Rimmington and Healey

FAMILY COURT OF AUSTRALIA

RIMMINGTON & HEALEY

[2012] FamCA 810

FAMILY LAW – CHILDREN – Where the mother has genuine but unreasonable fears that the father has sexually abused four year olds twins – where the mother has genuine fears that the father may kill the children – whether there has been an unacceptable risk to the children – where the father abducted the children from a child contact centre – where the father seeks the children live with him – where the mother will not seek to spend time with or communicate with the children again if they live with the father – where it is in the children’s best interests to live with the mother and not spend time or communicate with the father

Family Law Act 1975 (Cth)

Zantiotis & Zantiotis (1993) FLC 92-367
Angaston and District Hospital v Thamm (1987) 47 SASR 177
Donaghey & Donaghey [2011] FamCA 13

APPLICANT:

Mr Rimmington

RESPONDENT:

Ms Healey

INDEPENDENT CHILDREN’S LAWYER:

Maureen Power

FILE NUMBER:

SYC

1762

2009

DATE DELIVERED:

19 September 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 – 16 March 2012; 19 – 22 March 2012; 16 – 17 April 2012; 18 September 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Wong

SOLICITOR FOR THE RESPONDENT:

Dettmann Longworth

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

Subject to order 13, the mother have sole parental responsibility for B born … January 2008 and A born … January 2008 (“the children”).
The children live with the mother.
The mother be at liberty to arrange the children to be baptised into the Catholic faith at a church of her choosing.
The father is restrained from approaching the mother or her place of residence from time to time, her place of employment from time to time or coming within 4 kilometres of those places.
The father be restrained from spending time with or attempting to contact or approach the children or attending the children’s school or any of the children’s extra curricular activities from time to time.
The mother shall:
6.1.Advise the father by email of any major medical issues affecting the children;
6.2.Provide to the father as they are received copies of school reports, school newsletters and school photographs.
Without a further order, each party is restrained from removing:
7.1.The child B born … January 2008 (male); and
7.2.The child A born … January 2008 (male)
and/or causing or allowing either of them to be removed from the Commonwealth of Australia.
The Australian Federal Police place the said children on the Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain each child’s name on the Watch List until further order of the court.
Any passport for either child be held by the mother.
The mother continue to attend upon her treating psychiatrist, Dr S and her treating psychologist, Ms G and continue to attend upon Dr S and Ms M as recommended by Dr S and Ms M.
The father shall be permitted to forward to the children, care of one of the maternal grandparents, cards and appropriate gifts for their birthdays and each Christmas and the mother is to ensure the children receive such cards and gifts, if she is of the view that those items are appropriate for the children to receive. The mother will keep the father advised of the postal address of the maternal grandparents from time to time.
Each party advise the other party and keep the other party advised of their email address and advise the other party of any changes to that address within seven days of such change occurring.
The mother is restrained from using or attempting to use any surname other than the surname “Rimmington” in respect of the children, either formally or informally for any purpose whatsoever.
The Independent Children's Lawyer provide a copy of my reasons and orders to the paternal grandfather. When doing so, the Independent Children's Lawyer write to the paternal grandfather and suggest to him that he facilitate an arrangement whereby the father seeks some professional assistance with reading and dealing with what is contained in my Orders and Reasons for Judgment, and if possible that professional be Ms R.
Within 28 days the father pay to Legal Aid NSW Trust Account the sum of $18,606.50 for payment to Dr W for his fee.
Within 28 days the father pay to Legal Aid NSW the sum of $13,822.70 being his contribution to the costs of the Independent Children's Lawyer.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington & Healey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1762 of 2009

Mr Rimmington

Applicant

And

Ms Healey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The decision in some cases is very hard. This is one of those cases.
The primary proposals of the parties for the parenting of children (twins) aged 4 years and 8 months are starkly different. The Independent Children's Lawyer has suggested a proposal which significantly downplays the difficult risks in this case and one which I will find is not in the best interests of the children in this case.
The mother’s proposal is that the children live with her and that the children no longer spend time with nor communicate with their father. After the incident on 20 July 2012, she offers no alternate proposal.
The father’s primary proposal is that the children live with him. In those circumstances, the mother has formed the view that it would be best for the children if they no longer had any contact with her.
The mother has a steadfast view that the children have been subjected to penetrating sexual abuse by their father and that if the children are left unsupervised with their father whilst they are living primarily with her that there is a probability that he would kill them. Two issues in this case are whether or not there is an unacceptable risk of either of those things happening to the children at the hands of the father.
There is a further issue in the case; if there is no unacceptable risk of either of those things happening, whether or not the mother’s fears are genuine but unreasonably held and the impact that has upon the matters I need consider.
Separately from issues around the mother’s extreme fears, are issues that relate to the mental status, character and personality of both the parties. It is the mother’s case that the father presents a risk of causing harm to the children as a function of his personality characteristics and/or psychiatric characteristics. It is the father’s submission that the mother’s mental status is such that the children should live with him.
Fears have been held during the proceedings that the mother is so fearful of what might be the outcome of these proceedings that there was a risk that she would affect an altruistic double murder/suicide.
There is some risk that making the orders which the mother seeks may lead to the father harming and possibly killing himself.
There are no easy choices in this case.

DOCUMENTS RELIED UPON IN INITIAL HEARING

The documents each party relies upon are set out in Schedule 1.

