Rimmington and Healey

FAMILY COURT OF AUSTRALIA

RIMMINGTON & HEALEY

[2009] FamCA 1387

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of child – Supervision

Family Law Act 1975 (Cth)

APPLICANT:

Mr Rimmington

RESPONDENT:

Ms Healey

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1762

2009

DATE DELIVERED:

25 November 2009

DATE ORDERS MADE:

26 November 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston JR

HEARING DATE:

25 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr O'Gorman

SOLICITOR FOR THE APPLICANT:

Makinson & D'Apice

COUNSEL FOR THE RESPONDENT:

Ms Cleary

SOLICITOR FOR THE RESPONDENT:

Dettmann Longworth Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Power

Orders

That orders are made in accordance with the Minute of Orders filed in Court today signed by Judicial Registrar Johnston and placed with the Court papers as set out hereunder:-
1.The following definitions for the purpose of these Orders:
(a)“A” A born … January 2008;
(b)“B” B born … January 2008;
(c)“children” means A and B.
2.That the Orders numbered 6, 7 and 8 made in the proceedings on 1 July 2009 be vacated.
3.That the children spend time with the father as follows:
(a)commencing from 28 November 2009:
(i)from 4.00pm until 7.00pm each alternate Saturday and
from 8.30 am to 11.30 am on each alternate Sunday.
(a)(a)commencing from 26 December 2009:
(i)from 3pm until 7pm each alternate Saturday and from 9:00 am until 1:00 pm each alternate Sunday.
(b)commencing from 23 January 2010 for three (3) days as follows:
(i)from 2.00pm until 7.00pm 23 January 2010;
(ii)from 8.30 am to 2:00 pm 24 January 2010;
(iii)from 8.30 am to 2:00 pm 25 January 2010.
(c)commencing from 5 February 2010 and thereafter each alternate Friday, Saturday and Sunday as follows:
(i) from 2.00pm to 7.00pm on a Friday;
(ii)from 8.30 am to 2:00 pm on a Saturday; and
(iii)from 8.30 am to 2:00 pm on a Sunday.
(d)commencing from 23 July 2010 for three days each fortnight as follows:
(i)from noon to 7.00pm on Friday;
(ii) from 9.00am until 4 pm on Saturday; and
(iii)from 9am until 1.00pm on Sunday; and
each fortnight thereafter.
4.That from the date of these orders changeovers take place at D Police Station or such other place as agreed between the parties, for each of the first three contact weekends.
5.(a)That from the date of these orders the mother deliver the children to Sydney for the purpose of their spending time with the father and that changeovers take place at the N Police Station or such other place as the parties agree, on each fourth contact weekend and in that regard the period of contact in Sydney shall be for the two weekend days only; and
(b)That for the purpose of the father spending time with the children in Sydney as set out in 5(a) above the father shall pay to the mother the sum of $300 being towards accommodation expenses incurred during compliance with this Order such sum to be paid by the Tuesday prior to the relevant weekend that the father spends time in Sydney with the children.
6.Neither party to be directly involved in the changeover of the children.
7.That the father be accompanied by a mature adult paternal relative known to the children being either:
(i) Mr JS;
(ii)Mr S Rimmington; or
(iii)Mr PS
when the children spend time with him or that the father be accompanied by any other mature adult as agreed by the parties.
8.That pending further Order the mother encourage and assist the children to communicate with the father by electronic means via ‘skype’ or similar internet/video facility at any agreed times and failing agreement on Wednesdays at 6PM. The Court Notes in this context that at the date of these Orders the ‘Skype’ sessions last between about 30 & 45 minutes.
9.That pending further Order the mother shall:
(a)consult with the father by mail or email in relation to the selection of pre-schooling or daycare arrangements for the children.
(b)consult with the father by mail or email in relation to any non-urgent medical issues affecting the children.
(c)advise the father by phone &/or email of any urgent medical issues affecting the children.
(d)provide to the father as they are received copies of school reports, school newsletters and school photographs.
(e)consult with the father in relation to the religious education of the children.
(f)advise of the residential or contact address and phone number(s) of the children and of any changes to that address;
10.The Court Notes the mother’s intention to:
(a)create and maintain a website or profile (such as ‘facebook’) to which she shall periodically upload information and photographs of the children;
(b)provide to the father access to the said website or profile for he and his family.
11.That pending further Order the father is restrained from:
(a)approaching the wife or her place of residence or future employment;
(b)communicating with the wife via phone or via ‘skype’ sessions he had with the boys other than in urgent circumstances regarding the children’s welfare
(c)communicating with the wife other than in the context of non-urgent issues regarding the children and then only by mail or email.
12.That pending further Order each party is restrained from removing:
(a)the child B born … January 2008 (male); and
(b)the child A born … January 2008 (male)
and/or causing or allowing either of them to be removed from the Commonwealth of Australia.
13.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.

