DAMICO and DAMICO - [2020] FCWA 53

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DAMICO and DAMICO [2020] FCWA 53
CORAM: DUNCANSON J
HEARD: 3, 4, 5, 6, 7 FEBRUARY 2020
DELIVERED : 7 APRIL 2020
FILE NO/S: PTW 1478 of 2019
BETWEEN: MR DAMICO
Applicant
AND
MS DAMICO
Respondent

Catchwords:

CHILDREN - Family violence and drug use - Unacceptable risk - Where a psychiatric assessment of both parties is required - Where interim orders to be made

Legislation:

Family Law Act 1975 (Cth) s 4AB(1), 60B, s 60CA, s 60CC, s 61DA

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr R Bannerman
Respondent	:	Mr R Pearson
Independent Children's Lawyer	:	Mr A

Solicitors:

Applicant	:	Bannerman Solicitors
Respondent	:	Lynn & Brown Lawyers
Independent Children's Lawyer	:	Law Firm A

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

Blinko and Blinko [2015] FamCAFC 146
M v M (1988) 166 CLR 69
Stott and Holgar & Anor [2017] FamCAFC 152

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).

INTRODUCTION

1These proceedings concern the children, [Child A] who is 11 years of age and [Child B] who is nine years of age. Currently the children live with the mother, [Ms Damico] in [State A]. It is not in dispute that upon her separation from the father, [Mr Damico] in 2019 the mother unilaterally removed the children from Perth. The father seeks the children's return. The mother seeks to retain the children in [State A].
2The mother holds an unshakeable belief that the father will try to kill her. Her position is that the children should live with her and have no contact with the father or their adult siblings, [Child C] and [Child D] who live with the father. The mother fears that the children might disclose her whereabouts to either the father or their siblings. On the mother's case the children would have a relationship with her, but no relationship with the father, and or Child C and Child D.
3The father denies he intends to harm the mother in any way. He seeks to have the children live with him and proposes that they spend time with the mother who intends to remain in State A if the children are returned to Perth. On the father's case the children would have a relationship with both of their parents and their older siblings.
4It is necessary to assess whether a party poses a risk of harm to the children if the children live or spend time with either of them and if so, whether the risk is an unacceptable one. The father asserts the children are at risk of psychological harm in the care of the mother by reason of her mental health particularly her mistaken fear that he will harm her and also by being separated from the father and older siblings. The mother asserts the children are at an unacceptable risk of harm in the care of the father by reason of his drug and alcohol use and their exposure to family violence. Ultimately I must make parenting orders which I regard are in the best interests of Child A and Child B.

