Wray & Wray

Case [2021] FamCA 117

FAMILY COURT OF AUSTRALIA

Wray & Wray [2021] FamCA 117

File number(s): SYC 7692 of 2012
Judgment of: ALTOBELLI J
Date of judgment: 12 March 2021
Catchwords: FAMILY LAW – PARENTING – interim parenting- where long history of litigation between the parties – whether interim parenting orders should be reviewed in light of expert’s report – where there are clear expert recommendations – concerns with respect to risk to child in the care of one parent – continued suspension of all time and contact between the child and father – oral application for recusal – whether the father be prohibited from making further interim applications – consideration of vexatious proceeding provisions pursuant to s 102QB of the Family Law Act 1975.
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 61DA 65DAA, 102QB, 118

Access to Justice (Federal Jurisdiction) Amendment Act 2012 (No 186 of 2012)
Cases cited:

Antoun v R (2006) 224 ALR 51; [2006] HCA 2

Cannon v Acres [2014] FamCA 104

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Goode & Goode (2006) FLC 93-296; [2006] FamCA 1346

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Marvel & Marvel (2010) 240 FLR 367; [2010] FamCAFC 101

Meadows & Meadows (No. 4) [2020] FamCA 864

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Pencious & Searle (2017) FLC 93-805; [2017] FamCAFC 210

Pinson & Pinson (No 2) [2020] FamCAFC 111

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

SS & AH [2010] FamCAFC 13

Theophane & Hunt and Anor [2016] FamCAFC 87
Number of paragraphs: 110
Date of last submission/s: 8 February 2021
Date of hearing: 8 February 2021
Place: Sydney
The Applicant: In person
Counsel for the Respondent: Ms Swan
Solicitor for the Respondent: Swan Lawyers
Counsel for the Independent Children's Lawyer: Ms Abdelraheem
Solicitor for the Independent Children's Lawyer: Claremont Legal

ORDERS

SYC 7692 of 2012
BETWEEN:

MR WRAY

Applicant
AND:

MS WRAY
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1.The Respondent mother have sole parental responsibility for the long-term care, welfare and development of the child, X born … 2007.

2.X live with the mother and spend no time with the Applicant father.

3.Orders 2 and 3 of the orders made on 10 December 2020 remain in full force and effect.

4.The father be restrained by injunction from using X’s school’s portal to stalk or harass X and in this respect the mother be granted leave to provide a copy of these orders to X’s school, B School, in order for the school to remove the father’s name and access to the school portal and to remove his access to receiving X’s school reports.

5.The father be restrained by injunction from phoning or messaging X or from placing X in group chats.

6.Pursuant to Division 15.5.2 of the

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AGLC
Wray & Wray [2021] FamCA 117
Case
[2021] FamCA 117
Decision Date

CaseChat Overview and Summary

This case involved Mr Wray (Applicant) and Ms Wray (Respondent) concerning parenting orders for their child, X. The dispute had a long history of litigation, with the court being asked to review interim parenting orders in light of an expert's report, address concerns about the risk to the child in the father's care, and consider an oral application for recusal and whether the father should be prohibited from making further interim applications under section 102QB of the Family Law Act 1975.

The court was required to determine several legal issues. These included whether to continue the suspension of all time and contact between the child and the father, the appropriate approach to interim parenting orders given the expert recommendations and concerns about risk, and whether the father should be restrained from making further interim applications. The court also had to consider an application for its own recusal.

Altobelli J applied the paramount consideration of the best interests of the child under section 60CA of the Family Law Act 1975. The court considered the independent expert report of Dr C, which contained significant concerns regarding the father's mental health and capacity to parent. The court noted the father's treating professionals had not demonstrably engaged with this report, despite opportunities to do so. The court also considered the objects and principles of Part VII of the Act, including protecting children from harm and ensuring meaningful involvement of both parents where consistent with the child's best interests.

The court made orders continuing the mother's sole parental responsibility for the long-term care, welfare, and development of X, with X to live with the mother and spend no time with the father. The father was restrained by injunction from using X's school portal to harass X and from contacting X directly or placing X in group chats. A single expert witness was appointed to report on the father's psychiatric state, and all outstanding interim applications by the father were dismissed. The court also declined the oral application for recusal.