APPLICATIONS

The full text of each application by the mother, father and the Independent Children's Lawyer is set out Schedules 2, 3 and 4 respectively. Some alterations were made to each party’s and the Independent Children's Lawyer’s proposal after the re-opening of the case on 18 September 2012.
The mother is seeking sole parental responsibility for the children and that the children reside with her. The mother’s proposal is the father spend no time with the children. On 18 September 2012 the mother withdrew her alternate proposal that the father spend supervised time with the children in a child contact centre until they are 12 years of age and thereafter supervision be conducted by a professional paid supervisor or agency of her choice until the children turn 18 or graduate from secondary school. The mother’s previous alternate proposal also provided that in the event that the mother moves to the Sydney area, then the contact centre would be a contact centre closest to where she was living.
The mother also initially sought to vary the child support payable for each child to an amount of $10,000 annually. On 16 April 2012 the mother indicated she no longer sought to press that application.
In final submissions on 17 April 2012, the father sought sole parental responsibility for the children and that they reside with him in Sydney. Initially, the father’s alternate proposal was that if the children live with the mother, the father still have sole parental responsibility for them. However, when it was pointed out that that position would be extremely unusual and impracticable, the father settled on seeking equal shared parental responsibility in the event that children live with the mother.
In final submissions on 17 April 2012, the father indicated that on his primary proposal, the children would spend alternate weekends (not 3 consecutive days as indicated in his amended initiating application) with the mother, alternating locations between Town D and Sydney. This would continue until they commence school.
In his amended initiating application, the father proposed the children spend alternate weekends with the mother, with all changeovers occurring in Sydney. He would be willing to facilitate Skype communication weekly. As indicated above, in the event the children live with the father, the mother has indicated she believes it is in the children’s best interests that they do not see her.
If the court finds that the mother’s material allegations with regard to the father are in the main genuine but unreasonably held, the father suggests that the children’s time with the mother be supervised and that supervision might need to continue for such period as the mother purports to maintain “those material allegations”.
On 18 September 2012 the father tendered further written submissions, which set out his amended application (exhibit 54).
His primary position in regards to parental responsibility was that he have sole parental responsibility for the children. His secondary position was that the parents have equal shared parental responsibility, but failing agreement the maternal grandmother or the maternal aunt to exercise ultimate responsibility for a particular decision (subject to their willingness to exercise responsibility).
The father’s primary position was still that the children live with him, and spend time with the mother. He sought that the children spend no time with the mother in the first three weeks, but then for a period of 10 months spend time with the mother (supervised by a member of the maternal family) for four hours on alternate weekends. From 2014, the father proposed the mother spend time with the children on alternate weekends.
The father’s secondary position was that the children live with the mother and spend unsupervised time with him. In the alternative, he sought that the children spend time with him in Town C Contact Centre for two hours per fortnight. During cross examination, the father conceded he had no evidence from Town C Contact Centre to show they were willing to accommodate contact visits. He amended his position in oral submissions, seeking contact occur at Town I Contact Centre.
At the commencement of final submissions on 17 April 2012, the Independent Children's Lawyer provided a short minute of the orders proposed by the Independent Children's Lawyer (see Schedule 4 at the end of these Reasons). These were slightly amended on 18 September 2012. The Independent Children's Lawyer asked, inter alia, the court to order that:
23.1.The mother have sole parental responsibility for the children and that they live with her.
23.2.The father complete “an appropriate anger management course or such other [unspecified] therapy that the Independent Children's Lawyer” might nominate (at some unspecified time and for some unspecified future period).
23.3.The mother continue to attend her treating therapists and the mother further undertake therapy or counselling “as may be nominated by the Independent Children's Lawyer” (again, for some unspecified future period).
23.4.The children spend time with their father at a contact centre alternate weekends for a period of four hours if possible until they are aged 6 years (a period of a bit over one and a half years); in the following year they would have day time contact with their father each alternate weekend and once they had attained the age of 7 years, unrestricted overnight alternate weekends and half school holidays.
23.5.The Independent Children's Lawyer also proposed that the father have weekly skype contact with the children.
23.6.Other orders were sought, including an order that the mother not change the surname of the children nor travel overseas with the children.
The mother commented that she was unsure as to how the order proposed by the Independent Children's Lawyer in relation to the father completing an appropriate anger management course could be made in the form suggested. The mother opposed any order that she undertake further therapy and counselling as might be nominated by the Independent Children's Lawyer, given the therapy and counselling that she is already undertaking with her existing treating professionals.
The mother’s primary position is that there not be any skype communication between the father and the children but if there is to be face to face time, then she does not oppose the order suggested by the Independent Children's Lawyer for communication on a weekly basis by electronic means.
The mother does not oppose the father forwarding to the children cards and appropriate gifts for birthdays and Christmas to the address of her parents (and if face to face time is ordered, through the child contact centre).
Order 16 as proposed by the Independent Children's Lawyer requires the mother to provide the father with information and authorities to obtain information about the children’s school. If the mother’s primary position is successful, she opposes that order being made but she does not oppose that order if the father is having face to face time with the children.
The mother’s primary position is that she opposes any order that restrains her from using or attempting to use any surname other than the surname “Rimmington” in respect of the children. Her primary position is that she should have sole parental responsibility and the ability if she wishes to anonymise the children’s surname.
The mother consented to an order (no matter what the other orders are) that each party be restrained from removing the children from the Commonwealth of Australia.
The Independent Children's Lawyer has sought two orders in relation to costs. The first was that within 28 days each party pay to Legal Aid NSW Trust Account the sum of $9,303.25 (a total of $18,606.50) for payment to Dr W for his fees for work done associated with the final hearing. The second application was that within 28 days each party shall pay to Legal Aid NSW a sum of $13,822.70 being their respective contributions to the costs of the Independent Children's Lawyer.
The father consented to both applications. The mother made an application that the father pay all or almost all of Dr W’s fees ($18,606.50) that were associated with the final hearing.

SHORT HISTORY

The father was born in 1962 and is now aged 50.
The mother was born in 1974 and is now aged 37.
The parties commenced cohabitation in December 2004.
The parties’ twin children B and A were born in January 2008 and are now aged 4.
The parties separated in February 2008.

