Wray & Wray - [2022] FedCFamC1F 318

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wray & Wray [2022] FedCFamC1F 318

File number(s): SYC 7692 of 2012

Judgment of: HENDERSON J

Date of judgment: 17 May 2022

Catchwords:
FAMILY LAW – CHILDREN – Where the father sought orders that the child live with him primarily – Where the child had not spent time with the father in excess of two years – Finding that there was an unacceptable risk to the child in spending time with or communicating with her father – Where the child’s views at nearly 15 years of age were of significant weight – Where the child expressed strong views that she did not want a relationship with the father given his conduct and behaviour – Fathers’ application dismissed.

FAMILY LAW – INJUNCTIONS –– Where the Single Expert strongly recommended injunctions restraining the father from having access to any information relating to the child – Where the recommendation was based on the child’s need to have her faith restored in the capacity of the legal system and police to protect her from her father’s behaviour and her right to privacy in therapeutic interventions – Injunctions granted in respect of the father.

FAMILY LAW – COSTS – Costs arising from a final orders application – Where the respondent made an application for costs thrown away due to the father’s conduct during the hearing – Orders made for the applicant to pay the respondents costs in a fixed sum.

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks that the father pay half of their costs of the proceedings – Application granted.

Legislation:
Australian Passports Act 2005 (Cth) s 11(1)(b)

Family Law Act 1975 (Cth) ss 60B; 60CA; 60CC (2); 60CC (3); 61DA(1); 64B; 65D; 65DAA, 68B, 102NA, 102QB, 106A.

Cases cited:
B v B [1988] HCA 66

M v M [1998] 166 CLR 69; [1988] FLC 91-979

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

Division: Division 1 First Instance

Number of paragraphs: 249

Date of last submission/s: 15 March 2022

Date of hearing: 7 March 2022 – 15 March 2022

Place: Sydney

Counsel for the Applicant: Litigant in person

Solicitor Advocate for the Respondent: Ms Swan

Solicitor for the Respondent: Swan Lawyers

Counsel for the Intervener: Ms Abdelraheem

Solicitor for the Intervener: Claremont Legal
ORDERS

SYC 7692 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR WRAY

Applicant

AND:
MS WRAY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

17 MAY 2022

THE COURT ORDERS THAT:
1.The Initiating Application filed on 31 July 2020 by the applicant, Mr Wray (“the father”), is dismissed.
2.All previous parenting orders in relation to, X born 2007 (“X”), be discharged.
3.The respondent mother, Ms Wray (“the mother”) have sole parental responsibility for X.
4.X to live with the mother.
5.X to spend no time with the father.
6.Pursuant to section 68B of the Family Law Act 1975 (Cth), the father be restrained by injunction from:
(a)approaching X at her school, any place of learning, any place of extracurricular activity including a place of work, or entering or being within 50 metres of these places;
(b)approaching X’s home, or any venue where X may attend from time to time, or being within 50 metres of these places;
(c)from using X’s school portal in any capacity, and in particular to stalk or harass X. In this respect the mother be granted leave to provide a copy of these orders to B School, and the school is directed to remove the father’s access to the school portal, and his access to receiving any information from X’s school, including her school reports;
(d)from using any social media platform to stalk or harass X;
(e)from entering into any correspondence with any teacher, psychologist or expert witness who may have examined or interviewed X in the course of these proceedings or at any other time and for any other purpose, and any teacher, psychologist or expert who may examine or interview X in the future; and
(f)from telephoning or messaging X or placing her in group chats.

7.The father be restrained by injunction from issuing any subpoenas in relation to X’s education and medical treatment, the Department of Communities and Justice, NSW Police and any other organisation holding personal information with respect to X.
8.The father be restrained from approaching or contacting the mother or any person with whom X or the mother have a domestic relationship.
9.Within seven days of the date of these Orders, the father provide his residential address to the Court via email to …@fcfcoa.gov.au.
10.Within seven days of the date of these Orders, the father release all property belonging to X described below by delivering them to the mother’s solicitor’s office at Z Street, Sydney in the state of New South Wales:-
(a)all her toys;
(b)cards given to X;
(c)her jewellery;
(d)all her gifts;
(e)her money;
(f)her safe;
(g)her notebooks and/or diaries, including any personal notes
(h)soft toys;
(i)purses;
(j)clothes;
(k)accessories;
(l)Lego;
(m)any photographs;
(n)Xbox S1 including the white Xbox S1 controller;
(o)Lego Xbox game and all other Xbox games;
(p)DVDs;
(q)makeup;
(r)her desk;
(s)all technology including a laptop, pen, mouse, iPhone 5, cords, chargers, and other technology devices;
(t)all books;
(u)coin collection;
(v)her chair;
(w)under-bed storage boxes and their contents;
(x)personal memories such as, notes written to the tooth fairy;
(y)school books from the commencement of school;
(z)stationary;
(aa)hamster toy collection;
(bb)personal blankets;
(cc)cushions;
(dd)any item provided to X by Ms AA;
(ee)stationery holder;
(ff)storage box in her desk;
(gg)all artworks;
(hh)any knickknacks;
(ii)grey foot stool on wheels;
(jj)shoes;
(kk)hair ties and any products or hairbrushes;
(ll)rug; and
(mm)footrest

11.In the event the father fails to comply with Order 10 above, the mother be at liberty to file enforcement proceedings and obtain a warrant.
12.For the purposes of section 11(1)(b) of the Australian Passports Act 2005 (Cth), X is permitted to have an Australian passport and the mother is entitled to apply for and obtain an Australian passport, or renew such passport, without the father’s consent.
13.Within seven days of the date of these Orders, the father is to sign all documents and do all things necessary to transfer the mobile telephone number of X being … into the mother’s name.
14.In the event the father fails to comply, refuses or neglects to sign any documents necessary to give effect to Order 13 above, then a Registrar of Division 1 of the Federal Circuit and Family Court of Australia at Sydney is appointed, pursuant to section 106A of the Family Law Act 1975, to sign any document necessary to give effect to these Orders.
15.The mother be granted leave to provide any therapeutic clinician of X with a copy of the Single Expert Report of Dr C dated 29 June 2020, and a copy of these orders and reasons for judgment.
16.Any treatment provided to X is to be provided on a ‘non-reportable’ basis and is to be quarantined from any future subpoena.
17.The mother, or any therapeutic clinician X sees is granted liberty to provide a copy of these Orders and reasons for judgement to the NSW HealthCare Complaints Commission, the Psychology Council of NSW and the Australian Health Professionals Regulation Agency (AHPRA).
18.The Court registry be requested to securely destroy copies of the ‘restricted’ material provided by the school counsellor from B School, being subpoena packet 48 and also the material marked ‘privileged’ provided by Dr C, being subpoena packet 38 after the Appeal period has expired.
19.The mother is granted leave to provide a copy of these Orders and reasons for judgement to any person, or organisation that the mother, or X is associated with.
20.In the event the father files any further application in respect of parenting, his application is to initially be referred to a Registrar and the mother, or any other person named in the application, is not required to respond until the Court so orders. The Registrar may determine to refer the matter immediately to a Judge to be managed, noting the orders made, reasons for judgement, and the Single Expert Report of Dr C, dated 2 June 2020.
21.The costs associated with Dr C’s further interview with X on 9 March 2022 and his attendance at Court to give evidence in the amount of $2,541, is to be paid by the father within seven days of the date of these Orders.
22.In the event the father does not comply with Order 21, the mother is to pay $1,041 to Dr C, and the remainder is to be paid by the father.
23.The father is to pay the mothers’ costs fixed in the sum of $6600 within 28 days of the date of these Orders.
24.The father is to pay the Independent Children Lawyer’s costs, being $12,760 within 28 days of the date of these Order

THE COURT NOTES:
A.That Dr C has agreed to assist in X’s therapy.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wray & Wray is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Henderson J:

