LEROUX & LEROUX
[2016] FamCA 255
•2 March 2016
FAMILY COURT OF AUSTRALIA
| LEROUX & LEROUX | [2016] FamCA 255 |
| FAMILY LAW – PRACTICE AND PROCEDURE – OBJECTION TO SUBPOENA – Where father has issued subpoena to children’s treating therapist and Child Protection Authorities – Where the children’s treating therapist and Independent Children’s Lawyer object – Where parts of subpoena are struck out. |
| Family Law Act 1975 (Cth) | ||
| APPLICANT: | Mr Leroux | |
| FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT: | Ms Leroux Ms Digby Mr Digby |
| INDEPENDENT CHILDREN’S LAWYER: | Mr P Fitzgerald |
| FILE NUMBER: | HBC | 909 | of | 2014 |
| DATE DELIVERED: | 2 March 2016 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 2 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr R Blissenden |
| SOLICITOR FOR THE FIRST RESPONDENT: COUNSEL FOR THE SECOND COUNSEL FOR THE THIRD RESPONDENT: COUNSEL FOR THE INDEPENDENT SOLICITOR FOR THE INDEPENDENT | Blissenden Lawyers In person In person Mr Fitzgerald Legal Aid Commission of Tasmania |
Orders
The subpoena filed 9 November 2015 be adjourned for the production of documents before a Registrar of this Court on Wednesday 16 March 2016 at 9.30am.
Paragraphs 2, 3, 8 & 9 of the subpoena be and are struck out.
IT IS FURTHER ORDERED
Pursuant to s 118 of the Family Law Act 1975 (Cth), the contravention application filed by the applicant on 18 January 2016 is summarily dismissed.
Costs of the contravention application be reserved.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leroux & Leroux and Ors 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 HOBART |
FILE NUMBER: HBC 909 of 2014
| Mr Leroux |
Applicant
And
| Ms Leroux |
Respondent
And
Ms Digby
Second Respondent
And
Mr Digby
Third Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
(it is implicit that these reasons include the exchanges between the bench and parties during this interlocutory application)
This is a proceeding relating to a subpoena issued by Mr Leroux to Ms B, who was the treating psychologist for the child D, who recently celebrated her 14th birthday, and the child E, who turned 12 in December last.
The objection is in relation to producing file notes and documents relating to the children, of the first part, and the second part in relation to correspondence between Ms Leroux and Child Protection Authorities.
A notice of objection was filed in relation to those parts of the subpoena, particularly those contained in paragraphs 2, 3, 8 and 9.
Ms B attended today, and an email from Ms B, dated 2 March 2016, to the Independent Children’s Lawyer advised:-[1]
With further thought, I reconsidered my position on access to my clinical notes for both children. Despite not objecting initially, I am of the opinion that the children’s expectation is that the sessions with myself are confidential. Given the current nature and position of the therapeutic relationship, I am concerned that the release of these notes will affect the ongoing therapeutic relationship with the children. It is not in their best interests and is likely to be unhelpful in promoting positive parent child relationships.
And then she goes on to say she would be happy to attend court and is, in fact, in court.
[1] Exhibit ICL1.
Each of the Independent Children’s Lawyer and the father provided written submissions. The Independent Children’s Lawyer’s submissions provide two primary contentions. The first is the broader aspect in relation to the impact of the further disclosure of the children’s private therapy and relatively mature children, although I don’t know what their complete state of maturity is, but at least chronologically they are relatively older children. The second relates to the legislative forensic purposes of the subpoena, including the question of fishing.
Mr Leroux tells me, and I accept, that in the Federal Circuit Court there have been subpoena issued and documents produced to which presumably he has had access. In the Federal Circuit Court the process with regard to subpoenas is somewhat different.
Mr Leroux handed to the Court today lengthy written submissions and made lengthy oral submissions. Much of his oral submissions missed the point and was a re-agitation of his views about the mother, his views about the involvement of Ms B, which has been a constant feature in these proceedings, and concerns about fraud and the like. Those written submissions run for some 11 pages and are at times difficult to read, because, for some reason, Mr Leroux has chosen to change the fonts both in size and mode, and I have endeavoured to make some sense of them.
