Wray & Wray - [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 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.

IT IS NOTED THAT
A.The matter was recently called over by Wilson J and the parties advised that the matter will shortly be set down for trial once a s 102NA representative has been appointed for Mr Wray.
B.When this matter came before Wilson J, his Honour did not know that this Court would determine that the matter should not proceed to a final hearing without a single joint expert psychiatrist report in relation to the father’s mental health.

Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wray & Wray has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Altobelli J

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.
On 31 July 2020 Judge Kemp made further orders, the most significant of which is that the proceedings were transferred to the Family Court of Australia.
The matter came before me for interim hearing on 8 February 2021. These reasons for judgment explain the orders made in consequence of that interim hearing. On that day the father represented himself, but with the assistance of a McKenzie friend, Mr F, who, it would seem, is a leader of the church where the father attends. As it turns out, Mr F was also a co-applicant with the father in relation to one of the applications in a case that he had filed.
On 8 February 2021 I made a number of orders. Firstly, and by consent, on the application of Mr F, the application that he made together with the father in the Application in a Case filed 7 December 2020 was withdrawn insofar as it related to him. The Court also ordered, by consent, that X was not to be permitted to have her mobile phone in her bedroom overnight. The Court ordered that within 14 days the mother was to provide to the Independent Children’s Lawyer and to the father, a copy of X’s last report in relation to her eyesight.
The final order was one that judgment be reserved. Immediately following the making of this order, the Applicant father asked me to recuse myself on the basis that I was bigoted, biased, and because of ‘fraud’. He asserted that by reserving judgment I was not taking seriously his allegations about the risk of harm to his daughter presented to her by her mother’s partner, with whom she lives. Accordingly, after various preliminary matters are dealt with, the father’s recusal application will be the first substantive issue that will be dealt with in these reasons for judgment.
By way of further background, the parents separated in October 2011 with the father physically leaving the family home in January 2012. The mother commenced the present proceedings in December 2012. The mother commenced her relationship with her current partner, Mr G in January 2013 and they commenced a de facto relationship in October 2017. X has always lived with her mother, and since October 2017 has also lived with Mr G.
On 17 October 2014 the parents entered into final parenting orders. The first contravention proceedings were initiated by the mother in March 2015, and other contravention proceedings followed. On 14 June 2016 final ADVO orders were made against the father at the Local Court. As a result of the father’s persistent breaches of the parenting orders, further contravention proceedings were initiated and on 10 May 2017 a prima facie case was found to be proven in relation to certain charges contained in the mother’s Contravention Application filed 12 June 2015. Regrettably, the mother alleges that there were further breaches of the order and on 2 May 2018 the father was again found to have contravened an order without reasonable excuse. He was ordered to enter into a bond, failed to do so, was arrested pursuant to a warrant issued by Judge Kemp, and ultimately signed the bond. Regrettably, the mother alleges that the father further breached the orders.
Since at least October 2017, when the mother and Mr G commenced cohabitation, the father has persistently maintained the belief that Mr G has groomed X for the purposes of abusing her. The father maintains this belief to this date. The matter has been investigated by the Department of Communities and Justice, New South Wales Police and by Judge Kemp. Moreover, more recently, Dr C reviewed the allegations. The common theme of the conclusions reached by each of the above is that there is no evidence that Mr G presents an unacceptable risk of harm to X. This Court has likewise reviewed the material in this regard and reaches the same conclusion.
Based on this Court’s review of the history of the matter, as well as the evidence before it, a number of broad impressions are formed. The father genuinely believes that Mr G is a risk to the safety and welfare of his daughter, X. Nonetheless, based on all the material before the Court, it is a subjective belief with no objective basis. The conflict between the parents is intractable. They are unable to communicate, and they have no trust in each other. The father’s belief about risk of harm to X is obsessional. Judge Kemp had concerns about the father’s mental health and alluded to the need to have psychiatric evidence in the case. This Court is now convinced of the need to have psychiatric evidence in this case and, indeed, for reasons set out below, will conclude that it is not in X’s best interests to either spend time or communicate with her father until there is objective psychiatric evidence about the father’s mental health, and that he does not present a risk of harm to his daughter. Perhaps the saddest impression that is formed from all the material before the Court is that the father’s mental health appears to have declined during the course of this litigation and continues to decline.
THE COMPETING PROPOSALS.
When this matter was listed for hearing before me on 10 December 2020, it was noted that the applications to be determined included the mother’s Application in a Case filed 30 October 2020, the father’s Application in a Case filed 16 July 2020, and his Application in a Case filed 7 December 2020. On 10 December 2020 the Court restrained the father from approaching X’s school or place of learning or entering or being within 50 metres of these places. Moreover, the Court ordered the father be restrained by injunction from approaching X or being within 50 metres of her place of residence.
Notwithstanding the order noting the applications to be determined, when the father appeared he presented the Court with a minute of order containing 21 items. That document is reproduced below:
1. UNDER NO CIRCUMSTANCES ARE THE FOLLOWING ORDERS TO BE COMMUNICATED TO THE CHILD X BORN IN 2007.
2. Pending further order, the Father has sole parental responsibility for the long-term care, welfare and development of the child X born in 2007.
3. Orders 2 and 3 dated 10/12/2020 are set aside as they were obtained via fraud.
4. Order 3 dated 17/04/2020 is set aside as it was obtained via fraud.
5. At 3:15pm the ICL is to send this text message to the child “Hi X, you are going to your Dad’s after school today until Wednesday morning, then the time will return to normal as before. I am no longer acting as your lawyer. Carolina.”
6. The ICL will then forward a screenshot of that text message to the parties via email.
7. The ICL is hereby dismissed and referred to the Law Society to be disbarred.
8. Pending further order the ICL is barred from undertaking any further Family Law matters until such time as that investigation is complete.
9. That the Mother and her agents be restrained by injunction from causing or permitting the child X born in 2007, have contact with or come within 50 metres of Mr G.
10. The child’s school is hereby ordered to remove Mr G as emergency contact for the child X.
11. The child’s school is hereby ordered to remove Ms H as emergency contact for the child X..
12. The school is directed to have her Mother and Father as emergency contacts, and the child’s paternal Grandfather Mr J.
13. THE FOLLOWING ORDERS ARE TO BE COMMUNICATED TO THE CHILD BY THE SCHOOL WITHOUT SHOWING HER THESE ORDERS.
14. The Final Orders dated 17/10/2014 are reinstated in full and currently in force, so the child’s time will continue as normal, subject to the following orders.
15. The child X is to live with her Father from after school this Monday February 8^th until commencement of school Wednesday morning.
16. The child X will spend all the school holidays with her Father this school year 2021, until term 4, when she will continue to spend half school holidays with each parent in accordance with the 17/10/2014 Final Orders.
17. The child’s Mother and Father shall both ensure the child X attends [Community Group] every Friday 6:30pm to 8:00pm inclusive, when it is on; or such other times it is on.