This is an application brought by the father, Mr Wray, born 1971 (“the father”), that his now 15 year old daughter, X, born 2007 (“X”), live with him eight days a fortnight and her mother six days a fortnight, that he have sole parental responsibility and other consequential orders. The mother is Ms Wray, born 1972 (“the mother”).
The reality is X has always lived with her mother, continues to live with the mother and has not spent any face-to-face time with the father since April 2020 when Judge Kemp suspended the father’s then orders for time with X.
The father represented himself. He had been previously appointed a lawyer pursuant to the provisions of the section 102NA scheme but that lawyer filed a Notice of Ceasing to Act on 9 February 2022. The mother was represented by Ms Swan, solicitor and advocate, and Ms Abdelraheem of counsel represented the Independent Children’s Lawyer (“ICL”).
The material I read was as follows:
For the father:
(a)Affidavits of Mr Wray filed 31 December 2019; 16 July 2020; 15 September 2020 and 8 February 2021;
(b)Initiating Application filed 31 December 2019;
(c)Notice of Risk filed 6 March 2020;
(d)Affidavit of Mr N filed 4 February 2021;
(e)Affidavit of Mr F filed 4 February 2021;
(f)Affidavit of Mr M filed 4 February 2021;
(g)Affidavit of Mr Q filed 2 March 2020;
(h)Affidavit of Ms O filed 7 December 2020;
(i)Affidavit Ms P filed 7 December 2020;
(j)Tender bundle of the father containing all tabbed pages in the documents produced under subpoena to Department of Communities and Justice; and
(k)Exhibits 1-8
For the mother
(a)Affidavit of Ms Wray filed 20 April 2021;
(b)Affidavit of Mr G filed 20 April 2021;
(c)Affidavit of Ms R filed 27 January 2021;
(d)Affidavit of Ms H filed 22 January 2021;
(e)Mother’s Court Book consisting of 724 pages;
(f)Mother’s Supplementary Tender Bundle dated 9 March 2022;
(g)Mother’s Exhibits 1-5; and
(h)Case outline.
For the ICL
(a)Single Expert Report of Dr C (“Dr C”) dated 29 June 2020;
(b)Child Inclusive Conference Memorandum (“CIC Memo”) prepared by Ms T dated 17 February 2019;
(c)Counsel case outline;
(d)ICL’s Court Book;
(e)ICL’s Tender Bundle;
(f)ICL’s Further Tender Bundle; and
(g)ICL’s Exhibits 1-8, including the B School subpoenas.
The mother, Mr G, the fathers’ sister Ms R and Ms H were cross examined in the mother’s case.
The father and Dr C were also cross- examined.
There was no cross examination of the father’s witnesses and they added little to his case being more in the way of character references.
SHORT SYNOPSIS
The ICL and the mother are ad idem with the position taken by Dr C, the single expert in this matter. Dr C prepared a report in 2020, marked Court Exhibit 1, and interviewed X on Wednesday, 9 March 2022. In cross-examination, Dr C’s evidence was that X’s current wishes were that she spend no time with or communicate with her father; that these wishes were her clear and cogent wishes; that she did not want her father in her life; did not want her father having any control of her life; and to use her words, “I’m sick of this I don’t want it to go on anymore, I’m sick of dad’s craziness and anger, I simply don’t want to have any contact with him…and I just don’t know why anybody is not listening to me”.
There is a real sadness in this case. It is at first blush a sadness when a child does not want to spend time with, or have a relationship with a parent. As the evidence reveals it is the father’s behaviour, conduct, attitude and harassment of his daughter that has led to her now no longer wishing for him to be a part of her life. This harassment of X commenced almost immediately upon the mother commencing a relationship with Mr G (“Mr G”).
Mr G and the mother have been in a relationship for nine years and X has lived with the mother and Mr G for five years. X has lived a longer period of time with the mother and Mr G than she ever lived with her mother and father. Whether the father could not accept the mother having a relationship with another man, or that another man was living with his daughter, I am unable to say. However from almost the commencement of this relationship, the father has waged a war against Mr G, making the most scurrilous and depraved allegations against him of grooming X; of being inappropriate sexually towards X; that she is afraid of him; and that he drugged the mother to have his way with X. The father repeated these allegations in this court, the state courts, to the Department of Communities and Justice (“the Department”), to any psychologist or psychiatrist X has seen and to X’s school. The father continues to believe that X is at significant risk of harm in the mother’s care because of the behaviour of Mr G.
The father has pursued his belief that Mr G and the mother are a risk to X in circumstances where there is simply no evidence to support this delusional obsession which has not been accepted by the state criminal courts, the state police, the Department, Judges of the Federal Circuit Court as it was then, Dr C, or X’s school. Yet the father will accept no other theory or reality than that Mr G is a risk to X and that her strong wishes to have no relationship with him have been forced upon her by the mother and Mr G. He has pursued his obsession despite the objection of X in multiple interviews he has conducted with her, and provided by way of USB to this court which interviews were marked Father’s Exhibits 2-4.
The police officer who conducted an interview with X in late 2018, DSC BB (“DSC BB”), filed an affidavit in the mother’s case in which he said there was no disclosure made by X and he believed the father was making allegations against Mr G for an ulterior motive.
The father repeated these allegations to Dr C, on two occasions, the Department, Judge Kemp and Altobelli J.
He brought Apprehended Personal Violence Order (“APVO”) proceedings against Mr G which were dismissed in the Local Court and he was ordered to pay $10,627 in costs. He then appealed that decision to the District Court. That appeal was dismissed and he was ordered to pay $7,625 in costs to Mr G. Both the Local Court magistrate and the District Court judge who heard the matter were scathing of the father’s conduct and his scurrilous, baseless allegations that Mr G had intimidated or threatened him.
The evidence discloses that it is the father who has threatened and coerced his daughter X, she being his only tool to continue his campaign against Mr G. As her resistance to his harassment of her about Mr G harming her escalated, so did his abusive behaviour towards her escalate and he behaved in a non-child focused manner. This is particularly sad as the evidence revealed that when younger, X had a good relationship with her dad and enjoyed her time with him, some six nights a fortnight, and enjoyed the activities they engaged in. So strong was her relationship with him, she was able to say to her father words to the effect of, “Stop talking about [Mr G]. Nothing happened. He has not done that” in 2019.
However the father refused to accept what she was saying and continued to question her about Mr G and what he did or did not do to her. The result of the father’s obsession with Mr G harming his daughter is that the father has lost his previously strong relationship with her. This sadness lies at the father’s feet and no other person.
The reality is not only does Mr G financially provide for X, as Dr C reported, he provides her with a positive male role-model figure, contra the father’s destructive and harassing behaviour. Mr G solely financially supports X, for the mother does not work and nor does the father. For the father to continue his campaign against this good man, either bespeaks of a serious, undiagnosed mental health issue he suffers from, or he has done so for his own malicious and sinister reasons which have come at the cost of his all-important relationship with his daughter. There may be other reasons for his conduct that I am unaware of.
The fathers’ asserted love for his daughter, as he referred to himself being “the only loving father she has ever known”, was not strong enough, nor was his affection or desire to protect his daughter strong enough to stop persisting with his obsession that Mr G had harmed her .
The matter was listed for eight days. Evidence did not commence to be taken until the third day, being Wednesday. On Monday and Tuesday, being 7 and 8 March 2022, the father sought time to prepare his case as he was unrepresented. He had not prepared his material, not filed an updated affidavit, court book nor had he told the Court the orders he sought or the documents he was relying upon. Those two days of court time were provided to him to attend to these matters.
The hearing commenced on Wednesday, 9 March 2022. He then sought an adjournment on Thursday afternoon to prepare for his cross examination of Mr G the following Monday. That adjournment was refused. The hearing continued and he cross-examined the mother’s witnesses.
On Monday 14 March 2022 he sought by email, a stay of current proceedings and a recusal of all judges at the Sydney registry due to their pre-existing relationship with Dr C and that an interim hearing was not yet heard in the matter. That application was refused.