THE ORDERS SOUGHT

5The children were represented by an Independent Children's Lawyer, [Mr A]. At the conclusion of the evidence the ICL referred to various options as to the children's living arrangements. The first, which he described as the "ideal option", was that the mother would return to Perth and the children would live with her and spend time with the father. Orders would be made for the mother's personal protection. In the alternative the children would return to Perth to live with the father and spend school holidays with the mother in State A. This accords with the view of the Single Expert Witness, [Dr T]. A further option was that the children would live with the mother in State A and spend no time or strictly supervised time with the father. The ICL said he was "not satisfied this would necessarily be the wrong thing to do in a case like this". The ICL concluded that he did not feel able to make a recommendation as to the substantive decision, namely whether the children should remain with the mother in State A or return to Perth and spend time with her during school holidays.
6After the conclusion of the trial, I received additional evidence and the parties and the ICL were given the opportunity to make further submissions. The ICL circulated a minute of final orders on 19 February 2020 stating his then position, which was that the mother should return to Perth and the children live primarily with her and spend each alternate weekend with the father.
7The orders sought by the father are contained in a minute of final proposed orders received 17 January 2020. He seeks an order that he have sole parental responsibility for the children and that they live with him. The father proposes that upon the mother travelling to Western Australia the children spend time with her. He further proposes that on two occasions in each year the children travel to State A to spend time with the mother during school holidays. The father proposes that the children have electronic communication with the mother.
8In the event the mother and the children return to WA, the father proposes that the children live with him and spend time with the mother each alternate weekend and for an overnight in the intervening week.
9In the event that the children remain in State A and the father relocates to State A, he proposes that the children live with him and spend time with the mother each alternate week and overnight in the intervening week.
10In the event that the children remain in State A and the father remains in WA, he proposes that the children spend time with him for up to seven consecutive nights upon him travelling to State A. He further proposes that on two occasions per calendar year the children travel to WA to spend time with him during the school holidays.
11The father makes various proposals for handovers, communication and the provision of information.
12The orders sought by the mother are contained in a minute of final orders received 24 January 2020. The mother seeks an order that she have sole parental responsibility for the children and that they live with her.
13The mother seeks an order that the father be restrained by injunction from communicating with her or the children by any means, approaching them, entering or remaining upon any premises where she and the children are, or being within 50 metres of those premises, monitoring the movement or communications of the children or the mother, or causing or allowing any other person to do so on his behalf.
14The mother proposes to provide to the father through a third party copies of the children's school reports, documents regarding significant medical treatment and updates as to the children's progress, including photographs every three months.
15In closing the mother's counsel put forward an alternative proposal namely that on the basis the children live with the mother in State A, they spend supervised time with the father in a contact centre in State A during the school holidays on one day for two hours. The mother also proposed that the children have telephone or video communication with the father once a week supervised by her.
16It is clear that the parties' positions are in stark contrast.

THE FAMILY BACKGROUND

17The father was born [in] 1971. He is 48 years of age. The mother was born [in] 1972. She is 47 years of age.
18The parties commenced cohabitation in 1997 and married [in] 1997.
19Child C was born [in] 1997. Child C is 22 years of age.
20Child D was born [in] 1999. Child D is 20 years of age.
21Child A was born [in] 2008. Child A is 11 years of age.
22Child B was born [in] 2011. Child B is 9 years of age.
23The parties separated in 2010 or 2011 and subsequently resumed living together under one-roof. The father deposed that following their divorce in 2010 the parties remained living together in the family home. The mother deposed that after separation which she said occurred in 2011, the father spent time with the children in the home and he moved back to it in 2014.
24[In early] 2019 the parties separated when the mother left the family home and on [the following day] she took the children with her to State A.

THE PARTIES AND THE EVIDENCE

The father

25The father is a [Tradesman]. [Italian] is his first language.
26The father loves and misses the children. He desperately wants them to return to Perth.
27The father was questioned about his drug use. In this respect the father lied to the Court, to the Family Consultant and to Dr T. For example, the father explained his drink had been spiked with methamphetamine which resulted in positive hair test results. [Mr C] of [Drug and Alcohol Testing Laboratory A] confirmed that the methamphetamine must have been ingested and could not have entered the father's system in the way described by him. I accept Mr C's evidence. I refer to this in more detail below.
28The father denied threatening to harm the mother during the relationship and in this respect Child C and Child D supported his evidence. The father threatened to harm the mother in text messages he sent to her after separation. When asked about these messages he said it was a "bad decision" and he made a mistake. His explanations with respect to the text messages were mostly inadequate and unconvincing.
29The father said the mother was depressed and detached from the family. The father said the parties argued mostly about the mother's lack of engagement with the family and her neglect of the children's needs. The father wants the children to grow up together and he said he would leave Perth if the mother would return with Child A and Child B to live with Child C and Child D.

