Rimmington and Healey - [2012] FamCA 810

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rimmington and Healey

Details

AGLC: Rimmington and Healey [2012] FamCA 810
Case: [2012] FamCA 810
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered the parenting arrangements for twin children, aged four years and eight months, in the case of Rimmington & Healey. The dispute involved starkly different proposals from the mother and father regarding the children's residence and contact. The mother alleged genuine fears of sexual abuse and potential homicide by the father, while the father sought for the children to live with him. The Independent Children's Lawyer also put forward a proposal for the children's future care.

The court was required to determine whether there was an unacceptable risk of harm to the children at the hands of the father, specifically concerning allegations of sexual abuse and potential homicide. Further, the court had to consider the impact of the mother's fears, even if genuine but unreasonably held, on the children's best interests. The mental status, character, and personality of both parents were also relevant considerations in determining the appropriate parenting orders.

Justice Watts found the case to be exceptionally difficult, noting the profound differences in the parties' proposals and the significant risks involved. The court ultimately found that the mother's evidence was largely reliable, despite some minor inaccuracies in memory. In contrast, the father's evidence was found to be less straightforward, with a demonstrated tendency to manipulate conversations to his advantage. The court applied the overarching principle of the children's best interests, as mandated by the Family Law Act 1975 (Cth), and considered the evidence presented regarding the parents' allegations and mental states.

The court ordered that the mother have sole parental responsibility for the children and that they live with her. The father was restrained from spending time with or contacting the children, and from approaching the mother or her places of residence and employment. The children were to live with the mother, and the father was prohibited from removing them from Australia. The court also made orders regarding communication, the children's surname, and costs.

Orders