The father was to cross examine Mr G on 14 March 2022. He asked him no questions stating “I have no questions for him at this time” and when pressed on the importance to his case of cross examining Mr G, he repeated this statement.
All parties’ cases closed the morning of 14 March 2022 and the father sought an adjournment on the afternoon to further inspect subpoena material and prepare his submissions which was granted and the matter stood over to the following day for submissions.
On the morning of 15 March 2022, the day for submissions, the father could not be contacted or reached by way of Microsoft Teams or telephone. He had made an application via email to adjourn the matter that morning. I refused his adjournment application and heard the submissions of the ICL and the mother which had been reduced to writing and forwarded to the father the previous evening.
The father indicated in his email he wished to rely upon additional material being all subpoenaed material; all affidavits; and all applications which application I refused.
I accepted all tabbed material in the Department file as additional tendered material in his case and I took into account his affidavit and annexures in previously filed material in the absence of his direct submissions.
CHRONOLOGY.
The parents commenced a relationship in 2005.
The parties married in late 2005.
In 2007 X is born.
Separation occurred under the one roof in October 2011 but they physically separated in 2012.
The mother commenced a relationship with her current partner, Mr G in early 2013.
On 17 October 2014, when X was but seven years of age, the parties entered into consent orders where she was to spend six nights a fortnight with the father and otherwise live with the mother.
Mr G and the mother commenced to live together in late 2017 and from that date onwards, the father’s functioning and behaviour significantly deteriorated vis-à-vis his relationship with X, his attitude and conduct to the mother, and his scurrilous allegations against Mr G.
On 31 December 2019, the father filed an Initiating Application seeking sole parental responsibility and that X live primarily with him.
Dr C was appointed as a single expert on 17 February 2020.
The father’s behaviour further deteriorates. Between 2014 and 2020, the father retained X on the following occasions in contravention of the then current orders.
In December 2012, the father removed X from her school and did not return her to the mother for almost the entirety of the Christmas school holidays. She was five at that time. The father retained her for approximately 29 days.
The father failed to return X in the April 2015 school holidays in accordance with the orders.
The mother took out an Apprehended Violence Order (“AVO”) against the father following an incident where he bypassed the security system at her unit in early 2016, knocked on the front door repeatedly calling out for X and would not leave. The mother and child were distressed and the AVO was taken out to protect her.
The father refused to hand X over to Mr G in mid-2017.
The father withheld X, in contravention of Order 3 of the orders made 2 May 2018, in the October 2019 school holidays.
He withheld X again for the whole of the December 2019 school holidays for some seven weeks. His reasons for these serious breaches of Court orders were that X was being groomed by Mr G.
Ultimately, Judge Kemp made orders on 17 April 2020 suspending the father’s time with X due to the above behaviour.
In mid-2020, the father collected X from the school bus stop and took her to his home without the mother’s consent.
In mid-2020 the father approached X on her way to school.
Twice in mid-2020, the father sat at a café opposite the bus stop while X hopped onto the school bus and left when she had done so.
In mid-2020 the father was waiting at the grounds of the school and the mother reported this incident to the police.
In late 2020, the father approached X at the school bus stop and X wrote a message to the ICL saying, “Hi Carolina, can time go back to Normal pls?”.
Judge Kemp made orders on 17 April 2020 suspending the father’s time and he did not obey those orders, or the spirit of the orders. When questioned on this in cross-examination, he said words to the effect of, “There was no order that said I couldn’t see my child at her school or the bus stop,” indicating he had no understanding of the impact of this behaviour upon his daughter, by breaching her sense of security, or on the mother, X’s primary carer.
The father continued to wait at X’s bus stop in late 2020 and he called the school a month later to collect X from school and the school would not agree as they had a copy of the orders. The school told the mother he had been continuing to contact the school each day and the father by this behaviour had seriously compromised X’s feeling of safety and security.
The matter was transferred to the Family Court of Australia from the Federal Circuit Court, as they then were, on 31 July 2020. Justice Altobelli made orders on 10 December 2020 restraining the father by injunction from approaching X’s place of learning and other restraints on the father’s behaviour towards X and the matter was listed for an interim hearing before his Honour on 8 February 2021 which he conducted. The father’s complaint that he had never had an interim hearing was incorrect. Justice Altobelli conducted an interim hearing in these proceedings.
On 2 March 2021 Wilson J made a s 102NA order.
On 12 March 2021 Altobelli J issued interim orders that the mother have sole parental responsibility, X is to spend no time with her father and injuncted the father from approaching X or contacting her, and ordered an updated single expert report.
Trial directions were made on 5 October 2021.
RISK OF HARM
The behaviour of the father towards his daughter is of concern. His attitude towards her needs is that his belief and his obsessions are paramount and any position that anyone takes, including his daughter that is contrary to his view is either biased against him or they have been poisoned by the mother. He was adamant that he suffers from no ongoing undisclosed mental health issue and that his approach is one concerned only with the protection of X.
The mother’s lawyer submitted the following incidents are risks of psychological harm to X perpetrated upon her by the father, as outlined in Mother’s Exhibit 5:
Incidents of risk of psychological harm and exposure to family violence
7. In […] 2012, the respondent’s de facto partner, [X]’s stepfather, [Mr G] was recuperating at the [Suburb CC] apartment following a dental procedure. An incident occurred resulting in the applicant entering the [Suburb CC] apartment without the respondent’s consent, which incident took place in front of [X] (CB:189[30]) (CB:554[90-92]). This can be identified as the first incident of exposure to family violence and therefore a risk of psychological harm.
8. In […] 2012, the applicant father removed [X] from school and did not return her to the respondent for the entire duration of the Christmas school holidays, resulting in the respondent mother filing her initiating application which resulted in final orders being made on 17 October 2014 (CB:190[36]). [X], who was five years old at the time, did not see her mother for a period of approximately 29 days. [X] was returned to her mother pursuant to the Orders made by His Honour Judge Foster dated 10 January 2013. This can be identified as the second incident of risk of psychological harm.
9. A third incident occurred on […] 2013 when [X] was in her mother’s care at an event at the [DD School]. The father attended this event and tendered photographs (F6) (CB:555[93]-[94]) in which it is clear that [X] was standing with her friends and then removed for photographs with her father. The mother and her de facto partner are seen in the background. This overstepping of boundaries and causing conflict between the parties again occurred on […] 2016 as is set out extensively in the father’s affidavit sworn 31 December 2019 (CB:113[106-116]). Each time the parties were in the same vicinity as [X], when [X] was spending time with the mother, the father approached [X], her mother and her de facto partner causing conflict between the parties in front of [X].
10. The fourth incident of risk of psychological harm occurred on the […] 2013 when the father recorded his daughter (F4) and subsequently examined [X] on this recording over a period of at least 6 years, one of which was recorded by the father on […] 2019 (F3) on a day upon which the father was seeing his psychologist [Mr D] and [X] was writing exams in Year 7 as set out below in paragraph 18.
11. The fifth incident of risk of psychological harm occurred on […] 2015 school holidays when the father failed to return [X] to the mother (CB:190[37a]). Make up time was awarded to the mother.
12. On […] 2015, the father failed to return [X] to the mother at 9am in accordance with Orders. The father was found to have contravened orders (CB:191[37b(i)]) and Orders made by his Honour Judge Kemp on 23 February 2017 (not tendered). The mother submits that by withholding [X], [X] was exposed to a further risk of psychological harm. This incident is the sixth recorded incident of such risk.
13. The seventh incident of risk of psychological harm occurred on […] 2016, when the father attended the mother’s home at 9.45am bypassing the security door and knocking on the front door of the apartment calling out to [X]. The mother is alleged to have asked him to leave on several times as his behaviour was distressing [X] and her. The father then attended at 2.30pm on the same day and acted in the same manner, bypassing the security doors, banging on the front door of the apartment and shouting (CB:259[8]). The mother was forced to take out a personal apprehended domestic violence order (CB:188[18-20]).
14. The eighth incident of risk of psychological harm occurred when the father refused to hand over [X] to the mother’s de facto partner on […] 2017 (CB:191[37(d)]). The father submits that the orders were that a parent would hand over [X] and that he feared the mother’s de facto partner, yet prior to this event, [Mr G] had collected [X] from her father’s apartment (CB:557[115]). This occurred on two occasions.
15. The ninth incident of risk of psychological harm occurred on […] 2017 when the father recorded [X] (F2). During cross-examination the father did not concede that it was inappropriate to film [X] and stated instead that “[X] is quite used to recording our life together.” The father did not appreciate the difference between [X] recording happy events and memories with her father; and this incident, including when [X] asked, “Why are you filming” and the father replied that it was important.
16. On […] 2019, [X] was to be returned to the mother within school holidays for one day. Following this, the father withheld [X] on […] 2019 in breach of Order 3 of the 2 May 2018 Orders (CB:191[37(e)] and CB:311).
17. [X] was expecting to spend the day with her mother. The fact that [X] was withheld would have caused her anxiety and therefore should listed as the tenth recorded incident of risk of psychological harm.
18. The eleventh incident of risk of psychological harm occurred on […] 2019, when the father recorded [X] on her way to school after a warm and loving conversation with him about her eyesight. The father is heard prodding [X] and [X] requesting him to stop on a number of occasions in a number of ways (F3). The most disturbing part of this evidence is that the father appears to believe that this recording establishes a reason for him to have sole parental responsibility and has no insight into the psychological effects that this examination of [X] may have had on her. When asked in cross-examination whether it was appropriate for the father to ask [X] such questions; and why he did not stop when [X] requested that he did, the father did not seem to understand the discomfort such questioning would have created for [X]. The father and could not accept that [X] repeatedly had asked him to stop. The father had no insight into the psychological harm he was causing her. The father also stated that he did not believe [X] when she says things like “It didn’t happen.” [Dr C] provided evidence that it was concerning that the father continued to ask [X], opining that this issue is the “obsessional focus” which the father has in relation to [X’s] childhood dream. The expert further opined that such questioning “burnt the bridge” for [X’s] relationship with her father. [X] clearly told him she does not want to talk about something “which did not happen” between [Mr G] and her. [X] expressed positive affection towards [Mr G], which the expert said, “was an incredibly good sentiment especially for a teenager.” The expert opines that this conduct is an example of the father prioritising his needs over [X’s].
19. The twelfth and thirteen incidences of risk of psychological harm is when the father withholds [X] throughout the […] 2019 and […] 2020 school holidays. The distress which [X] suffered throughout this period are recorded in her text messages to the mother (CB:420-422), particularly the message “What if I never come home” and to the mother’s friend, [Ms H] (CB:628-637).
20. Finally, the fourteenth recorded incident of risk of psychological harm which occurred up to […] 2020 when his Honour, Judge Kemp suspended the father’s time spend with [X] during the week, the weekends and overnight in accordance with the Orders made on 17 October 2014, was the multiple occasions upon which the father withheld [X] when it was his birthday on […]. The impact of this pattern of behaviour is extensively displayed in [X’s] text exchange between her mother’s friend, [Ms H] (CB:639) and in her interview with [DSC BB] (ICL2), “[X] does not like birthdays.”
21. Since His Honour, Judge Kemp made orders on 17 April 2021 suspending the father’s time with [X], the father has approached, stalked or intimidated [X] on the following occasions:
a. […] 2020 – Father collected [X] from school bus stop and takes her to his home without the mother’s consent (CB:198[64-69]) and (CB:435);
b. […] 2020 - Father approaches [X] on her way to school - (CB:200 [75]); (CB:438);
c. […] 2020 – Sits opposite bus stop at a café. Father leaves as soon as the school bus departs - (CB:200 [75]);
d. […] 2020 - Sits opposite bus stop at a Café. Father leaves as soon as the school bus departed - (CB:200 [76]); (CB:439);
e. […] 2020 - Mother went to collect child from the school. The mother saw the father waiting on the street across the school grounds - (CB:201 [78]); (CB:440)(CB445);
f. […] 2020 - Mother reported [previous] incident […] to the police - (CB:201 [80]); Mother’s tender bundle dated 2 March 2022 page 3 to 6;
g. […] - Father emails Mother’s solicitor “I note [X] is absent from school today for a medical appointment,” and Response “Please can you explain how you know that [X] is not at school today and I will seek further instructions.” (CB:201 [81]); (CB:442)
h. […] 2020- Father approached [X] at the school bus stop and caused her to send the following text message to the ICL: “Hi Carolina can time to go back to Normal pls” - (CB:201 [82-84]); (CB:444);
i. […] 2020 – Text messages from [X] to [Ms H] - (CB:625 [8]); (CB:644-648);
j. […] 2020 – Father waits outside [X’s] school - (CB:446);
k. […] 2020 – Father waits outside school near the bus stop - (CB:447);
l. […] 2020 – Father calls the school to collect [X] (CB:202 [89]); (CB:448);
m. […] 2020 - Father called school to collect [X] (CB:202 [93]); (CB450-451);
n. […] 2020- Father called school to collect [X] (CB:203 [98-99];
o. […] 2020 – Text message exchange between [X] and the father - (CB:207 [112]); (CB:453-466); and
p. […] 2020 – School calls Mother and says, “[Mr Wray] has continued to contact the school each day” - (CB:204 [102]); (CB:204); ICL’s tender bundle pages 3 to 4.
q. […] 2020 – Further text messages between the father and [X] (CB:207 [113]); (CB:471-473);
Unfortunately as the evidence disclosed all these incidents occurred and the mother’ assessment of their impact upon X was correct.
THE EVIDENCE
The mother’s witnesses were cross-examined by the father. They remained resolute that X had told them she did not want to spend time with the father, did not want to see him and that he had caused her anxiety and stress.
The father was unable to cross-examine the mother due to the operation of s 102NA of the Family Law Act 1975 (Cth)(“the Act”) and that his appointed lawyer had ceased to act.
The cross-examination of the mother and Mr G merely confirmed they were witnesses of truth, competent and caring people who had been the victims of the war waged against them by the father.
Dr C’s interview with X on Wednesday 9 March 2022 was extremely helpful. The interview for his written report was carried out in March 2020 prior to X’s time with her father being suspended, and it was an imperative that the Court had some updated information as to X’s wishes, needs, how she was travelling and, in particular her response to the application by the father that she primarily live with him. The father objected to this course.
Dr C’s initial report, marked Court Exhibit 1 in these proceedings concluded as follows, paragraph 20-21:
Throughout the interview, [the father] exhibited an almost obsessional focus on keeping [X] away from [Mr G] during the assessment process, indicating that her safety was the utmost importance. The father expressed his concern that [X] would not be able to speak freely about any concern she had regarding [Mr G] if they remained in close proximity during the day
…
The father exhibited extreme difficulty in staying focused during conversations with the clinician. Conversations with [the father] frequently became tangential with a strongly paranoid flavour…
He referred to, at paragraph 23:
[The father] was quick to engage in a lengthy narrative referring to his trauma which arises from [X’s] alleged abuse and violation...
This is consistent with the father’s evidence in cross-examination. Dr C gave oral evidence of X’s current wishes and views. He reiterated what he said were X’s clear and cogent expressed wishes and desire to not spend time with, communicate with, or have her father in her life. He gave her reasons for so, saying that X said “I am sick of all his craziness”.
After this evidence I asked the father if he could reflect on what action he could take to retrieve his relationship with his daughter X. The father’s response to this important question was to ask Dr C “what way do you suggest X can retrieve her relationship that’s being alienated from her father”. It is sadly apparent that X’s needs play no part in the father’s thought processes, it is only his needs which come to the fore.
Dr C said when he tested the father’s allegations about Mr G, there was no documentation or any reality upon which his allegations were based. An important action for the father in his allegation of grooming was that Mr G touched her on the stomach when she was a younger child to wake her up and that X had said to him she did not like it but it is okay now. As noted in the COPS entries at the time the father made his allegations of grooming to the police in 2017 and X was interviewed, touching a child lightly on the stomach is a normal way to wake a sleeping child. The COPS entries dated 29 October 2017 say “In relation to the allegations themselves, police do not believe that an offence has occurred if the POI has rubbed the VICs stomach. As it is not uncommon for a parent/parent figure to rub a child’s stomach back to sleep”.
The father complained to Dr C that Family and Community Services, and it then was, and the police “don’t do anything”, saying that “It surprises me you're okay with X being here with her alleged abuser…” (paragraph 23 of Dr C’ report). There is not one skerrick of evidence to support the father’s allegations and, indeed, the evidence is that the father is the abuser of X.

