DAMICO and DAMICO

[2022] FCWA 143

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DAMICO and DAMICO [2022] FCWA 143

CORAM: DUNCANSON J

HEARD: 17, 18, 19, 20, 21 JANUARY 2022

DELIVERED : 13 JULY 2022

FILE NO/S: [Redacted]

BETWEEN: MR DAMICO

Applicant

AND

MS DAMICO

Respondent

Catchwords:

CHILDREN - where it is found the father does not pose an unacceptable risk of harm to the children - consideration of the mother's beliefs including that the father will harm or kill her - where it is found the mother's beliefs are genuine but disproportionate to the circumstances - where the mother's fear of the father has been transmitted to the children - consideration of whether the children spending unsupervised time with the father will impact negatively upon the mother's parenting capacity - where orders are made that until further order the children live with the mother - orders for reportable therapy as recommended by the single expert witness

Legislation:

Family Law Act 1975 (Cth) s 60CC

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Bannerman
Respondent	:	Mr N Wong
Independent Children's Lawyer	:	Ms A Korzeniecka

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	HRL Legal Australia Pty Ltd
Independent Children's Lawyer	:	Platinum Legal

Case(s) referred to in decision(s):

Blinko & Blinko [2015] FamCAFC 146.

Damico and Damico [2020] FCWA 53.

Keane v Keane (2021) 62 Fam LR 190.

Moose & Moose (2008) FLC 93-375.

Re Andrew (1996) 20 Fam LR 538.

Slater v Light (2013) 48 Fam LR 573.

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Damico and Damico has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 of the Family Court Rules 2021 (WA).

1[Child A], aged 13 years and [Child B], aged 10 years continue to be the subject of parenting proceedings between their parents [Mr Damico], the father and [Ms Damico], the mother.

THE PREVIOUS PROCEEDINGS

2A trial in this matter took place in February 2020. I delivered my reasons for decision on 7 April 2020 ([2020] FCWA 53).

3At the time of the first trial, the children were living with the mother in [State A]. She had left the family home in Perth in February 2019 and taken them with her. The father remained in Perth with the two adult children of the marriage, [Child C] and [Child D] ("the adult siblings"). The father sought the children's return.

4On 23 April 2020 I ordered that, until further order, the children live with the mother and have supervised electronic communication with the father. I further ordered that the children participate in counselling and that [Dr H] be appointed single expert witness to assess whether either of the parties had a diagnosable psychiatric condition or mental health condition, and to report as to associated matters.

5In my reasons I considered the mother's assertion that the children were at an unacceptable risk of harm in the care of the father, by being exposed to family violence, specifically his intention to harm or kill her. I found the mother's fear to be genuine, but I could not say whether, in accordance with the view of the single expert witness [Dr T], that fear was disproportionate to the issues. I took the view that a psychiatric assessment of the mother was required.

6Prior to separation, and during the course of proceedings, the father used drugs including methamphetamine. At the first trial he lied about that use to the single expert witness and to the Court. I found that his continued drug use posed a risk to the children by his behaviour, and it compounded the risk he posed to the mother by increased aggression and lack of impulse control.

7The father had threatened to harm the mother in text messages to her after the interim Apprehended Domestic Violence Order ("ADVO") was granted. I did not know if the father would carry out his threat to harm the mother, and I required further assessment of the father. I found that the father's continued methamphetamine use posed a risk to the children by way of his behaviour, but I could not make a finding whether it was one which could be managed such that the risk was not an unacceptable risk. A further issue to be considered was whether the father should have an opportunity to demonstrate that he could cease using methamphetamine and high levels of cannabis, and that his anger and impulsivity directed towards the mother would abate such that she could feel safe and live without fear.

8I was unable to make final orders. By reason of the concerns regarding the mother's fear of the father and his behaviour and substance abuse, I considered an assessment of both parties' mental health was necessary to enable me to determine the future arrangements for the children.

9I considered an outcome which was in the best interests of the children was, pending further enquiry, that they continue to live with the mother, and they receive counselling.

10On 23 April 2020 I made orders to give effect to my reasons, including those as set out at [4] above.

EVENTS SINCE 23 APRIL 2020

11The children have continued to live with the mother and have settled with her in State A. They attend school there, their school reports are positive, and they are making good progress.

12As at trial, the children had been having telephone calls and had one FaceTime call with the father. He had concerns about these calls, primarily the alleged interference by the mother.

13The adult siblings participated in the telephone calls. The father deposed Child D found the interference in the calls to be frustrating and he decided not to continue to participate in them.

14Shortly before trial the children called the father and invited him to join in a FaceTime call. That was the first time there had been any visual communication between them since their meeting in the presence of Dr T in September 2019.

15The parties were assessed by the single expert witness Dr H, Psychiatrist, who provided a psychiatric report dated 6 November 2020, a response to questions dated 10 August 2021, and an affidavit sworn 20 September 2021. Dr H noted the mother required face to face assessment by a psychiatrist.

16The children attended reportable therapy sessions with [Ms K], Psychologist, between June 2020 and April 2021. Ms K provided her report dated 21 April 2021, wherein she stated Child A reported feeling fearful of his safety since learning of his father's drug use, and had no desire to return to Perth, preferring his life in State A. Ms K reported Child B had been more "ambivalent about her relationship and wishes moving forward", but also had a desire to remain in State A, and for her father to visit her on occasion.

17The mother was assessed by [Dr J], Consultant Psychiatrist and Psychotherapist, who provided a psychiatric assessment dated 30 June 2021 which was corrected to 30 July 2021.

18The father attended [Alcohol and Drug Counselling]. The first appointment was in person and subsequently occurred by way of a scheduled call every two weeks, which continued for six months.

19The father underwent hair strand and urinalysis drug tests between 7 May 2020 and 7 December 2021. His results were negative for all substances except for positive readings for cannabinoids/THC in respect of the tests dated 7 May 2020 and 25 August 2020.

20The results were set out by the ICL in the trial bundle table of contents as follows:

Test	Collection date	Result
Hair strand test	7 May 2020	Negative
Hair strand test	25 August 2020	Negative
Hair strand test	30 November 2020	Negative
Urinalysis test	12 February 2021	Negative
Hair strand test	18 February 2021	Negative
Urinalysis test	4 March 2021	Test dilute
Urinalysis test	9 March 2021	Negative
Hair strand test	24 May 2021	Negative
Urinalysis test	29 July 2021	Negative
Hair strand test	1 September 2021	Negative
Urinalysis test	25 November 2021	Negative
Urinalysis test	7 December 2021	Negative
Hair strand test	7 December 2021	Negative

21The single expert witness Dr T, Clinical and Forensic Psychologist, provided a further report filed 4 January 2021. He recommended that the children remain living with the mother, contact with the father and adult siblings need not be supervised, and the children should spend holiday time in Western Australia. He recommended the family receive psychotherapeutic support, and said if this does not occur, Child A will likely be resistant to contact in anticipation of the mother's wishes.