CREDIT

Mother

The mother, by and large, gave reliable evidence in a relatively straightforward manner.
There is one occasion where I find, on balance, that the mother was mistaken about the location from which the father made a telephone call. On 5 August 2011, the father telephoned the mother at her Town D home. There was at the time an Apprehended Violence Order in place, the terms of such order being that the father not contact the mother. The mother gave a police statement she “saw that the number was a local [Town D] number.” This caused the mother distress, because she presumed the father was in Town D. The records that the police provided to the father corroborate the fact that he made the call from a telephone that was not in Town D. In this instance the mother’s memory has proven to be unreliable.
At the time of her admission to hospital in 2002, the mother presented with certain “histrionic features”. The father had earlier referred to the fact that he understood the ordinary meaning “histrionic” to be one that meant “acting”. The independent expert indicated that as part of a psychiatric diagnosis, the word “histrionic” generally means exaggerated, extravagant, superficial or over exuberant. It does not carry with it the implication that the patient is setting out to mislead, be manipulative or contriving. There is no mendacity associated with the psychiatric term “histrionic”. Unreliability of what is being reported however may be a problem.
In relation to the accuracy of the mother’s memory about statements made to her by the children, Dr W also opined that given the time between when the mother questioned the children (21 and 22 May 2011) and when she provided her statement to the police (26 May 2011), she would have probably lost some of her short term memory and would have probably understated the extent of the leading questions that she asked the children.
Subject to the above matters, I find overall I can rely upon what the mother has reported.

Father

In contrast to the mother, the father gave his evidence in a far less straightforward manner. In submissions on 17 April 2012, the father described himself as in “warrior mode” and said things that gave me the impression that he would say anything that he thought might convince the court to order that the children live with him. He has a firm conviction that that will happen sooner or later.
I find that the father has a demonstrated ability to take words used in a conversation and turn them around to his own advantage or to actually ascribe words to persons that were not said by that person at all (again to his own advantage). Having done this the father then usually seems to have an unshakeable belief that the conversation has been as he asserted it.
I will give two examples (but they are not by any means the only examples). In the second, the father belatedly conceded he had manufactured the text of a conversation.
In his first report, Dr W notes that in 2001 the father attended upon a psychiatrist, Dr E. Dr W records “he [referring to the father] said that [Dr E’s] report had actually been very good.” During the cross examination of Dr W, the father challenged Dr W’s recollection that the father had been the one to comment upon the quality of the report. The father asserted it was in fact Dr W who had said the report was “very good” rather than the other way around.
In his initial evidence, Dr W could not actually remember having read Dr E’s report (and it was not in the list of documents set out in Dr W’s report as being documents read by him).
Exhibit 25 was a supplementary letter by Dr W indicating that after his cross examination had concluded, he reviewed the material he had previously read and the notes he had previously made. Dr W had discovered that Dr E’s report had been annexed to one of the affidavits that Dr W had had and he had highlighted that report so it was clear to him that he had read it.

He also reviewed his own notes (which were under subpoena to the court). For reasons clearly set out in exhibit 25, Dr W was strongly of the view that it had been the father who had said to him that it was a very good report and not the other way around. The father however maintained his original position as put to Dr W in cross examination.
I find that Dr W’s contemporaneous note, which on Dr W’s evidence unambiguously indicates that it was the father’s statement and not Dr W’s statement, is strong objective evidence that enables me to conclude that Dr W’s evidence is to be preferred over the father’s in respect of this matter.
What flows from that is that the father has reconstructed a conversation that he had with Dr W during the interview, and has convinced himself that that is how the conversation had taken place.
A second example of this type of embellishment is contained in notes the father made which the father produced in evidence which set out what the father purported to be a conversation that he had had with Ms F. The father sets out quite a detailed conversation as to an exchange he and Ms F had had. The father had commented to Ms F that if it was not for the maternal grandparents, he and the mother would have reconciled and that one of the mother’s boarding school friends had said as much to him and more or less the same thing had been said to the father by a friend of the mother’s parents. The father then goes on to record this:
[Ms F] responded to my surprise, relatively emphatically:
‘They’d [referring to the maternal grandparents] been indoctrinating the hell out of her [referring to the mother]’.
In an affidavit filed by Ms F she denied saying that. She gave evidence that prior to this quote being read to her, she had not ever heard the word “indoctrinating”.
The father, somewhat lamely, attempted to say that the words he had put in quotation marks in the material that he had tendered in evidence were not part of his sworn material. However the conversations are recorded in a folder of material entitled “E4” which was annexed to the father’s affidavit sworn 13 February 2012. The father then attempted to say that the word “indoctrinating” was not meant to indicate the exact word that Ms F had used. Again this was difficult to accept given that the father had put the words used by Ms F in quotation marks. The father went on to suggest that the words that Ms F used were “they’d been brainwashing the hell out of her”. In her oral evidence, Ms F denied that she had used these words in any conversation with the father. I accept her evidence about that. What Ms F had said to the father was that the maternal grandparents were “very set in their ways”. The father had taken that comment and significantly embellished it and had in the process attributed to Ms F words that she had never used. After counsel for the mother sought during final submissions (on 17 April 2012) to rely on this evidence to make comment about the father’s credit; the father in his submissions said he had made a mistake about what Ms F had said.
On a number of occasions during the recorded interview with Senior Constable T (exhibit 48), the father told the police that he believed that the maternal grandfather was a paedophile. During cross examination on 18 September 2012, he initially said that he had believed this at the time he gave that information to the police. That was inconsistent with evidence that he gave previously during the hearing. By the end of the evidence on this topic however, I was unable to discern what the father’s actual position was in relation to whether or not he thought the maternal grandfather had been involved in paedophilic behaviour.
Wherever there is an inconsistency between a conversation that the father asserts took place and an alternate version of that conversation by another person, I treat with great caution the version of the conversation asserted by the father. Unless I indicate otherwise, where the evidence of the mother and father conflicts, I prefer the evidence of the mother over that of the father.