The fathers’ concerns in relation to X and Mr G were explored by Dr C at paragraph 24:
[The father] asserted his belief that there was ongoing ‘grooming’ of [X] in [the mother’s] household, and reported that [X] indicated to him that she ‘can handle it’ however that ‘[Mr G] is bigger than her, does she have to live her life fighting off her mother’s boyfriend?’. He also stated that [X] had said to him that ‘I just want to forget about it’, and in the same sentence stated ‘she refuses to name him’.
(emphasis in original)
The training game was then explored and the father responded, “The training game, she won't say he is doing it”, paragraph 24 of Dr C’s report. The ‘training game’ arises from a dream X had whilst in her father’s care. That she said these words is known as he took a video on his iPad of his distressed child waking from a dream and this video was played in Court and marked Fathers’ Exhibit 2. The father tendered three recordings he had taken of X in late 2017, mid-2019 and mid-2013 which were marked Father’s Exhibit 2, 3, and 4 respectively.
In his interview Dr C noted the father “made vague reference to his video recording taken [in late] 2017… and that his priority was for X to ‘go through puberty without violation or abuse, I think that’s fair, don’t you’”, paragraph 24 of Dr C’s report (emphasis in original).
I will refer to these recordings later for they do not support the father’s theories or his allegations but rather, the mother’s concerns as expressed by her daughter that the father harasses X by repeated questioning and leading her to say something bad about Mr G.
The father told Dr C that at the Child Inclusive Conference (“CIC”) interview and his interview with X, that she was subjected to further abuse. In that regard he objected to X being interviewed by Dr C on Wednesday, 9 March 2022 and submitted she had not returned to school after the CIC interview because she was traumatised and, “X denies anything has happened”.
This is the gravamen of the fathers’ poor behaviour towards his daughter. X has repeatedly denied to the father that Mr G has ever behaved inappropriately towards her, and denied that she is uncomfortable in his presence or fearful of him. X has repeated these comments to the police and Dr C. The fathers’ response to this overwhelming positive evidence is that she says this because she has been traumatised and cannot say what she really thinks given she lives with the mother and Mr G. The father will accept no other explanation and this is another sadness.
The father said he had complied with Order 18 of the Final Orders made by Judge Kemp in 2014, to attend a psychiatrist and provide a report to the mother each year. He did not.
The father’s time was conditional upon the father attending upon Dr FF, or such other psychiatrist as is required, and not less than every 12 months, and within 14 days of such an attendance provide the mother with a report. I accept Dr FF retired and that the father supplied a report for two years from him. However the only other reports he supplied since then was from Dr EE in May 2020 and Dr E in September 2020. His opinion was these reports were favourable regarding his functioning and insight. They were not and the mother relied upon each report in her case and Dr C read them.
The father attended upon Dr EE on 4 May 2020 and she provided a report on 5 May 2020. The father submitted that this report indicated he had no ongoing mental health issues and thus he had complied with Judge Kemp’s orders.
Dr EE read the following material in preparation for the report:
·Correspondence from the father’s psychologist, Mr D dated 17 February 2020;
·Affidavit of Mr N dated 30 January 2014;
·Affidavit of Mr Q dated 2 March 2020;
·Psychiatrist Report of Dr S dated 18 January 2020, the father places weight on this report but it was of no assistance to the Court;
·Affidavit of Mr Wray dated 31 December 2019;
·Initiating Application dated 31 December 2019;
·Notice of Risk dated 31 December 2019;
·Affidavit of Mr F dated 28 February 2020;
·Affidavit of Mr M dated 2 March 2020;
·Affidavit of Mr G dated 11 February 2020;
·Affidavit of DSC BB dated 11 February 2020, in which the deponent asserts that he believes X has not been inappropriately dealt with by Mr G and the father’s motives are suspect;
·Exhibits to affidavit of Ms Wray dated 12 February 2020;
·Transcript of video dated 29 October 2017, this is the video that the father places so much weight on where X discloses the training game;
·Video recording of X and Mr Wray;
·Affidavit of Ms Wray dated 10 January 2020;
·Application of Ms Wray dated 10 January 2020;
·Response of Ms Wray dated 12 February 2020; and
·CIC Memo dated 17 February 2020.
Importantly Dr EE did not have a copy of Dr C’s report. However Dr EE accurately reported what the father said was the risk to X living with the mother, and the fathers’ long standing and significant psychiatric history in similar terms to Dr C.
Dr EE’s report was tendered as part of the mother supplementary tender bundle at pages 34-36. At paragraph 37 of the report Dr EE made comment on the video of 29 October 2017:
[The father] made it clear that he is concerned about [X]’s safety and wellbeing in her current care arrangements with [Mr G]. [The father] is of the belief that [X] has been abused by [Mr G] and is concerned about her safety with [Mr G]. On 29 October 2017, according to [the father], [X] experienced a nightmare of a “training game”. She woke from her dream, appeared distressed and was reluctant to talk about it. The recording viewed is consistent with [X] experiencing a bad dream.
This is precisely Dr C assessment of X’s presentation in 2017 when she spoke of a training game. As Dr C said in his oral evidence, the video only showed a child waking up from a bad dream seeking comfort from the father who then went about filming her with his iPad and questioning her about what had happened.
The transcript of the video was marked Father’s Exhibit 5. Throughout the video the father repeats, “You have to tell me darling. Please tell me, darling. I’m so upset” (at line 16-17, page 7 of Father’s Exhibit 5); “I know it’s too scary, darling, but you have to tell me” (at line 23 page 7 of Father’s Exhibit 5); and “You have to tell me darling, because we have to protect you from this and get you safe” (at line 38-39, page 8 of Father’s Exhibit 5).
Dr EE said in her report at paragraph 37, “I am of the opinion that further evidence is warranted to support these allegations...”. This is precisely the arena in which those allegations are being tested and the allegations are of no substance whatsoever. Rather the video made on 29 October 2017 clearly shows the father harassing his daughter.
Prophetically, at paragraph 44 of her report, Dr EE says:
As mentioned, [the father] believes he can provide [X] with care, safety and consistency. However, of note, there is increasing psychological damage inflicted on [X] when she's exposed to continued hostilities, conflict, passive-aggressive behaviours and arguments between her two primary caregivers which requires attention. I also believe [the father] finds it difficult to accept that [X] could be happy and stable in her current living arrangement with [the mother] and [Mr G].
Dr EE is correct. The father cannot accept X is happy, safe and secure with the mother and Mr G. His unwillingness or inability to accept this truth is the root cause of why he spends no time with his daughter X for he is the one who makes her feel unsafe and destabilises her. This is a sadness for he loves his daughter and they did have a close relationship in the past.
The recommendations made by Dr EE were that he continue in psychological counselling to manage his reaction to his former wife and partner, he engage in parenting programs to understand the emotional and psychological needs of children residing in high conflict environments and that X is provided with an opportunity to engage in separate counselling. The father has done none of these things.
The father did not continue in psychological counselling. He ceased any connection with Mr D in July 2020. Dr C opined that the father needed to reengage with a psychologist, be it Mr D or someone else, to assist him to understand this matter from X’s point of view. He has failed to do that. He has not engaged in any parenting programs on the emotional and psychological needs of children. The only certificates he tendered were by email being his community awards and training at Suburb CC and Suburb GG Clubs. There were no parenting courses.
As Dr C sadly pointed out, X has lost faith in and feels she cannot trust the court system, the police, the Department or mental health services, for she told Dr C that, “I don’t talk to psychologists anymore, I can’t talk to psychologists because I don’t trust them, dad will subpoena them and they will be able to tell him everything I say so I simply don’t have any trust in anybody”. X is correct for at the trial he sought the following to be provided to him:
·Dr C’s notes taken at the initial interview he took to prepare his report together with psychometric testing of the mother, X, himself and Mr G;
·Dr C’s notes of the interview he had with X on Wednesday, 9 March 2022;
·The psychometric assessment X had at B School to assist her with her difficulty in reading; and
·X’s counselling notes she had with the school counsellor at B School about the issues she's facing in her life.
I refused to allow any party to inspect this material on the basis that it was private and confidential between X and her counsellors and therapists, and that none of this information would assist me in these proceedings, there being an abundance of overwhelming evidence that the risk of harm to X was and is her father and no other person.
Dr EE, was concerned about the father’s functioning, lack of insight and these are the same matters Dr C concurred with and has highlighted in his report and at paragraph 26 where he says:
It appears that [the father’s] narrow, seemingly obsessional focus on [Mr G] meant that he is unable to fully understand [X’s] current needs and leads to non-child focused actions.
The father said that Dr E’s report dated 15 September 2020 supported his position that he needed no ongoing treatment. Dr E’s report did not say that, rather the report said that in his short interview of 90 minutes he had begun an assessment of the father and would assist the father, if required. Dr C said Dr E knew there was much he did not know and was setting the father up for a further assessment. The father never took Dr E up on his offer.
The father’s evidence was that he is well, he is healthy, he takes good care of his health, he complies with his doctors’ diagnosis to take additional vitamin supplements, and does not require any psychological intervention.
The father said he had complied with Order 18 of consent orders made in 2014 by seeing the people he needed to see when he needed to. The father’s response to being questioned about his current mental health and why he did not follow the recommendations of Dr EE was, “what I have learnt is there aren’t any mental health concerns and this is an exercise of gaslighting by the other parties”.
It is not necessary for me to make a finding on the fathers’ mental health functioning per se, rather it is his behaviours and attitudes and the impact of those behaviours and attitudes upon his daughter X that I am assessing.
Recordings by the father of X
There were three recordings that the father tendered. The first was a USB recording the father took of his daughter on 29 October 2017, seen by Dr C and referred to in his report. That recording was marked Father’s Exhibit 2. All three recordings were played in open court and a transcript was produced and marked Father’s Exhibit 5. Father’s Exhibit 3 was a USB recording between X and her father on 30 August 2019 which was some 20 minutes long, and Father’s Exhibit 4 was a USB recording of the father with X on 22 August 2013 when X was six years of age.
The father asserted they contained disclosures of harm perpetrated upon X by Mr G. A transcript of an interview X had with the police on 29 October 2017 which was some 30 minutes long became ICL’s Exhibit 2. On that night X had woken up from a dream. Her father had taken a recording of her and took her to the police station the next day to be interviewed.
It became apparent after her interview with the police that she had tonsillitis and had not been well on that weekend. This was confirmed by the father in cross-examination when he said X’s sheets were wet and he had to change her sheets, consistent with a child having tonsillitis, not being well and having a fever. The father would not accept this was the reality and asserted her sweating was because of her terrible dream and the disclosure she made.
The father’s recording of the night of 28/29 October 2017 starts halfway through with the father crying.
[MR WRAY]: No, [X] ... Come here, darling. You have to tell me, darling. Please tell me, darling. I’m so upset.
[X]: Okay. Okay. It was another game.
[MR WRAY]: It was another game. What was the game? Tell me, darling.
[X]: It’s not – it’s not with us.
[MR WRAY]: I know it’s not with us, darling. I know, it’s not with us. Where was the game darling.
[X]: In my room.
[MR WRAY]: In your room. What was the game in your room please, darling?
[X]: I can’t explain, Dad. Can you just come with me?
[MR WRAY]: Yes. I can come with you, darling. Where was the game in your room?
[X]: …
[MR WRAY]: No. It’s okay, darling. Show me in your room, darling.
[X]:… to the toilet.
[MR WRAY]: Sure.
[X]: Why are you filming?
[MR WRAY]: It’s important.
(Father’s Exhibit 5, p.7 line 16 to 46).
The father continued to video X whilst she was crying in the bathroom:
[MR WRAY]: Tell me about the…the game. The game in your room.
[X]: It’s too scary.
[MR WRAY]: I know it’s too scary, darling, but you have to tell me. What was the game in your room?
[X]: It was like last time… The training game.
[MR WRAY]: The training game? What was the training game?
[X]: Remember how I told you last time?
[MR WRAY]: No, you told me – you told me about a dream that you had with a knife and then you didn’t tell me what the dream was about. So what was the training game?
[X]: Remember how I told you last time?
[MR WRAY]: It’s okay, darling. You have to tell me, darling, because we have to protect you from this and get you safe, okay.
[X]: Can I just tell you half?
[MR WRAY]: Half, okay.
…
[X]: …it was a race, but I didn’t win
....
[X]: That’s okay. Now, please, leave me. Don’t leave me…
…
[X]: Thank you. I really don’t want to go back to sleep.
[MR WRAY]: You really don’t want to go back where?
[X]: To sleep. I’ve already had two nightmares.
[MR WRAY]: Yes. I know darling. The nightmares are bad, but we have to try and stop them, yeah. We have to try and stop the nightmares.
[X]: …what did I do wrong?
(Father’s Exhibit 5, p.8 line 19 to p.9 line 24).
X saying to the father, “what did I do wrong” should have been a clear signal to the father to stop questioning X but he did not. He persisted and continued.
In the recording X asked her father, “Why are you filming?” and his response was “It’s important”. He agreed during cross-examination, that was an inappropriate response. X also says in the video, “It’s too scary” and “I don't want to tell you” but the father still persists, responding, “You have to tell me, darling, because we have to protect you from this and get you safe, okay?”. X then responds “Can I tell you half?” and recounts a race that she didn’t win, and the father continues to ask, “Just tell me before you go to sleep, darling. The race,” to which X responds “Don’t make me do it”. The father again continues to ask X what happened and he continues to cry. X responds, “That was it. Please don’t make me say the rest”.
In cross-examination the father accepted that his daughter had a nightmare. When asked what the disclosure was, the father said, “She could only tell me half and I am not sure what the training game in her room at her mum’s house is”. Clearly, however, the father believed it was something sinister and not part of her dream. The father was asked in cross-examination, “Do you accept that when X refers to the training game in the video that it was in reference to her nightmare”, his response was, “No. As I said, she spoke about the nightmare before the video recording”.
The father admitted that perhaps he shouldn’t have filmed her on his iPad but that he perhaps still would have filmed her. When asked on reflection how could he have dealt with this situation better, the course of the evidence was as follows:
Answer: in what way?
Question: Do you think that’s an appropriate response when she was distressed at the time and she needs your reassurance for you to continue to film her?
Answer: I gave her my reassurance.
Question: In hindsight what do you think you could have done better?
Answer: Not hold the iPad
Question: Would you still be filming her on any device
Answer: Perhaps. [X] is quite used to us recording our life together. She often records us herself.
This is an example of the father using the happy father-daughter times of filming as justification for his harassment of X at this time. Dr C said, this film showed a child wakening from a nightmare, seeking comfort from her father and the father’s reaction was to film her and question her repeatedly saying “You have to tell me”.
When asked why he continued to harass his daughter X he responded, “I want to know what the other half is”, and the evidence is that he was oblivious or uncaring of the damage he was doing to his daughter instantly believing this dream was evidence of something sinister as opposed to just a dream which may have frightened X.
The questioning continued:
Question: “Why was it important for [X] to tell you?”
Answer: “To get it off her chest”.
Question: “Were you expecting her to make any further disclosures?”
Answer: “I make no assumptions as to what the other half is”
When asked directly whether he would accept that X was ill and had a fever and that this could have been the cause of her nightmares, he answered “it may be”.
The father took her to be interviewed by police the next day. The transcript of that interview was marked ICL Exhibit 2. In the approximately 30 minute interview X said she was taken to the police station because of her dreams. Fortunately for X she was interviewed by an alert, understanding and insightful police officer who recognised instantly there was nothing to be seen here and it was the father who was pushing some sinister meaning to X’s dream.
In the police interview, X disclosed that Mr G had touched her on the tummy to wake her up; that she didn’t like it initially but now it’s okay, that Mr G was nice; that she likes staying at the mother’s home; that she was nervous to go to her parents’ home on their birthdays; that only the mother puts her to bed; that she has never dreamed about Mr G; that one night he woke her up and she wasn’t sure why; that he just touched her belly; that he didn’t tickle her; didn’t kiss her goodnight and that she didn’t feel uncomfortable with him. When asked “Is he a happy man?” X responded, “Mostly”.
That school camp made her nervous but that she had no nightmares at that time when going to City HH. That her nightmare last night was really bad and that she had, “…three nightmares, and they were all one hour each, and then I woke up”. When asked how she knew they went for an hour, she responded, “Because my dad told me the time”.
When asked what causes her the most stress, X’s response was insects and cockroaches. She mentioned that she used to get bullied and said that she has the same dreams at both houses. She said she told the father that Mr G touched her belly and when asked why she told the father this, her response was, “I think I didn’t like it” and that it felt a bit weird. When asked why it felt weird, she responded “you know, you just don’t normally do it there. You normally just say the person’s name or something”, and agreed that it was just a light touch on her belly and nothing more than that. X was eight at the time of this interview. DSC BB recorded that touching a child on the tummy to wake them up is a normal adult reaction. Dr C who saw and read the police interview and the father’s recording of 29 October 2017 could see no disclosure whatsoever, in line with the position of the police.