THESE PROCEEDINGS

22Once again, these proceedings involve an assessment as to whether either party represents a risk of harm to the children, and if so whether the risk is an unacceptable one.

THE PARTIES' POSITIONS AND THE ORDERS SOUGHT

The independent children's lawyer

23The children have been represented by an Independent Children's Lawyer ("ICL") throughout the proceedings, at the first trial by [Mr A], and latterly by Ms Korzeniecka.

24On the last day of trial, the parties and the ICL each provided amended minutes of orders sought.

25The ICL seeks orders that the mother have sole parental responsibility for the children, they live with her and have electronic communication with the father. The ICL seeks orders that the parties and children engage in reportable therapy, with the adult children at liberty to participate if deemed appropriate. The ICL seeks an order that in the event the therapist recommends that the children and the father spend time with each other, then the parties facilitate the time recommended. The ICL proposes that upon the appointment of a therapist, the ICL be discharged.

The father

26The father proposes that he have sole parental responsibility for the children, they live with him and spend significant periods of time with the mother in Western Australia if she visits, and in State A if they visit her there during holidays. He also proposes she have unfettered access to communicate with the children by electronic means.

27The father proposes that in the event the mother and the children return to Western Australia the parties have equal shared parental responsibility for the children and they live with the parties on a week about arrangement.

28The father proposes that in the event the children remain in State A and he relocates there, the same arrangements apply.

29The father proposes that if the children remain in State A and he remains in Western Australia, the mother have sole parental responsibility for the children, and they live with her. He proposes the children spend significant periods of time with him both in State A and in Western Australia and that he and the adult siblings have unfettered electronic communication with the children.

30The father proposes orders including that the parent with whom the children live shall enrol the children in counselling with a qualified counsellor or psychologist and the counsellor be required or requested to provide information to the ICL.

31The father's position is that he does not pose a risk to the mother and he has addressed his substance abuse as evidenced by the negative test results. He deposed that the mother's belief he will look to find her and harm her or even kill her is "completely ridiculous". He deposed he has never taken steps to try and do that, nor has he tried to find out where she is. In evidence, he accepted his text messages to the mother were "appalling" and that he had no excuses.

32Counsel for the father submitted that returning the children to Western Australia is the only way to give them an opportunity at a life where they know it is "okay" to love siblings and both parents. He submitted this cannot happen if they remain in State A in circumstances where the mother's view is that if the father knows where she lives, her physical safety is at an unacceptable risk.

The mother

33The mother proposes that she have sole parental responsibility for the children, they live with her, and the father and adult siblings spend time with the children at contact centres only in State A. She proposes that redacted information relating to the children be passed to the father's lawyer, the children have electronic communication in the form of telephone or video calls with the father on Tuesdays and Thursdays, birthdays and special occasions. She proposes she engage with a therapist and she enrol the children in counselling. The mother proposes the father notify her prior to visiting State A and that a lifetime FVRO against the father be granted.

34The mother remains fearful of the father and believes he has made continuous attempts to find out where she lives when communicating with the children. She deposed she is fearful the father will locate the children and her and then "harm and/or kill her". The mother was asked by counsel for the father if she thought the father would go to State A to try to locate her for the purpose of maiming or killing her. She replied she did.

35The mother's position is that if the children live in Perth, she would remain in State A and would not visit them.

THE PARTIES AND THE EVIDENCE

The father

36The father deposed that phone calls with the children went well in the beginning but were extremely emotional as the children missed him and their adult siblings. He deposed the mother became involved in the calls and made excuses to hang up.

37The father deposed that in a phone call in 2020 Child A accused him of using drugs, said he had seen the father's name on a drug test and demanded the father do another test. The father responded by telling Child A that a positive drug test did not mean he was on drugs, and there were a lot of factors which could make a drug test positive without a person being addicted. As to his response the father explained he had been trying to minimise the pain for Child A and that one day, he will have a conversation with Child A about drug use, apologise, and tell Child A he made a mistake. The father said he was not going to have that conversation in front of Child B. I accept the father's explanation and consider his response to Child A was not inappropriate in the circumstances. He had not expected that conversation and understandably tried to play down the situation.

38The father deposed that during the next phone call Child A accused him of breaking into the safe house. This was a reference to the mother's evidence at the first trial that the father was at the refuge where she was staying. The father told Child A he would never do that, and he heard the mother say he was lying, which Child A then repeated. He firmly told Child A not to accuse him of being a liar before hanging up. For the following two weeks, Child A stopped talking and the father spoke only to Child B, who was "more distant and quiet". Phone calls then ceased for around four weeks. They subsequently resumed, although the father said the mother still interfered.

39The father deposed that during a later phone call he mentioned to the children how important it was for them to have family in their lives, to which the mother interjected and stated "not when the father is a drug addict", which caused him to hang up the call straight away.

40In relation to the father's prior drug use and evidence at the first trial, he accepted he was not truthful with the Court regarding his drug use and said he did not want to pretend he had an excuse for what he did. He said that he had done two years of clean hair tests to "put things in the right place again". It was put to the father that the end of trial may ease the scrutiny on his drug use, to which his immediate response was that he would be happy to do hair tests every three months.

41By way of explanation as to his previous drug use, the father deposed that after reading the mother's journal which referred to an ex‑boyfriend, he lapsed into illicit drugs. In my view that does not adequately explain or excuse his methamphetamine use. Nevertheless, I accept that with drug counselling and the support of the adult siblings the father has ceased drug use and provided negative tests.

42The other aspect of concern with respect to the father's previous behaviour related to text messages he sent to the mother after an interim ADVO was obtained, and in particular those containing threats to harm her. I found that the text messages were vile and threatening and were likely to have reinforced the mother's fear.

43I found it difficult to describe the mother's fear as disproportionate in those circumstances. I found:

178. I am unable to come to the same view as [Dr T]. If as [Dr T] says the father is a man who lacks restraint, in my view there exists a risk that the father, a man who uses methamphetamine, may carry out his threats. At the very least, the risk of family violence perpetrated by the father against the mother in the future cannot be disregarded.

…

190. I do not know if the father will carry out his threat to harm the mother. I require further assessment of the father. If [Dr T's] view that the father is unlikely to physically harm the mother is correct, that will have a significant impact on my decision as to orders which are in the best interests of the children. At this stage, without psychiatric assessment of the father, and based on the facts set out above I am unable to share [Dr T's] view.

44The father acknowledged the text messages caused a lot of damage. In evidence he did not try to justify the text messages and regretted sending them.