IT IS NOTED that publication of this judgment under the pseudonym Rimmington & Healey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1762 of 2009

MR RIMMINGTON

Applicant

And

MS HEALEY

Respondent

REASONS FOR JUDGMENT

These are complicated parenting proceedings in relation to two very young boys, being A and B, both born in January 2008. At the present time the boys are a little under two years of age.
The parents are Mr Rimmington and Ms Healey. For convenience I shall refer to them as “the father” and “the mother” respectively. The father was born in 1962. Mother was born in 1974. They married in 2004 and they separated in February 2008. There have been considerable difficulties since the time that the parties separated.
The matter came into the very busy duty list a couple of days ago, in the form of a very considerable amount of material that had to be read. Very lengthy affidavits by each of the parties – certainly in my experience of matters which come before the Court at an interim stage. And then a very detailed and thorough report by Dr W, child and family psychiatrist, who has had the opportunity of interviewing the parties and seeing the children in his office. Dr W has addressed a whole host of matters, including the usual matters that the Court has to address its mind to under Part VII of the Family Law Act 1975 (“the Act”), and particularly subsection 60CC(3) of the Act.
The father has been having some very limited time with the children under a somewhat complicated arrangement, because the children live with their mother. She lives with her parents in regional New South Wales, and the services which have been available to assist these boys and their parents has been supervised contact centres in Albury and also Wagga. So that father has been in the habit of going and spending limited time with the children there.
Now, what has happened is that Dr W, in the course of his report, has made some fairly specific recommendations about what he concedes as being in the interests of these boys. At page 36 of his report he says that on an interim basis prior to a final hearing, it is his view on the material that he has available to him that the continued use of a professionally supervised contact centre is not appropriate. He goes on to say that:
However, bearing in mind the mother’s high level of anxiety, a possible risk of careless/reckless behaviour by the father and the intrinsic challenges of properly supervising active twin toddlers, it’s my view that the father’s time with the boys should be accompanied by a mature adult paternal relative known to the boys.
And Dr W goes on to say:
At this stage the time could be structured along the current lines with fortnightly day visits extended to five to seven hours but not overnight. I would also suggest that neither parent is involved directly in the changeovers.
And then Dr W goes on to suggest that over time that time could be increased and it could be increased ultimately to involving overnight.
Both the children’s father and Ms Power for the Independent Children’s Lawyer have submitted to the Court that orders should be made generally along the lines of that recommendation by Dr W. Unfortunately, that course suggested by Dr W is strongly opposed by the children’s mother. There has been a very vigorous submission and case put by the mother that it is not in these children’s interests to have a regime – certainly not at this stage – in which what would be involved would be something other than a couple of hours each alternate Saturday and each alternate Sunday at supervised contact centres, those supervised contact facilities being available at Albury and Wagga Wagga. And what would be proposed by mother is that it would be two hours each alternate Saturday, two hours each alternate Sunday, and one day it would be at Wagga Wagga and the other day it would be at Albury.
The case for the mother is really on the basis that she has a very strong fear that if these children are in the care of their father other than at a supervised contact centre, supervised by professional persons who are experienced and qualified to do that within the auspices of those centres, then she is fearful that the children will come to some harm. Her greatest fear is that the behaviour of the father might be such, that there is danger to these children, such that ultimately they could be killed. And that fear is based on a whole host of matters, all of the details of which could not possibly go into in this confined hearing in the limited time that is available.
But there is some cause for concern with respect to each of the parties. What complicates the case is that each of the parents has suffered from some level of psychiatric history. This is clear in the case of the mother. I am not going to go into details.
Dr W has delved into those matters and obviously that is one of the reasons why somebody with the experience and qualifications of Dr W was engaged in the capacity of single expert in the proceedings. He described the mother as an anxious person with poor self-esteem who covers up her depressed mood with superficially buoyant behaviour. It is the case that the mother has been hospitalised suffering from major depression. That appears to have been controlled and managed adequately in recent times. I do not read anything in Dr W’s report which would give this Court a different view of that.
But just as the mother has some level of psychiatric history so too does the father and that goes back to 1999. There has been quite some focus during proceedings today on assistance provided to the children’s father by a Dr M to whom the father was referred last year. I think Dr W, from memory, said that the father had consulted, and had been assisted by, Dr M on five occasions.
Zoloft, which I understand is an antidepressant, was prescribed for the father, and the father accepts and concedes that he continues to take Zoloft. But the mother says that it is not only those matters that cause her concern. She says her actual experience of the father’s behaviour is that – and it is certainly referred to by Dr W – that the father from time to time has engaged in some what might be described as risk-taking behaviours. In any event – and I think probably the low point in respect of those behaviours was a near-death experience that the father acknowledges that he had when he was skiing in Europe, or perhaps somewhere else. There was an avalanche and, having been involved in that avalanche, he came very close to being killed. That was one of the matters which precipitated his need to seek some professional assistance and he had some counselling in respect of that.
The mother presents that matter as some evidence which supports her concern about risk-taking behaviour on the part of the father. But there are other behaviours, particularly the father’s actual experience and responsibility for these very young children. There are at least two matters which are brought into focus in terms of the mother’s concerns about the father. The first is that when A was about 10 days old, or perhaps even less than 10 days old, his father had the responsibility for changing him on the change table and something occurred, the accounts of which certainly are not agreed on. But the father concedes that A sustained a bump to his head.
