LIETZAU & LIETZAU
[2020] FamCAFC 149
•22 June 2020
FAMILY COURT OF AUSTRALIA
| LIETZAU & LIETZAU | [2020] FamCAFC 149 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REOPEN HEARING – LEAVE TO APPEAL – Where there was no demonstrable misunderstanding by the judge who heard the application for leave to appeal of a material aspect of the applicant’s case – Where there is no relevant change of circumstances – Where there is no basis for leave to be given to reopen the application for leave to appeal – Where leave is required if the order is an interlocutory order as to a matter of practice and procedure – Where here there is no doubt that the order or rather the refusal to make the order was an interlocutory order as to a matter of practice and procedure despite the parenting orders sought in the substantive proceedings – Where leave to appeal is required – Application in an Appeal dismissed. |
| Family Law Act 1975 (Cth) Pt VII and ss 4, 11F, 94AA(1), 94AAA(1A) Civil Procedure Rules 1998 (UK) r 52.30 Family Law Regulations 1984 (Cth) regs 15A(1) and (2) Family Law Rules 2004 (Cth) r 13.07A |
| Hart & Selwood (2016) FLC 93-753; [2016] FamCAFC 254 |
| APPLICANT: | Mr Lietzau |
| RESPONDENT: | Ms Lietzau |
| FILE NUMBER: | WEA | 7L | of | 2019 |
| APPEAL NUMBER: | PTW | 1898 | of | 2017 |
| DATE DELIVERED: | 22 June 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 29 January 2020 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| PREVIOUS APPEAL JUDGMENT DATE: | 24 August 2018 |
| PREVIOUS APPEAL JUDGMENT MNC: | [2018] FamCAFC 167 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Johnson |
| SOLICITORS FOR THE RESPONDENT: | Kim Wilson & Co |
Orders
The Application in an Appeal filed on 19 December 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lietzau & Lietzau has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 7L of 2018
File Number: PTW 1898 of 2017
| Mr Lietzau |
Applicant
And
| Ms Lietzau |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court is an Application in an Appeal filed by Mr Lietzau (“the father”) on 19 December 2019, seeking leave to reopen the hearing of the father’s application for leave to appeal heard by Thackray J on 24 August 2018, and if leave is granted, for the court to find that leave to appeal is not required. In the alternative, if leave to appeal is required, then that leave be granted.
The application is opposed by Ms Lietzau (“the mother”).
In support of the application the father filed an affidavit and a summary of argument also on 19 December 2019.
I indicate at this point that if leave to reopen is granted, and it is determined that leave to appeal is required, then that will need to be the subject of a Notice of Appeal; leave to appeal is not determined on an Application in an Appeal. The same result follows if leave to reopen is granted, and it is found that leave to appeal is not required; i.e., an Amended Notice of Appeal will need to be filed.
At the commencement of the hearing it was submitted by the mother that the application before the court was now futile because, subject to one aspect, she was withdrawing her objection to the father inspecting her medical records, that being the primary issue dealt with by the Magistrate, and which then led to the application for leave to appeal being heard by Thackray J.
The one objection to inspection that remained, was the one based on a claim of legal professional privilege.
The mother’s proposal was that the judge who was to hear the trial of the substantive proceedings for parenting orders between the parties, be advised of the mother’s position, and appropriate orders made, including in relation to the father’s use of the documents that he would be able to inspect and copy. Indeed, apparently a consent minute of order had been prepared by the mother’s solicitors.
However, the father would not accept that the issue could be disposed of with a consent order being put before the trial judge. He made the nonsensical submission that that judge would not be bound by the agreement of the parties given that he would have a discretion in the matter. Unfortunately though, there did not appear to be any agreement about the legal professional privilege claim, and in any event, agreement about inspection of the documents would not deal with whether the issue of the disqualification of the Magistrate should be reopened. Thus, the hearing had to proceed on all aspects.
Background
The mother was born in 1978, and she works in a professional capacity.
The father was born in 1966, and he too works in a professional capacity.