45The father did not see why the parties would not be able to share parental responsibility for the children. He saw no reason for the mother to be worried about communicating with him as he had no intention to cause more damage than he had done already. He said they did not have to be enemies and could have a normal separation which would be in the best interests of the children. The father also wished the adult siblings could solve things with the mother. I consider he was sincere in this hope.

46The father was cross-examined as to his view of Child A's relationship with the mother. He acknowledged the mother was now more attuned to Child A's emotional wellbeing and needs, but referred to Dr T's first report, and said during the years she lived in Perth, she was very distant. The father was concerned that the mother had changed because the parties were in Court and for the purpose of Dr T's updated report.

47In cross-examination, the ICL asked the father about his proposals. I am satisfied that the father does not seek to restrict the children's time with the mother if they live with him.

48The father presented very differently to the way he did at the first trial. At that time, he did not accept that his drug use and threats of violence posed a risk of harm to the children. He has since accepted that his behaviour was responsible for my findings in that respect, and he has taken positive steps to address this behaviour.

49There has also been a significant change in the father's attitude towards the mother. He said he wanted to have a good relationship "for the best interests of the kids". In concluding his evidence, the father said he wanted the children to be happy and to see their parents like normal, happy people. He wanted to forget about this stage in their lives as soon as possible, which he said had caused damage to everyone.

50The father continues to be hard-working, employed [in two forms of trade]. He no longer uses illicit substances as evidenced by the drug test results which have been produced. One test was dilute, but the father's explanation was plausible, namely that he had been working [in trade] that day and it had been very hot, and he had consumed significant quantities of water.

51In my assessment the father does not pose a risk of harm to the mother. There is no evidence of the impulsive behaviour combined with methamphetamine use, which previously posed a risk. Instead, he was conciliatory and insightful. My finding in this respect is important because the mother's fear of the father that he will locate the children and her and then harm or kill her, is the basis for the orders she seeks.

52The father does not intend to move to State A. His work is in Perth. The adult siblings' work and studies are also in Perth. In my view this ameliorates any risk to the mother. I asked the father if he knew where the mother lives, or where the children go to school, and he said he did not. I asked him directly if he had tried to find out the children's whereabouts, and he said he had not. I accept his evidence.

53The father understood that to return the children to Perth would disturb their existing stability, but said they were suffering in State A and it was in their best interests to have a normal, stable life. His proposals for their care and schooling were given in broad terms, but I consider it is understandable that they were not more detailed at this stage.

54I refer below to the adult siblings' negative attitude towards the mother. I am satisfied however that the father does not encourage this, and he would like to see their difficulties with her resolved.

55I accept the evidence of the father and the adult siblings that the spontaneous FaceTime call initiated by the children was a very happy experience for all involved. I accept their evidence that the children were excited, and Child A showed his height and the beginnings of a moustache. The father described this as the best thing to happen to him for the last couple of years, and as a "very beautiful moment".

56As reported by Dr T, both children wish to remain living in State A with their mother and have no contact with their father. With the passage of time and the mother's opposition to direct contact, the children's views are not surprising. They are settled and comfortable with the mother who is providing well for most but not all of their needs. I refer to her capacity to provide for their emotional needs below. I am not convinced that the children's relationship with the father is damaged to the extent that the mother would suggest.

The adult siblings

57Child C and Child D are responsible adults. They are engaged in tertiary education and are in employment. Both gave evidence at the first trial in support of the father. At trial, I found both to be somewhat defensive, particularly Child D with respect to his previous evidence.

58They remain supportive of the father in every way and are fully supportive of his proposal that the children live with him. Child D indicated he was disappointed about the father's prior drug use and dishonesty to the Court at the first trial.

59Child C and Child D love and miss the children. Child D found the interference in the phone calls to be frustrating and decided not to participate in them.

60The rift between the mother and the adult siblings is a significant one. It will take much to resolve that rift and that is unlikely to occur in the context of these proceedings.

61The importance of the difficulties in the relationship between the mother and the adult siblings is whether the children will be exposed to a negative influence from them and whether they will denigrate the mother or undermine the children's relationship with her. Both have said they will not. While they may be well-meaning, in my assessment they still harbour resentment and unhappiness towards the mother which is likely at the very least, to inadvertently influence the children.

62I accept the father's evidence that he understands the adult siblings should not negatively influence the children against the mother and to the extent that he is able, he will not let that happen. I am inclined to think that he will not encourage or condone it and he understands the importance of not jeopardising his relationship and his time with the children.

63Dr H requested further information from Child C who provided her with a 10-page email. Child C confirmed the contents of this email were truthful, although she had not expected it to become known and part of these proceedings. She expected it only to be read by Dr H. Child C said that Child D was aware of the email and agreed with the content insofar as it related to himself.

64The contents of that email suggest that Child C's difficulties with the mother are deep-seated and unresolved. She said on several occasions "it's complicated". I accept that it is.

65Child C said if she found out where the children were living, she would tell her father. In this respect I consider she gave honest evidence, and I would not have expected her to keep that information from him. What is important however, is that I do not think the father would act upon that information. He is less likely to be impulsive in that way if the children have a meaningful relationship with him.

66Child D, on the other hand, said if he found out the mother's address, he would not tell the father as he would not to do anything to compromise the mother.

67As with Child C, Child D has unresolved issues with the mother, to whom he now refers [to by her first name]. Child D has texted the mother from time to time. She has responded to some, but not all, of his texts.

The mother

68The mother was extensively cross-examined regarding her evidence that on the night of 22 February 2019, she saw the father at a State A refuge where she and the children were staying ("the refuge incident").

69The mother said she and the night supervisor saw the father at the refuge. The mother also referred to a text message she received from the father shortly before the incident, which read "nice park", which she believed was a reference to her location.

70Counsel for the father put to the mother the contradictory information which would place the father in Perth at the time of the refuge incident, which included the following:

•an email to the father from a firm of solicitors which confirmed his attendance on their Perth offices in the afternoon on 20 February 2019;

• the adult siblings' evidence that the father was in Perth at home on the night of 22 February 2019;

• the father's phone records showing that phone calls were made on 21, 22 and 23 February 2019 all from suburbs in Perth;

• a letter from father's employer that he was working the day before and the day after 22 February 2019; and

•a photograph of the father said to have been taken in Perth on 22 February 2019.

71Despite the contradictory information, the mother maintained an unshakeable belief as to the refuge incident. In relation to the letter from the firm of solicitors, she said this was two days before. In relation to the phone records, she said the father was known to have multiple sim cards and multiple phone numbers. As to the evidence of the adult siblings, she did not want to say Child C was lying, although she said Child D was not being truthful. She said she had provided a witness statement from the night supervisor, although that person had never met the father.