The maternal grandparents

The father also cross examined the mother’s parents in a way that, on occasions, put into question what they were saying.
I generally find that the maternal grandparents gave evidence in a straightforward manner. That is not to say that every opinion they expressed I accept as being a reasonable opinion but I was satisfied that it was an opinion genuinely held. There are some parts of the evidence of the maternal grandfather that warrant comment.
In his second report, Dr W refers to a discussion with the maternal grandfather regarding the mother’s capacity to cope if the father’s proposed orders were made. Dr W recorded the maternal grandfather “indicated he was very worried…if the boys went to their father, he did not think that his daughter would survive.” The maternal grandfather reiterated to Dr W that he “fears for the worst.”
In regards to this conversation, the maternal grandfather asserts his precise words were “it would be a disaster”, meaning a disaster for both the children and the mother. Dr W agreed the maternal grandfather may have said that at one point, but he did not have that in his contemporaneous notes (exhibit 20).
In his oral evidence, Dr W said “I believe it [the maternal grandfather’s affidavit] minimised or reduced the amount of distress which I think he was experiencing at the time he talked with me.” Dr W conceded that this may not have been deliberate since the maternal grandfather swore his affidavit in February 2012 and was recalling a conversation that had taken place in September 2011.
An example of the maternal grandfather not attempting to embellish evidence was when he gave evidence about a game B was playing when he had no underwear on in January 2012. The maternal grandfather said he asked the children about who had taught them the game but said he did not get a reply from either of them.
When making inquiries of the police shortly after the separation as to whether or not the mother could obtain an AVO arising from her fears of intimidation (and being advised by the police in the absence of any physical family violence an application was not warranted), the maternal grandfather failed to tell the police that he had been told that the father had pulled the mother’s hair during the honeymoon. The maternal grandfather said that he forgot that the mother had told him that had happened when talking to the police at the time. I accept the maternal grandfather’s explanation about that.
The father suggested to the maternal grandfather that he had deliberately chosen for changeovers to be outside the police station (rather than inside the police station or at a café where there would be more witnesses) in order to have an opportunity to “set him up”.
On the one hand the maternal grandfather described the level of public activity at the police station as being one that involved people frequently going in and out of the police station whilst on the other hand he indicated that one of the reasons he did not take the children inside the police station to wait for the father was that on occasions it was not manned. I accept that those two pieces of evidence may be seen to not sit easily together but can be explained on the basis that the maternal grandfather was on the one hand, making a general description about the level of activity normally around the police station but saying that on some specific occasions the police station may not have been manned. The maternal grandfather gave reasons, to my satisfaction, to justify his position that changeovers should take place outside the police station.

Other Witnesses

No submission was made in relation to the credit of most of the other witnesses who gave evidence.
The father however did, from time to time, say things that drew into question either the credit or the professional competence of Dr W, Dr S and Ms G. I find that each of those professionals gave evidence reliably and the opinions expressed were within their areas of expertise.
The father in his affidavit asserted that Senior Constable T had been dishonest, but during cross examination the father did not suggest that to the Senior Constable and I am confident that the Senior Constable has accurately recorded his observations and what he heard the father say on 20 July 2012 and I accept the evidence he has given.
Questions were also asked of Dr J and Registered Nurse K. They both gave evidence in a very straightforward way and I have no reason to doubt any of the evidence given by either of these professional persons.