Child D and Child C

30Child D is [an accountant] and also studying a [business degree]. Child D spoke highly of [the] father and in negative terms of [the] mother. Child D said he had never seen the father being violent towards the mother.
31Child D did not give honest evidence when he said he could not recall who put the [denigrating] photograph on the mother's Facebook profile.
32Child D was clearly aligned with the father. For the last year Child D and Child C have lived with the father and it appeared that they have discussed the case and the evidence. Child D spoke in similar terms to the father and Child C regarding his criticisms of the mother for example, with respect to her bankruptcy. He strongly supports the father.
33Child D is clearly affected by the sudden termination of his relationship with Child A and Child B. He has seen them once in over a year. He misses them very much and is concerned about their welfare.
34Child C works part-time and is otherwise studying at [University A] in [chemistry].
35Unlike Child D, Child C said she could understand Italian. She confirmed that the father had not threatened or verbally abused the mother. Child C was very aligned with the father. She was very critical of the mother, whom she said neglected her needs including her emotional needs which had been the subject of argument between her parents.
36Child C was very critical about the mother's provision for her welfare when she was younger, including her diet, her dental needs and her lack of emotional involvement with her.
37As to the father's text messages to the mother Child C excused them by saying they were motivated by grief. Although there were heated arguments between the parties, Child D and Child C supported the father's position that the mother was not in fear of the father and that he had not threatened or abused her.
38Child C had the same criticisms of the mother and the same praise for the father as Child D. For example, Child D and Child C's negative attitude towards the mother was apparent during cross‑examination when they unequivocally blamed the mother for the demise of the family business. There was little evidence about the mother's bankruptcy as it was not the subject of the proceedings, however it is unlikely that the mother alone was responsible for that predicament. She was a partner in [a business] operated by her and the father. The business could not meet its debts and the mother was bankrupted for tax liabilities of the business.
39Child C and Child D were in Court when the mother was cross‑examined and I had an opportunity to observe them at this time. They both showed little reaction to the mother's distress and her expressions of love for both of them. They mostly remained composed.
40The father said Child D and Child C used the computer and although he read emails he also relied on them to read and send emails on his behalf. It is not in dispute that Child D found the mother's email password and accessed her email account. He said he did this to obtain details of the household accounts which were in the mother's name. As at trial he had not provided the mother with the new password for her email account although he said he would do so.
41Child C admitted she changed the mother's profile picture on Facebook and substituted it with a denigrating picture. If this was done by Child C in my view it is a particularly hurtful act. I am unsure whether this was done by her of her own volition, or whether it was done by her at the request or insistence of the father. Child C said she posted the picture because her mother had previously called her a slut, being a reference to the way she dressed.
42Child C and Child D have not stood by passively, but have actively denigrated the mother. They appeared to have little or no respect for her. The mother asserted they are in fear of the father. Having considered the evidence carefully, I do not think they are. They independently support the children returning to the father's care where they propose to assist in that care. I consider that they are motivated to support the father by their strong desire to have their younger siblings return to their home in Perth and also by their negative view of the mother.

The mother

43The mother gave evidence by video link from State A. She listened carefully and remained impassive throughout the father's case.
44The mother was extensively and thoroughly cross-examined by counsel for the father. For the most part she maintained her composure and gave her evidence clearly and in a forthright manner. She became distressed at times when she spoke of her fear of the father and the separation of the siblings.
45The mother is frightened of the father and intensely anxious and hypervigilant. It is the view of Dr T that her anxiety, although genuine, is disproportionate to the circumstances.
46The mother's evidence was that for many years she was a victim of family violence perpetrated by the father. There were few incidents of physical violence, and the father's behaviour towards her as described by the mother readily fits within the definition of family violence, being behaviour which was threatening and which coerced and controlled her and caused her to be fearful.
47The father said the mother was distressed and detached from the family. She denied she was depressed during the marriage but instead a victim of family violence. The mother was quite animated when speaking of the children's progress. She explained she feels well now.
48A number of text messages dated January and February 2019 were put to the mother by counsel for the father in which she messaged the father at night to tell him to "come now". The father's position was that these messages were an invitation from her to him to come home and have sexual intercourse with her. The mother denied this and said the messages were intended to tell the father to come home at a reasonable hour so that she could go to sleep without being disturbed by him in the shower or without having to cook a meal for him and then clean up at midnight.
49I am unsure what to make of these messages. The father said, consistent with his explanation for the text messages that the parties had sexual intercourse the night before the mother left the home. Upon the mother's case that would seem unlikely and she denied this. However the mother's explanation for the text messages is a little strange that in circumstances where she feared for her safety she would send those messages. Quite simply I am unsure what to make of the messages.
50The mother spoke of her love for her older children and said they remained with the father as they were in fear of him. I am not persuaded that that is the case. I consider they choose to be with the father and are closely aligned with him.
51The mother's fear is that if the younger children spend time or communicate with the father, unless in a strictly supervised environment, they will disclose their school or her whereabouts and he will find her and try to kill her or throw acid at her to mutilate her. She referred to the threats made by the father after the interim Apprehended Domestic Violence Order (ADVO) had been made. To describe herself the mother said "I am not depressed, I am scared, I live in fear, I have turned my life around".

