Rimmington and Ors and Healey and Anor

[2015] FamCA 1025

FAMILY COURT OF AUSTRALIA

RIMMINGTON AND ORS & HEALEY AND ANOR [2015] FamCA 1025

FAMILY LAW – PARENTING – INTERIM APPLICATIONS – Where final Orders made after a defended hearing provided that the children spend no time with the father – Where, following an unsuccessful appeal by the father, the paternal grandparents and uncles filed an application seeking final orders that the children spend time with them – Application in a Case by the paternal grandmother, seeking that the findings of credit made by the trial judge in the previous defended hearing are not taken into account in these proceedings, dismissed because those findings do not bind any subsequent trial judge – Application in a Case by the paternal uncle, seeking that the mother make concessions in relation to an allegation, dismissed because the allegation was not raised by the mother in these proceedings – Application in a Case by the paternal uncle, seeking orders that the mother disclose whether her belief in relation to the father is genuine or rational, dismissed because this is a matter for evidence and is irrelevant in circumstances where the substantive application does not seek that the children spend time with the father – Application in a Case by the paternal uncle, seeking orders the maternal grandfather be joined to the proceedings, dismissed because the maternal grandfather opposed the joinder and did not seek any orders and because of the absence of supporting evidence.

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

1^ST APPLICANT: Mr FJ Rimmington

2ND APPLICANT:	Ms HR Rimmington
3RD APPLICANT:	Mr P Rimmington
4TH APPLICANT:	Mr PP Rimmington
1ST RESPONDENT:	Ms Healey
2ND RESPONDENT:	Mr Rimmington
INDEPENDENT CHILDREN’S LAWYER	Independent Children’s Lawyer

FILE NUMBER: DUC 437 of 2013

DATE DELIVERED: 23 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 11 November 2015

REPRESENTATION

1^ST APPLICANT: In Person

2ND APPLICANT:	In Person
3RD APPLICANT:	In Person
4TH APPLICANT:	In Person
SOLICITOR FOR THE 1ST RESPONDENT	Mark Macdiarmid Family Law Specialist

2^ND RESPONDENT:  In Person

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

IT IS ORDERED

1. That the Amended Application in a Case filed by Ms HR Rimmington on 15 October 2015 be dismissed.

2. That the Amended Application in a Case filed by Mr PP Rimmington on 26 August 2015 be dismissed.

3. That the Application in a Case filed by Mr P Rimmington on 31 October 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington and Ors & Healey and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: DUC 437 of 2013

Mr FJ Rimmington

1^st Applicant

And

Ms HR Rimmington

2^nd Applicant

And

Mr P Rimmington

3^rd Applicant

And

Mr PP Rimmington

4^th Applicant

And

Ms Healey

1^st Respondent

And

Mr Rimmington

2^nd Respondent

REASONS FOR JUDGMENT

1. B and A are identical twins born in 2008 (“the children”). Their parents are Mr Rimmington (“the father”) and Ms Healey (“the mother”). The parents separated in February 2008 and have lived apart since that date.

2. In 2012 there were defended proceedings between the mother and the father in relation to parenting over a period of twelve days which culminated in Orders delivered on 19 September 2012 providing for the children to live with their mother, who was to have sole parental responsibility for them, and for them to spend no time with their father.

3. The father appealed against those Orders. In the judgment of the Full Court, delivered on 7 August 2014, the issues which were the subject of the trial and consequently of the appeal are set out by the Full Court in the following way:

   1.A twelve-day trial of parenting issues before Watts J involved a number of gravely serious allegations and counter-allegations, any of which, if made out, can be seen to place young twin boys, [B] and [A] (born … 2008) at grave risk of physical, psychological and/or emotional harm. 

   2.The mother alleged that the children had been sexually abused by their father.  In addition, the mother told a reporting expert psychiatrist that “it is possible that [the father] would kill one of the boys to get back at her.”  The same reporting psychiatrist suggested that the children were at risk of the mother committing what the trial judge’s reasons refer to as “an altruistic murder/suicide or suicide.”

   3.Evidence before the trial judge suggested that the father had harboured homicidal ideation toward the children specifically associated with events which occurred on and after 20 July 2012.  Those events concerned the father removing the children from a Contact Centre and the subsequent retrieval of the children by the police.   Other evidence pertaining to those events elicited an assertion by the mother that the father had contemplated suicide at that time. 

   4.Each of the parties has a history of mental health difficulties.  The mother had been admitted to hospital for psychiatric care on two earlier occasions and had been receiving treatment from a psychiatrist and counsellor for some years.  The mother contended that, if an order was made that the children live with their father, she would absent herself from their lives. 

