Div 1) declared an applicant to be a vexatious litigant, after he launched a series of meritless applications in the context of a parenting dispute.
Gambotto, the applicant, sought permission to use court documents to sue his former partner in defamation and in criminal and tortious actions, to vary parenting orders, to request a stay on costs orders, to prosecute his former partner for perjury, to challenge an expert report on the child’s best interests, and to remove the ICL assigned to the dispute.
The court found that each of the allegations was without merit, and restricted the applicant from initiating interim applications without prior leave.
The inherent powers of courts to prevent abuse of their processes, and the extraction of revenge, is a continuing burden on court resources and should be smartly nipped in the bud.
Lachaux v Independent Print (UK), Stocker v Stoker (UK), M1 v R1 (NSW), and Rader v Haines (NSW) – were all defamation cases in recent memory rooted in domestic violence.