Family Consultant M

52The parties and the children attended a child inclusive conference with Family Consultant [M] on 13 May 2019. The parties were interviewed separately and the children were also interviewed. The Family Consultant provided her report dated 15 May 2019.
53The Family Consultant reported that from her preliminary assessment, the children were in a difficult and sad situation having experienced a sudden and unpredictable change in their lives. They missed their brother, sister, father and their life in Perth. She reported that the mother had made serious family violence allegations, including threats of harm made to her by the father. The Family Consultant reported that if the Court found that there was a basis to the mother's allegations, safety should be prioritised for the children. If the Court found that the mother's allegations do not have a basis, it would be important to determine how the children can have contact with their older siblings and father and whether they should return to Perth.
54The Family Consultant recommended that the children have telephone, Facetime and/or Skype contact with their father and siblings. The Family Consultant noted that the substance abuse allegations were serious and if true would impact on the safety of the children. In her oral evidence she expressed concern about the mother's sadness and mental health and said there was a need for further assessment of her.
55Counsel for the father explained to the Family Consultant that electronic communication between the children and their siblings had commenced but was then terminated by the mother when the father waved to the children in a Facetime call. She said this would be very difficult for the children and would be impacting quite greatly on their relationship, their memories and how they are adjusting in State A. She said quite significant loss and grief would be associated with that.
56The Family Consultant reported with respect to the father's drug use as follows:
… The father acknowledged smoking marijuana on a daily basis. He said that he mixes the marijuana with tobacco and smokes it daily at night. He said that he had tried "ice" on one occasion with his brother many years ago and had been upset with himself that he had done this. He asserts he does not use "ice", as is alleged by the mother. The father said that he has undergone four urine/blood tests, which show "a bit of marijuana" but nothing else. He said that he had not completed a hair follicle test yet due to the cost, but stated he would do so if ordered…

57The father lied to the Family Consultant when he said he had not completed a hair follicle test. In fact he had undergone a hair test on 6 March 2019. In cross-examination the Family Consultant was told of the positive test results and she described this as a concerning outcome and said the father's drug and alcohol use was a serious risk for the children. She said there should be ongoing testing as there was always a risk of relapse.

Mr C

58Mr C is the Managing Director of Drug and Alcohol Testing Laboratory A, a company which provides drug and alcohol management services. The father has undergone five hair tests to date. At the time of Mr C giving evidence the results of the fifth test were not known.
59I refer below to those tests and the evidence of Mr C with respect thereto.