72I consider it is more probable than not that the person the mother saw at the refuge was not the father. The evidence indicates he was in Perth on the date in question.

73The mother deposed she is scared of the father, although since moving away, she feels safer. As at trial, Western Australia's borders were closed to State A as a result of the COVID‑19 pandemic. The mother was fearful that when the borders opened, the father would travel to State A. She deposed she will never go back to Perth and should she be ordered to return to Perth, she is concerned she would, as before, be fearful and anxious of what might happen.

74The mother deposed as to the father's "continuous attempts to find out where I live when communicating with [Child A] and [Child B]" which is the only source of her fear and depressive feelings at this time. She deposed that during a telephone call, the father said he was going to rent a room in [a suburb of State A] which she connected to a doctor she had attended upon, who was listed on her Medicare Claims History provided to the ICL. The father deposed the reference to [a suburb of State A] was in relation to an offer of employment in State A, which he did not take as he did not want to cause distress for the mother and thereby negatively impact the children. It was put to the mother that the doctor practiced in multiple State A suburbs. She did not accept these explanations.

75The mother was asked directly if she thought the father would locate her to "maim or kill" her. She replied if he has the opportunity, she thought he would.

76When asked, the mother said the father could possibly hurt the children, and her parents. Child C would tell the father her location, and she and Child D might assist the father in locating her.

77The mother said she strongly believed the father may be using methamphetamine but controlling it below detection level. Even if he has stopped using drugs, she said there is a possibility he would relapse. She did not accept the father's urinalysis and drug test results as one test was dilute.

78The mother deposed the children are making good progress including educationally. She said if the father knew the school attended by the children, she would have to take precautions and contact the school as to how to best navigate the situation.

79Since September 2019, the only communication Child A has had with the father is by telephone, with the most recent call via FaceTime. The mother explained that occurred because she had recently acquired an iPhone, and she allowed it on the advice of her solicitor.

80The timeline of Child A's change of attitude towards the father was put to the mother as follows:

•in May 2019 the mother told the Family Consultant that there had been no physical abuse by the father in the last few years;

•in September 2019 Child A saw the father and the adult siblings which Dr T described as a very powerful meeting;

•in June 2020, Child A's attitude was entirely different and he told the father he had seen paperwork and accused the father of being a drug addict; and

•by the time the children saw Ms K there had been a dramatic change in their attitude.

81The mother denied she had ever shown Child A court paperwork but said he looked through the court folder at a time when he had just finished Year 6. Child A asked her if the father was a drug addict and she said she did not say anything at the time.

82The mother was asked if she was suggesting the dramatic change in Child A's relationship was a result of the passage of time. She said it was because of what the father was saying to Child A during telephone contact, and the way in which the father was speaking. This was not referred to in her affidavit, and it was put to her that it was made up. She said it had been raised in correspondence sent from her previous solicitors. She further said Child A found out about the father's drug use and was also frightened when the father said it was not him trying to break into the refuge, but a robber.

83In relation to the adult siblings, the mother did not trust them to not inform the father of her location.

84Child D's evidence was put to the mother, that he had asked for Child A's login details so they could play online games, and that she did not give Child D those details. She said Child A no longer plays those games, although she agreed she thought providing Child D with the details could be a way to locate her address. She said she has to be careful.

85Child A now has a mobile phone which he uses for going to school. He is not allowed to send messages to the adult siblings from his phone, but he is allowed to send messages to them from the mother's phone. The mother said Child A knows she does not feel safe.

86The mother's position is that the father and adult siblings may spend time with the children at a contact centre in State A. She said she feels more protected from having her location disclosed if time occurs at a contact centre. She said the children can now have ongoing FaceTime calls with the father and the adult siblings, but if they disclose her location, it would jeopardise their life in State A. She would have to seriously think about moving. This would cause her distress. She said she feels secure if the father does not come to State A and she believed he had violated the ADVO before.

87The mother was open to Dr J's suggestion that she deal with trauma from the past. She is saddened by the loss of her relationship with Child C and was very upset when saying she would like to speak to her. The mother would also like to speak to Child D and described him hanging up on the phone to her twice as "very hurtful".

88At the first trial I agreed with Dr T's view that the mother's fear was genuine. I could not say if her fear was disproportionate to the issues, particularly in circumstances where the father had sent text messages after the interim ADVO was obtained, which I found were vile and threatening, and likely to have reinforced her fear. I considered the mother's hypervigilance and formed the view that there was a risk of minimising her fear in the circumstances. I said:

181. I agree it is necessary for a psychiatrist to assess the mother and provide a report. Only with the benefit of that advice will I be able to further assess if the mother's fear is disproportionate and if so, whether she has consequently exposed and continues to expose the children to psychological harm by denying them a relationship with the father.

…

186. I am satisfied that the mother genuinely believes there is an unacceptable risk of harm to the children if orders are made that they spend time with the father. Upon the evidence I am not able to find that the mother's hypervigilance and fear is disproportionate to the circumstances. A psychiatric assessment of her is required. If the mother's fear is disproportionate as stated by [Dr T] then her concern as to her own safety and her fear that the father may harm her will have a detrimental impact upon her capacity to parent the children and consequently an adverse effect upon the children.

89There are a number of matters which lead me to conclude that although the mother's beliefs are genuine, her fear is now disproportionate to the circumstances, and to agree with Dr T's current view in respect of the mother. Those matters include the following.

90I consider the mother struggled to find reasons to explain her ongoing fear of the father that he will locate her and then harm or kill her. There was no suggestion by the father that he wished to locate the mother or intended to travel to State A. He had not sent any further text messages to her and I am not persuaded by her evidence that he has taken steps to locate her, or that he will do so.

91The mother said the children remember the father yelling a lot. Dr T reported Child A remembered both parents yelling.

92The mother was unable to accept the father had ceased using drugs, and she sought to find a reason for this by saying he could be "smoking under the cut-off".

93I formed the view the mother was trying to come up with reasons why she continued to fear the father. Dr T was of a similar view. He said the mother wants to believe the worst of the father and will seize on anything she can to promote that belief.

94The other aspect of the mother's attitude is the influence she has had upon the children. She did not accept that she was the only influence on Child A. In my view she did not adequately explain the significant change in Child A's attitude to the father.

95Dr J reported the mother does not have a diagnosable psychiatric condition and said he could not diagnose her with a delusional disorder.

96In my assessment the parties and their circumstances now are very different to those at the first trial. The father's aggression towards the mother has ceased. He has changed yet the mother maintains her belief that he will harm or kill her.

Dr J

97Dr J is a Consultant Psychiatrist and Psychotherapist. He has over 30 years of experience. He met with the mother in May and July 2021 and provided a report dated 30 June 2021, although he corrected that date to 30 July 2021.