The second recording made by the father was an audio recording of 30 August 2019 which Dr S, a psychiatrist whose various reports the father relied upon as evidence of a disclosures by X, had also heard.
This recording is taken in the father’s car and commences with quite a delightful conversation between the father and X about her left eye. X said it was a lazy eye, that it doesn’t help her and that she could live without it. To the father’s credit, following this conversation, the father agreed to have her eyes checked and paid for her first set of glasses.
The recording starts, “You know, I've got a bit of a lazy eye”, she continues to chat with the father about this and concludes by saying “Like, I could actually live without my left eye because it’s almost, like, useless”. The father says :
[MR WRAY]: Put it there. So with what they were teaching you in health about inappropriate touching and stuff.
[X]: Mmm.
[MR WRAY]: And you’ve told me [Mr G] touched you in your room.
[X]: He didn’t, so stop it.
[MR WRAY]: And
[X]: Stop.
[MR WRAY]:…that you didn’t used to like it and then you liked it.
[X]: Stop it.
[MR WRAY]: You don’t want to talk about it. What do you do now if he tries it again?
[X]: He doesn’t.
[MR WRAY]: But you know it’s not okay.
[X]: It’s fine.
[MR WRAY]: It’s not fine, [X]. So it’s still happening?
[X]: No. You just need to let go on it.
[MR WRAY]: No, [X].
[X]: It doesn’t happen.
[MR WRAY]: I know it makes you feel uncomfortable.
[X]: Yeah, well, it doesn’t happen, so stop it.
[MR WRAY]: And I know how you don’t like remembering what happened.
[X]: I never said that.
[MR WRAY]: I’m sorry to bring it up. It makes me really sad.
[X]: You know, I didn’t even remember it until you always mention it. And it’s just getting annoying.
[MR WRAY]: I just want to check that you know that it’s wrong and that you will do everything you can to not let him touch you in that way – touch you at all.
[X]: Can you please not. I’m not going to answer to you any more if it’s about that.
[MR WRAY]: Sorry to mention it, darling. I just thought if you had been talking about it in school, then
[X]: It wasn’t inappropriate, okay. If I don’t think it’s inappropriate, then just stop. Okay.
[MR WRAY]: [X], it is inappropriate. That’s what they will teach you at school and I’m repeating back to you your exact words to me when you told me about it. It’s that you didn’t used to like it at first and then you liked it. So that doesn’t mean it’s appropriate. It’s still inappropriate.
[X]: Can you just stop.
[MR WRAY]: Okay. Are you looking forward to seeing me on Sunday for Father’s Day?
(Father’s Exhibit 5, p.13 line 3 to p.14 line 24).
As Dr C said, this is an example of the father completely overbearing X, not listening to what she says and leading her in a direction he wants. This is a perfect example of X’s complaint that her father does not listen to her. What the father was referring to when he says at line 17, page 14, “I'm repeating back to you your exact words to me when you told me about it” was the recording he made on 22 August 2013 when she was six and she told her father about Mr G touching her tummy and tickling her which recording is as follows.
The recording made on 22 August 2013:
[MR WRAY]: When was that, darling?
[X]: I don’t remember. I don’t know, but it was some sort of night.
[MR WRAY]: Was it a week ago?
[X]: I don’t know.
[MR WRAY]: Was it two weeks ago?
[X]: I don’t know. Five weeks.
[MR WRAY]: Five weeks ago.
[X]: Yep.
[MR WRAY]: And was it in the morning or late at night?
[X]: ....
[MR WRAY]: Yeah.
[X]: Sort of in the – in the night time and when it got a little bit light.
[MR WRAY]: And when it got a little bit light?
[X]: Yeah. A little bit ..... and I was asleep, so I just opened my eyes and I thought it was a monster, but it was [Mr G].
[MR WRAY]: Yeah?
[X]: Yeah.
[MR WRAY]: And he was in your room?
[X]: Looking for his torch. …That was a dream, that one.
[MR WRAY]: Right.
[X]: Not the – not the first one.
[MR WRAY]: Right. Okay. And the other one?
[X]: That’s it.
[MR WRAY]: That’s it?
[X]: And then for some reason he just took Mummy’s pillow and sleeped in my room. And when I came out of my bed, I just went, “[Mr G], what are you doing sleeping here? This is not your room. This is my room. Go back to Mummy’s bed.”
[MR WRAY]: And did Mummy know?
[X]: No. That was in the middle of the night.
[MR WRAY]: Really?
[X]: Mmm.
[MR WRAY]: And he was asleep on the floor?
[X]: Mmm. And then until it was morning I just woke up and saw him sleeping on the floor.
[MR WRAY]: In your room?
[X]: Yes. He took one of my blankets. That was my owl one. And he .... it with his feet sticking out.
[MR WRAY]: And was he fast asleep?
[X]: Yeah, and he was snoring, so I didn’t get any sleep, really.
[MR WRAY]: He was in your room all night?
[X]: Yeah. A little bit snoring.
[MR WRAY]: And he was on the floor or on a mattress?
[X]: On a mattress
[MR WRAY]: Yeah. In your room?
[X]: Yeah.
[MR WRAY]: With the door shut?
[X]: .....
[MR WRAY]: And where was Mummy?
[X]: In her room.
[MR WRAY]: In her bed, asleep?
[X]: Yep. When – when I waked up I told Mummy all about .....
[MR WRAY]: And what did Mummy say?
[X]: “Okay. I’ll wake [Mr G] up and he will get some sleep here for the whole day until he wakes up.”
[MR WRAY]: Yeah?
[X]: So Mummy carried him.
[MR WRAY]: Mummy carried him?
[X]: Yes. And I carried his stinky feet.
[MR WRAY]: Really?
[X]: Yeah.
[MR WRAY]: And then he went to Mummy’s bed?
[X]: Mmm.
[MR WRAY]: Sorry?
[X]: Yes.
[MR WRAY]: Yeah. And was it still night time then?
[X]: No. In the morning.
[MR WRAY]: In the morning.
[X]: [Mr G] sleeps in until 9 o’clock.
[MR WRAY]: Yeah?
[X]: Yeah.
[MR WRAY]: And when – when did he tickle you?
[X]: In the morning when I was about to wake up ... more sleep about for two minutes.
[MR WRAY]: Yeah.
[X]: And then I just went back to sleep. [Mr G] ... tickles me to wake me up.
[MR WRAY]: Really?
[X]: Because I – it was past time. ... he just says, “It’s past time that you wake up.”
[MR WRAY]: Right.
[X]: And he was right, because it was nearly 10 o’clock.
[MR WRAY]: And where was Mummy?
[X]: She was about to get up and she was still asleep.
[MR WRAY]: She was still asleep?
[X]: Yeah. So me and [Mr G] tickled her.
(Father’s Exhibit 5, p.2 line 1 to p.5 line 24)
The father took from these conversations on 22 August 2013 and 29 October 2017, that Mr G was behaving inappropriately with his daughter despite X having said to the police that she felt sick the night she was at the father’s and had a dream about the training game.
The father believed from these conversations that the mother was being drugged so that Mr G could have his way with X, paragraph 14 of affidavit of Mr G, filed 30 December 2019.
This is consistent with the father asking X where the mother was at the time she told him Mr G was asleep in her bedroom on the floor. The father had no difficulty accepting the improbability and impossibility of the mother and child carrying a sleeping Mr G out of her bedroom yet does not accept his daughters’ word that Mr G is nice and has done nothing.
The father relied heavily on Dr S’s multiple reports prepared at the father’s request dated 18 January 2020; 18 October 2020; and 3 September 2021. Dr S had opined that the events X described could be examples of grooming but properly qualified his opinion with “if they had happened”. The only event that has happened is that Mr G may have lightly touched X’s stomach to waken her and/or tickled her although he denied he has ever done this. There is nothing sinister in that behaviour. Otherwise the alleged disclosures are a result of a child’s dream when she was not well and clearly running a fever.
Dr C who has interviewed X and observed her with Mr G together with DSC BB are both of the opinion that there were no disclosures made of any concern regarding Mr G’s conduct to towards X. Dr S did not have the advantage of interviewing X and heard only the father’s side of the story and was properly guarded in his opinion.
Although Dr S reported that these recordings might indicate grooming, he also noted the carrying out of a sleeping Mr G from X’s bedroom by the mother and X is a physical impossibility as was also noted by Dr C..
Alleged poor behaviour of Mr G
The father’s affidavit sworn on 30 December 2019 set out helpfully what he regarded as the history and poor behaviour of Mr G towards him and the risk of harm to X in the mother’s care under various headings.
“Family Violence Summary” at paragraph 6:
Our daughter [sic] has made disclosures to me that were traumatising for her to recall and indicate something is happening at her mother's place, with her mother's boyfriend that are disturbing to me, that seem to indicate some sort of grooming is occurring there.
At paragraphs 13-16 of the father’s affidavit sworn on 30 December 2019:
13. Our daughter [sic] has told me multiple times her mum is often tired and even falls asleep in the car while they're driving, and she never used to do this while we were married.
14. I have spoken with a JIRT doctor who told me it ' s easy for her mum to be drugged while the [Mr G] has his way with [X] and these drugs leave the body's system quickly.
15. Our daughter [sic] is fast approaching puberty where I fear this intimate access and grooming will escalate to her being further abused by the Defendant where I fear this intimate access and grooming will escalate to her being further abused by her mother's boyfriend.
16. This risk is now greater as our daughter will now deny it's happening saying "it never happened" and "it was just that one time" defending the perpetrator, which I have since learnt is know as Traumatic Bonding whereby the victim justifies their behaviour.
(emphasis as per original)
X was telling the truth and her father could not or would not hear the words his daughter spoke. The father justified his position by saying he has learnt that defending a perpetrator is known as traumatic bonding whereby the victim justifies the perpetrator’s behaviour. There is no behaviour to justify. Mr G has been nothing but a caring, supportive, financially and emotionally available adult to X.
Under the heading “Family Violence - Harassment by Mr G to X” at paragraph 31 of the father’s affidavit sworn on 30 December 2019, the father describes an incident at X’s annual sports display at Venue JJ in late 2019 where he could see X was incredibly nervous and anxious in Mr G’s presence while speaking with the mother. During cross-examination, I asked the father if it was possible that X could have been nervous and anxious because the mother, the father and Mr G were all at the same event and this was potentially a high conflict situation. The father would not accept this as possibility at all, saying the venue was big and she shouldn’t have been anxious. It is clear and obvious that this is why X was anxious, as the three adults in her life were together. The father’s inability to acknowledge this possibility bespeaks a serious deficit in his parenting capacity and insight into X’s needs.
At paragraph 35-41 of the same affidavit, the father said in mid-2019 the mother and Mr G walked past the father and his niece, and Mr G muttered menacingly, “Excuse us!” and the father felt threatened. Mr G then approached X with the mother following behind, and loudly said, “Ah! Here’s the little devil”.
This was according to the father, intimidating behaviour and he felt helpless to reassure X. Again, the father said X was scared and terrified. I accept that this may be correct as again all three adults were in close proximity and the father’s negative view of Mr G was well known to his daughter. The father said he was traumatised because his daughter was upset. I reject that evidence. Mr G’s actions and words were neither threatening, harassing or menacing and if X was upset that was due to her father’s clear antipathy towards Mr G and for no other reason.
Under the heading “Family Violence - Harassment by Mr G to X and I - Sunday 8 July 2017” the father says Mr G came to collect X from the father’s residence. The father’s evidence is:
49. At 1 pm, the Defendant buzzed our intercom asking to collect [X].
50. I said “You are not [X’s] parent” and hung up.
51. The defendant kept on buzzing, with similar response.
52. [X] was crying and I was upset and consoled her
(paragraph 49-52, Father’s affidavit sworn on 30 December 2019).
The father created that incident. He was the one who was rude and aggressive not Mr G.
Under the heading, “Family Violence - Harassment by Mr G to X and I - Sunday 14 May 2017”, again, a similar incident to 8 July, the father would not allow Mr G to collect X and kept saying, “You are not X’s parent”. Mr G buzzed and X became upset.
There is not one incident that the father described in his affidavit from paragraphs 1 through to 137 which demonstrates or shows Mr G or the mother as intimidating, harassing or threatening to the father. The fathers’ evidence supports the position that he is the aggressor, begins the disputes and has caused conflict.
In late 2012, the father let himself into the mother’s home. They had been separated physically for eight months at that time. His excuse was found at paragraph 133-135 of the father’s affidavit sworn 30 December 2019:
133. The first time I knew of [Mr G's] intimate access to our daughter [sic] was when I phoned her at her mum's place […] to hear she was quite anxious on the phone and said "[Mr G's] here"
134. I left work to find out what was happening and let myself into her mother's place that I was still on the lease for, paying for her rent and all their living expenses, and her mum had access to all funds I was earning up to then, so I could speak to our daughter and see why she was anxious.
135. When I entered, I saw [Mr G] sitting on the couch beside our daughter, and I gently encouraged him to leave her to talk out the balcony.
The mother was required to call the police before he would leave. The father’s affidavit of 30 December 2019 is very revealing as it tells the Court that no matter what the mother or Mr G did, the father would find it threatening, intimidating and justification in his eyes for his poor behaviour and treatment of his daughter, X.
The father raised five incidents of harassment by Mr G in respect of X at the APVO hearing in the Local Court in late 2020. His statutory declaration is in part this
73. On 22 August 2013 [X] said to me words to the effect “[Mr G] goes in my room while mum is asleep”.
74. Attached is a transcript of a recording of a conversation between [X] and myself on 8.40 pm on 22 August 2013. The recording can be produced.
75. On or about August 2016 [X] said to me that “[Mr G] touches me here on my tummy. At first I didn’t like it but I do now”. Whilst saying this she indicated her stomach with her hand flat.
I have read and seen the evidence which the father says supports grooming and disturbing behaviour and there is no evidence to support this vague concern. Any disturbing behaviour is in the father’s mind. The father says he has been traumatised by these revelations citing this trauma as one of the reasons he cannot work. I can see no revelations to cause such a trauma but accept that in the fathers’ mind these are real and disturbing behaviours to which his daughter has been exposed.
This is another sadness in this matter. X has only been exposed to poor behaviour by the father in his relentless pursuit of his obsession that Mr G is a risk to her. He may now truly believe this to be true when all the evidence is clear that there is no risk at all to X from Mr G or the mother. His beliefs are delusional at best and malicious at worst.
The deterioration of the father’s relationship with X
I accept the submission by Ms Swan on behalf of the mother that X has been frightened of the father. There is evidence in the Suburb CC School subpoena material, marked Mother’s Exhibit 1, where X describes to her teacher in 2018 “…X told me her dad gets really angry at things and takes it out on her”. X pleaded with the teachers not to tell her father she had received detention because
…her dad got really mad and told her she must have been doing something really bad to be kept in [for a detention]… The following day I spoke with her again…she told me her dad gets really angry at things and takes it out on her…she said he shouts at her and calls her a drama queen which he knows she doesn’t like…
(p.2, Mother’s Exhibit 1)
When questioned on this X said to her teacher that he taps her on the arm and she taps him back. X was asked about her current living arrangements, she said she's not really happy living with her dad because he gets angry at something, takes it out on her and she's sick of it. X said he’s angry about the divorce and her mum’s new partner, that her dad lied to her one time to get her to go to the police to answer questions about her mum’s new boyfriend.
This evidence is consistent with Dr C opinion that X has simply acquiesced to the father’s unreasonable demands and, hence, in the CIC memo and in her interview with Dr C, when asked about the current parenting arrangement, of eight-six, X said words to the effect of, “it’s okay, leave it as it is”. Dr C agreed there is evidence that supports a finding she does not want to upset the father, did not want to take sides and did not want him to know that the current arrangement was not suiting her.
There is significant evidence of X having to placate the father which was evident in the police interview when the police, for example, asked her, “Do you like the food mum cooks? Does mum cook good dinners?”, and she responded “Yes, she does, but so does dad”, always bringing the father into the conversation as equal to the mother. This was not necessary to answer the question and not normal for a child to do so unless she feels she must put the father on equal footing with the mother because of his emotional needs.
Importantly during her interview with Dr C on 9 March 2022 X said to Dr C “I just couldn’t be honest with you in the first interview I couldn’t say what I wanted to say because I knew dad would read it so I said let’s just make it stay the same because that would cause the least problems for me”. Dr C said that this problematic relationship dynamic is evident to him and it is the reason why X is now sick and tired of the father’s behaviour and wants nothing to do with him.
The father would not agree for X to be assessed for dyslexia. That assessment only occurred after the mother obtained sole parental responsibility following orders made by Altobelli J on 12 March 2021. The father did not agree to her having braces on her teeth until there was an order made. He has interfered with her schooling, her education and health. What is of significant concern is that X now does not feel she can speak to a psychologist as the father will subpoena the notes and records and infringe on her privacy.
X has told the mother, the paternal aunt, Ms R, and the mother’s family friend, Ms H that she did not want to have time with her dad and that she wanted it to stop but that she could not tell her father these things. The father is the only person in her world X cannot express her true feelings to and he takes that as being evidence she has been in some way manipulated by the mother when the reality is nothing untoward has happened to her in the mother’s home.
As Dr C deposed, the cognitive assessment X undertook at B School indicated she is of average if not high average ability and has an understanding of her views as expressed. That she has difficulty in retaining information and with reading, and this is the dyslexic aspect of her difficulty. The father would not accept this diagnosis initially.
Dr C was clear in his evidence X asked him questions to the effect of, “Why haven't I been listened to? Why haven't I been heard? How come it has been so long since I've been able to say what I want?”. As Dr C said in cross-examination, the additional sadness in this matter is that X has lost complete faith in the system and the belief systems of the court and psychologists and that loss cannot be tolerated. I will do all in my power to restore her faith.