Orders

Orders of the court

SYC 7692 of 2012

BETWEEN:

MR WRAY

Applicant

AND:

MS WRAY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Respondent mother have sole parental responsibility for the long-term care, welfare and development of the child, X born … 2007.

2. X live with the mother and spend no time with the Applicant father.

3. Orders 2 and 3 of the orders made on 10 December 2020 remain in full force and effect.

4. The father be restrained by injunction from using X’s school’s portal to stalk or harass X and in this respect the mother be granted leave to provide a copy of these orders to X’s school, B School, in order for the school to remove the father’s name and access to the school portal and to remove his access to receiving X’s school reports.

5. The father be restrained by injunction from phoning or messaging X or from placing X in group chats.

6. Pursuant to Division 15.5.2 of the Family Law Rules 2004, a Single Expert Witness be appointed, as nominated by the Independent Children’s Lawyer, to enquire into and report upon the father’s psychiatric state and said expert be requested to consider the following matters:

(a) the father’s history (including relevant medical history);

(b) the father’s psychiatric, psychological and emotional health and functioning;

(c) any relevant diagnosis or description of the father’s personality, presentation or functioning;

(d) if appropriate, suggested treatment or management, and the likely prognosis; and

(e) any incidents of the father’s functioning that may be relevant to his capacity to parent and meet the needs of the child.

7. The father will pay the costs of the Single Expert report to the extent that the costs are not covered by Legal Aid.

8. In the event the Single Expert is required for cross-examination or to undertake further work in relation to his appointment in these proceedings, then the parties shall pay his costs in equal shares for such appearances and work insofar as such costs are not covered by Legal Aid.

9. The parties will facilitate the preparation of the Single Expert’s report including themselves attending and arranging for the child and any other relevant person to attend on the Single Expert, if necessary, and will comply with all reasonable directions and requests made to assist in the preparation of the report.

10. The Independent Children’s Lawyer have leave to photocopy all documents produced on subpoena in these proceedings and provide such documents to the Single Expert, together with copies of all affidavit material and current applications for the purpose of enabling the Single Expert to prepare their report.

11. The Single Expert have leave to inspect the Court file and any documents produced in these proceedings on subpoena.

12. The Single Expert be authorised and is at liberty to speak with any medical or mental health practitioners, therapists and counsellors who treat either of the parties or the child.

13. All outstanding interim applications of the father are otherwise dismissed.

Background

Background to the litigation

This case concerns X, born in 2007. X is shortly to turn 14 years old. These reasons explain why the Court has extended current orders to the effect that the father not spend any time with X and, in addition, not communicate with X. These reasons also explain why the Court has ordered the mother to have sole parental responsibility.BACKGROUND The litigation between the parents has a very long history. The proceedings commenced in 2012 when X was about five years old. It is an unfortunate reality for X that litigation about her between her parents has been a feature of more than half of her life to date. On 17 April 2020, his Honour Judge Kemp in the Federal Circuit Court of Australia at Sydney made a number of orders and published comprehensive reasons for judgment. Amongst many other things, his Honour’s reasons set out matters of background and thus it is not necessary to traverse that material again. The most important order that his Honour made was an order suspending any further time between the father and X. On any reading of his Honour’s comprehensive reasons, he was concerned about the father’s mental health. The matter came back before his Honour on a number of occasions. On 8 May 2020 Judge Kemp ordered that the mother do all things reasonably necessary to facilitate X receiving a telephone call from her father on Mondays, Wednesdays and Fridays between 5pm and 6pm. It will be apparent that any orders for the father to communicate with X had not been suspended, only the orders for him to spend time with her. Judge Kemp noted that Dr C, who had been appointed as the single joint expert in this matter, had prepared his report but was awaiting payment which, in this case, was to come from the father. It is important to recognise that at the time that Judge Kemp suspended the father’s time with X on 17 April 2020, he did not have the benefit of Dr C’s report. When the matter came before his Honour on 17 July 2020 he made a number of procedural directions but also ordered, by consent, that the report of Dr C dated 24 June 2020 be released to the father’s treating psychologist, Mr D, and treating psychiatrist, Dr E. It is convenient at this point to record the Court’s observations that, despite this order, the evidence before the Court from Mr D and Dr E suggests as follows. Firstly, it seems that Mr D was aware of the report prepared by Dr C. There is no evidence from any record produced to the Court relating to Mr D that he had actually seen, let alone read, the report of Dr C. Secondly, in relation to Dr E, the father’s treating psychiatrist, there is no record suggesting that he was either aware of the existence of the report of Dr C, or the order facilitating his reading of the report, or that he had done so. The Court records that this is most unfortunate, because it was the clearest possible opportunity for the father to engage psychological and psychiatric evidence that would have reassured the Court as to aspects of his mental health, given what will be seen to be the very serious concerns expressed by Dr C.