98Dr J reported he did not believe the mother currently has a diagnosable psychiatric condition, and said she showed no signs of major mood or psychotic disorders. Her reported clinical history and mental state examination suggested that she suffered from chronic adjustment disorder, with depressed mood and anxiety secondary to psychosocial stresses. Dr J explained an adjustment disorder is a reaction of a person to a difficult situation in life and involves adjusting to the situation or stressor. He considered this related to chronic marital problems caused by the father's coercive control and his emotional and physical abuse and described the mother's stressor as her long-standing feeling of being trapped in the very undesirable, miserable situation prior to separation.

99Dr J was extensively cross-examined about whether the mother was deluded in her belief about the refuge incident. Dr J defined delusion as "an unshakeable belief in the face of contradictory evidence". His professional opinion was that she did not manifest delusion to qualify for the mental illness as part of delusional disorder, but it may be a symptomatic manifestation. He said she was an anxious woman who had been chronically traumatised, and a symptom would be hypervigilance, and if she sighted somebody, she would have concluded it could be the father.

100Counsel for the father put to Dr J that the mother had the contradictory information for at least three months prior to meeting with him, and yet she maintained an unshakeable belief that it was the father at the refuge. Dr J said he did not challenge her with all the evidence, so it was hard for him to comment, but said sometimes it is hard to differentiate between a delusional belief and an overvalued idea. If what the mother said was not true, Dr J did not see it as her lying, but as an overreaction.

101Dr J said that had the mother been presented with the contradictory evidence at the time of the incident, that would be a different situation.

102In relation to the mother's level of fear, Dr J said it would be easy to fall into a belief system. He said the mother is not likely to change her view towards the father, and that it would be difficult for her to accept a finding that the father does not pose a risk to her because of her life experience.

103Dr J did not believe the mother would need treatment with pharmacotherapy such as antidepressant medications, or that she would need any specific treatment for PTSD. He reported that she would benefit from a course of cognitive behaviour therapy (trauma focussed) with a clinical psychologist to help resolve her trauma symptoms. Dr J reported he did not believe the mother's temporary symptoms of anxiety and depression would have any adverse impact on her capacity to parent the children or to co-parent if required.

104Dr J believed the mother would gradually restore her self‑esteem, provided that her safety is secured by an ongoing ADVO and she receives regular cognitive behaviour therapy and trauma counselling by a clinical psychologist, but it was hard to say how much her life experience had impacted upon her.

Dr H

105Dr H, Forensic Consultant Psychiatrist, was appointed single expert witness on 23 April 2020. She was required to assess whether either party has a diagnosable psychiatric condition or mental health condition, together with associated matters.

106Dr H interviewed the father on two occasions, on 13 June 2020 in the company of Child C, and on 22 August 2020 in the company of both the adult siblings. Dr H interviewed the mother by phone on 22 August 2020.

107Dr H reported as to additional information received from the adult siblings, whom she also interviewed. She relied on the lengthy email sent to her by Child C on 11 September 2020.

108In her report dated 6 November 2020, Dr H reported as to whether either party had a diagnosable psychiatric condition or mental health condition. As to the father, Dr H reported "Nil". As to the mother, she reported "unknown; suspected depression, personality disorder, or psychotic illness (less likely). Requires face to face assessment by a psychiatrist".

109The ICL put Dr J's diagnosis of the mother to Dr H, being an adjustment disorder with depressed mood and anxiety, the symptoms of which have resolved since the source of her psychosocial stressors have been removed. Dr H agreed with the opinion of Dr J.

Ms K

110The children attended upon Ms K, Psychologist, pursuant to the orders for reportable counselling. The children saw Ms K for 10 sessions commencing in June 2020 and ending in May 2021.

111Ms K reported that Child A reported a tumultuous relationship with his father since learning of his drug use, was fearful of his safety, and concerned if he were to return to the care of the father, or if the father was able to visit them in person. Ms K said Child A told her at times he would sleep with the light on because he was afraid the father might be in the backyard.

112Ms K reported Child A believes his father is a "bad person" and denied missing his father while in State A, although he does miss his siblings.

113Ms K reported that Child B became upset during discussions with the father, although she most recently stated this was improving. Child B stated she was adjusting to life away from her father and older siblings. Child B said Child A had informed her of the father's drug use and she reported feeling grateful he was not currently in their lives as he would often have mood swings and yell at them.

114Ms K reported the children spoke in favourable terms about their relationship with the mother.

115As to the children's living arrangements, Ms K reported Child A missed his older siblings significantly but was willing to sacrifice that relationship if it meant he could remain safe from his father. He reported no desire to return to Perth.

116Child B was more ambivalent about her relationship and wishes moving forward. She too reported a desire to remain in State A but have her father visit on occasion. She reported being fearful of her father encroaching on the safety that she, Child A, and her mother have created.

117In her oral evidence, Ms K said there was no evidence to suggest influence from the mother.

118Ms K said after Child A learned of the father's drug use, he was very much against the father and said he could not trust the father, and that the father was a bad person because he would get angry in the home and because he used drugs.

119Ms K said whenever the topic of the father came up in sessions, Child B was avoidant and said she tried not to think about it.

120In cross-examination, counsel for the father referred Ms K to Dr T's first report. Ms K had not read that report since the commencement of her interviews with the children.

121Counsel put to Ms K that when Child A saw his father in September 2019, his connection with him was intense and positive. It was put to Ms K that Child A allegedly read the court documents in June 2020, and by the time of his first session with her in July 2020, he was hypervigilant and fearful. Counsel also referred Ms K to the Family Consultant's report of May 2019 and put to her that the mother had said there had been no physical abuse in the last few years.

122Ms K agreed that if the children were denied a relationship with the father and the adult siblings by reason of a false narrative, that would lead to Child B having disorganised and unhealthy relationships with partners in the future. Ms K also agreed that if the narrative the children gave her is one they felt obligated to provide because it is their mother's narrative, that would definitely affect her assessment.

123Ms K was not able to ensure that the mother was out of earshot when she interviewed the children via Zoom.

124When Child A met with the Family Consultant in May 2019, he spoke in favourable terms about his father. When Child A met with the father and adult siblings in Dr T's presence in September 2019, Dr T reported of Child A:

93.… His distress was so palpable that I was quite concerned for him. It was not because he was uncomfortable with his family, but rather because the level of the loss he experiences not being with them is so profound he is unable to process it. …

(as per the original)

125Counsel put to Ms K that she must have been startled given that only a few months before she met with Child A, his connection with the father and the adult siblings had been so intense and positive, but when he met with her only a few months later he was hypervigilant, fearful and oppositional.

126Ms K agreed she was not necessarily shocked by this because she had heard about Child A finding the drug test results, and that the relationship between Child A and the father broke down because of this.