And the long and the short in respect of that matter was that the parties decided that they would take the child to hospital. The child was taken to hospital. Ultimately, it seems that a diagnosis of a mild concussion was reported. The paediatrician, or perhaps a neurologist, decided, in the hospital, that the sensible course would be to keep A in hospital for a period, no doubt for observation. The period eventually grew to a period of some days. It is not clear to me what the exact circumstances of that were, but looking at it objectively, something serious occurred.
The other matter which has achieved prominence in the proceedings appears to arise out of a game the father says he was introduced to by the mother. It involved some sort of incentive scheme under which a cup of tea or coffee, or perhaps some other form of drink, would be placed on the floor. The boys would be encouraged to have what appeared to me to be a race for the cup. Perhaps it did not involve both of them at the same time.
But in any event, this game then involved a sudden removal of the cup from the children at the last minute so that no harm would come to the children. And without going into specific details about it, in the course of the father engaging in this activity, B instead of grabbing at the cup, in fact inserted his hand into the cup. It was suggested that he sustained an injury thereby.
There are various accounts in respect of that matter. But certainly the father comes in for considerable criticism from the mother and others on her side of the litigation as having not taken sufficient care to be able to properly protect the child. And there are a host of other criticisms that the mother makes against the father. And unfortunately the parties have an appalling relationship, and that is a matter for serious regret.
Dr W has looked at these matters in considerable detail and, in the course of that, he has specifically addressed those matters in the legislation which must be addressed. But it is certainly the case that he has formed the professional opinion that the mother is a very good mother to these children and that the care she has been providing the children is at a very good level. From memory, Dr W described the children’s relationship with their mother as being a very secure relationship, which means that the children are very securely attached to their mother. But also significantly, he described the children’s relationship with their father as being quite a good or quite a secure relationship. I think the words are quite a secure relationship with their father.
As Dr W went through the various requirements as set out in section 60CC(3), I am not going to go individually to those matters other than to really go to the ones that are very important and are really essential in this case. That is the capacity of the parents to, and particularly the children’s father, to be able to appropriately provide for them and any risk factors to the children. In respect of this I have mentioned the above matters and the father’s psychiatric state.
Dr W formed the view that there would not be an unacceptable risk to these children, even bearing in mind the mother’s heightened concern about them if the children were in the care of their father other than at the supervised contact centre. At page 34, Dr W said:
Mother is very concerned that Father is so reckless with the boys that he might not supervise them sufficiently or would take risks with them during play and recreational activities such that accidents may befall them.
Her basis for this is the concussion injury to A, the one that I have mentioned, when he was an infant, as well as several incidents that have occurred during the visits supervised by herself and her family over 2008, particularly the last two in December.
There was another serious incident in which A fell from the lounge, and both parents were there at the time, and there were, again, various versions about that. But in any event, Dr W says:
Well, some of these incidents probably have a highly subjective element to them. It is possible that [A’s] concussion, as well as his fall from the lounge and [B’s] hand, may be incidents of careless or even reckless behaviour with the boys.
And he also notes what he describes as Father’s proclivity for impulsive and adventurous behaviour and his recklessness in being caught in the avalanche. Dr W said:
I would have thought these matters are worth noting, and that it would be wise for [the father] to be accompanied while the twins are young, very active and require close and simultaneous supervision.
And then Dr W goes on to say:
A potentially far more serious concern is whether there is a risk that [the father] will kill the boys and himself. The material available to me does not draw me to the conclusion that this is an unacceptable risk in this case. While Mother feels that Father fits the profile for such individuals, I felt that there were several important matters which suggest that he does not.
And then he goes to those and says:
First and foremost, the father has had several periods of emotional crisis in his life. And on each occasion, he seems to have sought out and complied with appropriate treatment when the need was recognised. Secondly, his threats of suicide seem to have been particularly foolish and inappropriate attempts at manipulation. And I doubt whether a genuine threat of suicide was present. Thirdly, there is no evidence of significant physical violence directed towards himself or others in the past.
And then he says:
While he is clearly capable of being relentless, persistent and prepared to override virtually all other considerations to get his way, such as with the body corporate about the air conditioning condenser –
I have not referred to that but that is another one of the matters –
and probably in a number of aspects of his conduct in relation to visits in [D]. He is quite transparent and there does not seem to be a paranoid secretiveness which is often present in high risk cases.
Some exception to this is taken on behalf of the mother and obviously if time permitted, we would be able to have some cross-examination of Dr W. But learned counsel for the mother cautioned the Court about the need for taking care about those observations and that view expressed by Dr W. And really, the main basis and the main check or concern about this arises out of a matter which it is clear was not brought to the attention of Dr W. That is that the children’s father has been in the habit of taping conversations between the mother and himself. In fact, I was informed that the level of taping activity has really been quite considerable and it has involved something like 17 hours of taping conversations in which the mother has been involved.