   5.The trial judge made findings of “bizarre behaviour” by the father during the course of the trial (at which he represented himself).  The events of 20 July 2012 resulted in the reopening of proceedings before his Honour at which evidence was tendered pertaining to the father’s admission as a psychiatric inpatient at a hospital.

   6.The terms of the parenting orders ultimately made by the trial judge, expressed broadly, accorded the mother “sole parental responsibility” for the children and provided for them to live with her and spend no time with their father.  

4. The father’s appeal was dismissed.

5. On 20 December 2013 the paternal grandparents filed an application seeking orders that the children spend time with them. That application has been amended on a number of occasions. The current application for final orders before the Court is an application in which the paternal grandparents, Mr FJ Rimmington (“Mr FJ”) and Ms HR Rimmington (“Ms HR”), and the father’s brothers, Mr P Rimmington (“Mr P”) and Mr PP Rimmington (“Mr PP”), are applicants.

6. By a Further Amended Initiating Application filed on 2 November 2015, the paternal grandparents and paternal uncles seek orders that the children spend time with them and with the children’s cousins each year, on the penultimate weekend of the summer school holidays, on the second weekend of the autumn school holidays and on the penultimate weekend of the spring school holidays. The application seeks orders that the time with the children continue with the paternal uncles and cousins in the event of the death of the paternal grandparents. Further orders provide that the father is not to be present during any visit unless the mother expressly agrees.

7. The applicants seek orders restraining the mother from relocating the children to any address outside New South Wales without their prior agreement and specific orders for the mother to attend counselling. There are other orders sought in relation to third parties, specifically the maternal grandparents.

8. The mother, in her Amended Response filed on 25 February 2014, seeks that the application of the paternal grandparents and paternal uncles for final parenting orders be dismissed.

9. The father, by way of an Amended Response filed on 21 September 2015, seeks that the final Orders made by Justice Watts on 19 September 2012 be discharged. He seeks orders that, if the mother consents to counselling, the parents have shared parental responsibility for the children and the children spend time with him each alternate weekend and for half of school holiday periods. If the mother does not consent to counselling, the father proposes that he have sole parental responsibility and the children live with him and spend time with the mother, accompanied by another adult, each alternate weekend and for half of the school holiday periods. The father also proposes that both he and the mother attend monthly counselling sessions, either separately or together, until the maternal and paternal grandparents consent to them ceasing counselling.

10. Currently before the Court are a number of Applications in a Case filed by the paternal grandmother, Ms HR, and the children’s uncles, Mr PP Rimmington and Mr P Rimmington. Those applications are to be determined.

THE APPLICATION OF MS HR RIMMINGTON

1. On 13 November 2014 Ms HR filed an Application in a Case which was amended by an application filed on 15 October 2015. The orders which are sought are:

   That the Reasons for Final Judgment handed down in proceedings SYC 1762 of 2009 … to the extent that those Reasons pertain to findings as to credit (or to findings of fact that flow directly from a finding as to credit), shall be excluded from the Court’s consideration and determination, of any issues as to credit which arise in these proceedings DUC 437/2013.

2. That application was supported by an affidavit by Ms HR which was sworn on 7 November 2014. The affidavit was in the nature of a submission. Ms HR also relied upon written submissions.

3. The application was opposed by the mother. The applicant, Ms HR, relies upon the fact that, in the reasons for judgment of his Honour Justice Watts, his Honour made adverse findings about the credit of the father. The father is not an applicant in the present proceedings. It is not asserted on behalf of Ms HR that his Honour made any adverse findings in relation to her or to other members of her family other than the father.

4. The judgment of Justice Watts forms part of the record of these proceedings. Insofar as the judgment makes findings of fact, and those findings were not overturned on appeal, an estoppel arises in relation to those findings of fact.

5. A further complicating factor arises out of the father’s application for parenting orders. That application is opposed by the mother who relies upon the decision in Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”) and contends that the father should not be permitted to bring further proceedings in the circumstances. In order to determine the Rice v Asplund issue as between the father and the mother, it will be necessary to have regard to the situation of the children at the time of the trial, as found by his Honour, and to consider what, if any, changes of significance have occurred. For that reason alone, the application of the paternal grandmother must fail.

6. The findings of credit which were made by Justice Watts were based upon the evidence which was given by the parties in the proceedings before him. They cannot and do not bind any subsequent trial judge who would base his or her findings of credit upon the evidence given in the proceedings before that judge.

