MR LIETZAU (A PSEUDONYM) -v- BERRY [No 3] [2026] WASCA 35 (17 March 2026)

1. In March 2017, the third respondent commenced parenting proceedings in the Family Court of Western Australia under Part VII of the Family Law Act 1975 (Cth).[2] These proceedings were heard in February 2023, with judgment delivered on 23 January 2024.[3] The first respondent was the trial judge. He was a judge of the Family Court of Western Australia, and presently remains appointed in that capacity.
2. The appellant appealed the result in the parenting proceedings from the decision of the first respondent to three judges sitting in Division 1 of the Federal Circuit and Family Court of Australia. This appeal was dismissed on 6 June 2024.[4]
3. In July 2024, the appellant applied for special leave to appeal to the High Court of Australia against the judgment of the Federal Circuit and Family Court. The High Court refused special leave to appeal in January 2025.

1. While the judgment in the parenting proceedings before the first respondent was reserved, the third respondent made an application for a family violence restraining order (FVRO) in the Magistrates Court of Western Australia in May 2023. A magistrate made an interim FVRO

under the Restraining Orders Act 1997 (WA). The first respondent's solicitor filed a copy of the interim FVRO in the Family Court of Western Australia, as required by the Family Court Rules 2021 (WA).

1. On 27 June 2023, the appellant applied to the Family Court of Western Australia for an anti‑suit injunction restraining the first respondent from proceeding with the application for an FVRO in the Magistrates Court, and seeking to compel her to apply to the Magistrates Court to vacate the interim order.[5] This application for an anti-suit injunction was heard on 28 September 2023 and was dismissed on 10 November 2023.[6]
2. Following this, on 27 November 2023 the appellant applied to the Magistrates Court for an order staying the first respondent's application for an FVRO. This was the date when the final hearing of the application had been set down for hearing.[7] A decision upon the application for a stay was reserved. Judgment was given dismissing the application for a stay on 12 December 2023. The application was heard and determined by the second respondent.[8] The substantive application for an FVRO was adjourned to 14 February 2024 for mention.[9]
3. As explained later, the present proceedings were commenced before 14 February 2024. The application for a final order for an FVRO was adjourned pending the outcome of the present proceedings.[10]

1. On 8 January 2024, the appellant commenced proceedings in the Supreme Court of Western Australia seeking judicial review of the following decisions:

(a) the decision of the first respondent in the Family Court of Western Australia on 28 September 2023 dismissing the appellant's application for an anti‑suit injunction to prevent the third respondent seeking an FVRO; and

(b) the decision of the second respondent in the Magistrates Court on 12 December 2023, dismissing the appellant's application for a stay of the third respondent's application for an FVRO.

1. On 22 July 2024, Tottle J ordered that the application for judicial review in respect of the second respondent's decision should proceed as an application for a review order pursuant to O 56A of the Rules of the Supreme Court 1971 (WA), and that it should be heard together with the application for judicial review against the first respondent.
2. Tottle J heard the applications for judicial review on 28 January 2025, and gave judgment on 26 February 2025 dismissing the applications. It is this decision dismissing the two applications for judicial review which is the subject of the present appeal.

1. The context for the FVRO sought by the third respondent is that both she and the appellant were legal practitioners practising in Western Australia.
2. It appears that the basis for the third respondent seeking the FVRO were continual complaints made by the appellant about the third respondent to the Legal Practice Board and the Legal Services Complaints Committee, as well as to others in the Western Australian legal profession, by the appellant. The third respondent considered that her professional reputation was being continually damaged. She claimed that this was a form of psychological and emotional abuse, and coercive control being perpetrated through a third party (in particular the Legal Practice Board and Legal Services Complaints Committee). The third respondent had been informed that there had been over 50 complaints which centred around her to the Legal Practice Board or the Legal Services Complaints Committee by the appellant.[11]
3. The standard terms of the interim FVRO were in somewhat wider terms than necessary to prevent damaging complaints about the third respondent within the legal profession. For example, the interim FVRO prevented the appellant from possessing a firearm, damaging the third respondent's property, or approaching within 100 metres of premises' where the third respondent lived or worked. Nothing turns on this. The activating basis for seeking the FVRO was the litany of complaints to the Legal Practice Board and the Legal Services Complaints Committee. Whether these could be the subject of an FVRO is a matter to be considered by a magistrate.