There is a dispute as to when the parties commenced cohabitation, but they were married in 2007, and separated finally in July or August 2016.
There are three children of the marriage; B born in 2009, C born in 2011 and D born in 2014.
On 27 March 2017, the mother instituted parenting proceedings in the Family Court of Western Australia, and the father filed his Response on 12 April 2017.
In the course of those proceedings two issues arose. First, the Independent Children’s Lawyer (“ICL”) issued a number of subpoenas to produce documents to the mother’s medical providers, including the mother’s treating psychiatrist and treating psychologist.
The psychiatrist objected to the father being able to inspect her file, and the mother objected to the father being able to inspect her medical records, as well as claiming legal professional privilege in relation to some of the documents.
The father sought that those objections be dismissed, and that he have leave to inspect all of the subpoenaed documents.
Secondly, the ICL sought orders that a named psychiatrist be appointed as the single expert witness to undertake an assessment as to whether the mother or the father suffered from a mental illness or personality disorder, and if so, the impact that may have on that party’s capacity to parent the children the subject of the proceedings, and co-parent with the other party.
As to this, the father agreed that such an assessment should be undertaken, but he objected to the psychiatrist nominated.
Those interlocutory matters came before Magistrate Sutherland (as her Honour then was) on 15 December 2017, on 19 January 2018 her Honour released her reasons for judgment, and on 31 January 2018 formally made her orders.
Relevantly, her Honour said this in her reasons for judgment at [41]:
Given my concerns that the father is not acting in good faith, in so far as his complaints to AHPRA are concerned, I am not satisfied that he should be granted leave to provide any information contained in the subpoenaed documents to AHPRA. Unfortunately, and notwithstanding that the father is a legal practitioner, I am also not satisfied that the father will comply with Rule 13.07A, any undertaking, or any specific order that I make in relation to his use of the information contained in the subpoenaed documents. In particular, the father has already demonstrated an unwillingness to comply with the Rules by sending AHPRA the affidavits by Dr I and Dr H without the leave of the court. Accordingly, I decline to make orders permitting the father to inspect the subpoenaed documents at this juncture. The mother conceded that if the matter proceeds to trial, then in the interests of procedural fairness, it may become necessary for the father to inspect the documents. In such a case, it will then be open to the trial judge to consider any such further application by the father.
As to the appointment of the single expert witness, her Honour said that because of the father’s objections, there was little point in appointing the psychiatrist nominated, but her Honour gave the father the opportunity to change his mind. However, if he did not, then the father was to provide the names of three psychiatrists to the ICL who he would propose be appointed (at [43]–[44]).
As referred to above, her Honour declined to make any order in relation to the question of inspection of documents, but that can be treated as a refusal to make an order which is defined as a “decree” in s 4 of the Family Law Act 1975 (Cth) (“the Act”). Thus, that refusal can be the subject of an appeal (s 94AAA(1A) of the Act).
Her Honour did though make an order dismissing the application of the ICL for the appointment of the single expert witness.
On 20 February 2018 the father filed a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal not against any of the actual orders made by her Honour, but against her Honour’s refusal “to hear, and therefore implicitly rejecting, an application by the [father] that she disqualify herself”, and her “refusal” to order that the father have leave to inspect all documents produced under subpoena by the mother’s medical providers.
The application for leave to appeal was heard by Thackray J on 24 August 2018, and his Honour delivered ex tempore reasons and made orders dismissing the application.
The Application in an Appeal seeking leave to reopen the hearing of the application for leave to appeal
It is accepted that in Australia a court can reopen the hearing of an application such as an application for leave to appeal where an interlocutory order is made dismissing it, in two circumstances:
(a)where it is established that there was a misunderstanding by the court of a material aspect of the applicant’s case (Mohareb v Kelso (No 2) [2017] NSWCA 173 (“Mohareb”)); and
(b)where there has been a material change of circumstances (Mohareb).
The father submits that there is a third category, namely:
Where some obvious and egregious error has occurred in the underlying proceedings which has vitiated or corrupted the very process itself.