Mr E

60[Mr E] is the mother's father. He was born in [Italy]. He is 68 years of age. He is retired. Mr E was an honest witness and I accept his evidence. He did not embellish his evidence. If he could not answer a question he said so. He described the mother as living "always in fear" and when asked if he thought the mother was terrified, he said yes.
61Mr E received between 10 and 20 text messages from the father in Italian which he reported to the police. He deposed to one of those messages from the father which he received on 19 February 2019 which was in English and read "You fuck I go kill you keep abuse innocent kids like you did to your daughter you cunt."
62Mr E had given his phone to the police and was unable to provide the details of the rest of the messages although they are referred to in his witness statement to the police given on 20 February 2019. Another message from the father read he would send someone to cut his legs. This message was sent as Mr E was about to have an operation on his legs. Mr E fears what the father would do to him and his wife. He said he is scared to go out at night.
63Mr E said his wife lives in another apartment and that they are separated. I am unsure about that. I am uncertain whether he said that to protect his wife or whether she was assisting the mother and providing support to her. There was no suggestion of them being separated in his affidavit sworn 28 January 2020. I think it more likely than not that as he said they are together during the day, but his wife assists or spends nights with the mother. Mr E described a good relationship with the children.

Dr T

64Dr T was appointed Single Expert Witness. He is a clinical psychologist with 41 years of experience of work within the child, family and forensic fields.
65The father, Child C and Child D travelled to State A to meet with Dr T. Their interview with him took place [in] September 2019. At that time the children were briefly reunited with the father and their older siblings in the company of Dr T. He described it as a very emotional moment.
66Dr T also interviewed the mother [in] September, in the company of the children.
67Dr T had a Skype interview with the father, Child C and Child D subsequently [in] October 2019. Dr T provided his report dated 28 October 2019. He appeared by video link from State A and gave oral evidence.
68At the time of Dr T writing his report there were matters concerning the father's drug use about which he was unaware. For example, he was not aware that the father had undergone a hair test in March 2019 and that the results were positive for high levels of methamphetamine. Similarly he was not aware of Mr C's rejection of the father's explanation that his drink had been spiked with methamphetamine.
69Dr T described the mother's fear of the father as genuine, but disproportionate to the circumstances. He described the father's messages to the mother as "horrible" and that the father can be "unconsciously nasty", but he said they do not fully explain her position.
70I consider that Dr T's description of the circumstances of these parties in his opinion at paragraph 119 was largely borne out by the evidence although my findings take that description further. Dr T reported at [119]:
119.Opinion. My formulation is that [Ms Damico] perceives the father as an aggressive, and violent man who is controlling, and I believe that at least part of this is a product of her own mood but part is a function of his uncontrolled emotionality, impulsive verbal aggression and tendency to denigrate people he does not like. There does seem good reason to suggest the father is controlling, was frustrated with his wife’s depression and was angry and likely demeaning towards her at times because of her perceived shortcoming. It is clear that this was a mismatched couple in which the ebullient mood, and child focus of the father, as well as his emotional volatility interacted with the mother’s depressed state and passive demeanour to the point that the relationship collapsed. The older children became aligned against the mother, although in my formulation this is more a product of the mother’s depression and passive manner than any deliberate act by the father. It seems to me [Ms Damico] furthered such alignment by her alleged rejection of [Child D] in particular, perceiving him as an agent for the father. [Ms Damico] has come to see herself as a victim of the father.

71As discussed below I take a different view to Dr T in some important respects but I am mindful that there were matters of which Dr T was not aware, primarily with respect to the father's drug use. Further, Dr T did not have the opportunity of seeing the parties and the adult children under cross-examination.