During the cross-examination by Ms Swan, Dr C confirmed that X is scared of the father, that she was scared at the interview that Dr C had with her, she knew the father would read the report, and she was aware of his anger. That he had detected distress coming from X when she was withheld from the mother in late 2019.
It was Dr C’s evidence that the father’s needs clearly overwhelmed X’s needs at the interview on 30 August 2019. Dr C recommended that extreme injunctive orders are required, to repair X’s concerning loss of faith in the system and that X needs to see that the Court has listened to her, takes her fears and concerns seriously, and will do its utmost to protect her. Further that she had a strong claim to obtain her personal property. The father did say, at one point, that if the Court wanted to divorce X from the father, he would return her property. I hope the father is true to his word.
The mother and Mr G told the Court they had to move home and out of their area because of the father stalking them and X. I accept that evidence, and reject the father’s evidence on this concerning behaviour. He did stalk X repeatedly at her school after his time with her was suspended, embarrassed her in front of her friends, destabilised and frightened her.
In Dr C report it was apparent that X had loved spending time with her father when she was younger. Dr C said he had asked X about privacy and the integrity of her bedroom and her bathroom.
We talked about privacy a great deal, about the integrity of her bedroom, the integrity of her bathroom, does anyone come in. We talked about where she gets changed, and she listed in terms of who is more respectful of her privacy… At their place, mom and [Mr G’s] place the bedroom door is always shut and they knock, at her place with dad, he opens the door and knocks sometimes. I talked about integrity of bathroom space for her at her mother’s place, and she said no one has ever come in there and likewise with her fathers’ place no one has ever come in there.
The father’s evidence in cross-examination and cross-examination of Dr C
The father has not been employed since 2016 and said the Court case has been his full-time employment. He no longer has savings, and used an inheritance he received from his mother to subsidise his living costs. He receives Centrelink payments of $725 a fortnight, and pays rent of $650 a week, saying that he has borrowed money from friends to afford his rent. He is living now well beyond his means if this evidence be correct. He did not use any of his substantial savings, which he lived off for four years or his inheritance from his mother in the support of his daughter, leaving that role to Mr G. He says he is undertaking two courses to advance his current skills, and he assists at his local church. From this evidence it is abundantly clear that he will not and has not supported X financially to the best of his ability.
The training game that the father put much store in was a dream from which his daughter awoke. Dr C said, it is normal behaviour for children of this age to have nightmares. Despite the father insisting disclosures were made by X to police when she was interviewed no disclosures of any concern were made. The highest disclosure was, Mr G touching her on the tummy to wake her up and that he tickles her sometimes. As the interviewing Officer reported, touching a child lightly on the stomach to wake them is normal adult behaviour.
As Ms Swan correctly submitted the interview in the car in 2019 shows X pleading with him to stop asking about Mr G at least five times. Further X was to sit an exam on this day and yet the father upset her on her way to school.
During cross-examination the father agreed that X asked him to stop questioning her, and when asked why he did not stop, the father responded, “I did”, yet he did not until after she had pleaded with him to do so on at least five occasions.
The father does not believe his daughter when she says “You just need to let go on it…It doesn’t happen”. The father only believes what he wants to hear and not what is being said. The father believes X when she says Mr G touched her on the tummy, believes X when she says Mr G tickled her; believes X when she says she and her mother carried Mr G out of the bedroom as these matters support his beliefs. Yet he does not believe X when she says, “You just need to let go on it…It doesn’t happen” as this does not support his beliefs.
The father could not see he had done anything wrong in mid-2012 when he entered the mother’s home without her permission and knowledge after they had been physically separated, for eight months. When questioned, his response was “in the context of that situation where my daughter was anxious absolutely not” yet could not conceded it was his conduct that made her anxious.
The father was coy at times in cross-examination. It was directly put to him, “do you hold a belief Mr G sexually abused X?”, the father responded, “I do not know what occurred”. Consistent with all bullies, he will press X about what has happened, but when an adult presses him, he backs down. Similarly, when he was given the opportunity to cross-examine Mr G, he backed down, and would not ask him any questions.
He was asked, “What is your current view on Mr G’s relationship with X?”, he responded with, “as a result of my actions, he has lost all control over X and as a result of my actions, I feel X is empowered to stand up for herself against him, and has sufficient tools and resources and confidence and strength to fend for herself”. A delusional comment.
When asked whether he still holds the belief that expelling Mr G from X’s life is in her best interest, the father responded, “my understanding is that adultery has a massive impact on children…”. These are old fashioned outdated notions which have no part in proceedings concerning a determination of orders that are in a child’s best interests in Australia in 2022.
The father cannot accept that she has a good relationship with Mr G. The father cannot not accept X’s view of Mr G, expressed at paragraphs 112 to 114 to Dr C being that “he’s funny,…he’s just an average person… they usually play games together, sometimes we talk, we go see my aunt with him”.
The father did not believe X and Mr G had a warm and close relationship. The ICL asked the father
Question: Do you accept that it’s even a possibility that [X] has a close relationship with [Mr G]?
Answer: There is a relationship that is consistent with grooming. A bondage relationship. That could be a relationship.
…
Question: You think [Mr G] is a paedophile?
Answer: May well be.
Question: A parasite?
Answer: in some ways, yes.
Question: He is perverted?
Answer: I’m not sure.
Question: An adulterer?
Answer: That would be undisputed right …well he broke up our marriage didn’t he.
The father sought a restraint on Mr G being in the presence of X despite the fact he has lived with her since 2017. Dr C opined it would be disastrous for X if Mr G was not in her life given he is a positive male role model for her and has countered some of the negatives of her relationship with her father.
The mother had a further interview with Dr C on 4 June 2020 at 5.00pm for which he had no notes. Dr C said this was an omission and concluded, “I would suspect that my report would have been substantially completed before that point and that additional material was taken into account did not alter my findings”. I accept that evidence.
The father was rude to Dr C when this omission was admitted by him saying “it beggars belief that this is what he would do”. The father endeavoured to make much of this omission however it is of no importance to my decision, nor did it impinge upon the integrity of Dr C report, his oral evidence or my findings in relation to the father’s conduct.
The father said X was not scared of him and when he approached her at her school repeatedly and that he was not breaching any Court order. I accept that Judge Kemp’s orders were not as specific as Altobelli J’s orders and only suspended specific orders for time. I have no doubt that the clear intention of the suspension was there be no time or communication by the father with X to give X a break from his obsessive and frightening behaviours and allow him to reflect on his behaviours and its consequences for his relationship with X.
The father would not concede that this was so and tried to wiggle his way out of this clear intention and when being asked about this issue said “Because holiday time wasn't suspended, going to her school wasn't suspended, birthdays with the mother, birthdays with X were not suspended”, that he could see X on those occasions. Although this is incorrect I accept, in him so doing, there was no contravention by him
The father referred to paragraph 4, of page 4 of the CIC memo and put to Dr C that X told the interviewer at the CIC she was happy with the arrangements. Dr C referred to the sentence immediately prior which read “X cried quiet tears and commented that she missed her mother terribly at the time, but felt too scared to say anything because I don’t want to make things worse” (CIC memo, page 4, paragraph 3) Dr C opined
This is important because it speaks to her profile as quiet deferential young person who doesn’t’ want to upset people and specifically doesn’t want to upset her parents and equally she is of sufficient intellect to know that she is at the centre of the parent’s conflict so she is endeavouring to make herself into a little Switzerland to not make the matters worse and to placate the parents in the process.
The father asked Dr C’s whether he felt those views had been projected onto X. He replied that “These are X’s sincerely held views” and confirmed his opinion that the father has stalked her. The father then made a comment to the effect of “X doesn’t know what stalking is”.
I reject that comment given this would have been something she learnt at school and the father raised these very issues with her in the interview in August 2019 relating to inappropriate touching.
The father posed to Dr C, “X’s wishes have been violated throughout these proceedings”. The evidence of violation of her wishes is the father failing to listen to her. The father’s obsession has violated her wishes.
The father asked Dr C’s whether he believes X has gone through the five stages of grief in relation to the loss of her father. Dr C said
If I apply that to [X] I don’t think that she has gone through those 5 states because you are not dead so she is not dealing with you as a lost individual of her life. She is more at a point of anger and a sense of frustration of your conduct towards her and the impact of your conduct on her and the way that has impacted and infringed on her life and equally on other people that she cares about.
The father accepted that children tell each parent what they want the other parent to hear, and that it is my task to determine which the truer statement is. I find that X could not possibly speak positively about the mother or Mr G at the father’s home as he would rise to anger.
The father put to Dr C whether X has more of an inclination to denigrate the father, as she has done in her statements to Dr C, because she is in the care of the mother who share these views. Dr C said,
…I wouldn’t have characterised her discussion about you…I acknowledge that one word that she did use on occasion…is what she deemed your ‘crazy behaviour’ and she put that in context and made reference to issues of you stalking…so obviously for young teenagers that’s more embarrassing than anything else…she was also still incredibly clear to say that she can’t manage, deal, or cope with what she perceives is you poorly managed anger, and she can’t manage your ongoing obsession with her mother’s partner, [Mr G]…all of that she finds absolutely overwhelming to the point where she has sought, despite the courts efforts to suspend contact she has sought to distance herself even further from any contact with you
The father asked Dr C, “what do you feel is the nature of parental alienation in this scenario?” His response was “I don’t have much evidence to put before the court in line with that suggestion… I don’t see evidence of alienation”. The father responded that the suspension orders of 17 April 2020 was worded in such a way that time was suspended unless agreed and because the mother did not agree to allow X to spend time with him in the period of suspension, that was alienation. Dr C said, “whether…failing to make an agreement would constitute alienation or alienating behaviours, from a clinician’s perspective, no I don’t believe it meets what I would be looking for”.
Dr C was clear that there is strong, robust evidence that X has dyslexia; there has been a thorough, comprehensive, well-crafted report, dated 12 November 2021. The father put to Dr C:
Question: I say that she exhibits these behaviours now after this alienation from her father and the trauma of this process
Answer: I don’t have any evidence to say that there is any link between alleged alienating behaviours from a parent in a parent-custodial situation and the development of dyslexia in a child. Noting that and combining that with her behavioural and cognitive profile I would suggest that she would not be like that at all.
The reality here is that there is evidence prior to ‘alienation’ in 2020 , as the father calls it, that the mother was of the opinion that X had issues indicative of dyslexia and the father would not agree to have X tested.
The father further suggested that X was tired when this assessment was done; Dr C responded
…There is no suggestion that fatigue played a factor, more specifically I can look at the tests used and the array of the tests provided and say that it doesn’t appear that fatigue impacted on her substantially because actually her stronger measures are in the land of what’s called fluid or novel skills, that’s brand new material, that’s a test of her raw horsepower…For [X], they were her strongest scores and that tells me there’s a lot of horsepower under that bonnet, good little brain, granted it is not very literate and we need to improve it but there’s a good little brain there, it just needs to be developed.
The father made much of an event where he encouraged X to read out loud a poem to her class and the mother countermanded this encouragement and it did not occur. This is one of the areas where she struggles, reading and reading out aloud and it is not a strength. The father referred to this as an example of empowering X to achieve goals on her own as much as possible, and used this as an example to show the mother’s poor attitude to X’s education. However this evidence was a further example of the father overbearing on X, trying to make her do something she was not comfortable doing, and the mother rescuing her from her acquiescence to his needs.
The father showed Dr C photographs taken by him some years ago at the Suburb CC School fete asserting they demonstrated Mr G harassing him, overbearing him, and overpowering him. Neither Dr C nor I could discern such behaviour from the photos. X did look anxious no doubt because all three parents were close together.
X has written text messages to the father, at paragraphs 453 to 466 of the mother’s court book, that she does not want to see the father and he does not accept these messages yet they are clear.
THE LAW
In M & M[1] the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations…
To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose X to an unacceptable risk of sexual abuse, [or as in this case, ‘abuse’].
[1] (1988) 166 CLR.
In B & B[2] the High Court endorsed the High Court’s statement in M & M[3] that the assessment of the risk to a child is the ordinary civil standard. At paragraph 7:
[i]f a trial judge considers, upon the balance of probabilities, that the welfare of a child may be endangered or there is a risk that a child may be physically, sexually or emotionally harmed if access were to occur, then a trial judge may, in our view, suspend access.
[2] [1988] HCA 66.
[3] Above n 1.
The law is not that a child must have a relationship with each parent at any cost.
Legislative pathway
The first task is whether I rebut the presumption of equal shared parental responsibility.
Section 60B of the Act sets out that the objects of Part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Section 60CA determines that the Court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
Section 65D gives the Court the power to make a parenting order and s 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
Parenting orders are subject to the presumption under s 61DA(1) of the Act. The Courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility.
When the presumption is not rebutted by virtue of s 65DAA, I must consider whether X spending equal time with each of the parents would be in her best interests and to answer this question I must consider both whether it is in a child’s best interests to spend equal time by reference to the ss 60CC(2) and (3) factors and whether such an order is reasonably practicable.
If I do not find such an order is appropriate then I must consider whether a child spending significant and substantial time with a parent is in their best interest and to consider that question I follow the same pathway.
Significant and substantial time is defined in the Act to mean days that fall on weekends and holidays; days that do not fall on weekends or holidays; days that include part of the child’s daily routine; special occasions and events.
The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in their decision of MRR & GR[4] where the Court said:
Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires 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” [9].
[4] [2010] 240 CLR 461
The High Court went on to say that s 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.