DETAILED CHRONOLOGY

The father was born in 1962.
The mother was born in 1974.
Between 1990 and 1993, the mother suffered from anorexia and bulimia.
In early 1997, Mr Healey (‘the maternal grandfather’) sustained a severe head injury.
On 6 March 2000, the father began taking the antidepressant, Zoloft, administered by his general practitioner Dr L. He is currently taking 100mg of Zoloft daily.
In October 2001, the mother overdosed on Nurofen, and wrote a (suicide) letter to her family.
Around 2002, the mother commenced treatment for depression on Cipramil, administered by her psychiatrist Dr S.
On 26 May 2002, the mother was admitted to hospital for depression. She remained an in-patient there for four weeks. She was diagnosed with Major Depressive Disorder with Histrionic Traits.
On 29 August 2002, the mother was re-admitted to hospital for depression. Her antidepressant intake was increased. She remained a patient there for approximately three weeks.
On 7 May 2004, the father’s dose of Zoloft was reduced for the purpose of weaning him off the drug.
On 15 July 2004, the father recommenced taking Zoloft.
The parties married (and commenced cohabitation) in December 2004.
In October 2005, Dr S raised the possibility that the mother may suffer from Attention Deficit Hyperactivity Disorder. She was assessed at a specialist centre at a hospital and Dr S’s diagnosis was confirmed.
In December 2005, the father ceased taking Zoloft.
In November 2006, the father recommenced taking Zoloft.
In late 2006 or early 2007, the mother stopped taking Cipramil with a view to getting pregnant.
In February 2007, the father was overseas working in his leisure industry business and was caught in a natural disaster. In final submissions on 17 April 2012, the father made reference to him not only saving his own life but also that of a client who was with him. After this event, he began attending counselling sessions with Ms R. The Independent Children's Lawyer’s tender bundle has a note from her as early as 9 May 2008. The father has given evidence that he has seen Ms R recently.
On 18 August 2007, the mother began attending upon her counsellor Ms G.
The parties’ twins B and A were born in January 2008.
On 24 January 2008, A bumped his head on the change table and was taken to hospital with concussion. He stayed in hospital for three days, after vomiting numerous times.
On 26 January 2008, night nurses began assisting the mother with the children. This service was arranged and mostly paid for by the paternal grandparents.
On 25 February 2008, while the father was away overseas for his leisure industry business, the mother separated from the father and relocated the children to the maternal grandparents’ house outside Town D.
Around March 2008, the father began taping conversations with the maternal family.
Between March 2008 and May 2008, the father went down to Town D on six occasions. On some of these occasions, the father spent time with the children for two or three consecutive days.
On 27 April 2008, the parties and the children were at a Chinese restaurant in Town D. B had an allergic reaction.
Around May 2008, the father stopped seeing his psychologist, Ms R.
On 15 June 2008, the parties and the maternal grandfather were with the children in a park in Town D. The maternal grandfather says that B was very unsettled on two occasions and the father refused help from the maternal grandfather and the mother to settle him. The father agreed he declined help and says he settled B within a minute or two.
On 23 June 2008, the mother’s lawyers sent the father an email regarding B’s unsettled behaviour on 15 June 2008, and requiring that any further contact with the children be supervised.
The father did not spend any time with the children between 15 June 2008 and 9 August 2008. Between August 2008 and December 2008, the father travelled to Town D with at least one accompanying person on five occasions and saw the children.
In October 2008, the mother began receiving assistance with the children at home from Ms O. Ms O worked approximately 20 hours per week.
In December 2008, the mother ceased supervised contact between the father and the children. On this last visit, B placed his hand into a hot cup of tea while playing a game with the father, and A fell off the lounge hitting his head. The mother alleges these incidents were because the father was not supervising properly. There was a third incident where B was repeatedly banging his head against a glass door. Instead of stopping this behaviour, the father joined in with B and started tapping his forehead against the glass door as well.
Between December 2008 and March 2009, the father did not spend time with the children.
On 15 March 2009, the father began spending time with the children at Town I Contact Centre.
On 1 April 2009, the father was prescribed an anti-anxiety medication, Xanax.
On 1 July 2009, Johnston JR (as he then was) made consent orders that the father spend supervised time with the children. The result of these orders was that the father spent time with the children at Town C Contact Centre on Saturday, and then saw the children at Town I Contact Centre on Sunday (in the same weekend).
On 5 July 2009, the children spent two hours with their father at Town I Contact Centre.
On 12 and 13 October 2009, Dr W interviewed the parties, children, and both the maternal and paternal grandparents for his first report.
On 4 November 2009, Dr W’s first report was prepared.
On 26 November 2009, Johnston JR (as he then was) vacated orders requiring the father to spend time with the children at a Contact Centre. Orders were made that the father spend time with the children on alternate weekends (with no overnight time) supervised by a mature adult paternal relative known to the children. Three out of four of these visits occurred in Town D, with one in every four visits occurring in Sydney. There were three approved companions, including Mr P.
In December 2009, the father gave the mother the book “The girl with the dragon tattoo” as a Christmas present. The mother was upset by the message she believed the father was sending by this action.
In February 2010, the mother began receiving assistance with the children at home from Ms Q.
Around October 2010, the father changed his legal representatives. Around this time he began communicating with the mother’s lawyers, the mother, and the mother’s family directly.
On 15 February 2011, the father ceased to be legally represented.
On 11 March 2011, Stevenson J varied the orders made 26 November 2009, increasing the amount of time the children spent with the father each alternate weekend. Her Honour also increased the number of approved companions for the father.
Around April or May 2011, the father resumed his psychological sessions with Ms R.
On 21 and 22 May 2011, the mother alleged the children disclosed they had been sexually abused by their father.
On 26 May 2011, the mother attended Town D police station and gave her first police statement regarding the children’s disclosures.
On 27 May 2011, the mother, maternal grandfather, and the children arrived at a hospital in Melbourne. The children were examined by Dr U.
From 28 May 2011, the mother stopped the children having contact with their father, both face to face and Skype sessions.
On 29 May 2011, the mother’s concerns were further raised when she went to give B a goodnight kiss.
On 1 June 2011, the children were interviewed by a JIRT officer. The maternal grandfather was present during the interviews. Detective V attended the maternal family’s home. The maternal grandfather asserts that while the mother was present, the children were “happy and played easily.” Detective V then went inside with A and the maternal grandfather. He set up a camera and a tape recorder. The maternal grandfather says that “[A] started to become less animated and a little quieter.” At one point, “[A] stopped talking and appeared to become scared” and hid behind the couch. Detective V concluded the session, and he and the maternal grandfather walked A out of the room and came back with B. The maternal grandfather says “[B] was less co-operative than [A] and more shy. At an earlier stage in the interview than [A], [B] retreated behind the couch.”
On 7 June 2011, the mother attended Town D police station to make her second police statement regarding the children’s disclosures.
On 6 July 2011, Principal Registrar Filippello dismissed the mother’s application to suspend all time between the children and the father. She ordered that Mr P be removed as an approved supervisor of the children when they spend time with their father.
In July 2011, the father sent the mother a gift box containing transcripts of tape recordings the father had secretly made of conversations between the parties.
Between 25 July 2011 and 25 October 2011, Dr W re-interviewed the parties (with and without the children) and the maternal grandparents. The paternal grandparents, Ms G, and Dr S were interviewed by phone. The interview on 25 July 2011 was the first occasion the children had seen their father since 15 May 2011.
On 7 August 2011, the father was arrested for breach of AVO.
On 17 August 2011, the AVO application was withdrawn.
On 5 October 2011, the father engaged legal representatives.
On 6 October 2011, Loughnan J commenced hearing a contravention application filed by the father on 22 June 2011. That hearing was part heard. On that day, his Honour made interim consent orders that the children recommence spending time with the father on alternate weekends at Town I or Town C Contact Centre.
On 7 October 2011, the mother was prescribed Zoloft and a night time sedative, Normison.
On 5 December 2011, I made orders regarding the release of Dr W’s second report. I have detailed those orders below.
In January 2012, the father ceased to be legally represented.
On 7 February 2012, the children commenced pre-school.
The hearing commenced on the 12 March 2012. After ten days, it was adjourned part heard.
The hearing continued on the 16 and 17 April 2012.
On 20 July 2012, the father took the children away from the Town I Contact Centre.
On 18 September 2012, the case was re-opened.