SHORT HISTORY

72After their separation and subsequent divorce, the parties remained living under the same roof. The father said that on the night of 12 February 2019 the parties shared the same bed. The mother denied having sex with the father in the 12 months prior to moving to State A.
73On 13 February 2019, with police assistance the mother left the family home with the children and stayed at a refuge for the night. Child C accompanied them.
74On 14 February 2019, the mother and the children flew to State A. Child C accompanied them. They resided at the maternal grandparents' apartment.
75On 15 February 2019, the mother applied for an interim ADVO at the [City A] Local Court of State A.
76The father had flown to State A that same day and while the mother was at the police station making a statement, he attended the maternal grandparents' home and took the children to a nearby area.
77The Police attended the location of the father to return the children to the mother and to serve the father with the ADVO, protecting the mother and the children. The ADVO prevented the father from seeing or speaking to the mother and the children.
78Shortly after the ADVO was made, the father attended the maternal grandparents' apartment. He said he attended the apartment to retrieve his personal belongings, including his mobile phone, from Child C. The mother said the father attended the grandparents' apartment screaming and shouting. The police arrived and arrested the father for breaching the ADVO.
79The father spent the night of 15 February 2019 in custody and was released on the morning of 16 February 2019. The father deposed to flying back to Perth with Child C after his release.
80The mother and the children spent the night of 15 February 2019 in a refuge and remained at the refuge until 22 February 2019.
81On 22 February 2019, the police moved the mother and children from the refuge, after the mother said the father attended the refuge to intimidate her. The mother said that the father had tracked her location by using her phone and she received a text message at around 9.00 pm from the father stating, "Nice Park" being reference to the park located across the road from the refuge. The mother said she was in the office of the refuge supervisor when she and the supervisor saw the father with his hands on the bars of the fence. She said the police were called and the supervisor gave them a description of the father.
82The father deposed that on 22 February 2019, Child D sent him a screenshot of a map pin pointing the mother's location with a text message to the effect that he and Child C had managed to go onto the mother's iPhone account and activate her location services. They sent him a map of where the mother was on that date. The father deposed that by 21 February 2019, he, Child D and Child C were all back in Perth and he relied on a photo and a text message sent to him by Child D on 22 February 2019, with he and Child C in the photo, taken at the home in Perth.
83I was not provided with any independent evidence which may have supported either parties' account of these events. For example, in the case of the mother there may have been a record from the refuge or a police report. In the case of the father evidence of his return flight might have been produced. Such evidence would have been of assistance to me.
84On 25 February 2019, the mother and the children were moved to a long‑term women and children's refuge.
85On 5 March 2019, an order was made for Child A and Child B to have regular electronic communication with their adult siblings as agreed, and failing agreement each Tuesday at 4.00 pm AEST.
86On 17 March 2019 the mother's Facebook profile picture was updated to show a denigrating picture.
87In around late May 2019, the mother and children moved into a three bedroom house in State A.
88The father deposed that in June 2019 the mother gave Child A permission to speak to the father for five minutes during the children's call with Child C. He deposed Child A was sad and both children said they missed him and their siblings. After five minutes the mother hung up the call. The mother deposed that during the phone call she heard the father suddenly interrupt and address Child A directly. The mother recalled the father made a comment about speaking to Child A's old school friend and Child A began to cry. The mother immediately ended the call and deposed both children were distressed after this incident. That was the last time the father has spoken to Child A, Child B or the mother.
89By 18 June 2019, the mother had received over 300 text messages in Italian from the father, in some of which he had made remarks of a threatening or sexual nature. Many more text messages were sent to the mother.
90On 23 July 2019, an order was made for the mother to disclose all of the text messages she had received from the father within 21 days.
91On 9 September 2019, Dr T was appointed Single Expert Witness. He provided a report on 28 October 2019.
92The ADVO proceedings were listed for hearing [in] November 2019 at [City A Local Court] in State A. They were adjourned to April 2020.
93On 26 November 2019 the mother's profile picture and cover photo was updated to a picture of the father and the children which had been taken by Dr T in his office.
94At the end of Semester 2 in 2019 the children received school reports which were in positive terms.

