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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading DAMICO and DAMICO

Details

AGLC: DAMICO and DAMICO [2022] FCWA 143
Case: [2022] FCWA 143
Decision Date: 13 JULY 2022

CaseChat Overview and Summary

In the Family Court of Australia, the case of DAMICO and DAMICO involved a dispute between the parents over the care and custody of their children. The father sought orders for the children to live with him, while the mother opposed this on the basis that the father posed a risk of harm to both herself and the children. The mother believed that the father intended to kill her and harm the children, which she had communicated to them, impacting their relationship with their father.

The court was required to determine whether the father posed an unacceptable risk of harm to the children and whether the mother's beliefs, while genuine, were disproportionate to the circumstances. The court also had to consider the impact of the mother's beliefs on the children's relationship with their father and whether unsupervised time with the father would negatively impact the mother's parenting capacity.

The court found that the father did not pose an unacceptable risk of harm to the children. While the mother's beliefs were genuine, they were disproportionate to the circumstances. The court noted that the mother's fear of the father had been transmitted to the children, impacting their relationship with him. However, the court found that unsupervised time with the father would not negatively impact the mother's parenting capacity. The court made orders that the children live with the mother until further order and ordered reportable therapy as recommended by the single expert witness.

Orders