Rimmington & Ors & Healey & Anor (No 2)

FAMILY COURT OF AUSTRALIA

RIMMINGTON & ORS & HEALEY & ANOR (NO 2)

[2015] FamCA 1079

FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Application in a Case filed by the paternal grandparents and uncles seeking various orders against the mother and the maternal grandparents – Where there is a lack of evidence as to the orders sought – Where the application is premature – Where it is not possible to discern the nature of some of the orders sought – Where some of the orders sought do not appear to be relevant to the proceedings – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Rimmington & Healey [2014] FamCAFC 140

1^STAPPLICANT:

Mr FJ Rimmington

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

FILE NUMBER:

DUC

437

2013

DATE DELIVERED:

3 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

In Chambers

REPRESENTATION

1^ST APPLICANT:

In Person

2^ND APPLICANT:	In Person
3^RD APPLICANT:	In Person
4^TH APPLICANT:	In Person
SOLICITOR FOR THE 1^ST 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

That the Application in a Case filed 3 November 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington and Ors & Healey and Anor 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 437/2013

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

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.
In 2012 there were defended proceedings in relation to parenting over a period of twelve days which culminated in orders 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.
The father appealed against those orders. In the judgement of the Full Court of the Family Court of Australia (“the Full Court”), 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.
The father’s appeal was dismissed.
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 (“the paternal grandfather”) and Ms HR Rimmington (“the paternal grandmother”), and the father’s brothers, Mr P Rimmington and Mr PP Rimmington (“the paternal uncles”) are applicants.
By their 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.
The applicants in the Further Amended Initiating Application also 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.
On 3 November 2015, the paternal grandfather, on behalf of all the applicants, filed an Application in a Case seeking various orders against the mother, the maternal grandfather and the maternal grandmother.
On 23 November 2015 judgement was delivered in relation to three other Applications in a Case filed on behalf of the paternal grandmother and the paternal uncles. On the same day directions were made for the filing of written submissions in relation to the Application in a Case filed on 3 November 2015. That application is supported by an affidavit of the paternal grandfather sworn on 19 October 2015.
When these proceedings were before the Court on 11 November 2015, I directed that the applicants and the respondent mother each file written submissions and that the Application in a Case filed 3 November 2015 would be determined in chambers.
The paternal grandfather relies upon written submissions filed prior to 11 November 2015 and indicated that he did not wish to make any further submissions.
The mother relies upon written submissions dated 24 November 2015.
The Application in a Case filed on 3 November 2015 seeks orders firstly against the mother, secondly against the maternal grandmother Ms CC Healey and thirdly against the maternal grandfather Mr Healey.
In relation to the orders sought against the mother they are as follows:
1.   Pending further order the mother not move [the children] to a new home outside New South Wales.
2.   That within 14 days the mother inform the parties whether or not, the mother has any ‘in principle’ objections to the Applicants' Further Amended Initiating Application, which are in addition to:
a.the seven issues identified in Ms Grew’s letter dated 12 June 2015;
b.the ‘eight’ issue identified in the 2^nd Respondent’s email dated 30 August 2015.
3. That any party to these proceedings may tender evidence of any settlement discussions (in either these parenting proceedings or in earlier parenting proceedings) which the tenderer submits is tendered for the purpose of contradicting or qualifying, pursuant to Subsection 131(2)(g) of the Evidence Act 1995, evidence which is adduced in these proceedings, or any inference from such evidence.
4.   That within 14 days the mother respond to the 2nd Respondent’s Notice to Admit served on 11 December 2014, clarifying which items in the Notice the mother either (i) admits; (ii) disputes; (iii) is unable to admit or dispute; (iv) admits in part only.
5.   That within 14 days the mother disclose to the parties whether or not the mother either (i) admits; (ii) disputes; (iii) is unable to admit or dispute the father’s allegation to effect, that following their marriage and during the course of his co-habitation with the mother that:
“a stammer developed in his speech.”