18. The child’s Mother and Father shall both ensure the child attends K Church, Suburb L, every Sunday 9:15am to 12:15pm inclusive.
19. The child’s Mother and Father shall both ensure the child attends any other church events specified by Mr F in the best interests of the child’s culture and well-being.
20. Pending further order, the child X shall not be permitted to have her mobile phone in her bedroom overnight.
The court notes:
21. By way of apology to X and her paternal family for separating them unfairly and without good reason, and acknowledges that X has a great Dad.
Notwithstanding the proposed minute, during his submission the father indicated that he did not press orders 7 and 8. Moreover, order 20 was made by consent.
In order to give context to the father’s recusal application, it is important to note that the father was under the impression that the Court would not only hear his application, but adjudicate it on the day in time for him to collect X from school. Whilst the father was informed during the hearing that the Court would reserve its judgment in order to properly consider the material before it, he was obviously nonetheless disappointed when the order reserving judgment was made.
The Court notes that the orders proposed by the father were disclosed to the Court and both the Independent Children’s Lawyer and mother for the first time at the interim hearing. Neither the mother nor the Independent Children’s Lawyer sought an adjournment even though, the Court notes, they were well entitled to. From the mother’s perspective the case she was facing was no longer about the father’s time with X, but rather about sole parental responsibility and where X would live. From the Independent Children’s Lawyer’s perspective, she was facing not just an application that she be dismissed from the proceedings, but that she be referred to the Law Society to be disbarred.
The orders proposed by the mother are set out in her Case Outline document filed 4 February 2021. In short, she sought sole parental responsibility and that X continue to live with her but spend no time with her father. The orders sought by the mother are in fact reproduced in the first schedule to these reasons. It will be seen that there are a number of orders, in problematic form, relating to the return to X of her personal items held in the father’s possession, as well as an application under s 102QB of the Family Law Act 1975 prohibiting the father from bringing any further proceedings under the Act. The mother otherwise sought dismissal of each of the father’s outstanding applications. The mother also sought costs.

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.
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.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)       When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)       The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)       abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)       family violence.
(3)       When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)       The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)       Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)       consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)       consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)       Subject to subsection (6), if:
(a)       a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)       the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)       consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)       consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)       the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)       Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)       In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)       how far apart the parents live from each other; and
(b)       the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)       the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)       the impact that an arrangement of that kind would have on the child; and
(e)       such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
THE CASE LAW
In MRR v GR [2010] HCA 4, the High Court referred to s 65DAA(1) and said:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
However, that is not to say that the Court is restricted to only considering uncontentious matters at an interim stage. As explained by the Full Court in Marvel & Marvel [2010] FamCAFC 101 at [122]-[123]:
122. In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123. Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
THE RECUSAL APPLICATION

The circumstances of the recusal application were outlined above. Doing the best the Court can to understand the father’s application, he was aggrieved because I reserved judgment notwithstanding the risks that he had articulated that the mother’s partner presented to his daughter X. In addition to asserting that I was bigoted, biased and was part of a fraud, he also described the Court system as being corrupt, and thus I should recuse myself. It must be remembered that the father was representing himself in complex proceedings that are very important to him and relate to the most important person in his life, his daughter X. Nonetheless, the recusal application must be taken seriously, and the father should receive the benefit of an explanation as to why his recusal application has been dismissed.
The law concerning judicial recusal by reason of the appearance of bias is well-settled. The test to be applied in determining whether a Judge ought be disqualified is “whether a fair minded lay observer might apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide”: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 at [6]; Johnson v Johnson [2000] HCA 48 at [11].
At [8] of its decision in Ebner, the High Court identified the two limbed approach to be followed in making such determinations:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
With respect to the characteristics of the lay observer, the New South Wales Court of Appeal has recently stated at [232] of its decision in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128, that:
[T]he hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Relevantly, Kirby J stated as follows in the decision of Antoun v R [2006] HCA 2 at [34]:
It is true that, in the oft-repeated and oft-applied words of Mason J in Re JRL; Ex parte CJL, this Court has "loudly and clearly" expressed a corrective against any view that a judge should too readily accept recusal because a party has demanded it. In the administration of justice in Australia, the parties do not (at least normally) have an entitlement to choose amongst the judicial officers who will conduct the trial. This principle has been reasserted and applied in many cases.
(footnotes omitted)
The gravamen of the father’s complaint, as I understand it, is that I should recuse myself on the basis of his assertion that I am biased, corrupt and fraudulent, and that by reserving my decision, I am exacerbating the risks he says are posed to X in her mother’s care. He has not identified what it is that he says gives rise to any such bias, corruption or fraud, or, in the context of the two-limbed test identified above, what it is that would lead me to determine his case other than on its legal and factual merits. Indeed he did not indicate what he alleges that I said, or did, that gives rise to that which he complains of.
In the context of my decision to reserve judgment in the matter, I explained to the father that the effect of this is to give me an opportunity to carefully and properly consider the totality of the evidence and the submissions made, including his own. I do not accept that my decision to reserve judgment would cause a fair minded lay observer to apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I was required to decide.
The father has plainly failed to satisfy the tests enunciated in Ebner and Johnson & Johnson, and in my view, has failed to consider that the test for disqualification is objective, rather than subjective. I am comfortably satisfied that a fair minded lay observer would not apprehend that I would determine the father’s case on anything other than its legal and factual merits, and thus I decline to recuse myself from the proceeding.
THE EXPERT REPORT OF DR C
The report of Dr C was ordered by Judge Kemp on 17 February 2020 and is dated 24 June 2020. Dr C refers to the extensive documentation that he was provided and records that he met individually with the mother, father and the mother’s partner and observed X with the mother, father and the mother’s partner. In addition, he conducted a psychological assessment of them, and had access to substantial documents that had been produced on subpoena. He was also able to review both audio and video evidence that had been provided by the father of recordings between X and himself. This report is very important evidence, and if there is to be a basis for reviewing the orders that Judge Kemp made suspending the father’s time with X, such review must logically be founded on the report, as well as subsequent events. Accordingly, substantial parts of the report will be reproduced below.
At paragraphs 19-22 Dr C, under the heading “Presentation”, records his observations of the presentation of the father. As will be seen below, the presentation of the father before Dr C was almost identical to his presentation before the Court.
[Mr Wray] attended his appointment 15 minutes late reportedly due to a train derailment. He indicated he had left a voicemail; however reception was unattended this morning, and therefore the message was not conveyed to the clinician. He was neatly attired in a [suit, shirt, and leather boots] and carried a laptop bag. He wore [glasses], and appeared to be of […]. [Mr Wray] presented as argumentative from the outset of the interview, and exhibited a deep mistrust of the clinician and the Court process in general. Within a matter of minutes, [Mr Wray] began to express frustration of the clinician's note-taking process during the interview, and in response took out his mobile phone 'to take notes'. At this point, the clinician iterated that it was illegal to record conversations without the clinician's consent, to which [Mr Wray] responded that he was not recording conversations with the clinician.