Obviously one cannot know what Dr W might make of that. But I would not regard that, in itself, as amounting to the sort of paranoid secretiveness which Dr W is referring to in that paragraph. But having said that, one cannot simply dismiss it and take no notice of it at all. It has to be factored into all of the considerations which the Court must take into account in forming a view, ultimately, about whether there is an unacceptable risk to these children, which is really where, in my view, the legal essence of the case goes to.
The mother’s case comes down to, as I have said, whether it is in the best interest of these of children and whether it is an appropriate safeguard, given what Dr W has said, for the five persons who have been submitted by the children’s father as being appropriate persons to accompany visits by the father to the children. And in relation to this, each of those proposed accompanying persons has gone to the trouble of making affidavits. Each of them has gone to the trouble of submitting themselves to cross-examination. There has been some very detailed cross-examination of each of them today.
I must say, the overall view that I have formed about the matter is that there would not be an unacceptable risk. I am not persuaded that this Court could make a finding on the evidence that there would be an unacceptable risk to these children going for periods with their father. Certainly, something in excess of what they have been doing but certainly not overnight time at this time, provided that there were appropriate persons to undertake the responsibility of accompaniment referred to by Dr W.
Having seen each of the proposed accompanying persons, being cross-examined, I must say I regarded each of them as being responsible persons. There was some criticisms made about the fact that none of them had been made aware that the children’s father was being medicated with an anti-depressant medication or that he had ever been diagnosed as suffering from depression. I think Mrs H said that “Some of us had been aware of it”. I did not see that or some of the other criticisms which were made of the proposed persons, as being persuasive of them not being appropriate persons.
I have formed the view that three of those persons ought to be acceptable. They are certainly acceptable to me as being able to fulfil the role which Dr W has in mind. And certainly a role which this Court would have in mind as being appropriate in all the circumstances of the case. I hope it does not sound sexist, but it happens to be the three men. In my view, they bring to the matter, with respect to everybody involved, a certain set of characteristics which make me confident about placing the responsibility in them to ensure, at all times, the safety of these children.
But that is probably going to impose some difficulty because it is a pretty small group at this point. And I would hope that the mother would have confidence in their capacity to be able undertake that responsibility and lower her fears.
Ms Power made a helpful submission to the effect that the proposed accompanying persons would each enter undertakings to be present at all times with the children. That is certainly something which I would regard as being important. I am confident that each of them would act in the appropriate way notwithstanding the description by Dr W of the somewhat relentless nature of the behaviour of the children’s father at times.
I think we would need to work out the times. It might be that on the first occasion we do this, we do it perhaps for a time which is at the shorter end of the scale, maybe three hours. And then I think we move to the times at the higher of the scale. But we are certainly not going to move towards overnight at this stage. This is because I think it will cause more concern to the mother than is reasonable in all the circumstances, until such time as there can be a proper opportunity for Dr W to be cross-examined and all of the relevant evidence before the Court.

I certify that the preceding thirty-one (33) paragraphs are a true copy of the Reasons for Judgment of Judicial Registrar Johnston delivered on 25 November 2009.

Associate:

Date: 4 February 2011

[2009] FamCA 1387

25 November 2009

Key Legal Topics

Areas of Law

Family Law