MAJOR ISSUES AND EVENTS

The father’s mental health and personality

The father showed two sides to his personality during the hearing. Impulsiveness and unpredictability is clearly one side of his personality. There is another side to his personality, one that is charming, apparently reasonable and engaging. Throughout the trial however I saw the father regularly switch from one presentation of his personality to another.
In Dr W’s initial report, the father admitted he has “manipulated” the mother by discussing suicide with her when she was phoning him about visits occurring at the contact centre, as a way of prolonging the discussion. The father denied any real attempts at self harm but I am apprehensive about those denials.
The father admits, on one occasion, he made escalating threats to the mother including that he was going to walk out of their house without any underwear and commit suicide. The father asserted these were made to try and bring the mother “to her senses.”
The father spoke about suicide on 20 July 2012 to Dr J. Dr J gave evidence that she had the sense that the father’s reference to self harm may have been a “bribe” by the father to manipulate circumstances to his advantage.

Dr W described the father as an obsessional individual who alternates between being “stubborn, intransigent and cautious” and “rather flippant, careless, impulsive and reckless”.
Dr W did not form the view that the father suffers from Bipolar Disorder.

The father’s behaviours in court

I had the opportunity over twelve full days and other shorter mentions to observe the father both as a witness in the witness box and as a self represented litigant conducting his own case.
During submissions on 17 April 2012, the father commented upon a statement in the written submissions by the Independent Children's Lawyer (Exhibit 34) which said:
* Father’s behaviour in the course of these proceedings has been extraordinary …
* Submit that father’s behaviour goes far beyond what one would could [sic] reasonably expect from a person in these circumstances
The father submitted, at some length, that it was unfair for him to be judged in terms of his behaviour in the court room in circumstances where he had chosen to represent himself (he indicated that he could have borrowed the necessary funds from his parents to fund legal representation) and in circumstances where the mother had not made that choice. He in essence submitted that because I had been deprived of an opportunity of seeing the mother conduct her own case then he should not be judged on the way he conducted his and if I understood his submissions correctly, on any of his behaviour in the court room over the first eleven days of the final stage of the hearing.
In Zantiotis & Zantiotis (1993) FLC 92-367, the Full Court quoted with approval a passage from Angaston and District Hospital v Thamm (1987) 47 SASR 177 where King J said:
…It is clear, however that where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has significant influence upon his decision of the case, he is required in justice, before making use of those observations to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still had an opportunity of dealing with them in a proper and effective way
The father’s behaviours which I describe below sometimes drew a comment from me whilst they were happening, sometimes afterwards and sometimes I chose not to interrupt the hearing by unnecessarily drawing the father’s attention to what he was doing.
The father’s basic plea is that I should place significant weight not on how he behaved in the course of the proceedings, but rather, on how other people (his companions during the time with the children; the child contact centre notes) described his behaviour when he was with the children.
I conclude that it is legitimate for a trial judge to use observations of how a party behaves in a court room to inform decisions about other relevant matters, provided that in all the circumstances, it is procedurally fair to do so.
I take into account that the father comes to the court unrepresented having had the most serious of allegations made against him. I take into account that the father, whilst he has a law degree, is not a trained lawyer and acted for himself. I also take into account the emotional strain on the father during the final phase of the hearing (particularly in circumstances where it was clear to the father that one of the options that the court had to consider is one that, on the mother’s (then primary, now only) application, involved the children not seeing him again.) The father also informed the court on the ninth day that he had had virtually no sleep the night before. The father made it clear however that he was receiving from time to time advice from various people in relation to how he should present aspects of his case. He was initially represented in the proceedings up until about February 2011. He was also represented from October 2011, to January 2012. More recently, the father had access to legal advice during his preparation of the trial, including from his brother. The father also had two sessions with Dr W to obtain Dr W’s advice on what Dr W had said in the reports and other documents that Dr W had prepared for the court. He had spent time in conference with a well known family law junior counsel and he indicated that he had a Queen’s counsel organised to conduct his appeal in this matter. The father is an intelligent man.
The father’s behaviours in the court room fall into two broad categories. The first category relates to behaviours that were actually incidents in themselves and may have happened whether or not the father was a self represented litigant. Examples of those behaviours was the threat that the father made to the mother’s lawyer; the father approaching the mother in the witness box in an inappropriate manner and the father placing his feet on the railing of the witness box whilst leaning back in his chair in the witness box whilst giving evidence.
There is a more general category of behaviours that which were observed by me in the course of the father conducting his own case. It is true, I may not have seen these behaviours to the same extent had the father not been a self represented litigant. The behaviours, however, were either sufficiently disturbing or compellingly repetitive, so as not to simply be able to be excused as a function of the stress that any intelligent self represented litigant might feel in a court room.
I find that the father’s behaviour in the court room on regular occasions was unrestrained and uncontrollable. The father’s behaviour was less extreme in the final three days of the hearing. For the majority of the hearing, the paternal grandfather was present at the back of the court room. There was, on occasions, interactions between them and the paternal grandfather demonstrably provided a moderating influence on some of the father’s behaviours.
The father on occasions adopted what was an objectively aggressive pose (for example rising to his feet and placing both his hands on his hips whilst addressing the bench; rolling up both sleeves on a long sleeved shirt at the beginning of his cross examination of the mother). The father had little ability to accept a direction (particularly regularly in relation to talking over somebody who was speaking; interrupting an answer that was being given in response to a question he had asked in cross examination; understanding and complying with a direction to remain silent until invited to speak again; even something as simple as responding to a request to take his hands out of his pockets when addressing the court.) Although not a big thing, after I requested him during the hearing more than once not to do so, the father delivered the majority of his final submissions on 17 April 2012 with his hands in his pockets.