7. The application of Ms HR will be dismissed.

APPLICATION OF MR P RIMMINGTON FILED 31 OCTOBER 2014

1. This application seeks the following orders:

   1.That the First Respondent disclose to the Third Applicant, within 14 days, whether or not:

   the First Respondent concedes that allegations in 2011 and 2012, to the extent those allegations assumed the Third Applicant to have facilitated invasive sexual assaults on his 3 year old twin nephews, were wrong;

   2.That the First Respondent also disclose to the Third Respondent, within 14 days, whether or not:

   the First Respondent proposes to rely on those allegations about the Third Respondent (described in item 1 above) at any future date in these proceedings (DUC 437/2013).

2. In support of the application, Mr P Rimmington relies upon an affidavit sworn 31 October 2014 in which he deposes, inter alia:

   [The mother] objected in 2009 to me (and to my cousins [Mr JS], [Mr PS] and Ms ES and their mother Ms HS) being approved by the Family Court, as a mature adult fit to companion [the father], when he was with [the children].

   In about July 2011 the Family Court excluded my ongoing participation, as a Court approved companion for [the father], and [the children]. Whilst I do not recall ever reading any relevant evidence provided by [the mother], I am aware that [the mother] made allegations in about June 2011 to the [D Town] Police and to the Family Court that I watched and permitted [the father] to effect invasive sexual assaults on both [children], 4 months after their 3^rd birthday.

   I am unaware as to whether [the mother] will, at any future stage of these proceedings, object to my Application to spend time with [the children], owing to any ongoing allegation by [the mother], as to any ongoing belief by her (notwithstanding overwhelming evidence to the contrary) that [the father] and I participated in sexual assaults on the boys.

   Whilst [the mother] has filed lengthy affidavits in these proceedings, none of [the mother’s] affidavits makes any direct mention, of the allegations which [the mother] made to the Family Court over the course of 2011 and 2012 about [the father] and myself.

3. The mother has filed affidavits in these proceedings sworn by her on 10 September 2014, 2 August 2014 and 24 February 2014. The mother is represented by solicitors.

4. In her affidavit sworn 2 August 2014 the mother’s objection to Mr P Rimmington spending time with the children is set out at paragraphs 77 to 79 inclusive. Her objection is based upon her fear that Mr P Rimmington will allow the children to be brought into contact with the father.

5. The mother makes no allegation in relation to any conduct on the part of Mr P Rimmington towards the children.

6. Thus, in this application, Mr P Rimmington asks the mother to make a concession in relation to an allegation that she does not make in these proceedings.

7. That application will be dismissed.

AMENDED APPLICATION IN A CASE BY MR PP RIMMINGTON FILED 26 AUGUST 2015

1. This application seeks the following orders:

   1.That the Mother disclose, forthwith, whether the Mother contends to this Court, that the following allegation quoted from Paragraph 71 of her affidavit filed on 6 August 2014 (“the Key Allegation”):

   “I feel absolutely certain that [the father] will harm or kill the children to get back at me. I believe it is only a matter of time”

   IS

   (a)     both genuine and rational

   OR:

   (b)     genuine but not rational.

   2.That if the Mother does not seek to argue that the Key Allegation is rational:

   that the Mother disclose, also forthwith, if the Mother is agreeable in principle, to undertake counselling for the purpose of assisting her to challenge the cause(s) of the Key Allegation and to neutralise any related anxieties.

   3.That if the Mother seeks to argue that the Key Allegation is rational:

   that the Mother file within 14 days an affidavit which discloses, in respect of the Themes identified in Annexure “B” to [Mr PP Rimmington’s] affidavit dated 12 November 2014:

   (a)     Which of those Themes the Mother concedes “mitigates against the risk” in the Key Allegation;

   and

   (b)     In respect of each of those Themes, on which the Mother is unwilling to make the concession in 3(a) above, the reason why the Mother contends the Theme “does not mitigate against the risk” in the Key Allegation.

   4.That the Mother’s father, [Mr BW Healey], be joined to these proceedings.

   5.That irrespective of the Mother’s disclosure pursuant to Order 1, the Mother undertake forthwith counselling, for the purposes of assisting her to challenge the cause(s) of the Key Allegation and to neutralise any related anxieties which she holds; including the Mother’s consideration of the merit (or lack of merit) of each of the Themes identified in annexure “B” to [Mr PP Rimmington’s] affidavit dated 12 November 2014.

   6.That irrespective of the Mother’s disclosure pursuant to Order 1, the Mother undertake educational counselling, for the purpose of expanding her insight, into the benefits of children having meaningful relationships with their wider family members, including in particular both their Paternal Grandparents and their Father.