The Court was able to personally observe that the father presented as argumentative in Court, exhibited a deep mistrust of anyone not aligned with him including the mother, her representatives, the Independent Children’s Lawyer including her counsel, Dr C, the Court, and the Court process in general. The Court was also able to personally observe the father’s deep frustration with all aspects of the case.
Dr C notes at paragraph 20:
Throughout interview, [Mr Wray] exhibited an almost obsessional focus on keeping [X] away from [Mr G] during the assessment process, indicating that her safety was the upmost importance. [Mr Wray] expressed his concern that [X] would not be able to speak freely about any concerns she had regarding [Mr G] if they remained in close proximity during the day. The clinician was required to re-iterate a number of times that there were no current systemic involvement restricting [Mr G] from seeing [X], and that they still reside with each other, to which [Mr Wray] responded with intense suspiciousness and continued to question the clinician's assessment process. This resulted in the clinician needing to re-direct [Mr Wray] back to the topic of conversation repeatedly during his interview, as he attempted to challenge the clinician and engage in discussions around whether the clinician was acting in [X's] best interests.
(errors in original)
The Court was also able personally observe the father’s almost obsessional focus on keeping X away from Mr G including, at various points in Court, gesticulating pointedly at Mr G, who was at the back of the courtroom, and calling him a paedophile. The Court was able to observe the father’s intense suspiciousness. The father questioned the legal process, just like he questioned the process used by Dr C. In the same way as the father sought to challenge Dr C and engage in discussions about whether he was acting in X’s best interest, the father likewise attempted to do the same with the Court.
At paragraph 21, Dr C records:
[Mr Wray] exhibited extreme difficulty in staying focussed during conversations with the clinician. Conversations with [Mr Wray] frequently became tangential with a strongly paranoid flavour. His narrative was punctuated with frequent moments of boundary testing which if ignored, he would often interrupt the clinician's line of questioning, at times stating 'you're just going to disregard that are you?’. [Mr Wray] also paid close attention to the clinician's note taking, stating that he believed the clinician was opting to not write concerns which [Mr Wray] viewed as significant. It was also observed that [Mr Wray] would also begin to recount events without providing relevant context, requiring the clinician to seek repeated clarification. Taken together, this made history taking with [Mr Wray] extremely difficult.
The Court was able to personally observe the difficulty that the father had in remaining focused and answering even the most basic questions put to him by the Bench. Likewise, the Court was able to observe the father being tangential, with a strongly paranoid flavour. He also sought to test boundaries, often, for example, seemingly trying to recruit the Court onto his side of the case. He was not able to recount events properly and, indeed, provided an entirely distorted version of events that only became apparent by looking at the source documents. For example, in submissions he referred to his success in an appeal against an AVO made against him by a Local Court Magistrate but, on closer inspection of the documents, the father succeeded on appeal on one point only, with the substance of the AVO remaining in place.
At paragraph 22 Dr C records:
It was evident at interview that Mr Wray genuinely loves and cares for his daughter. However, Mr Wray also exhibited minimal insight into the impact of his own behaviours on X. Through Mr Wray's interview, it became evident that he believed the sole issue was X's safety in the presence of Mr G. But remained blinded to the potential adverse impact on her of his obsessional focus about Mr G. Additionally, he sought to only focus on Ms Wray's shortcomings, having no positive things to say about her parenting - despite repeated questions to press this issue, while being unable to engage in reflection as to how he may improve his own parenting skills to match his child's changing needs as she transitions into adolescence.
At paragraph 23 Dr C records some more substantive issues relating to his interview with the father:
Mr Wray was quick to engage in a lengthy narrative referring to his trauma which arises from X's alleged abuse and violation, the convoluted nature of which again required several prompts from the clinician to contextualise his comments. When these comments were further tested it was found that they were not evidenced across documentation, nor indeed on examination, reality based. For instance, the clinician queried whether there has been any FaCS or Police intervention as a result of Mr Wray's allegations, to which Mr Wray aggressively responded 'FaCS and the Police don't do anything'. Mr Wray continuously re-iterated his belief that there was sufficient evidence to substantiate his claims about X being at risk of harm while residing with Mr G, referring to him in increasingly derogatory terms and it appeared that he interpreted the clinician's comments about waiting to be able to review the subpoenaed material as being dismissive, at one point stating 'it surprises me that you're ok with X being here with her alleged abuser'. It was pointed out to Mr Wray that X is currently residing with Mr G, however he did not appear to reflect on this point, stating instead accusing the clinician of 'seeming quite smug about that'. The clinician immediately addressed this concern and reiterated that he was taking Mr Wray's comments seriously, however he was required to understand if there was any tangible evidence to support claims made, and once again re-directed him back to providing an overview of the current parenting proceedings.
(error in original)
Likewise, the father presented before the Court as interpreting any caution by the Court (such as reserving its judgment to consider the evidence) as being dismissive of his concerns. In the same way as the father suggested that, somehow, Dr C was complicit with the abuse being suffered by X, he suggested that the Court was too.
At paragraphs 24 and 25 Dr C records the father’s detailed concerns about the risk of harm to X. The only part that will be reproduced is the comment found within paragraph 24 which relates to audio and video recordings made by the father of interactions between X and himself:
As noted above a 'usb stick’·containing an audio file and video+audio file was subsequently received by the clinician. It is noted these files were reviewed by Dr S (correspondence dated 18 Jan 2020), and subsequently by the Court (refer - Reasons for Judgement 17 April 2020. I concur with Dr S's opinion that both files could be considered indicative of child grooming and/or· at worst child abuse. Similarly I also concur that there is no other evidence to assist substantiate the allegations presented.
Conversely however, there is evidence to suggest the illogical nature of what is being narrated by X 'that Mum carried Mr G back to her bedroom' raises considerable doubt about the possibility of abuse and additionally that both interviews are potentially confounded if not fatally flawed, by Mr Wray's style of repetitive direct questioning, further complicated by his inability to regulate his own emotions to the point that X seeks to calm him during the video episode. Had my report preceded the Court's judgement, it would have been a clear recommendation to the Court to be extremely cautious in placing any weight on either episode as being potentially abusive in nature.
(emphasis in original) (error in original)
Dr C records his discussions with the father in relation to X’s needs, at paragraphs 26-34. In the first sentence of paragraph 26 Dr C records: “It appears that Mr Wray’s narrow, seemingly obsessional focus on Mr G meant that Mr Wray is unable to fully understand X’s current needs, and leads to non-child focused actions.” That is a view formed by Dr C which is identical to the impression formed by this Court, having regard to the totality of the material before it.
At paragraph 32 Dr C records the father raising his voice to Dr C, which is something that the father certainly did with the Court, as well as the mother, her legal representative, and the Independent Children’s Lawyer in Court.