The father also had an annoying repetitive habit of apologising for some inappropriate behaviour or blatant failure to comply with direction and then engaging in that behaviour shortly (and sometimes immediately) thereafter. On occasions the father simply displayed selective deafness in ignoring a direction I had made, simply continuing with the behaviour as if he had not heard my request for him to desist in that behaviour.
The father, on more than one occasion, reacted negatively to something that I was attempting to say when I was halfway through saying it. On a number of occasions, the father had jumped to a conclusion as to what the statement, when completed, would mean. An example of that was a discussion I had with the paternal grandfather whilst he was giving his evidence as to whether or not a letter, written by the mother’s lawyers, had left “an open door” to discuss the possibility of further negotiations in respect of the paternal grandparents themselves spending time with the children. When I was halfway through that sentence, the father said “Sorry your Honour, I have to leave the room at that comment. There’s been an open door?!”, and left the bar table without being invited to do so, and left the court room, returning to the court room after a short period of time. When he returned he slammed the door shut and said “There’s been an open door? That’s an open door!”
Another example of bizarre behaviour happened on the ninth day when the father was asking questions of Dr W. At a particular time, when my attention was focused on Dr W in the witness box, there were three loud noises in the direction of where the father was asking questions at the far right hand end of the bar table (at the furthest distance on the bar table from the witness box). I swivelled to see where the three loud noises came from. Nobody at the bar table seemed to be close to any microphone.
DR W: Their attitude to – I think I – I think I made their attitude – made – or can how I put there – so their attitude towards you
[At this point the father tapped the microphone three times]
HIS HONOUR:   What did you do then?
DR W:   What was that for?
THE FATHER:   I don’t know, your Honour.
DR W:   Pardon?
THE FATHER:   Sorry?
DR W: You don’t know why you did that? Okay.
HIS HONOUR:   Did you tap the microphone then?
THE FATHER:   Did I?
[When the father denied that he had done anything that would have caused the noise, it was clear to me that counsel for the Independent Children's Lawyer was surprised by what the father said. It was also clear that the father had simultaneously formed the view that it was unlikely that his denial could be credibly maintained given the number of people in the court room who had probably observed him do what he had done (including Dr W who was in the witness box).]
THE FATHER: Yes, I did, your Honour.
HIS HONOUR:   Sorry?
THE FATHER:   I did.
HIS HONOUR:   Why did you do that?
THE FATHER:   I was sure your Honour was concentrating very hard on what [Dr W] was saying, but I wanted to double-check that your eyes weren’t closed for another reason.
HIS HONOUR: My eyes weren’t closed at all, [Mr Rimmington].
THE FATHER:   Thank you, your Honour. Thank you.
DR W:   Your Honour, I think I should, at the end of this, perhaps be asked a few more questions
HIS HONOUR:   All right?
DR W: - - - by somebody else
HIS HONOUR: Okay. Thank you?
DR W: - - - about [the father]. Now, could we go back to your question, [Mr Rimmington]?
The tapping of the microphone by the father and then his denial he had done so were disturbing. It was an act by the father which was impulsive in the extreme. The father went on to pretend that it was all a big joke. I found that behaviour worrying and it was clear Dr W also found that behaviour worrying.
During cross examination, counsel for the mother took Dr W through numerous parts of the hearing transcripts. Counsel for the mother referred to:
158.1.The father’s proposition to Dr S about alleged malpractice;
158.2.The father’s “clear commitment” to report Mr Wong to the Bar Council for misleading the Court;
158.3.The father’s admission that he said to the mother’s solicitor in court “I almost feel justified in kneeing you Longworth”,
Dr W agreed that when the father perceives people are not on his side, he can be aggressive and intimidatory. Dr W opined that the father is “puzzled” when people feel they are “psychologically assaulted” by his aggression.
Counsel for the mother cross also examined Dr W on the reasons the father provided to him as to why the father had sent the mother the book “The Girl with the Dragon Tattoo” as a Christmas present in 2009. In his report, Dr W records that the father denied sending the book as provocation, and asserts he sent it because he thought the mother may enjoy the novel; the central character was a journalist (the mother had been involved in the communications industry) and it was a best seller that year. Counsel for the mother then read out an extract of the father’s evidence where, during cross examination, the father said that he thought the mother might pick up on “subliminal messages” from the book. The subliminal messages were meant to be the book’s parallels to the mother’s life; the unresolved murder of the mother’s grandmother, and (allegedly) hidden inter-generational sexual abuse in a family. Dr W agreed that it was concerning the father denied any hidden messages in the interview with the expert, although it was “just another instance of something where there are two or three different messages [the father is sending] contained in the one, in the one communication, you know, some of which are contradictory sort of messages.”
Counsel for the mother continued to read the father’s evidence to Dr W where the father explained his “wacky theories” that the mother had been sexually abused by the maternal grandfather, or by farm hands that worked for the maternal grandfather, and that one of the maternal grandparents killed the maternal great-grandmother. Counsel for the mother asked Dr W if the father’s “wacky theories” were equally as concerning as the mother’s overvalued ideas. Dr W answered that those ideas could not be equated to the mother’s ideas, because “it’s one thing particularly, you know, when there’s a lot of animosity to sort of have all sorts of wild speculations running around in your head about what’s going on and what people are up to and what might – who might have done what to whom and all that sort of thing. It – it’s a stage further on when that stuff crystallises into a belief that it has occurred and then you start to take actions based on that belief, notifying authorities and that sort of thing.”

Conclusion about the father’s behaviours in the court room during the hearing

The behaviours that the father demonstrated, particularly over the first nine days of the final phase of the hearing, were so unrestrained and unusual that I find that:
161.1.They do corroborate opinions expressed about the father by Dr W; and
161.2.Lend great weight to the descriptions by the mother of past behaviours that she has experienced when with the father that provide a substantial subtext in which the genuineness of her current fears can be assessed.
One is only left to wonder what type of behaviour the father would demonstrate in the future towards the mother outside the confines of the situation in the court room when it might be expected that in the court room the father might be attempting to present the best side of himself at all times.