Basis of anti‑suit injunction and stay application

1. Tottle J identified the central issue in the case as the contention that each of the first and second respondents erred in law by failing to hold that it was prima facie vexatious and oppressive for the appellant to seek a restraining order from the Magistrates Court when it was open to her to have sought such an order from the Family Court in the parenting proceedings.[12]
2. Anti‑suit injunctions are possible between Australian courts operating within different jurisdictions. However, great restraint is generally exercised before such injunctions are issued, at least between courts of co‑ordinate jurisdiction.[13] Further, an anti‑suit injunction will only issue where the first court has jurisdiction to deal with a dispute. So, for example, an application for an anti‑suit injunction would be refused by the Family Court of Australia where it lacked jurisdiction to deal with a matter before the Industrial Court.[14] The basis for anti-suit injunctions between Australian courts depends upon considerations of comity, rather than a test of whether one court is a clearly inappropriate forum. The references by the appellant to the tests in Henry v Henry[15] and Voth v Manildra Flour Mills Pty Ltd[16] are not apt. The abuse of process test in Moore v Inglis[17] is also distinctly different.
3. In this case, Tottle J rejected the appellant's claim that the Family Court of Western Australia ought to have issued an anti‑suit injunction, and that the Magistrate's Court ought to have stayed the application for an FVRO, due the distinct differences between the parenting proceedings in the Family Court of Western Australia, and the restraining order proceedings in the Magistrates Court.
4. Tottle J pointed out that parenting orders are made with the best interests of the children as the focal point, whereas orders under the Restraining Orders Act are made to ensure the safety of persons who have experienced or are at the risk of family violence. Tottle J also mentioned that the relief sought in each proceeding was different, and did not overlap. The parenting proceedings were limited to parenting orders, while the restraining order proceedings in the Magistrates Court were limited to an FVRO. Lastly, while Tottle J accepted that there was an overlap in the evidence between the two different sets of proceedings, that was not sufficient to make it vexatious and oppressive to proceed with both concurrently. He did not consider that the proceedings were with respect to the same controversy.[18]
5. I consider that these points are well made. I would, with respect, adopt them.