Dr C records the father saying to him “…so you’re happy for her trauma to be continued?” This was in response to Dr C merely observing that he had not been supplied with any evidence to support the father’s claims about abuse. The father’s presentation to the Court, and interaction with the bench, was of exactly the same flavour. This is manifested, for example, in the notation to the orders that he proposed. In this regard at order 21 he proposed that the Court apologise to X and her paternal family for separating them unfairly, and without good reason, and acknowledges that X has a “great dad.”
Perhaps the most important part of the report of Dr C is under the heading: “Medical and psychiatric history”. At paragraphs 43-45 Dr C records:
43. Mr Wray indicated that he had been involuntarily admitted to W Hospital for one week in 1996, and was diagnosed with acute schizophrenia. He described that he had been 'awake for three days, not eating’·prior to his hospitalisation, Mr Wray reported that he was about 25 years old at this time. He denied alcohol consumption at this time and had not been on any medications prior to his hospitalisations. He denied having any mental health issues prior to his presentation to hospital and that the onset for his condition was 'quite sudden'. He reported that following his hospital admission in 1996 he was prescribed Zyprexa (olanzapine), however eventually ceased taking this medication due to weight gain.
44. Between 2001 and 2002 Mr Wray reported that he was admitted to hospital 'on a few more occasions', however was not able to provide specific time frames. He reported that at this time 'I was asking for a s24' as 'I was having racing thoughts and was manic'. He denied any history of self-harm behaviours. Mr Wray reported that he was still on olanzapine but was then put on Seroquel (quetiapine) and lithium between 2001 to 2002. He reported during this time he had been admitted to U Hospital then transferred to V Hospital in Suburb B, where he stayed for four months. He described that his length of stay in hospital was 'demoralising'. In 2002 he remained on Seroquel and saw Dr Y. Mr Wray denied having any other relapses in relation to manic episodes or schizophrenia. He reported that he met Ms Wray in 2005 and described that he was upfront with her about his mental health history. He reported that after he married Ms Wray, he ceased taking all of his medications. He reported that Ms Wray attended his appointment with Dr Y for further information regarding Mr Wray's condition.
45. Mr Wray indicated that in 2007 he became depressed when X was born. He stated that he 'had post-natal depression' during this time. Mr Wray reported that during his first separation from Ms Wray in 2009 for 48 weeks, he resumed taking medications, Lexapro (escitalopram) and Seroquel for stress and anxiety. He reported that he and Ms Wray reconciled in 2010. He indicated that he then saw Mr D, Clinical Psychologist for management strategies and that Ms Wray attended these sessions with him. He reported upon reconciling with Ms Wray, he again stopped taking Seroquel, and then resumed taking this medication in late 2012 after they separated on a final basis and ceased again in October 2014 when Final Orders were made. He reported he has not taken any medications since 2014 in consultation with Dr Y. He reported that he has continued to attend sessions with Mr D on a regular basis and has had two consultations in February 2020.
The Court observes that, for the most part, the history that the father provided is consistent with the history that he has given to both his treating psychologist and to a lesser extent, psychiatrist. This observation is, of course, dependent on the records provided being accurate records of what the father told them.
Equally important is the father’s psychological profile which is recorded at paragraphs 49-55.
49. Throughout assessment, Mr Wray was observed to be highly reactive, vacillating from defensive to aggressive throughout interview. He did not appear to be rational in his views of the present situation, coupled with an overly paranoid perspective, but also showed an extreme lack of insight regarding the impact his behaviours had on those around him. He evidenced considerable denial about the severity of his mental health issues, with potentially significant underreporting a consistent factor throughout the interview and assessment.
50. Mr Wray undertook formal psychological testing as a part of the current assessment. Mr Wray's responses throughout interview and across multiple psychological inventories indicated that he has some awareness of his problems though still showed some indication that he attempted to create an impression that portrayed himself in an overly favourable light. Individuals with this profile tend to be blunt and direct in their style.
51. Mr Wray's results on an inventory assessing deeper enduring personality traits suggested an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Inclined to view psychological problems as a sign of emotional or moral weakness, Mr Wray is likely to protectively deny any unseemly traits or symptoms, a pattern consistent throughout this review. This probably reflects either a broad-based concern about being appraised unfavourably by others or an active suspicion of the motives of psychological inquiry and given his elevated paranoia, the latter appears to be predominant. His profile also suggests a tendency to create difficult interpersonal relationships and unrealistic expectations for themselves.
52. Coupled with his limited, if not impaired capacity for emotional self-regulation, his profile reflects a strong need to pursue unusually challenging endeavours and evince goal-directed behaviours which most others would find unrealistic which are features commonly seen in schizoaffective-type disorders. Any uncertainty he may possess, whether by social doubt, feelings of inefficacy, or reality testing against insurmountable challenges, is generally relegated to suppressed unawareness, but also evidenced by minimal tangible achievements.
53. While Mr Wray considers himself adept at winning over the favour of others, relatively few of his relationships appear to have been long-lasting, with even his family raising concerns about his capacity to effectively manage his moods and emotions. Those who have endured longer, and perhaps more involved, interactions with him may become drained by his seemingly unending enthusiasm. As others show waning interest, he may become even more absorbed by and concerned with their continued support and commitment. If rejection becomes imminent, his energy level may waver from excited exuberance to edgy irritability, and his buried self-doubt and uncertainty may surface. In the wake of rejection, he is likely to withdraw from the situation entirely and reframe the encounter to invoke positive attention to himself, declare his steadfastness to goals or principles, and/or proclaim his innocence.
54. Mr Wray showed a persistent reluctance to self-examine his role in difficult situations of distress or when directly challenged and he may react externally by behaving erratically. Driven to deny the more tedious aspect of life's realities, including realistic limit setting and accountability for less-than-perfect outcomes, he is likely to seek out novel experiences and continue grasping for opportunities, possibly to the point of exhaustion. Fatigue in cases such as this may precipitate syndrome-based depression or possible delusional thinking.
55. Emotionally excitable and intensely zealous, he is as prone to present with a high degree of animation as he is to evince short-temperedness and ready irritability. Unrestrained and rash, he is often restless and indefatigable and his capacity to effectively reality-test easily threatened as a result. His tirelessness does not necessarily result in effective achievements, however, and may turn to turbulence; he may become socially obdurate, inappropriate, and potentially caustic and assaultive. Also salient is his somewhat undisciplined imagination that takes liberties with objective reality to assert and reinforce his boastful self-image. He places few limits on his fantasies or rationalizations despite repeated challenge and his imagination appears left to run free of the constraints of reality or the views of others which was apparent across the course of his interview.
(footnotes omitted)

The Court observes that it likewise found the father to be highly reactive, vacillating from defensive to aggressive throughout the hearing, irrational at times, presenting an overly paranoid perspective, and manifesting an extreme lack of insight. The Court also found him to be emotionally excitable, intensely zealous, animated in his presentation, unrestrained and rash.