It is apparent that the law is not that a child must have a relationship with each parent at any cost.
I will rebut the presumption of equal shared responsibility as it is neither practical nor realistic such a responsibility be shared in the light of my findings of X’s genuinely based fear of the father due to his behaviour and his entrenched inability to act in X’s best interest when her interests conflicts with his needs.
The father demonstrated little insight into the needs of his daughter who is now a young woman. He has not respected her wishes or views and has sought to actively undermine the mothers’ excellent parenting of her and her supportive and positive relationship with the mother’s partner, Mr G, who is a positive male role model in her life and who she loves.
To share this important responsibility is not practical nor in X’s best interests.
Factors relevant under section 60 CC (2) & (3) of the Act
At this time there is no benefit to X spending time with or communicating with the father. Her strong and clear wishes based upon reasonable grounds is for the father to be excised from her life at this time due to his behaviours and beliefs which he has inflicted upon her. At her age her wishes will be acted upon and this was an important aspect of Dr C’s recommendations changing from those on his report to now supporting X’s wishes for no time or communication and recommending draconian injunctive orders to prevent the father from contacting her, accessing any information about her online, from her school or other places of activity.
The only risk to X at present is being exposed to the father and she has been exposed to poor behaviour in his household.
The father has no capacity to put the needs of X before his own needs and this is a risk to her. The father’s focus is his role as a protective parent in circumstances where he, and not the mother or Mr G is the risk to her.
X’s life is now a life without the father and it is her strongly held wish that this continue. In her mothers’ care X is progressing well, will benefit from therapies and interventions the mother has finally been able to obtain for her daughter such as treatment for dyslexia and braces. These were two important medical treatments the father prevented the mother from accessing for X, such is the level of his non child focussed approach.
Consistent with X’s clear and a strong view supported by Dr C there can be no communication at all with the father. A relationship with X for the father is a means to an end for the father to continue to pursue his obsessions with Mr G and, not as it should be, the end in itself.
The mother demonstrates a high parenting capacity and has demonstrated capacity to protect X from the father and is the only parent with any insight into her educational, psychological and emotional needs. The father is unable to focus on needs other than his own and has no capacity to provide for X’s needs.
In light of those findings I will make orders consistent with the ICL’s and the mothers’ Minute of Order as they are the orders in X’s best interests.
In relation to costs the father prolonged the hearing by at minimum three days seeking adjournments to prepare for a hearing that had been listed in my calendar for over eight months. He did not cross-examine Mr G and did not attend for the final day of hearing to make his submissions.
I will order him to pay the costs thrown away by his conduct for the mother and the costs sought by the ICL in the usual course.
I dismiss the mother’s application the father be declared a vexatious litigant as there is insufficient evidence to support the making of an order under s 102QB of the Act. However any future applications he may file in respect of X should be specifically managed to minimise any further harm to X.