1. In my view, however, there is a further issue. Whether an anti‑suit injunction or stay application ought to have been successful at a time when there were two sets of proceedings on foot seems to me largely beside the point. That is because the parenting proceedings have now concluded, and all prospects of appeal were finished in January 2025, before the decision of the primary judge in this case. In such circumstances, there can no longer be any objection to a final hearing of the FVRO proceeding. There would be nothing vexatious or oppressive about that course. Nothing determined in the parenting proceedings touches upon the subject of the proposed FVRO.
2. Moreover, it would be a strange outcome if the existence of concluded parenting proceedings before the Family Court of Western Australia forever prevented one former marital party seeking a restraining order in respect of family violence against a former marital partner. That is particularly so where the basis for the application for the FVRO in this case included matters of which the third respondent only became aware after the parenting proceedings were reserved for judgment in February 2023. The third respondent was only informed of the extent of complaints about her to the Legal Practice Board in about May 2023.[19] There is nothing in the legislative regime, or the relevant constitutional arrangements, which could possibly suggest that a former marital party would be precluded from seeking an FVRO against their former marital partner in such circumstances.
3. The appellant suggests that somehow an Anshun estoppel applied to mean that the decision of the first respondent in the parenting proceedings prevented the third respondent seeking an FVRO. This is based upon the decision in Port of Melbourne Authority v Anshun Pty Ltd.[20] Anshun estoppel operates to preclude the assertion of a claim or the raising of an issue of fact or law, in a proceeding if that claim was so connected with the subject matter of a previous proceeding as to have made it unreasonable in the context of that previous proceeding for the claim not to have been made or the issue raised in that proceeding.[21]
4. Quite evidently, Anshun estoppel could not apply in the present case, to the extent that the third respondent did not become aware of the basis for the FVRO until after the judgment in the parenting proceedings had been reserved. There was nothing unreasonable about the third respondent not raising the issue of coercive control and abuse through the appellant's complaints to the Legal Practice Board until she was aware of the extent of these. In my view, nothing compelled her to return to the Family Court to re‑open the parenting proceedings when the ease and informality of the FVRO procedure was available, and there was provision for the third respondent to inform the Family Court of the interim FVRO (which she did).
5. Indeed, the terms of the Family Court Act 1997 (WA) expressly contemplate that a 'family violence order' might be made under a law of a State to protect a person from family violence. Part 5, Division 10 of the Family Law Act 1997 (Cth) expressly provides for the Family Court to have the power to resolve inconsistencies between family violence orders and parenting orders. That strongly militates against any view that an application cannot be made for a 'family violence order' from the Magistrates Court once parenting proceedings have been commenced.
6. For all of these reasons, I do not see why it is necessary to determine whether the decision of the first respondent not to issue an anti‑suit injunction, or the decision of the second respondent not to stay the application for an FVRO, were correct at the time when they were made. These questions are no longer of any utility in the present case. The critical question is whether there is any basis now for preventing the substantive hearing of the FVRO proceeding. In my view, there is not, as the parenting proceedings are concluded.
7. Put another way, even if I was to reach the view (which I do not consider to be correct) that an anti‑suit injunction should have been issued, or that a stay should have been granted, that would only have been for the time while there were two concurrent sets of proceedings. As the parenting proceedings have now concluded, I would not grant an anti‑suit injunction or a stay on this appeal.

Claims for disciplining judges and practitioners

1. The appellant says that if he was previously correct that an anti‑suit injunction should have been issued by the first respondent, then an order should now be made requiring the first respondent to show cause as to why he should not be disciplined by this court.[22] At the oral hearing of the appeal, the appellant withdrew this claim. However, it was a most outrageous suggestion and has no legal merit or basis whatsoever. In technical legal terms, the suggestion that a judge show cause why he or she should not be disciplined by this court is scandalous and vexatious in the extreme.
2. The same may be said of the amendments which the appellant sought to make in respect of the orders he wanted. He wished to amend the orders sought to require the primary judge, Tottle J, as well as two Court of Appeal judges who had dealt with preliminary matters, to show cause as to why they should not be disciplined. The appellant also abandoned these claims at the oral hearing of the appeal, when pressed. The proposed amendments were without any legal basis and are scandalous and vexatious in the extreme. They would not have been allowed.
3. Equally outrageous were the claims that various practitioners who appeared on behalf of the third respondent, the Legal Aid Commission of WA or the former Attorney General of WA, and the former Attorney General himself, should also show cause why they should not be disciplined.[23] The appellant withdrew these claims at the oral hearing of the appeal. They were entirely baseless.
4. All of the claims about judges and practitioners being potentially disciplined appear to have been made in terrorem to prevent practitioners mounting arguments, and judges adopting arguments,

contrary to the positions advanced by the appellant, which he appears to consider are self‑evidently correct and should not be disputed. Although the appellant assured the court at the oral hearing of the appeal that he had acted in good faith in making these claims, they should not have been made.