Evidence

Evidence Before The Court

The orders proposed by the Independent Children’s Lawyer are also reproduced in the second schedule. In effect, she too sought for the mother to have sole parental responsibility, for the father’s applications to be dismissed, for the father to be restrained from bringing further application without leave, as well as a number of injunctions.THE EVIDENCE BEFORE THE COURT In support of his case, the father relied on the following documents:·His Application in a Case filed 16 July 2020;·His Application in a Case filed 7 December 2020;·His Affidavit filed 8 February 2021;·A Case Outline document comprising of the headings ‘Father’s Material’ and ‘Objections to Mother’s Material’, filed 5 February 2021;·An Affidavit of Mr F filed 4 February 2021;·An Affidavit of Mr M filed 4 February 2021;·An Affidavit of Mr N filed 4 February 2021;·An Affidavit of Ms O filed 7 December 2020;·An Affidavit of Ms P filed 7 December 2020;·An Affidavit of Mr Q filed 2 March 2020;·The 21 item document reproduced at paragraph 15 herein, comprising his orders sought; and·Various other documents and records tendered into evidence as exhibits A1 through to A14 during the hearing. In support of her case, the mother relied on the following documents:·An Amended Application in a Case filed 30 October 2020;·Her Affidavit filed 22 January 2021 and corresponding exhibit bundle;·An Affidavit of Mr G filed 22 January 2021 and corresponding exhibit bundle; ·An Affidavit of Ms R filed 22 January 2021;·An Affidavit of Ms H filed 22 January 2021 and corresponding exhibit bundle; ·Her Response filed 22 January 2021;·An Outline of Case document filed 4 February 2021; and·A Tender Bundle of documents marked as exhibit R1. In support of her case, the Independent Children’s Lawyer relied on the following documents:·The Independent Expert Report of Dr C dated 24 June 2020 and marked as exhibit ICL1; and·A Case Outline document filed 5 February 2021.OUTLINE OF REASONS FOR JUDGMENT Given the recusal application, this will be dealt with first. After the Court has explained why it has declined to recuse itself, there will be a discussion of the evidence of Dr C contained in his expert report. The report of Dr C is the only independent and expert evidence before the Court. As will be seen, there is other expert evidence before the Court, namely from the father’s treating psychologist and psychiatrist, but it will become apparent that this is not independent expert evidence, for reasons that are identified. The Court will then collectively consider the primary and additional considerations under section 60CC of the Family Law Act 1975, and then consider issues of parental responsibility, before determining the orders in the best interests of X. THE APPLICABLE LAW The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.

Decision

Reasons for decision

In support of her case, the Independent Children’s Lawyer relied on the following documents:·The Independent Expert Report of Dr C dated 24 June 2020 and marked as exhibit ICL1; and·A Case Outline document filed 5 February 2021.OUTLINE OF REASONS FOR JUDGMENT Given the recusal application, this will be dealt with first. After the Court has explained why it has declined to recuse itself, there will be a discussion of the evidence of Dr C contained in his expert report. The report of Dr C is the only independent and expert evidence before the Court. As will be seen, there is other expert evidence before the Court, namely from the father’s treating psychologist and psychiatrist, but it will become apparent that this is not independent expert evidence, for reasons that are identified. The Court will then collectively consider the primary and additional considerations under section 60CC of the Family Law Act 1975, and then consider issues of parental responsibility, before determining the orders in the best interests of X. THE APPLICABLE LAW The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA. The objects and principles of Part VII are set out at s 60B:60B Objects of Part and principles underlying it(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a) to maintain a connection with that culture; and(b) to have the support, opportunity and encouragement necessary:(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii) to develop a positive appreciation of that culture.

Ratio Decidendi

Legal Principle Established

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