Dr C opines that the father: “…may become socially obdurate, inappropriate, and potentially caustic and assaultive.” Indeed, the Court records that at one stage shortly before the luncheon adjournment the father started gesticulating wildly and aggressively towards counsel for the Independent Children’s Lawyer who was seated to his immediate right on the bar table and pointing to her head with the fingers of his hand seemingly a mere matter of inches away from counsel’s head. The Court interpreted this as an inappropriate, threatening gesture that seems, based on the Court’s observation, to have put counsel in fear.
It should be apparent, therefore, that the concerns recorded by Dr C pertaining to the father’s psychiatric and psychological health, based on his presentation, is a concern shared by the Court given the father’s presentation before it. If the father behaves in such an unrestrained fashion, and if the father is seemingly unable to control his emotions, in a highly public context and in the presence of authority figures, one can only be deeply concerned about how the father would regulate his emotions, and his behaviour, in the presence of his own daughter.
By contrast, the psychological assessment conducted of both the mother, and her partner, revealed essentially well-functioning individuals with likely no major personality disturbances.
Dr C of course interviewed X. The observations formed at the interview are found at paragraphs 108-118. Whilst these paragraphs are not reproduced, it is clear that X is aware of the parental conflict, and has previously sought to placate her father, and did not want the current parenting arrangement changed. It is important to note that the current parenting arrangement at the time of the interview which took place on 3 March 2020 was that she was spending time with her father. Judge Kemp did not suspend the father’s time with X until 17 April 2020. Moreover, X was given ample opportunity to explain to Dr C if she had any concerns about her own safety, welfare and comfort in the presence of any adult, but none could be identified. Under the heading of X’s psychological functioning, Dr C records at paragraph 120 as follows:
Her profile is suggestive of an individual who is quite submissive and dependent on others for affection, attention, and security. Her fear of abandonment often leads her to seek nurturance by acting in an overly compliant and obliging way with peers and elders. She reveals an attitude about social and interpersonal problems that is perhaps more naive than that of others of her age, suggesting a degree of social immaturity relative to same aged peers. Similarly, she gives evidence of unreflected and somewhat childish thinking. When faced with personal and family tensions, she will make an effort to maintain an air of buoyancy, but in the process denying any disturbing emotions and concealing her inner discomfort with short-lived pleasantries and enthusiasm.
From the Court’s perspective this is an important paragraph that explains why X would express a preference for continuing to spend time with her father. Moreover, the Court accepts that it may also be indicative of at least one of two things. Firstly, that X has not experienced her father’s presentation and behaviour in the same way that both Dr C, and this Court, has. The second, and more insidious alternative, is that in fact X has experienced some of this behaviour but being submissive and dependent on her father for affection, has not disclosed the same.
Dr C’s evaluation commences at paragraph 129. Commencing at line 7 of that paragraph he states:
Court Orders (17 February 2020) appointed this clinician to prepare a family report regarding the care of the child, the child's views, the parents' abilities to meet the child's needs, whether the child is at risk of harm, the parents' mental health, and recommendations. Interviews, observations and psychological tests were conducted over a period of eight hours in one day. In addition to the above, documentation supplied prior to and subsequently to the assessment (as listed above) was reviewed. Both parents believed their proposals were in their child's best interests. Despite this, both parents appear to have demonstrated significant limitations in their communication and efforts to co-parent. Both parents allege that the other parent is unable to adequately meet X's needs, including her physical, emotional, educational, psychological, cultural, and gender needs. Ms Wray raised multiple concerns about Mr Wray's significant mental health history and the adverse impact of this on X ranging from her expressed anxiety and fearfulness of his anger to her weight gain that may be associated with his binge eating disorder. Conversely, Mr Wray raised concerns about Ms Wray's relationship with Mr G and her ability to place X's needs before her own. Mr Wray also raised significant allegations about Mr G engaging in either sexually abusive or grooming behaviour (or both). On the basis of the assessment, it would appear that the parental conflict has also negatively impaired their abilities to communicate about X's needs.
Dr C observed that X had a strong bond with her mother. In relation to her father he opines at paragraph 133:
When considering X's relationship with Mr Wray, her attachment bond with her father was positive and affectionate, and her attachment still evidenced good signs of security. X did however, clearly express a resistance to increasing her time with Mr Wray, and at the same time stated she did not want to have equal time spent with both of her parents. X also expressed a clearly stated preference for her father never to retain her in his care longer than arranged again. As suggested in supplied documentation and on the day of the assessment, Mr Wray displayed minimal attunement to X's apprehension or distress around not seeing her mother for such an extended period of time, continuing to assert that he alone is acting in her best interests, though his efforts in this respect are clearly having the reverse outcome and in reality are quite anxiety and stress inducing for her. It also appears that X has learnt how to placate her father, not reacting to her father's erratic behaviour and remains vigilant of not exacerbating the situation for fear of her provoking his anger. Attention should not be lost with respect to the video file from 27 October 2017, where even in the midst of being distressed after a nightmare very late at night, X was observed to be offering words to calm her father's emotional distress rather than focus on herself.
At paragraphs 135-136 he considers the likely effect of changing circumstances on X:
135. X has expressed a clear desire not to spend equal time between her parents and further that she does not want to spend additional time with her father. It appears that Ms Wray and Mr G have provided stability in X's home life, and there is no evidence to suggest that X's time with her mother should be reduced, or that she should no longer be residing with her mother or Mr G. Conversely, given Mr Wray's palpable level of paranoia and antipathy toward Ms Wray and Mr G, coupled with his impaired insight and his readiness to act unilaterally in defiance of Court Orders, while justifying this on the basis 'of X's best interests' leaves open the option for the Court to contemplate reducing X's time with him. Currently an 8/6 of 14 day arrangement has been the practice to date, though it is the advice of this clinician that the Court could weigh the benefit of making this a 9/5 or even 10/4 of 14 days. This issue will also be addressed in subsequent recommendations.
136. This clinician is mindful of the Court's decision to suspend X's contact with her father pending receipt of this Single Expert report, together with the most recent allegation made by Ms Wray that the father has yet again made contact with X and taken her to his home despite the Court Order prohibiting him from doing so. If the Court finds this allegation to be credible, then it will need to consider if and when to lift the suspension of contact, and potentially allow contact time to resume in small increments, such that the father is then able to demonstrate compliance with the orders as stipulated so as to allow time to then increase.
(emphasis in original)
At paragraph 134 Dr C states:
Both parents appear to be providing more than adequate care for X's basic needs - accommodation, food, clothing, education and extra-curricular pursuits. Both parents are reportedly involved in X's schooling, and there appears to be no concerns raised about her attendance in general or overall performance. There appears ongoing conflict however, about which out-of-school activities in which X is involved, with both parents reportedly demonstrating a degree of resistance to facilitating X's activities while in the care of the other parent. Going forward, this specific issue of conflict needs to cease immediately as given X's psychological profile, the nett result will be that X will simply 'choose' to stop these activities due to her wanting to avoid being in the middle of additional disagreements At her age, X should be being encouraged to engage in whatever activity she wants to, and both parents should be actively supporting her choice.