1. The appellant is an enrolled, if not certificated, legal practitioner. He is therefore required to adhere to the high standards of conduct expected by this court of all of its practitioners.
2. In my view, the present proceedings represent a concerted effort by the appellant to prevent the third respondent from exercising her legal rights to apply for an FVRO, in response to conduct which the first respondent described as 'coercive behaviour' and 'family violence' against the third respondent.[24]
3. Further, the claims by the appellant that a judicial officer and practitioners should show cause as to why they should not be disciplined by this court represent a gross abuse of the legal process by the appellant.
4. I do not regard this conduct to be appropriate and it fell well short of the standards of conduct expected by this court of enrolled practitioners.

1. For the reasons which I have given, the appeal should be dismissed.

1. I agree with Thomson P, for the reasons that his Honour has given, that this appeal must be dismissed.
2. I would add the following remarks.
3. As Thomson P has explained, this appeal ultimately relates to decisions made by the Family Court of Western Australia and the Magistrates Court of Western Australia decided over three years ago (impugned decisions). The impugned decisions related to attempts by

the appellant to prevent the Magistrates Court from finally determining an application by the appellant's former wife, Ms Lietzau (a pseudonym), for a family violence restraining order (FVRO) against the appellant.

1. In the first decision, Berry J dismissed the appellant's application for an anti-suit injunction preventing Ms Lietzau from seeking the FVRO. In the second decision, Magistrate Crawford dismissed the appellant's application for a stay of Ms Lietzau's application for the FVRO.
2. Most regrettably, as a consequence of the application to Tottle J for judicial review of the impugned decisions and the appeal from Tottle J's decision to this Court, the appellant has, until now, achieved what he set out to achieve, namely preventing the final determination of Ms Lietzau's application for an FVRO.
3. For the reasons Thomson P has given, the appeal from Tottle J should be dismissed. Tottle J was, in my view, correct to dismiss the application for judicial review, for the reasons that his Honour gave. In any event, even if the impugned decisions had been affected by jurisdictional error, there would now no longer be any legal basis upon which the proceedings for an FVRO should be further delayed. That is because the parenting proceedings in the Family Court have been finally concluded, and all avenues of appeal from those proceedings have been exhausted. There is, in my view, no conceivable basis upon which this Court could now order that the proceedings for an FVRO should be the subject of a further stay.
4. Thomson P has dealt with the appellant's contention that an Anshun estoppel would prevent Ms Lietzau from obtaining the final FVRO. I agree with what his Honour has said in that regard.
5. In addition, the appellant contended that the continuation of the proceedings for the FVRO would be vexatious and oppressive, because the proposed orders in the FVRO would be inconsistent with the final orders in the parenting proceedings. That contention must be rejected. While there may be certain matters in relation to which the orders in the parenting proceedings would, by operation of s 68Q of the Family Law Act 1975 (Cth), prevail over any FVRO to the extent of any inconsistency, there would nevertheless be a variety of restraints available in an FVRO that would be untouched by the orders in the parenting proceedings.
6. The interim FVRO obtained by Ms Lietzau, for example, prohibits the appellant from behaving in an intimidatory, offensive or emotionally abusive manner towards Ms Lietzau. Nothing in the orders in the parenting proceedings could conceivably be inconsistent with that restraint.
7. Similarly, it may be open to the Magistrates Court, if it considers it appropriate, to impose restraints on the appellant, under s 10G of the Restraining Orders Act 1997 (WA), from making further complaints in relation to Ms Lietzau to the Legal Practice Board and the Legal Services Complaints Committee, if the Magistrates Court concludes, as Berry J did, that his complaints were a form of coercive behaviour and family violence.
8. Nor is the fact that Ms Lietzau brought proceedings in the Magistrates Court, while there were pending proceedings in the Family Court, otherwise vexatious or oppressive. While there is some overlap in the evidence relating to the two proceedings, the nature of the jurisdiction exercised by the two courts is quite distinct and, more importantly, the purpose of each set of proceedings is entirely different.
9. Finally, whether the Magistrates Court ultimately makes an FVRO and the nature of any restraints it imposes, if any, are a matter for the Magistrates Court, having heard from the appellant and Ms Lietzau. There is no basis for this Court to pre-empt what might be the outcome of that application, or what orders might be made.
10. In those circumstances, whatever the merits of the appellant's many legal arguments, the determination of them would produce no foreseeable consequences for the parties.
11. I acknowledge that dismissing the appeal without addressing each one of the many grounds of appeal in detail is akin, although not identical, to the exercise of this Court's discretion to summarily dismiss an appeal.[25] I also acknowledge that such a power is to be exercised sparingly, and only in exceptional circumstances.
12. This is, however, an exceptional case.
13. As a consequence of the proceedings brought by the appellant, including this appeal, Ms Lietzau has been prevented from advancing her application for an FVRO. That application is based on conduct on