127Dr T found Ms K's report to be rather superficial. He said it was difficult to discern her methodology and it did not appear she had turned her mind to the question of parental influence. Dr T said, and I agree, that Ms K did not appear to have any understanding of how strongly the children felt only nine months earlier. Dr T described the children's change in position from 2019 to 2020 as "the elephant in the room" and said there was no analysis or investigative work apparent from Ms K's report.

Dr T

128Dr T, Clinical and Forensic Psychologist, was appointed single expert witness on 9 September 2019.

129Dr T interviewed the father and found his demeanour to be unchanged from his initial assessment. As to the father's drug use and the test results, Dr T reported that on the current trajectory the father appeared to be in a meaningful period of abstinence with generally a positive prognosis. Dr T considered the father's risk of returning to substance abuse once Family Court scrutiny is reduced, noting his lack of candour, deliberate deception, and lack of insight about his drug use in the past may represent a risk of harm to the children in the future if he were to relapse and the children were in his care.

130Dr T reported the father did not indicate any psychopathology, and he did not believe he represented a risk of ongoing harm to the mother. Dr T did not believe that if the father discovered the mother's address, he would harass and cause harm to her. He suggested the use of injunctions to ensure no direct contact between the father and mother other than for the purpose of setting up calls. He considered there was no need to protect the children from the father, subject to earlier comments about relapse.

131Dr T asked the father about the text messages and reported that his inability to accept that his behaviour and the texts were reprehensible. Similarly, Dr T said the father's reframing of his conviction for harassment as a fine further demonstrated his lack of willingness to accept the consequences of his behaviour. Dr T referred to this level of defensiveness and lack of insight which he reported did not bode well for the father's claim that if the children were with him, he would not create difficulties for the mother.

132Dr T went on to say that regrettably the mother's defensiveness suggested the same, that she cannot accept responsibility for the way she is attempting to align the children with her view of the father and thus alienate Child A in particular from him. Dr T reported:

49. … The children are thus in a no man's land of mutually acrimonious and insightless parents whose battle makes the children collateral damage.

(as per the original)

133Dr T interviewed the mother and found her demeanour to be quite different to the first occasion he had seen her in September 2019. It remained Dr T's belief that the mother continued to express an overvalued belief in her risk of imminent death should the father have any knowledge of her whereabouts. However, he reported there was no evidence to suggest a general delusional or psychotic state.

134Dr T reported that the mother's continued claim in relation to the refuge incident and her alleged engagement of Child A in that claim, continued to cause him concerns as to her judgement.

135Dr T reported that the mother alleged the father was quite angry in conversations with Child A in the second half of 2020, and Child A commented he used to think his father yelling was normal, but now he knows it is not normal. Dr T noted that in his original report, Child A referred to his father yelling on occasion, but also his mother.

136Dr T interviewed the children. He reported it appeared they have age-appropriate development, are settled in State A and appear to have a good relationship with the mother.

137Dr T's 2019 assessment indicated the children, particularly Child A, had a very strong and loving relationship towards the father which was not punctured by fear or concern. Dr T subsequently reported the children profess to fear the father and wish to have no contact with him, and to remain living in State A with their mother.

138Dr T reported both children have come to their mother's view of the father on the basis of little actual real memory. In his view, the mother has deliberately transmitted her fear and disdain of the father and adult siblings to the children, to the point where the children are aligned with the mother and have become alienated from the father, and in Child A's situation from the adult siblings. Dr T was most perturbed that Child A has rejected the adult siblings as part of his need to split his family to support his mother and said Child A has had to significantly distort his memory to accommodate her fears. Dr T feared this would have long-term implications for how Child A develops his relationships with others as an adult, and believed the children remained at some psychological risk regarding the fear of the father being instilled in them by the mother.

139Dr T reported this was in part because the mother has:

83. … such an overwhelming and pathological fear of the father, which to my mind remains exaggerated, despite the behaviours of the father that has contributed to her fears. …

(as per the original)

140Dr T described the long-term consequences of a distorted reality where, as children develop capacity for reflection and empathy, they see things from a different perspective:

So in some cases, typically with boys, you get protest. And, typically, with girls you get what’s called internalizing behaviours, anxiety and depression. I’m not all that sure with [Child A] that he would go heavily into protest and become oppositional and defiant and all that kind of stuff. I – I do wonder about his potential, his capacity, to become depressed or anxious. When I saw him in 2019 he was quite withdrawn. And I note, you know, the school report suggests over the last couple of years he has really come out of his shell. But there’s that vulnerability there. So I just don’t know how he would respond. Whether it would be acting out behaviour or acting in behaviour. But I think that it would be more likely that there would be some kind of maladjustment than he would be able to take it in his stride and just get on with life.

… So with [Child B] I think that the damage is likely to be more acute if there was to be some sudden rupture of her relationship with her Mum that – she has been able to maintain a kind of relationship with her Dad through these telephone calls and with [Child C] and [Child D]. But she’s not yet old enough to really start pushing to want to have her own individual time with them. But that will happen in – in – in – in time... But I think that for [Child B] the bigger risk will be that she will become depressed. She will become withdrawn. She has had that model in her mother. She has seen her mother become depressed. And I think that that is something that would be a bigger concern for me with [Child B]. That this – this untenable conflict and distortion of – of relationships will ultimately, I think have a very negative effect on [Child B].

141Dr T recommended the children should remain living with the mother, and that the restrictions on contact with the adult siblings be removed. Given the children's age, Dr T did not believe there was a necessity for contact to be supervised or monitored. Dr T recommended the children should spend holiday time with the father and the adult siblings in Western Australia once the borders open.

142Dr T was of the view that the children would benefit from having a normal sibling relationship with Child C and Child D but said restraining the older siblings from negative comment about the mother may be challenging.

143Counsel for the father put the father's proposal to Dr T, that the children live with him in Perth and spend extensive holiday time with the mother. Dr T reported that a critical issue has been the passage of time since his first report, which has had an impact upon the ability of the children to return to Perth, even if that was seen as desirable. He was of the view the children would experience a great deal of distress now in having to leave the mother.

144Dr T considered that Child A, after an initial protest, would feel relieved. He considered that separating Child B from her primary attachment, the mother, would not be in her psychological interest, and it would be devastating for her if she was to return to Western Australia, and if thereafter the mother were to reject her and not have contact with her. He said that would be a worse outcome in some ways than the status quo.

145Dr T said the mother's unshakable position was held in the absence of therapy and he recommended she partake in "trauma informed psychotherapy, with a view to understanding the family dynamics she has experienced and separating her needs from those of her children". He recommended two skilled practitioners with experience and skills in working with families with issues such as these.