This paragraph appears under the heading as to his advice in relation to parenting or relationship education and/or training or counselling. It is important to record, for reasons that will become apparent shortly, that Dr C clearly raised as a substantial issue that the father needed professional help to improve his emotional self-regulation.
In relation to X’s mental health Dr C records at paragraph 143-144:
143 X was able to clearly express her views at assessment and indicated an understanding of the purpose of the current review. X expressed an acceptance of the current parenting arrangement continuing, but specifically stated she did not wish her time with Mr Wray to increase. It was evident from her interview that she has adopted a strategy of seeking to find a path of minimum resistance, which at a superficial level appears to reduce the level of conflict to which she is exposed, but at a deeper level also results in considerable internal stress and anxiety. She appears avoidant of change, but clearly wants her parents to resolve their conflict, and paradoxically while being aware that she is the centre of that conflict, still wants them to stop involving her in it. X presented with a concerning level of passivity and a visage of a somewhat troubled but wearied resignation, coupled with a level of social and emotional maturity that potentially lags her age-matched peers, which reduces (only to a limited extent) the level of confidence the Court can have when placing weight on her views.
144. Despite this, X demonstrated a reasonable understanding of the nature of the current assessment and while her views did not appear to be unduly influenced by Ms Wray or Mr Wray, and it was evident during assessment that she remained reluctant to express what she truly felt, but did reveal a considerable amount via indicating what she did not want. On the basis of these it would be reasonable to conclude that X wishes to continue with some form of the existing parenting arrangement but without her parents fighting. Equally important though, she would like her parents to be more mindful of the challenges she confronts trying to navigate her path between her father's and mother's worlds, particularly with respect to the movement of her possessions, and that she should be the primary decision-maker about this. She was adamant she did not want to be changing shoes at the bus stop in front of her peers ever again. X also raised concerns about her father's reactivity and his short-temper and his readiness to anger, and it was clear that she has modified her own behaviour to minimise further provocation of him. Finally, she was adamant that she did not want to spend any more time with her father than she does currently, but appeared reluctant to take the next step to seek a reduction in time spent with him. But rather she rephrased this in terms of expressing a preference for her mother's sensitivity and understanding of her, and how it was much more relaxed at her mother's home than at her father's. Hence, in line with this, the proposal of X increasing another night (in a 14-day cycle) with her mother is a clear recommendation for the Court to consider.
This is important expert evidence. It presents the dilemma for X. In order to survive the intense parental conflict with which she has lived for many years of her life, she has adopted the path of minimal resistance which, from her perspective, but only at a superficial level, appears to reduce the level of conflict to which she has exposed. Dr C warns in the clearest possible terms that this might also result in considerable internal stress and anxiety for her. He describes her “concerning level of passivity and a visage of somewhat troubled but wearied resignation…” Dr C observes that it might be reasonable to conclude that X does want to spend some time with her father, but without the fighting.
From the Court’s perspective, this is troubling evidence. If X is seeking to “find a path of minimum resistance”, then any views that she expresses about spending time with her father are likely to be influenced by her passivity. There is a real danger, this Court believes, that if the father manifests to X some of the behaviour he demonstrated to both Dr C, and to the Court, she might simply minimise and normalise such behaviour at a superficial level, but internally be suffering extreme stress and anxiety. In these circumstances, and despite X’s age, the Court is very cautious about placing any weight on her views, particularly if it will find that there is such a risk of psychological harm to her, from her father.
Dr C’s recommendations commenced from paragraph 150. He was of the view that the father was not able to adequately prioritise or meet X’s needs. The father’s proposal for equal shared care was therefore problematic. He noted, however, X’s expressly stated desire not to increase her time with her father, but to spend more time with her mother.
At paragraph 151 Dr C in effect provides a road map for the father:
In the event Mr Wray elects to engage in a program of individual psychological therapy, and can demonstrate some concrete gains, particularly in terms of his capacity to promote X's relationships with her mother and Mr G, this recommendation may alter, but taking into account his entrenched, elevated level of paranoia and potentially delusional thinking during assessment, I suspect the probability for substantive change to be low, hence the need for longer term monitoring processes of Mr Wray to be put in place going forward.
Obviously, Dr C was pessimistic about the father’s prospects of changing his thinking, but nonetheless clearly indicated to the father what needed to be done.
At 152-153 Dr C deals with issues of parental responsibility noting that the father’s poor communication skills already challenged the viability of shared parental responsibility and thus, if the Court was to consider sole parental responsibility, it would be to the mother.
At paragraph 154 Dr C sets out the proposed care arrangements and contact:
This issue has been largely addressed above, but suffice to say that prolonged removal of a maternal attachment figure is not considered to be good for X's emotional· development or her psychological wellbeing. There remains considerable concern regarding Mr Wray's capacity to empathise with X when she is distressed during these periods, particularly given he has been the main instigator of a number of these episodes. Mr Wray showed severely impaired insight into his behaviours, together with a concerning level of emotional detachment to X's angst at missing her mother, whilst indulging himself in his delusional belief that he was 'doing the right thing in her best interests'. As noted above, the Court may wish to consider formal (long-term) reductions in his contact time with X should he again withhold X in defiance of Orders, together with any other sanctions the Court sees fit to apply. Should this behaviour recur, then the Court may have no other option but to order supervised contact between Mr Wray and X by a paternal family member, i.e., one of Mr Wray's siblings (or external independent agency) on a daytime basis and for X to no longer stay overnight in his residence.
It is interesting to note that both the mother, and Independent Children’s Lawyer, submitted that an order for supervised contact would be inappropriate for X. The concerns were twofold: firstly that she would be too old and, secondly, the more recent evidence suggested that X did not wish to spend time with her father, thus rendering even supervised contact highly problematic.
Given the importance, and clarity, of the evidence of Dr C it is important to explore the father’s response to the same. In the father’s affidavit of 15 September 2020, not read by him in the interim application, but referred to by both the father, mother and Independent Children’s Lawyer, the father annexes two reports, from his treating psychologist Mr D, and treating psychiatrist, Dr E. The Court has already recorded some of its concerns about this evidence.
Mr D’s letter dated 30 July 2020 refers to his treatment and management of the father’s depression, anxiety, in the context of a history of schizoaffective disorder. He records no evidence of psychosis. In the last paragraph Mr D states:
“It is true to say that Mr Wray is obsessive, however it is my opinion that this is a feature of his anxiety and depression.”
With respect to Mr D there is no evidence of him engaging with the report of Dr C in relation to his client’s psychological health. Indeed, if he had been given the report of Dr C, as was ordered by the Court, there is nothing in this report (indeed in any of the documents from Mr D before the Court) to indicate that he read the report.
Mr D’s report is important because it confirms the father’s diagnosis of depression and anxiety in the context of the history of schizoaffective disorder. It also confirms the father’s obsession with his belief that Mr G has been grooming, and sexually abusing X.