the part of the appellant of a kind that the Family Court has concluded is coercive behaviour and is properly characterised as family violence. That finding has not been disturbed on appeal.

1. To delay the resolution of this appeal, and so to continue to prevent Ms Lietzau from exercising her legal rights, could only serve to further vex Ms Lietzau and contribute to the very harm that her application for an FVRO is intended to prevent. The courts must be vigilant to ensure that their processes are not used as instruments of oppression and coercive control.
2. For this reason, the interests of justice demand that this appeal be determined today and be determined by dismissing the appeal.
3. Finally, I record my agreement with Thomson P's conclusion that the appellant's claims for additional relief, to the effect that the judges who have heard his various applications and most, if not all, of the legal practitioners who have acted for other parties in those proceedings should be 'disciplined', were always hopeless. Those claims wholly misunderstand the jurisdiction and powers of this Court.
4. In that context, the suggestion that any of the lawyers acting for Ms Lietzau, or appointed to act as the Independent Children's Lawyer for her and the appellant's children, acted inappropriately must be specifically rejected. There is nothing to support the contention that those lawyers, who (unlike the appellant) do not have the benefit of anonymity, have done anything other than faithfully and diligently discharge their duties to the court. The allegations made against them were gratuitous and without any foundation. It would be one thing for any litigant to make such allegations. That those allegations were made by a person who remains an officer of this Court, and that they were only withdrawn at the hearing of the appeal, was, to say the least, unbecoming of such an officer.

1. I agree that the appeal should be dismissed for the reasons expressed by Quinlan CJ and Thomson P.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mr Lietzau v Berry [2025] WASC 56 (Primary Judgment) [3].

[6] Primary Judgment [8]. The substance of the first respondent's reasons for dismissing the application are set out in the Primary Judgment [38].

[8] Primary Judgment [9]. The substance of the first respondent's reasons for dismissing the application are set out in the Primary Judgment [43].

[13] Wigmans v AMP Ltd [2018] NSWSC 1118 [18]; Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143, (2018) 265 FCR 1 [10] ‑ [13], Re Austral Bronze Pty Ltd [No 2] [2020] NSWSC 1633; (2020) 149 ACSR 221 [94]; Re Goldstone Private Equity VCMP LP [2025] NSWSC 410 [5] ‑ [6].

[14] East v Coulson [2010] FamCA 641; (2010) 244 FLR 1.

[15] Henry v Henry [1996] HCA 51; (1996) 185 CLR 571.

[16] Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538.

[17] Moore v Inglis (1976) 50 ALJR 589.

[20] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.

[21] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [22], Wright v Lemmon [2024] WASCA 19 [1153].

[22] Appellant's Case, Orders Wanted [9] (WAB 45).

[23] Appellant's Case, Orders Wanted [10] ‑ [11] (WAB 46).

[24] [Ms Lietzau] and [Mr Lietzau] [2024] FCWA 11 [141] (GAB 509).

[25] See Shire of Yarra Ranges v Russell [2009] VSCA 279; (2009) 25 VR 560 [18] - [23] (Redlich JA; Warren CJ agreeing).