146Counsel for the father asked Dr T what the prospect is of any psychological shift, if the mother's views are genuinely held now, three years after moving to State A. Dr T said that the prospect may be slight, but he believed it needed to be tried, and he did not like the idea of leaving a stone unturned in this situation. Dr T considered a good psychologist could present a number of scenarios and work towards the mother recognising her fears are unrealistic and irrational, and while she may still believe in her fear, she needs to "muzzle" it in order for her children to prosper. Dr T also said a combination of medication with therapy could be attempted.

147Counsel for the father questioned the mother's incentive for change and whether therapy would be likely to have any success. Dr T said:

Okay? ‑‑‑ ‑ ‑ ‑ predict what the outcome will be. Secondly, in this particular instance [Ms Damico] is, in all other ways, a rational person. She can hear what is being said and she understands the stakes. I believe that [Ms Damico] – maybe she would need to get some advice from people. But I believe that [Ms Damico] can hear what’s going on and can see the implications of her behaviour and her beliefs, love her children as deep as any mother loves her children and wants the best for them. And I believe that that can be a powerful motivator for her in this context.

148The mother's positions have been held in the absence of therapy. Dr T considered therapy would give the mother an opportunity to explore her positions in a different way, as opposed to in Court proceedings which he described as "a high anxiety way which tends to reduce a person's capacity for flexibility".

149Dr T said, if at the end of a timeline of about three months there was no change, one would have to consider what is likely to be a change of residence.

150In relation to therapy for the children, in describing their professed fear of the father, Dr T said he believed it had been "inculcated into them". He believed with effort and therapeutic assistance, that fear could be removed, which would be necessary if the children were to have meaningful contact with the father.

151I place considerable weight upon Dr T's report and his oral evidence. Dr T is a highly qualified clinical psychologist with extensive experience. Dr T carried out a second thorough assessment of the family, including a home visit when he saw the children. He reviewed many documents including reports from other professionals. Dr T also had the benefit of the findings contained in my reasons for judgment dated 7 April 2020. Dr T was extensively cross-examined by the legal representatives for the parties and the ICL. His evidence was clear, well-reasoned and he remained firm as to his opinions.

THE LAW

152The legal principles are set out in my said reasons ([2020] FCWA 53) to which I refer.

153In Keane v Keane (2021) 62 Fam LR 190, the Full Court considered the primary judge’s discussion of the Re Andrew principle and its application in various authorities. The Full Court at [72] approved the primary judge’s conclusion that his task was:

[93]...to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra and Marra, the mother’s caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew at FLC 83,199.

(Emphasis added)

154The Full Court said at [73]:

[73]The primary judge’s reference to the need for “very cogent evidence” should be read as meaning no more than the fact that a parent asserting that a child should spend no time with the child’s other parent should be in a position to prove, by adducing evidence of sufficient weight, the basis of their contention to the reasonable satisfaction of the court. …

The children's living arrangements

250It is necessary for me to make orders as to the living arrangements for the children which I consider to be in their best interests informed by my findings with respect to matters which I have considered under s 60CC of the Family Law Act 1975 (Cth) ("the Act").

251The ICL proposes that the children should live with the mother and spend such time with the father as may be recommended by the therapist who is appointed to provide reportable therapy. The ICL was of this view because of the length of time the children have been living in State A and having regard to the distress that might be caused to them in the event they are ordered to relocate to Perth.

252Linked to this view was the ICL's submission that the therapeutic process should occur to avoid any further alignment between Child A and the mother. The ICL submitted she was hopeful that with the benefit of therapy, any alignment which has occurred between Child A and the mother can be undone, and that there would be some movement forward in terms of the children time with the father, and to promote a meaningful relationship between them. The ICL acknowledged that she made this submission with some optimism.

253Counsel for the mother submitted the children should remain with the mother in State A. He referred to Dr T's recommendation in that regard, the current living arrangements including stable routines, meaningful friendships and extracurricular activities, and the children's wishes as communicated to Ms K. Counsel submitted the children should have supervised visits with the father in contact centres. He submitted a lifetime restraining order and an order that the father notify the mother should he travel to State A be made, to further ensure her safety.

254Counsel for the father submitted the children should live with the father in Western Australia. He referred to the mother's proposals as "supervised contact in a centre forever" and to her supervision of their telephone conversations and submitted the mother's fear is disproportionate. Counsel submitted the father has satisfied the factors raised by me in my previous judgment and he said the mother has deliberately influenced the children. He submitted that therapy is unlikely to work, and if the children remain in State A they will be provided with a false life view and they will grow up with dysfunctional adult relationships which will permeate generations. He submitted the mother would not promote the children's relationship with the father.

255I have found that the father does not pose an unacceptable risk of harm to the children if orders are made that the children live or spend time with him. I have found that the mother's capacity to provide for the children's emotional needs is compromised and if she does not change her behaviours, she will pose a risk of psychological harm to the children, which is likely to be an unacceptable one.

256I have further found:

•It would be to the benefit of the children to have a meaningful relationship with both of their parents.

•The children have a close and loving relationship with the mother, and they are aligned with her.

•The children have expressed views of the father in negative terms, and they have been deliberately influenced in this way by the mother.

•Their previously loving relationship with the father and adult siblings is not now close and has been rejected by Child A.

•At this time the mother is unable to facilitate and encourage a close and continuing relationship between the children and the father. The father asserts he will facilitate and encourage a close and continuing relationship between the children and the mother, and I consider it is more probable than not that he will.

•The removal of the children from the care of the mother to whom they are closely bonded, to live with the father is likely to cause significant difficulties for them in the short-term. Although in the long-term Child A might feel some relief, this is likely to be an outcome which is damaging to Child B, particularly if the mother rejects the children.

•There are practical difficulties involved in the children spending time and communicating with a parent. This arises by reason of distance. There may be costs associated with the requirement for therapy.

•The father is able to provide for the children's needs. He has ceased using drugs and he has the support of the adult siblings. The mother is able to care for the children and provide for their needs, apart from their emotional needs by reason of her beliefs and her deliberate influence of them.

•Both parties are responsible parents.

•There has been family violence between the parties and there is a family violence order in effect.

257It is likely there will be further proceedings as it will be necessary for the Court to monitor the outcome of reportable therapy with a view to making progressive orders. Unfortunately, in these circumstances and having regard to the complexities of this matter is not possible to finalise these proceedings.

258I have balanced the relevant factors. On one hand is the benefit to the children of having a meaningful relationship with both of their parents, and on the other hand of concern is the likely detrimental effect upon the children of a separation from the mother.

259I am mindful that although the loss of the children's relationship with the father is a significant one, in other aspects of their life they are settled.

260If the children remain in the current environment there is potential for psychological damage in the future, in particular, as adults there may be serious long-term consequences as set out at [140] above.