I certify that the preceding two hundred and forty-nine (249) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.
Associate:
Dated: 17 May 2022

File number(s):	SYC 7692 of 2012
Judgment of:	HENDERSON J
Date of judgment:	17 May 2022
Catchwords:	FAMILY LAW – CHILDREN – Where the father sought orders that the child live with him primarily – Where the child had not spent time with the father in excess of two years – Finding that there was an unacceptable risk to the child in spending time with or communicating with her father – Where the child’s views at nearly 15 years of age were of significant weight – Where the child expressed strong views that she did not want a relationship with the father given his conduct and behaviour – Fathers’ application dismissed. FAMILY LAW – INJUNCTIONS –– Where the Single Expert strongly recommended injunctions restraining the father from having access to any information relating to the child – Where the recommendation was based on the child’s need to have her faith restored in the capacity of the legal system and police to protect her from her father’s behaviour and her right to privacy in therapeutic interventions – Injunctions granted in respect of the father. FAMILY LAW – COSTS – Costs arising from a final orders application – Where the respondent made an application for costs thrown away due to the father’s conduct during the hearing – Orders made for the applicant to pay the respondents costs in a fixed sum. FAMILY LAW – COSTS – Where the Independent Children’s Lawyer seeks that the father pay half of their costs of the proceedings – Application granted.
Legislation:	Australian Passports Act 2005 (Cth) s 11(1)(b) Family Law Act 1975 (Cth) ss 60B; 60CA; 60CC (2); 60CC (3); 61DA(1); 64B; 65D; 65DAA, 68B, 102NA, 102QB, 106A.
Cases cited:	B v B [1988] HCA 66 M v M [1998] 166 CLR 69; [1988] FLC 91-979 MRR v GR [2010] 240 CLR 461; [2010] HCA 4.
Division:	Division 1 First Instance
Number of paragraphs:	249
Date of last submission/s:	15 March 2022
Date of hearing:	7 March 2022 – 15 March 2022
Place:	Sydney
Counsel for the Applicant:	Litigant in person
Solicitor Advocate for the Respondent:	Ms Swan
Solicitor for the Respondent:	Swan Lawyers
Counsel for the Intervener:	Ms Abdelraheem
Solicitor for the Intervener:	Claremont Legal

SYC 7692 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR WRAY Applicant
AND:	MS WRAY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HENDERSON J
DATE OF ORDER:	17 MAY 2022