The report of Dr E is dated 15 September 2020. It was a Telehealth consultation, which is unsurprising given the COVID-19 pandemic. It records the history the father gave of episodes of psychosis when the father was in his twenties and thirties. Dr E acknowledges that he did not have a full, comprehensive history. Interestingly, he offered the father a further appointment so that he could complete the process of history taking, but there is no evidence that the father has been back to him. It does look like Dr E is suggesting that the father suffers from depression, hypomanic mood, and delusional ideation. This is consistent with Mr D’s observations.
Again, Dr E’s report does not engage with the report of Dr C and there is little evidence that he was presented with the same.
Documents produced on subpoena by Dr E indicate that the father attended him on

15 September 2020, presumably the consultation that led to the report referred to above. The notes record some pertinent impressions about the father’s presentation which are, for the most part, consistent with his presentation before Dr C and the Court. For example, it seems that the father suggested to Dr E that he was biased, merely because the Independent Children’s Lawyer had, apparently, sent Dr C’s report to him. Dr E records that the father had evaded his multiple direct questions. Dr E records the history given by the father of being scheduled to W Hospital, and a four-month admission at V Hospital which in his letter is presented in a sanitised way as being referred to as psychosis. Dr E records that the father “…demonstrated apprehensive distrust in transference towards me in interview…” Dr E’s records confirm that despite his offer to the father for a further appointment, no appointment was in fact made by the father as at the date the documents were produced which appears to be late in December 2020.

The file of Mr D, the father’s treating psychologist, was also produced to the Court. On 30 August 2019, Mr D referred to the presentation of the father as being:
“…in a highly distressed state, becomes overwhelmed and tearful readily when discussing X, describes depressed mood, panic symptoms and sleep disturbance.”
At the time the psychological tests administered indicated severe depression. The last recorded progress note in the notes is 9 March 2020. Mr D records: “Limited change in presentation.”
During the father’s submissions he made a number of comments that can be referenced back to his psychological and psychiatric health, and his response to the recommendations of Dr C that he seek assistance. In relation to the allegations about his mental health the father said words to the effect:
“… There are many false allegations about my mental health… I have been gaslighted by them, there’s nothing wrong with me… The system is fraudulent, with fraudulent lawyers and independent children’s lawyer.”
The theme of fraud was prominent in the father’s submission. For example, he referred, using words to the following effect, to the “fraudulent applications made by the mother, and lapped up by the Courts without testing of evidence.” This resulted in the “child being punished” and a “paternity lobotomy performed by the Court, due to fraud.” Referring to Dr C, the father said, words to the effect, that he “was bigoted and biased…” Returning to the role of the Courts the father said words to the effect: “the Courts have screwed the child’s relationships through fraud…It’s all lies…” Finally, and as foreshadowed above, at the end of the interim hearing the father referred, using words to the effect, to “…the corrupt system…”, and to the Judge being: “bigoted, biased and (part of the) fraud… by not taking the allegations seriously.”
ORDERS IN THE BEST INTEREST OF X
This is an interim hearing, of course, and the Court is limited in the findings that it can make. Nonetheless, the Court is entitled to rely on the impressions formed from the totality of the evidence presented before the Court. Moreover, the Court is greatly assisted by the single joint expert report of Dr C. Of course, his evidence hasn’t been tested in cross-examination, but it nonetheless carries the benefit of being both expert, and independent: Pinson & Pinson (No 2) [2020] FamCAFC 111.
This is a further interim decision and does not necessarily indicate what might happen at a final hearing at which two important things will happen. Firstly, the evidence can be tested by way of cross-examination. Secondly, the Court will be assisted by proper psychiatric evidence about the father’s mental health. This was foreshadowed by Dr C. The need for a proper history to be given to Dr E, the father’s treating psychiatrist, was recorded by him. Judge Kemp in his reasons for judgment was clearly of the view that psychiatric evidence was necessary. This Court is also of that view. There are aspects of the father’s presentation to his own treating psychiatrist, to Dr C, and to the Court, that lead to the strong impression that there may be unresolved psychiatric issues pertaining to the father, which may influence a decision about what is in the best interest of X.
Ultimately this further interim decision is informed by risk of harm considerations. Whether or not X has a meaningful relationship with her father is a consideration that is subsumed to the need to protect her from the risk of psychological abuse. The tragedy is that the evidence creates the impression that X once did have a meaningful relationship with her father, but the more recent evidence, contained for example even in material tendered by the father by way of text messages, suggests that she does not want to spend time or communicate with the father. In any event, the Court is deeply concerned about how the father would regulate his own emotions if he were to spend time with X. Nothing the father said, and no aspect of the father’s presentation, reassured either Dr C or this Court that he could put aside his deep enmity towards the mother and her partner and his seemingly paranoid delusion about the risks to X allegedly derived from the mother’s partner. Even if X did want to spend time with her father, a proposition that is questionable in view of the more recent text messages between them, this Court would nonetheless conclude that it is not in her best interests to either spend time, or communicate with him, until he addresses the concerns that have been expressed about his psychological/psychiatric health, and produces satisfactory evidence about this.
A psychiatric report is clearly needed. The mother and Independent Children’s Lawyer acknowledged this, but foreshadowed that cost was an issue. They allege that the father has the means to fund such a report, but the father was quite elusive on this issue. The best chance that the father has to spend time and communicate with his daughter is for there to be a single joint psychiatrist report reassuring the Court that there is no risk of psychological harm to X arising from spending time with her father and thus I will order that a psychiatric assessment occur at the father’s expense insofar as it is not covered by grants of legal aid.
The presumption of equal shared parental responsibility is rebutted and/or does not apply in this case because of the risk of harm adverted to above, and because of the chronic inability of the parents to communicate. The Court recognises that this inability to communicate may well be linked to the father’s mental health.
OTHER ORDERS SOUGHT
Expedition
The Independent Children’s Lawyer sought that the final hearing be expedited. Until there is proper psychiatric evidence, there is no point in expediting this case. Once that evidence is obtained, this is a clear case for expedition.
Vexatious proceeding order
Both the mother and the Independent Children’s Lawyer sought orders to the effect that the father be restrained from bringing further applications in this case. That is problematic given that there has been no allocation of a final hearing date. The real issue is whether the father should be restrained from bringing further interim proceedings.
The order sought by the Independent Children’s Lawyer is expressly sought pursuant to

s 102QB of the Act, that is, that the father be restrained from initiating further proceedings pursuant to the vexatious litigation provisions. It is therefore necessary and appropriate to consider the relevant principles concerning vexatious proceedings as governed by the Act.
Section 102Q commenced operation in 2013 pursuant to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (No 186 of 2012). Previously, vexatious litigant or proceeding orders were governed by what was then s 118 of the Act. Similarly to section 118, as it then was, s 102Q empowers the Court to make orders that restrain a party from instituting proceedings without first obtaining leave of the Court.