(Father’s written summary of argument filed on 19 December 2019, paragraph 21b)
The father cites the decision of the English Court of Appeal in R (Goring-on-Thames Parish Council) v South Oxfordshire District Council [2018] 1 WLR 5161 (“R (Goring-on-Thames Parish Council)”) as authority for this proposition. However, in that case the jurisdiction to reopen on the basis set out sprang from r 52.30 of the Civil Procedure Rules 1998 (UK) which has no equivalent in the Act, or the Family Law Rules 2004 (Cth) (“the Rules”), or the Family Law Regulations 1984 (Cth) (“the Regulations”). Further, the father was unable to refer me to any Australian decision in any jurisdiction where this was relied on as a basis for reopening a hearing.
It is also worth recording that the English Court of Appeal remarked that the relevant Civil Procedure Rule has “highly restrictive terms”, that it is very narrow in scope, and will only be engaged in extremely exceptional circumstances where not only the process has been critically undermined, but there is also a “powerful probability that the decision in question would have been different if the integrity of the earlier proceedings had not been critically undermined” (R (Goring-on-Thames Parish Council) at [15]).
In these circumstances I do not consider that it is open to this Court to apply this category here. However, I am able to say that having considered this matter in light of the father’s submissions, if this was a basis that could be applied, it is not satisfied in this case. There is no “obvious and egregious error” for a start, and certainly none that “vitiated or corrupted the very process itself”.
I note of course that if the father’s case is, as it seems to be, that Thackray J made an error of fact, or law, or principle, in the exercise of his Honour’s discretion, that would enable the father to make an application for special leave to appeal to the High Court of Australia. However, the father has not taken that course.
Turning to the two categories which can be applied here, it is instructive to record what the New South Wales Court of Appeal said at [5] and [6] in Mohareb, namely:
5.The circumstances in which the Court will reopen its refusal of an application for leave to appeal are few in number and will generally fall into one of two categories. The first category is where there has been a material change of circumstances, relevant to the leave application, which rarely occurs. The second category involves demonstrable misunderstanding by the Court of a material aspect of the applicant’s case. Such an event is possible, and has occurred in cases where a litigant in person has struggled to identify a sufficient basis for a grant of leave.
6.The willingness of the Court to entertain such applications derives from the fact that a refusal of leave to appeal, in particular from an interlocutory judgment of the court below, cannot be a final order determining the rights of the parties and, accordingly, is not a final judgment. As noted by Handley AJA in Teoh v Hunter’s Hill Council (No 4), “a renewed application for leave to appeal is technically competent”. As a practical matter, and indeed this was a reason why such orders have been sought to be treated as “final” and thus subject to a right of appeal, repeat applications are most unlikely to succeed. By similar reasoning, applications to reopen leave applications are also most unlikely to succeed.
(Footnotes omitted)
(a) Was there a demonstrable misunderstanding by the court of a material aspect of the applicant’s case?
There was no “misunderstanding” properly identified by the father in relation to the issue of disqualification. He first suggests that it is enough that his Honour said that the submissions of the father were “difficult to understand”. However, that does not equate to a “misunderstanding”. What his Honour was plainly referring to was that there was no recognisable basis for the submission by the father that “…the Magistrate ought to have been aware that he had made an application for disqualification and that, by her conduct of the matter, she had made clear that if such an application was made, she would not consider it” (at [6]).
In any event, I agree with the finding by his Honour. There was no application properly before the Magistrate. All that had happened was that after her Honour released her reasons for judgment, the father wrote to the Court giving notice that at the hearing when orders were to be made, he would be moving that her Honour disqualify herself. However, at the hearing on 31 January 2018, the following exchange occurred:
HER HONOUR: Yes, Mr Lietzau. Now, I have already published my reasons from chambers, but I now do so formally. Now, in those reasons I indicated that I was prepared to hear further from Mr Lietzau as to whether he would be prepared to comply with an order in relation to the appointment of Dr L as a single expert witness, and that was as set out in fact (sic) the final paragraph of my judgment, paragraph 44. Mr Lietzau, I presume you’ve had some opportunity to consider that matter. So what is your position in relation to the appointment of Dr L?