261If the mother and the entire family successfully engage in therapy it will be possible for the children to retain their existing stability, but to have a relationship with the father and the adult siblings as well as with the mother.

262I agree with Dr T's view that therapy should be attempted.

263When I consider all of the evidence and balance the matters to which I have referred, I consider that it is in the best interests of the children, until further order, to live with the mother. The family should engage in reportable therapy forthwith including the adult siblings with their consent. However, if at the conclusion of reportable therapy, the mother has not changed her behaviours and continues to influence the children negatively against the father or obstruct their time with him, the Court will have to consider whether it is in the best interests of the children to order that they live with the father.

264I have found that it is to the benefit of the children to have a meaningful relationship with both of their parents. If that cannot be achieved while they live with the mother, then the best interests of the children may require that they live with the father.

Time spent

265Dr T said, and I agree that in the long-run there is not a need for the children's time with the father to be supervised.

266As recommended by Dr T, I consider the initial visits between the children and the father would need to be mentored therapeutically to enable trust to be developed between the children and the father.

267I consider the parties will have to take advice from the therapist as to the specifics of the process and the commencement and progression of time with the father.

268It is to be hoped that the adult siblings will be involved in this process. I consider it is vital that they participate and cooperate as it is likely they will be a significant influence over the children. With their consent, I will order they participate in the therapy.

269Once the children have re-established their relationship with the father, they should spend unsupervised time with him. As recommended by Dr T, there should be a lead in process to allow for the children's anxiety. Dr T described this as a "bridging process" because the children are aligned against the father.

270The goal is that ultimately the children will spend significant periods of time with the father, primarily in Perth during the school holidays and long weekends. This is to occur as set out at paragraphs [15] and [16] of the father's minute of proposed final orders which became exhibit 13.

271Those are set out as follows:

15.On 3 occasions per year and upon the Father travelling to [State A], the children may spend up to 12 consecutive nights with the Father, subject to the Father giving the Mother no less than 7 days' notice of the intended travel.

16.On no more than 4 occasions per calendar year, the children may travel to Western Australia to spend time with the Father during term school holidays or Christmas holidays, with all costs of travel and accommodation for the children and the Father to be borne by the father, subject to the following:

a)the time the children spend in Western Australia be no more than 10 days during each term school holiday, and up to 14 days during each Christmas school holiday;

b)at least 14 days prior to the commencement of the relevant holiday period, the Father shall notify the Mother as to the dates that he intends to exercise contact, including the following information:

i.an itinerary including details of any accommodation; and

ii.copies of the children's return tickets.

(as per the original)

Electronic communication

272Electronic communication between the children and the father should take place on not less than two occasions each week. That should be visual electronic communication and should not be supervised by the mother. The children should also be at liberty to contact the father in accordance with their wishes.

273Once again it would be to the benefit of the children if the adult siblings are included in the orders for electronic communication and with their consent, I will so order.

THE PROPOSED ORDERS

274The parties will require an opportunity to consider my reasons. The ICL may wish to consult with Dr T, bearing in mind the minimal interventions he saw for both parties which are as follows:

•Relationship counselling with a view to understanding family dynamics and the bullying tactics the father ultimately engaged in.

• Substance abuse counselling for the father.

•Trauma informed psychotherapy with a view to understanding the family dynamics she has experienced and separating her needs from those of her children.

275The ICL may also wish to consult with the therapist to be appointed for reportable therapy.

276The proceedings will be adjourned for a short time to enable the parties to confer and provide a joint minute of orders to give effect to my reasons.

277Subject to hearing from counsel and the ICL and the absence of agreement otherwise, the orders I propose to make at the adjourned hearing are those set out below.

1All previous parenting orders relating to the children [CHILD A] born [May 2008] and [CHILD B] born [March 2011] ("the children") be discharged.

Until further order:

Parental responsibility

2The respondent, [MS DAMICO] have sole parental responsibility for the children.

Live with, spend time and communication

2The children live with respondent.

3The children spend time with the applicant, [MR DAMICO] while they are re-establishing their relationship with him as recommended by the therapist referred to at order [4] below.

4The parties shall jointly approach the single expert witness, [Dr T], through the Independent Children’s Lawyer to seek [Dr T's] recommendation for a therapist and the parties shall retain that person to conduct the therapy.

5The parties, the children and subject to their consent, [CHILD D] and [CHILD C] ("the adult siblings") participate in reportable therapy to be provided by the therapist as recommended by [Dr T] and to give effect to such therapy:

(a)the parties do all things necessary to facilitate such therapy;

(b)the parties comply with all reasonable requests made by the appointed therapist;

(c)there be liberty to the Independent Children’s Lawyer to apply to re-list the matter at short notice.

6The costs of therapy:

(a)for the children shall be met equally by the applicant and the respondent;

(b)for the respondent shall be met by the respondent;

(c)for the applicant shall be met by the applicant.

7The Independent Children’s Lawyer be at liberty to provide a copy of reports of [Dr T], [Dr J], [Dr H], [Ms K], these orders, previous reasons and these reasons for judgment to any psychologist, psychiatrist or mental health professional working with the children or the parties.

8The respondent shall attend upon a therapist for cognitive behaviour therapy and trauma counselling as recommended by [Dr J].

9The Independent Children’s Lawyer be at liberty to liaise with and obtain reports from the therapist and any mental health professional working with the parties.

10In the event that the therapists or mental health professionals referred to above consider that it would be in the children’s best interests, the therapists or professionals be permitted to confer with each other.

Provision of information

11The respondent shall promptly provide the Independent Children’s Lawyer with redacted information concerning the health, wellbeing and education of the children, for onward transmission to the father.

12The applicant keep the respondent advised at all times of his current residential address, mobile number and email address.

Electronic Communication

13The children have electronic communication with the applicant and adult siblings as follows:

(a)every Tuesday and Thursday with the call to be initiated between 8.00 and 8.30 pm Eastern Standard Time; and

(b)at any other time in accordance with the children's wishes.

14The respondent shall initiate such communication which shall not be supervised.

Injunctions

15The parties be restrained and an injunction is granted restraining them from:

(a)denigrating the other party to, or in the presence of the children; and

(b)subject to advice from the therapist, discussing these proceedings or any allegations of these proceedings to, or in the presence of the children.

16The applicant be restrained and an injunction is granted restraining him from:

(a)speaking or attempting to speak with the respondent during electronic communication or at any other time;

(b)questioning the children to obtain information relation to the location of their home or school; and

(c)travelling to [State A] without giving the respondent not less than 14 days' notice of his intention to do so.

Drug Testing

17The applicant shall undertake hair follicle drug testing every three months, the cost of which is to be borne by him.

Procedural

18There be liberty to the parties and the Independent Children's Lawyer to apply to re-list upon short notice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

13 JULY 2022