The parties' relationship

95The parties separated in around 2011 at a time when according to the mother the father began to use methamphetamine on a daily basis. The father moved out of the home, but spent nights in the home. The parties resumed living under one-roof. They disagree as to whether they recommenced a romantic relationship with the mother saying they did not. The mother deposed when Child A was young the father threatened to throw acid at her to ruin her face so that she would kill herself and he did not have to kill her. She deposed these threats became persistent before she fled to State A.
96The mother said the father shouted, yelled and threatened her in Italian. For the most part she did not answer back. She was verbally abused and bullied. On occasions she fled to a women's refuge. She was frightened. She became withdrawn and detached. The mother said the father monitored her whereabouts and she did not leave the home except to collect the children from school. The mother's description of her relationship with the father was one of a victim of family violence and the father's controlling and coercive behaviour caused her to fear for her safety.
97The father deposed that the relationship between he and the mother had declined over the last decade as she became more withdrawn, disinterested and angry. He described supporting her, making sacrifices for her and giving her opportunities. In contrast to the mother, the father deposed that their relationship remained the same after the divorce. He denied threatening the mother or being violent towards her. He deposed he supported her and gave her everything. The father deposed the mother was angry and depressed and would sometimes scream at everyone or sometimes withdraw and become non‑responsive.
98The nature of the parties' relationship might be best described by Child A to the Family Consultant. He described a distant relationship between his parents. He said he sometimes heard his father yelling in an angry tone, but did not understand it because his parents spoke in Italian. He heard his mother crying three times and said she was sad a lot. Similarly Child B told the Family Consultant she felt scared when her father was shouting, although she was not frightened of him.
99It is clear the parties' relationship deteriorated when Child A was young. I accept the mother's evidence that at times the father was loud, aggressive and made threats, including that he would throw acid at her. I accept that at times the mother shouted back, but for the most part did not. I accept that the mother was frightened of the father and that she became withdrawn and anxious. The relationship endured in this way for many years and the mother felt unable to leave by reason of the children.

The mother's parenting capacity

100The father, Child D and Child C were highly critical of the mother's parenting capacity. I consider it is likely that her parenting of the children was to an extent impaired by the effects upon her of the father's behaviour. The mother acknowledged that the children saw her cry a lot and that she did not go out much. The mother was however primarily responsible for parenting the children and the primary homemaker. She cooked, cleaned and did the laundry although this was the subject of some criticism. She was responsible for the children's wellbeing and attendance at school. These aspects of the children's care was left to the mother while the father worked hard to provide for the family.
101The mother deposed that she could not always be the mother she wanted to be by reason of the abuse she endured at the hands of the father. She said she was frightened to leave the house and there was little money in the household. The criticisms of her parenting by Child D and Child C were in my view harsh. Child D and Child C are adults who are achieving well. As the mother was their primary carer she must be credited for this in part, although they gave her little if any credit at all. Similarly Child A and Child B are children who were doing well prior to their current predicament.
102I accept that the mother was a caring mother to her children although somewhat detached from them for the reasons set out above. All four children were healthy and well cared for, they attended school and achieved their milestones. I consider Child D and Child C's criticisms of the mother to be a product of their alignment with the father as well as of their relationship with her.
103Although the father was not primarily responsible for parenting the children clearly he was close to them emotionally and that is evidenced by their close and loving relationship with him now.

The mother's relationship with Child D and Child C

104As set out above, Child D and Child C are closely aligned with the father. They appeared to be contemptuous, scornful and disrespectful of the mother. I readily understand their distress at the removal of their younger siblings and the impact this has had on them. Nevertheless they showed little understanding of the mother's position. There is some merit in the submission of the mother's counsel that their evidence and that of the father has been synthesised to present a united front. Their attitude towards the mother is understandably saddening to her.
105Child D and Child C do not fear the father and I think it likely that they are accustomed to him being disrespectful of her and they behave in a similar manner. These are relationships which hopefully can be repaired, although of course Child D and Child C are adults and only time will tell whether that occurs. At this time it would appear that they would find it difficult to promote the children's relationship with the mother. Child B and Child A have a close relationship with Child D and Child C and any denigration of the mother by them could potentially be confusing and disturbing to the children.