In support of order 1, the paternal grandfather deposes that the home in which the mother and the children live, with the maternal grandparents, is for sale and annexes advertisements from the selling agent. The mother and the children currently live on a rural property near D Town.
The paternal grandfather, who is one of the applicants in these proceedings, lives at NN Town which is some 700kms from D Town and the paternal uncles, who are also applicants in the proceedings, live in Sydney which is also some 700kms from D Town.
The order sought would have the effect that the mother could move with the children to any location in New South Wales which is even further from NN Town than D Town.
There is currently no order which provides for the children to spend time with either the applicants in this application or with any of the paternal family. There is no evidence before the Court that the mother intends to remove the children from the state of New South Wales.
There is no evidence upon which the order sought could be made.
In relation to order 2(a), the letter of Ms Grew dated 12 June 2015, is not in evidence. The written submissions do not address proposed order 2 and it is not possible to discern what orders are in fact being sought.
In relation to order 2(b), the second respondent to these proceedings is the father and it would appear that the applicants in this application are seeking information on behalf of the father.
In relation to order 3, the written submissions indicate that the applicants proposed to tender evidence of settlement discussions in March 2012 and October 2015 which, it is submitted, will be tendered pursuant to the provisions of s 131(2)(g) of the Evidence Act 1995 (Cth). That is an application which can properly be made in the course of the hearing, when the documents referred to, or the evidence sought to be relied upon, would need to be the subject of a consideration as to its admissibility at the time it is sought to be tendered. This is not a ruling which could be made in advance without the opportunity to consider the contents of the document or the nature of the evidence.
This application is premature.
Order 4 purports to seek relief on behalf of the father. The Notice to Admit (“the Notice”) is not in evidence. The solicitor for the mother submits that she has replied to the Notice, disputing paragraphs 1 to 7. It is not appropriate for the applicants, who are not the party who served the Notice, to seek to agitate this issue.
The matters to which order 5 refers do not appear to be relevant to these proceedings.
In relation to orders 6 to 7 inclusive, order 6 seeks an order that the maternal grandmother be joined as a party to the proceedings. The maternal grandmother opposes that application. She does not wish to be a party to the proceedings. She does not seek any orders in relation to parenting.
Order 7 seeks orders that the maternal grandmother make disclosure in relation to matters which occurred during visits by the paternal grandparents to her home in January 2013 and in relation to the maternal grandmother’s beliefs about matters which occurred prior to the proceedings before his Honour Justice Watts. At the present time, no affidavit has been filed by the maternal grandmother.
It is a matter for the mother whether or not the maternal grandmother gives evidence in her case. If she does so, then she will be made available for cross-examination. The balance of the matters referred to in orders 7(b) to (e) inclusive are matters for cross-examination, if they are relevant to the proceedings ultimately before the Court.
Order 8 seeks an order that the maternal grandfather be joined as a party to the proceedings. I have already dismissed an application to that effect made by Mr PP Rimmington, the paternal uncle, on 26 August 2015, and I do not propose to repeat the reasons for that dismissal which are contained in the reasons for judgment dated 23 November 2015.
Order 9 seeks orders that the maternal grandfather “disclose” whether he observed untoward conduct by the paternal grandparents during their visits to the home of the maternal family in January 2013 and that he disclose his state of mind in relation to matters which were in evidence before Watts J. The maternal grandfather has not filed an affidavit in these proceedings. Whether he will do so is a matter for the mother and her legal advisors. If he files an affidavit which deals with any or all of the matters to which reference is made in order 9, then, in so far as those matters are relevant to the issues for determination in these proceedings, that evidence will be subject to cross-examination.
The Application in a Case filed on 3 November 2015 will be dismissed.
In their written submissions, the maternal grandparents seek orders for costs. Any application for costs should be filed in accordance with the Family Law Rules 2004 (Cth).

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 December 2015.

Associate:

Date: 3 December 2015

[2015] FamCA 1079

3 December 2015

Key Legal Topics

Areas of Law

Civil Procedure

Legal Concepts

Costs

Summary Judgment