[MR LIETZAU]: My position is as set out in the letter I sent the registrar yesterday, 31 January – 30 January.
HER HONOUR: Mr Lietzau, I note that there has been a whole raft of what it would appear documents and letters that have been sent to the court.
[MR LIETZAU]: Yes.
HER HONOUR: This court does not conduct its litigation by way of correspondence. At this stage the registry staff have placed the letters on the file. I’m not even sure that that’s the appropriate course of action. The letters don’t form part of the evidence. They’re not in the way of a formal submission or the like. So I respect the fact that you may not normally practice in this jurisdiction, so if I can actually – I haven’t looked at the material, it’s not appropriate that I necessarily do, so again I would invite you to tell me what you (sic) position is in relation to the appointment of Dr L.
(Transcript 31 January 2018, p.2 lines 18-48)
Significantly, there was then no application made by the father that her Honour disqualify herself, either in December when the hearing took place, or on 31 January 2018 when the orders were made.
Thus, as Thackray J recognised, there was no “order” made, or “refusal to make an order” by her Honour that could be the subject of an application for leave to appeal. Further, as there was no application before her Honour, her Honour was not required to consider whether she should be disqualified or not.
Finally, I note that what the father has sought to do is reargue the points that he raised before Thackray J, and which points were addressed by his Honour in his reasons for judgment. As the New South Wales Court of Appeal in Mohareb said, that does not provide a basis for granting leave to reopen the application and make a different order (at [8]).
As to the issue of the inspection of subpoenaed documents, there is also no identification by the father of a “misunderstanding” of a material aspect of his case.
The father appears to suggest that his Honour was wrong in his understanding of the reasons why the Magistrate refused to permit inspection. At [8] his Honour said this:
As for the second matter, the decision of the Magistrate is clear as to the basic reason why the applicant was not permitted to inspect the documents, namely that the Magistrate anticipated he would use them for an ulterior purpose and was not satisfied that he would comply with conditions preventing him from doing so. This finding comes in light of the fact that documents already provided in the proceedings had been used by the applicant for an ulterior purpose.
The father submits that, “[a]t no point in her reasons for decision did the Magistrate say that she anticipated that the Father would use the documents for any hidden purpose” (Father’s written summary of argument filed on 19 December 2019, paragraph 51), and he suggests that the word “ulterior” means “hidden”.
However, the father is wrong about this. For a start, “ulterior” does not mean “hidden”. Secondly, at [35] the Magistrate said as follows:
The father maintained, in effect, that he has no obligation to comply with the Rules, any order or undertaking not to disclose information obtained from the subpoenaed documents as he is expressly protected by s237 of the National Law from any liability for giving such information to AHPRA. Section 237 of the National Law provides that the section applies to a person who, in good faith, makes a complaint or gives information in the course of an investigation. I have significant concerns as to whether the father is acting in good faith for the following reasons:
(Emphasis as per original)
and her Honour then went on to identify those reasons.
Her Honour did find that she had a number of concerns that the father would not be acting in good faith if he provided any information contained in the subpoenaed documents to AHPRA (at [41]), but that finding was made in the context of her Honour considering r 13.07A of the Rules, which provides as follows:
13.07A Use of Documents
A person who inspects or copies a document, in relation to a case, under these Rules or an order:
(a)must use the document for the purpose of the case only, and
(b)must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.
This was the basis of the objection by the mother and the ICL to the father having liberty to inspect the subpoenaed documents. Their submissions included that the father was motivated by “ulterior purposes” in that he had made it clear that he intended to use the documents for purposes unrelated to the family law proceedings, and in furtherance of his complaints to AHPRA about the mother’s medical providers. Her Honour accepted that submission (at [32]–[41]).
Thackray J was entirely accurate in his identification of the reasons why inspection was not permitted, and there was no misunderstanding.