Mr Leroux sets out his interpretation of some case law, some of which is accurate, some of which is misconceived. Some of the quotes appear to be of a selective nature. His primary concern, it seems, is that he says or asserts in his submissions that the therapist is, in many ways, according to him, an acolyte of the mother, who is endeavouring to prevent these children from having a relationship with him and, presumably, his family. He then goes into a long explanation of his views of the mother’s mental health and the need for him to have medical evidence so he can presumably persuade the Court that his concerns are met. They are not relevant to this determination.
I am concerned, having regard to the level of litigation, that these children – and there is clear evidence that they are struggling with this process, and I note the comments made in earlier judgments by me and earlier reasons by me – that they can have access to a therapist and that the Court proceedings ought not to significantly impact on the needs of these children. I am satisfied that the production of those documents would, in my view, and on the evidence before me at the present time, significantly impact on the therapeutic treatment of these children, and, as such, I will exclude those two provisions.
In terms of the access to records and communications between Child Protection and allied services, that ought to be by way of subpoenas issued to them or requests under s 69ZW of the Family Law Act 1975 (Cth), if appropriate, rather than any clear communications which may exist between the therapist and those authorities. In coming to this determination, as I said, I am very conscious of the age of these children. As such, I strike out paragraphs 2, 3 8 and 9 of the subpoena.
The subpoena filed 9 November 2015 is stood over for production of documents before a registrar of this Court on Wednesday, 16 March 2016 at 9.30 am, and I strike out of the subpoena schedule paragraphs 2, 3, 8 and 9.
On 18 January 2016 Mr Leroux filed an application for contravention of financial matters which is returnable before 11 February 2016, which was adjourned to today. In that, he asserts:-
It is alleged that the Respondent has contravened paragraph number 5 of the Order made by Her Honour Judge Baker on 4 June:-
“That the mother, her servant and/or agents are hereby restrained from selling or disposing of any chattel, jewellery, contents of the parties or building materials without first obtaining the father’s written consent or order of the Court.”
The allegation is that from 5 June 2015 onwards, at X Street, Suburb Y:-
The Mother, her servants and/or agents, in contravention of paragraph number 5 of the Order made by Her Honour Judge Baker on 4 June 2015, sold and/or disposed chattels, jewellery (heirlooms diamonds and [a] watch) the contents of the parties and/or building materials, (including sandstone and clay tiles) without first obtaining the Father’s written consent or order of the Court.
In support of that material, the father filed an affidavit sworn the same day, in which he deposes that:-
(a)he is a party to these proceedings;
(b)he is a self-represented person;
(c)on 4 June, by consent, an order was made, and he describes the order, which is as set out.
He says in paragraph 4:-
I allege Order 5 of made by Her Honour Judge Baker has been contravened, and I seek the Respondent be dealt with …
At paragraph he 5 says:-
The Mother, her servants or agents, in contravention of Order 5 made by Her Honour Judge Baker on 4 June, sold and disposed of chattels, jewellery (heirloom diamonds and [a] watch), contents of the parties and/or building materials (including sandstone and clay tiles) without first obtaining the Father’s written consent or order of the Court.
He goes on at paragraph 6 and says:-
I request that this matter be set down for urgent Hearing. There is a Financial Mediation Conference scheduled for 19th January 2016 at 2.15 pm, which cannot reasonably proceed until the application contravention has been dealt with.
And then he annexes to the affidavit the order made by her Honour on 4 June 2015.
I accept that Mr Leroux is unrepresented. He appears in this Court, however, on a regular basis, and this is not the first interim application that he has made. In fact, it is one of many. The application contains no factual material upon which the contravention can be based. It is completely inadequate in terms of the evidence, and the allegations are so vague and broad that they cannot possibly be responded to. It can only in those circumstances amount to an abuse of process.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 March 2016.
Associate:
Date: 2 March 2016
0
0