Leroux and Leroux and Anor - [2015] FamCA 762

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX AND ANOR

[2015] FamCA 762

FAMILY LAW – PRACTICE AND PROCEDURE – Application by mother seeking an order to restrain the father from further prosecuting proceedings against psychologist – Application granted in circumstances where father provided an undertaking not to prosecute proceedings against psychologist in the Magistrates Court

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made for the provision of documents to Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT:

Ms Leroux

FIRST RESPONDENT:

Mr Leroux

SECOND RESPONDENT:

Ms Digby

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

HBC

909

2014

DATE DELIVERED:

21 August 2015

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

21 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blissendon

SOLICITOR FOR THE APPLICANT:

Blissenden Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Leroux in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid Commission of Tasmania

Orders

IT IS NOTED

Mr Leroux unconditionally undertakes to the Family Court of Australia that he will forthwith withdraw the Restraint Order Application made against Ms B (Psychologist) listed in the Hobart Magistrates Court on Friday 21 August 2015.

IT IS ORDERED

Leave is given to the solicitor for Ms Leroux (‘the applicant’) to provide to Ms B copies of the following:-
(a)     this order;
(b)     the applicant’s application in a case filed 20 August 2015;
(c)     the affidavit Robert Blissenden filed 20 August 2015;
(d)     the reasons of Judge Baker delivered 16 July 2015; and
(e)     the email from Mr Fitzgerald dated 20 August 2015

The Legal Practitioner for the applicant forthwith forward sealed or true copies of:-
(a)this order;
(b)the applicant’s application in a case filed 20 August 2015;
(c) the affidavit Robert Blissenden filed 20 August 2015;
(d)the reasons of Judge Baker delivered 16 July 2015; and
(e)the email from Mr Fitzgerald dated 20 August 2015.
to the Registrar, Hobart Magistrates Court, prior to 2.15pm on 21 August 2015 and marked to the attention of Magistrate Daly.
Save and except the question of the applicant’s costs application and any leave arising from these orders; the application in a case filed 20 August 2015, as has not been dealt with by these orders, is otherwise dismissed.
Leave is given to the applicant to restore the application in a case to the Family Court of Australia, upon the giving of one (1) hour’s notice, in the event that the respondent does not comply with the undertaking noted above. Such leave to operate until 4 September 2015.
Costs of the applicant be and are reserved.