The father’s difficulty in understanding and accepting why the mother left him

At a number of points during the hearing, it was clear that the father still wanted to know the answer to the question as to why the mother had left him when the twins were five weeks old. During the hearing the father sought to ascribe blame for this event occurring to the maternal grandfather and perhaps to a lesser extent the maternal grandmother, Dr S and Mr Longworth (the mother’s solicitor).
It is clear that the father accepts little responsibility for the breakdown of the relationship and notwithstanding the fact that the father has divorced the mother, he is still unable to accept or understand that it was substantially the effect of his behaviour upon the mother (whose mental status meant that she had a heightened sensitivity to such behaviour) that led to the mother concluding that she could no longer stay with the father.

The audio material and video material tendered by the father or annexed to his affidavit

During the hearing, the father tendered microcassette tapes (exhibit 12) of conversations he had had with the mother and maternal family that he had secretly recorded. These audio files were also included as Item 15 on the father’s annexure “E5” to his affidavit filed 13 February 2012.
During final submissions, the father asked me to listen to audio on those tapes (approximately 12 hours worth), or alternatively read the transcription the father made that was included in the Independent Children's Lawyer’s tender bundle (exhibit 1). He said it was only necessary to listen to, or read, this material if considering the Independent Children's Lawyer’s proposal or the mother’s proposal. The material is undated, and out of chronological order. The tapes are listed as H to Z.
I noted that the father did not cross examine any witnesses on the conversations on the tapes. The father submitted that these tapes and video go to the genuineness of the mother’s contention that she would sever all contact with the children, should they live with the father. He also said it was an example of how the parties are able to communicate. I am unable to fully understand that submission, given that some of the audio material is only the father’s side of the conversation.
Counsel for the mother submitted that much caution should be exercised when reading the transcripts of the material because the father prepared those transcripts. On some tapes (for example, tape N), the father has accurately transcribed the conversations on the audio material. However, the transcript for Tape O was incomplete. What the father had written included descriptions of events (such as facial expressions, or distance between people), and, on one instance, did not include the paternal grandfather’s swearing.
Tape W includes the father’s commentary at the beginning, where he explains the mother has rung him and he has said that the nature of their conversation was serious enough that it should be in writing or in person. He then hung up. He then says “I’m going to call her back now” and proceeds to record their conversation.
Dr W commented that in these communications, “[the mother] can be quite forceful and detailed in her views.” He also noted that “[the father’s] responses seem to be somewhat contained, [and] less emotionally charged (apart from what sounds like a somewhat sarcastic air at times).” However, Dr W comments that as the father “was the person who did the recording… it would be expected that this would have an effect on the spontaneity and authenticity of his responses.” I agree with Dr W’s comments about the audio material, although at times (for example Tape W), the father is exasperated and shouting.
I do not place significant weight on the audio or video material presented by the father. The father did not record any of the particular events that are in dispute (for example, the events that took place in the holiday home in December 2008, which I have detailed below). The audio tape the father made of the incident on 20 July 2012 was not tendered by him but I have more than adequate evidence about what happened on that day.

The mother’s mental health

On the eighth day of the hearing the independent expert, Dr W, the mother’s treating psychiatrist Dr S and the mother’s treating psychologist, Ms G, gave concurrent evidence relating to the mother’s mental status.
The mother has had emotional problems since her mid adolescence where she experienced some type of eating disorder. In 2002 she experienced some type of depression when working in the communications industry and was admitted on two occasions to hospital. Dr S has been the mother’s treating psychiatrist since her admission to hospital in 2002. The mother for a period of time worked in adult entertainment and it seems that during this period of time she had an elevated mood. An experienced psychiatric registrar took a long personal history when the mother was first admitted to hospital. That registrar recorded that, although the mother was animated and presented as energised at the time, her mood was down and there was a hypothesis that the mother had a type of bipolar disorder. Dr S however made it clear that as her treating psychiatrist at the time, that was not his diagnosis at that time and he has never at any time concluded that the mother has a bipolar disorder. Her symptoms at that time had no psychotic features that would indicate that she was out of touch with reality and she responded rapidly to treatment in hospital.

The father shall be permitted to forward to the children, cards and appropriate gifts for their birthdays and each Christmas and the mother is to ensure the children receive such cards and gifts.
That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and email address and advise the other party of any changes to these details within seven days of such change occurring.
That for the purposes of communicating information between the parties, such information to be limited to matters of an urgent nature only in relation to the children, the mother and the father shall communicate by email or telephone.
That within 14 days of the children’s enrolment at any school the mother shall sign the appropriate authority to authorise the school to forward directly to the father copies of all of each child’s school reports and school photographs.
That the mother is restrained from using or attempting to use any surname other than the surname “[Rimmington]” in respect of the children, either formally or informally for any purpose whatsoever.
That each party is restrained from making critical or derogatory remarks in relation to the other parent or the other parent’s family in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
That each party is restrained from removing the children from the Commonwealth of Australia.
That the Australian Federal Police place the said children on the Watch List in force at all international points of arrival and departure in the Commonwealth of Australia and maintain each child’s name on the Watch List until further Order of the Court.
That the mother is at liberty to arrange the children’s baptism.
That within 28 days each party shall pay to Legal Aid NSW the sum of $13,822.70 being their respective contributions to the costs of the Independent Children's Lawyer.

On the 18 September 2012, the Independent Children's Lawyer altered the orders that were sought on 17 April 2012 by amending order 7(a) as sought by deleting Town C Contact Centre and inserting Town I Contact Centre and amending 7(b) as sought by adding the words “after the age of 6 years and provided the father has attended the [Town I] Contact Centre in accordance with order 7(a) herein”.

[2012] FamCA 810

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