I note that the father in his written summary of argument also suggests that he was denied procedural fairness by the Magistrate in relation to what her Honour took into account, but even if that were the case, which frankly I reject in any event, that can have no relevance to the issue at hand.
Thus, there is no basis here for leave to be given to reopen the application for leave to appeal.
(b) Has there been a material change of circumstances?
The primary change of circumstances asserted by the father is the appointment of the Magistrate to the position of Chief Judge. However, it escapes this Court how that can be a basis for granting leave to reopen the application for leave to appeal, and that is not explained by the father.
The father also seeks to rely on what he describes as the changes and circumstances set out in paragraphs 38 to 56 of his affidavit filed on 19 December 2019.
Those paragraphs set out what the father says has happened to the children of the parties, and the fact that they continue to not spend any time with him, and the reasons for that.
However, that has nothing to do with the two issues raised in the application for leave to appeal which was heard by Thackray J.
In those paragraphs, the father also deposes to the fact that he has recently applied to the court below for permission to inspect the subpoenaed documents, but that application had not been heard as at the date of the affidavit. Further, he refers to orders concerning the appointment of a single expert witness, and says that if he was to attend a meeting with that person, he would be unable to discuss the contents of the subpoenaed documents.
It is abundantly clear that none of this information provides a relevant change of circumstances.
Thus, there is also no basis here for leave to be granted to reopen the application for leave to appeal, and the Application in an Appeal will be dismissed.
Leave to Appeal
The assertion by the father is that leave to appeal was not required, and that Thackray J erred in proceeding on the basis that it was.
Plainly, that issue would require an application for special leave to appeal to the High Court of Australia, rather than being the subject of an application seeking leave to reopen the application for leave to appeal. However, it seems that the father is suggesting that this is “an obvious and egregious error” which has “vitiated or corrupted the very process itself”, and that would justify reopening the hearing. However, that seeks to revisit the third category sought to be relied upon by the father, but which I have found cannot be applied here. Thus, I do not propose to say anything further about that aspect of the matter.
I note of course, that if the father is right about leave to appeal not being required, then it would not be a matter of hearing again the application for leave to appeal, but he would be able to appeal against any decree made by the Magistrate, as of right.
In any event, in my view, leave to appeal is required.
There were of course two issues the subject of the application for leave to appeal. First, there was the refusal of the Magistrate to consider the father’s request that she disqualify herself. Plainly, that was an interlocutory matter, and a matter of practice and procedure, and thus required leave to appeal (reg 15A(1) of the Regulations). Indeed, I do not understand the father to say otherwise, and in any event, as explained earlier in these reasons, there was no order or refusal to make an order that could be the subject of an application for leave to appeal. To repeat, there was no application before the court upon which her Honour could have made an order, or refused to make an order.
The issue only arises in relation to the refusal by her Honour to permit inspection of the medical records of the mother.
This is clearly an interlocutory decree in respect of which leave to appeal is required (s 94AA(1) of the Act and reg 15A(1) of the Regulations), but the father submits that the decree is a decree in relation to a child welfare matter which does not require leave (regs 15A(1) and (2)).
In reg 15A(2), “child welfare matter” is defined to mean a matter relating to:
(a)the person or persons with whom a child is to live; or
(b)the person or persons with whom a child is to spend time or communicate; or
(c)any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
The father submits that all those paragraphs apply here. He relies on two authorities, namely Jukes v Doyle (2005) 32 Fam LR 617 (“Jukes v Doyle”), which is the decision of a single judge sitting as the Full Court, and Hart & Selwood (2016) FLC 93-753 (“Hart & Selwood”), which is a decision of the Full Court.