IT IS DIRECTED

A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT LAUNCESTON

FILE NUMBER: HBC909/2014

Ms Leroux

Applicant

And

Mr Leroux

First Respondent

And

Ms Digby
Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

These are proceedings between Ms Leroux (‘the mother’) and Mr Leroux (‘the father’) in relation to parenting in respect of their children, D, aged 13, and E, aged 11. These proceedings had been conducted in the Federal Circuit Court until they were transferred to the Family Court on or about 16 July 2015. In the Federal Circuit Court an independent children’s lawyer was appointed and remains appointed in the transferred proceedings before this Court. On 20 August 2015 the mother filed an application in a case in the Family Court seeking abridgement of time to enable the application to be heard and for orders pursuant to s 68B of the Family Law Act 1975 (Cth) to restrain the father from further prosecuting proceedings against psychologist Ms B in the Magistrates Court in Hobart, which are listed for mention today at 2.15 pm.
A registrar of this Court formed the view, given the material contained in the affidavit of Robert John Blissendon, filed 20 August 2015, that these proceedings were urgent and ought to be heard as soon as is practicable and at least before 2.15 today when the proceedings come before the Learned Magistrate. As I said, I accept, given that material, that there was urgency and that the matter ought to be listed. To the credit of all parties, they were able to appear before me at 9.00 am this morning in Launceston, the father appearing in person and the mother appearing through her legal practitioner by telephone link.
The Independent Children’s Lawyer did not appear as he was unavailable this morning but sent an email on 21 August 2015 which was read into evidence and will be Exhibit number 1, where he says he does not support the father’s application to restrain the psychologist from continuing to treat the children or either one of them and making other submissions. The father had a copy of that Exhibit this morning. The issue for me is probably limited to two primary factors:-
(a)whether I should accept an undertaking given by the father to withdraw the proceedings this afternoon; or
(b)whether I ought to make the order restraining him from prosecuting that application.
The material before me today comprised:-
(a)exhibit 1 of the 21 August 2015 – that is, the email from Mr Fitzgerald to the father and to the legal practitioner for the mother;
(b)the application in a case filed 20 August 2015;
(c)the affidavit of Robert John Blissendon filed the same day;
(d)the reasons of Judge Baker delivered at Hobart on 16 July 2015; and
(e)the orders made by her at that time contained in items 1 to 6 in those reasons.
The relevant background for me is that proceedings were commenced in the Federal Circuit Court and have been travelling in that Court, it would appear, since at least 2014.
An application was made to Judge Baker of that Court on 4 June 2015 and apparently on that day some consent orders were made in relation to family counselling or family therapy. I do not have a copy of those consent orders before me at this time. The matter came back before her Honour from 15 June 2015. Further evidence was taken and on 16 June 2015 her Honour delivered reasons and made orders to which I have earlier alluded. In those reasons she observed as an issue in dispute in paragraph 8F the question of whether the children should continue to attend Ms B for the purpose of therapeutic counselling.
Her Honour set out in paragraphs 123, 124 and 125 and 126 in her reasons the following:–
123.Of significance, the children reported to [Ms F] that they value the help they receive from [Ms B]. [Ms B’s] role is to provide therapeutic support for the children. They have a good therapeutic relationship with her. This was evidenced when the father terminated her services in August 2014.
124.I do not consider it is in the children’s best interests to cease this therapeutic relationship. The children are about to commence family therapy, and they may find that they do not need her support when it starts. However that support should be available to them if they want it.
125.I am not persuaded that a restraint should be made preventing the mother from taking the children to consult with [Ms B].
126.I also consider her report should be made available to the family therapist to provide a complete background of what has occurred with the children, and what the children have said they have experienced. I do not consider it would be helpful, or in the children’s best interests, to restrict the family therapist from reading their therapeutic psychologist’s reports. [Ms G] is a psychologist and she will use her professional judgment about the use she will make of those reports.
What then happened is this. It is clear that either expressly or impliedly in her orders, Judge Baker dismissed the application for the injunction by the father. It is clear from that reading that her Honour was aware when she made that decision that the children were to see another psychiatrist, Ms G. What then happened was that on 17 August 2015, which was Monday of this week, the father filed an application for a restraint order against the psychologist seeking orders on the basis that:-
[Ms B] is to be restrained because she has injured you or another person to be protected …
and he names the children:-
… and is likely to cause similar injury or damage.
The father did not provide a copy of the reasons of her Honour, Judge Baker, and said in his application that further particulars are to be provided prior to a hearing. He went onto say in paragraph 6:-
I request that the magistrate make an order interim order as the matter involves children who are being exposed to psychological abuse by the respondent.
At this point I note that the father has lodged an appeal to the appellant jurisdiction of the Family Court in relation to the orders made on 16 July 2015, and that appeal is yet to be determined. The application in the Hobart Magistrates Court has been served and is listed for mention today at 2.15 pm. On Tuesday, 18 August 2015 the mother’s legal practitioner wrote to the father and indicated that the application against the psychologist was an abuse of process. He set out the details of that in his email of that date, which is attached to his affidavit.
He said that he required an undertaking to the Court that the father forthwith withdraw the application. The father sent an email back to Mr Blissenden with a letter attached, albeit marked without prejudice save as to costs, but nobody has raised that issue with me, and it would appear simply to be part of an open communication declining to give that undertaking. Accordingly, these proceedings came about. It appears likely that the children’s relationship with Ms B may have been terminated, at least for the time being, as set out in paragraph 11 of Mr Blissenden’s affidavit, as Ms B wants confirmation that it was in order for her to continue the therapeutic relationship with the parties’ children.
The father today appeared before me in the Court in Launceston and, after making submissions, indicated that he would give an undertaking to the Court to withdraw his application to that Court. He said to this Court or words to the effect that this application in the state Magistrates Court was only meant as an interim means pending an application he wished to make to me. In terms of the law I have heard the submissions by the legal practitioner for the mother, and I have considered the recent Full Court decisions in Teo & Guan [2015] FamCAFC 94, delivered on 21 May 2015, Pascarl & Oxley (Edited) [2015] FamCAFC 47, delivered on 26 March 2013, and Lederer & Hunt [2007] FamCA 55, delivered on 9 February 2007.
From those authorities I am satisfied that I have jurisdiction both under s 68B of the Family Law Act 1975 (Cth) and the broader jurisdiction in terms of the Court’s inherent power to protect its own processes, to which the Full Court referred to in Lederer & Hunt (supra) in paragraph 43. The determination is, essentially, whether Ms B ought to be entitled to continue to provide therapeutic treatment to the children. That is the complaint which the father addressed his application to Baker J. That is the complaint which he wishes to address to me, and that is, he says, the reason he took the application in the Magistrates Court for a violence order as an interlocutory application pending determination by me.
That by its nature could only amount to, in terms of the Magistrates Court, as an abuse of process. If the father genuinely believed that he had a further case to argue, and I do not know whether he does or doesn’t, given his own submissions and his own approach, that application ought to have been made to this Court rather than to the Magistrates Court. I will make some aside remarks at this time. I do not know whether I can, or will, make the orders that the father seeks in relation to his proposed application to restrain Ms B from therapeutic treatment of the children.
There has been a determination made by a judicial officer, and it is not my role to second guess that judicial officer or to review her decision. That is, as the father has properly identified, a matter for the Full Court of the Family Court, or for a single judge of the Family Court exercising the appellant jurisdiction of that Court. It is not for me. If the father comes to this Court and seeks some form of interim order, the law is probably clear that he will need to provide either new evidence or additional evidence which was not reasonably available to him before her Honour Baker J.
I make it clear that I will not act as a de facto appeal mechanism for the father in relation to that decision. It will be a matter for him to persuade me that I ought to exercise that jurisdiction. It is clear that her Honour Baker J intended that the relationship between the children and Ms B continue, notwithstanding the appointment of the family therapist. I intend to accept, if he is prepared to give it, an undertaking to the Court by the father to unconditionally withdraw his application this afternoon. I also intend to note that undertaking and make it available to the state Magistrates Court to assist it in understanding the reasons for the withdrawal later today.
I also intend to give leave for the matter to be restored to me this afternoon in the event that the proceedings are not withdrawn by the father. I also intend to note that there is no reason why Ms B cannot continue to see the children, given the decision of her Honour Baker J and pending any determination made by the appellate division of the Family Court of Australia, or any decision made by a judge exercising jurisdiction under the Family Law Act 1975 (Cth).
I reserve the costs of the mother in respect of this application. I include in the documents to go to the Magistrates Court the order I have made today and include in that order two other orders which are a copy of my order to Ms B and also I otherwise dismiss the application in a case except for the question of costs and any leave application and I give leave for the mother to have the matter restored to me on one hour’s notice in the event that the Magistrate’s application is not withdrawn.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 August 2015.

Associate:

Date: 21 August 2015