   7. That other parameters for such counselling for the Mother (including the Counsellor and the forum for such the (sic) counselling) be agreed by the parties within 21 days, and in absence of such agreement, that the Independent Children’s Lawyer propose for the Court’s further consideration, other parameters for such counselling.

   8.That the Mother’s father, [Mr BW Healey], be directed to undertake counselling, for the purposes of assisting him to challenge the causes of, and to neutralise any related anxieties which he holds, in relation to:

   (a) his stated fear that [the father] intentionally harmed his newborn son [A] in January 2008;

   (b) his stated fear in relation to [the father] as advised to the [D Town] Police in May 2008;

   (c) his stated fear that [the father] intentionally threatened his 5 month old son [B] in June 2008;

   (c) his stated fear that he unknowingly participated in abuse of [B] with [the father] in June 2008.

   (d) his stated fear that [the father] and [Mr JS] would abduct [the children] in August 2008;

   (e) his stated fear that [the father] intentionally harmed his 11 month old son [B] in December 2008;

   (f) his stated fear (as at 20 July 2012) for the safety of himself, his wife [Ms CC], his daughters [the mother] and [Ms OO]D, and his grandsons [the children] – notwithstanding [Mr BW’s] inability to identify any word of threat to the safety of any of those persons by [the father], during the nine (9) years since [Mr BW] met his future son-in-law at [Town C] airport in June 2003 – with the exception of a verbal threat which [Mr BW] alleges was made by [the father] to his 5 month old son [B] in the public grounds of [WR Gardens] at [D Town] in June 2008.

   9.That any Final Hearing of parenting proceedings DUC 437/2013 be adjourned for a period of 3 months, following commencement of the proposed counselling for the Mother and her father [Mr BW], to permit the Mother and her father [Mr BW], and the other Parties to these proceedings, to further consider the merits of pursuing mediation (in lieu of this litigation) of their differences, in the light of the Mother’s and her father [Mr BW’s] experience with, and any progress from, the counselling proposed for them in these Interim Orders.

2. The substantive application upon which Mr PP Rimmington relies is that contained in the Further Amended Initiating Application filed on 2 November 2015. Order 7 of that application reads:

   That absent the Mother’s express agreement to the contrary, the Children’s father [named] shall not attend any visit described herein, whilst any Family Court orders exist, which otherwise preclude contact between the Children and [the father].

3. Orders 1 – 3 of the Amended Application in a Case relate to the mother’s stated belief that the father will harm or kill the children. In circumstances where the application of Mr PP Rimmington specifically relates to time to be spent with the children in the absence of the father it is difficult to see how this issue is relevant to his application.

4. However, given that the mother has stated her belief in the affidavit upon which she relies in these proceedings, the question of whether or not the belief of the mother is either genuine or rational is a matter for evidence. That evidence would necessarily include both the evidence of the mother and evidence from her treating medical health professionals.

5. Similarly, the extent to which those matters which are set out in the nine page document of “Themes” annexed to Mr PP Rimmington’s affidavit militate against the risk which the father may pose to the children is irrelevant in circumstances where the substantive application before the Court does not include the children spending any time with the father.

1. Orders 4 and 8 of the Amended Application in a Case relate to the maternal grandfather, Mr BW Healey. The application firstly seeks an order that Mr BW Healey be joined as a party to the proceedings.

2. Mr BW Healey opposes the application and does not wish to participate as a party to the proceedings. Mr BW Healey seeks no orders in relation to the children. The affidavit sworn by Mr PP Rimmington on 12 November 2014 does not contain any evidence in relation to this application.

3. Insofar as the written submissions relied upon in support of this application suggest that it would be in the interests of the children for Mr Healey to “recant” any allegation which he makes in relation to the father I note that no affidavit has been filed in the proceedings by Mr BW Healey and therefore no allegation has been made in the proceedings by him.

4. In relation to the case outline relied upon by Mr PP Rimmington, although the submissions appear to have been made on his behalf, the submission at page 10 contains these words (bold emphasis added) “A simple change of heart, can end this litigation, for (sic) great Befit of our twins.” It would seem therefore that the submissions are not submissions made by Mr PP Rimmington on his own behalf but rather submissions made by the father standing in Mr  PP Rimmington’s shoes.

5. Mr PP Rimmington does not press orders 5-9 inclusive of the application. Matters relating to the participation of the mother in counselling would necessarily be matters for the final hearing in any event.

6. The application will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 November 2015.

Associate: 

Date:  23/11/2015