In Jukes v Doyle the appeal was from an order dismissing the mother’s application seeking to restrain the father from leaving the jurisdiction arising out of proceedings for child maintenance. As to whether leave to appeal is required, Coleman J said this:
[9] There is little scope for doubt that order (1) of the orders sought by the mother before the learned federal magistrate was “interlocutory” by nature. The substantive proceedings instituted in the Federal Magistrates Court by the mother concerned a child who, the mother claimed, was a child of the relationship between herself and the father, the respondent in the proceedings. The interlocutory orders sought by the mother clearly related to the mother’s claims for financial relief for the child pursuant to s 66G of the Act. While the matter is not necessarily clear beyond doubt, the court inclines to the view that financial support of a child has sufficient nexus with “child welfare” to bring the mother’s application before the learned Federal Magistrate within the exception provided in reg 15A(2).
[10] Further support for this view can be gained from the fact that the mother essentially sought substantive orders pursuant to a number of provisions of Pt VII of the Act, the title to which part is “Children”. While the distinction may be one without a difference, given the tests which govern an appeal as of right and an application for leave to appeal, the court approaches this matter on the basis that leave is not required.
Here, the father submitted that “the mental health of the Mother [had] sufficient nexus with the questions as to which of the Father and Mother with whom the children are to live, and as to the time they are to spend with each, to bring the Father’s application within the exception(s) provided for by one or both of [paragraphs (a) and (b)]” (Father’s written summary of argument filed on 19 December 2019, paragraph 17).
In Hart & Selwood the Full Court held that an order made pursuant to s 11F of the Act (requiring the parties and child to attend upon a family consultant), was a child welfare matter and fell within the exception provided by the Regulations, and leave to appeal the order was not required. Their Honours held that the order fell within the exception (paragraph (c)) being an order which was in relation to parental responsibility within the meaning of Part VII of the Act.
Here, the father submitted that, given the parenting orders sought, “the mental health” of the mother is a matter relating to an aspect of the parental responsibility that the father has for the children.
However, the subject matter of the appeals in both of those cases is easily distinguishable from the subject matter here, and there are other authorities which are more to the point. For example, in Helbig & Rowe [2014] FamCAFC 179, the Full Court was dealing with an appeal from an order which disallowed certain documents to be provided to a single expert for the purposes of completing a Family Report. It was also dealing with a second appeal from orders which permitted the father to spend time with the children. The question of whether leave to appeal was required in respect of both appeals was considered. The court distinguished between the two appeals and notably held that the order for the children’s time with the father clearly did not require leave to appeal (coming under paragraph (b)), however, the second order related to practice and procedure and did not come within the class of matters set out in the Regulations. Thus, leave was required.
Further, in Sahadi & Savva and Anor (2016) FLC 93-704 the Full Court was concerned with an appeal from orders permitting the police to inspect a family court file and obtain a copy of a single expert’s report completed in parenting proceedings, for the purposes of a criminal investigation involving the mother and father. The Full Court accepted the submissions of the parties that the orders were interlocutory and leave was required, notwithstanding the substantive proceedings in which the report was completed were in relation to parenting proceedings and thus a child welfare matter.
Then there is Tallant & Kelsey (2016) FLC 93-742, where the Full Court had before it an appeal from an order permitting the ICL to provide a copy of an expert report to the children’s counsellor. The Full Court subsequently held in relation to whether leave to appeal was required that the order was “an interlocutory order as to a matter of practice and procedure and thus the applicant required a grant of leave to appeal. As such, and notwithstanding that the substantive proceedings concern a child welfare matter as that phrase is defined in reg 15A(2) of the [Regulations], leave to appeal is required” (at 81,871).
Thus, it can be seen from those Full Court decisions that leave is required if the order is an interlocutory order as to a matter of practice and procedure, notwithstanding the substantive proceedings before the court may be in relation to a child welfare matter.
Here there is no doubt that the order, or rather the refusal to make the order, was an interlocutory order as to a matter of practice and procedure, despite the parenting orders sought in the substantive proceedings. Moreover, the ability to inspect the medical records of a party cannot be seen as an aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.
Thus, I find that leave to appeal is required and if it is necessary to say this, Thackray J proceeded as he should.
Conclusion
The Application in an Appeal filed on 19 December 2019 will be dismissed.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 22 June 2020.
Associate:
Date: 22 June 2020
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