Section 102Q(1) defines the term ‘vexatious proceedings’ as follows:
"vexatious proceedings" includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Relevantly, s 102QB of the Act is in the following terms:
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney-General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person's overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section
It is noteworthy that in making an order pursuant to s 102QB(2), there is no requirement to characterise or declare a particular proceeding, or litigant, as vexatious. Rather, the operation of s 102QB(2) is conditioned on a finding being made pursuant to s 102QB(1) that a party has “frequently instituted or conducted vexatious proceedings”: See, eg, Pencious & Searle [2017] FamCAFC 210. This is evidenced from any reading of the statutory text, but in any event, is confirmed by the Explanatory Memorandum, which notes that the provisions were created to:
…provide a consistent more comprehensive legislative framework for Federal Courts to deal with proceedings brought by persons who had frequently instituted or conducted vexatious proceedings in Australian courts and tribunals, or who are acting in concert with others that have done so.
Consequently, it is necessary to consider the notion of frequency, as required by s 102QB. The Explanatory Memorandum sets out the following in this respect:
210.The threshold that will need to be met under paragraph 102QB(1)(a) is that a person has instituted or conducted vexatious proceedings in Australian courts and tribunals `frequently’. Clause 5 of the Standing Committee of Attorneys-General vexatious proceedings model law provides a choice between this `frequency’ test and a test that requires a court to be satisfied that a person has `habitually and persistently’ instituted and conducted vexatious proceedings, which was the traditional test.
In Cannon v Acres [2014] FamCA 104, Benjamin J described the legislative pathway he intended to adopt as follows:
i)In accordance with s 102QB(1), I will determine which proceedings constitute vexatious proceedings instituted or conducted in Australian courts or tribunals,
ii)If there have been vexatious proceedings, I will then determine whether such proceedings have been conducted or instituted frequently. In that consideration, I am able to have regard to proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal, orders made by an Australian court or tribunal and the person’s overall conduct in such proceedings, including compliance with orders made by that court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted before the commencement of Part XIB of the Act); and
iii)If that threshold is met, I will then consider whether to exercise the discretion set out in s 102QB(2) of the Act and make a vexatious proceedings order. In considering whether to make a vexatious proceedings order I considered the scope and nature of the orders sought and made.
This approach has been cited with approval and followed in the subsequent decisions of Pencious & Searle [2017] FamCAFC 210, Theophane & Hunt [2016] FamCAFC 87 and Meadows & Meadows (No. 4) [2020] FamCA 864.
The vexatious proceedings application is dismissed. With respect to the Independent Children’s Lawyer, the mother, and those representing her, very little was said in submissions about this issue and no specific evidence was led about it. The case about the proceedings being vexatious was left entirely to inference. It is not the role of the Court to study the entrails of this case, with its long history of litigation, and satisfy itself whether the detailed requirements of the sections referred to above have been met. That is the role of those seeking this relief, no matter how litigation-fatigued they might feel. There may possibly be grounds for making an order restraining the father from bringing further interim applications only, if the evidence is marshalled and appropriate submissions made. The best outcome for this family is for appropriate psychiatric evidence to be obtained, and the matter set down for final hearing.
Personal property of the child
The mother sought a number of orders in relation to X’s personal items that are kept by the father. Her solicitor conceded, however, that the orders as presently framed cannot be made. She proposed, in very general terms, that an order be made that facilitates the mother being able to attend the father’s residence to recover X’s personal items. The Court declines to make this order. The order is in such general terms as to be unenforceable. In any event, the parents have no capacity to be able to successfully, and safely, enter into an arrangement of the sort contemplated by the mother in her orders. There are clear issues in dispute between the parents about what, if any, of X’s belongings the father retains.
Injunctions sought
The mother proposed a number of injunctions restraining the father from doing certain things, such as using X’s school portal, as well as communicating with X in any way. Given the extent of the Court’s concerns about the risk of psychological abuse for X from her father, these orders are appropriate.
Order for electronic service
The mother sought an order for substituted service on the father, by way of electronic service. The Court has no doubt that the father’s engagement with these proceedings has been somewhat challenging for all the other parties concerned, but there is insufficient evidence to indicate that an order for substituted service is warranted. The real problem appears to be the father’s timely engagement in the proceedings, rather than service on him.
The Court otherwise agrees that all outstanding applications in a case filed by the father should be dismissed. Once the father addresses his mental health issues, all of these issues can be revisited in a timely fashion. Until then, this Court is satisfied that it is in the best interests of X that she have no time or communication with her father. This seems to reflect X’s recent lived reality. Whether this situation continues for a short, or long period of time, very much depends on whether the father properly engages with services to assist him with his mental health.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.j
Associate:
Dated: 12 March 2021
SCHEDULE A

Parenting Orders
The Mother seeks the following Interim Orders:
1. That the Mother have sole parental responsibility for the long-term care, welfare and development of the child, X born in 2007.
2. That the child X is to live with the Mother and spend no time with the Father, pending further order or written agreement by the parties.
3. That the orders 2 and 3 made on 10 December 2020 be extended until further Order.
4. That the father be restrained by injunction from using the school’s portal to stalk or harass X. The Mother be granted consent 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. That X be permitted to enter her father’s residence to recover her personal items in the Father’s possession, including her i-pen, laptop mouse, charger and reading glasses. That the Father agree to a date with the Mother when the child can enter his residence for this purpose within seven (7) days. If the Father fails to carry out this Order that the Mother be permitted to take these Orders to the New South Wales Police Force for this arrangement to be made.
6. That the Father be restrained by injunction from removing property from X’s room, and from being in attendance at the time of X attending her Father’s residence.
7. Within 14 days of X retrieving her property, she provides a list of any missing items that she was not able to be retrieved and this list will be forwarded by the Mother’s solicitor to the Father. Within 14 days of receiving this list, the Father is to deliver these items to the Mother’s solicitor’s address by arrangement.
8. That the Father be restrained by injunction from phoning or messaging X or from placing X in group chats.
9. That the Mother have leave to serve applications by way of electronic service to the father at his email address of … or any updated email address provided to the Mother.
10. That the father be prohibited from bringing any further proceedings pursuant to s102QB of the Family Law Act 1975.
11. That the interim application filed by the Father on 31 December 2019, application in a case filed by the Father on 16 July 2020 and 7 December 2020 and all other existing applications filed by the Father in this matter be dismissed with costs.
12. Such further or alternative relief as this Honourable Court deems fit.
13. Costs of the Further Amended Application in a case filed by the Mother on 30 October 2020 and costs of this application.

SCHEDULE B

The ICL is seeking the following orders:
1. That the mother have sole parental responsibility for X born in 2007.
2. The father be restrained by injunction from approaching X at school or place of learning or entering or being within 50 metres of these places.
3. The father be restrained by injunction from approaching X or being within 50 metres of her place of residence.
4. That the father’s Application in a Case filed 16 July 2020 be dismissed.
5. That the father’s Application in a Case filed 7 December 2020 be dismissed.
6. That the final hearing of this matter be expedited.
7. That the father be prohibited from filing any further applications without the Court’s leave first being obtained.

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

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