Family violence

106In the context of family violence, Dr T reported at [23] as follows:
23.Family Violence. [Mr Damico] denies any family violence other than as indicated in the account I have given that it was a loud household in which apparently both parties could at times be somewhat emotional and verbally aggressive. He denies denigration or coercive controlling behaviour and as noted it is likely that he was denigrating to his wife, but perhaps it was such a automatic response on his part he lacked awareness of it. After interviewing [Ms Damico] I came to the conclusion that she is a timid and likely depressed woman. There seems little doubt [Mr Damico] obvious loud personality and intense emotionality was quite threatening to her. On the other hand it does seem that [Mr Damico] agrees he became critical of his wife, and controlling in response to his exasperation with what he saw as her depressed, routinized and unresponsive behaviours. It was for a long time a very dysfunctional relationship.

107I am satisfied that there was family violence between the parties perpetrated by the father upon the mother. The father used methamphetamine and consumed alcohol. He was aggressive and overbearing. I accept the mother's evidence that he threatened to harm her, including to throw acid at her. The mother left the home on occasions, for an overnight to go to a refuge. The mother deposed to the father being physically violent to her, although he denied this.
108The mother deposed that in 2014 the father grabbed her neck and choked her. It left a mark on her neck. The police were called. The police report deposed to by the mother refers to an incident which occurred on 4 November 2014 when the mother reported the father abused her and threatened to hit her. The police sighted a small red friction mark on her left clavicle. The police reported that both parties became agitated and ultimately the police issued a police order to the father, who was about to go to work. The father denied assaulting the mother and stated to the police that she tried to confront and attack him, so he attempted to restrain her by placing hands on her shoulder. The father was emotional and hostile towards the police, but subsequently apologised. The police report described the mother as timid towards the police and displayed emotion, crying stating it was an ongoing issue.
109The police report also referred to an incident on 13 February 2019, when the police attended a refuge and spoke to the mother. The mother reported that an argument had taken place between the parties and that the father had grabbed her by the throat. She referred to him buying acid from [a hardware store] so that she would kill herself rather than live with the consequences. The police report stated that the mother had no visible injuries and she declined to provide a statement to the police.

110The mother deposed to an incident when the father was aggressive towards Child C and she called the police. In relation to this incident, both Child D and Child C were supportive of the father. Child C said she did not recall the police being called and Child D said he recalled the incident but it did not warrant the police being called.
111The father's aggressive behaviour was directed primarily at the mother. At times she responded but, mostly she did not.
112The father threatened the mother with violence. She was afraid he would carry out that threat. She remained in the relationship by reason of the children and felt unable to leave until the time she did.

The father's substance abuse

113The father smokes cannabis every night with his cigarettes. He smokes in the garage. At the commencement of the father's cross‑examination, he was asked if he had ever used methamphetamine or "ice" before. His response was he tried it once with his brother many years ago, after the children were born and he said, "I no recommend it". The father denied having knowingly used methamphetamine for several years. In this respect he lied. The mother deposed the father used methamphetamine or ice on an increasingly frequent basis by smoking it in the garage. She said as a consequence he became aggressive and awake at night.
114In cross-examination the father was asked if he had undertaken a hair test on 6 March 2019. He said that never happened. Again in this respect he lied. He had undergone a hair test on that date. He had not disclosed the test results. They were obtained by the ICL during the course of the trial. When the test results, which showed high levels of methamphetamine were put to the father, he said he could not explain it.
115Dr T asked the father about his substance abuse history and he told Dr T that he smokes the equivalent of one joint of both cannabis and tobacco every day. Dr T reported "He tells me he is quite anti drugs in his general outlook despite the obvious hypocrisy associated with his own use of cannabis".
116The father denied use of stimulant drugs. He told Dr T he had never used stimulant drugs and Dr T reported at paragraph 21 of his report that as a consequence the mother had to manipulate in order to create that legend against him.
117The father underwent hair tests in June and July 2019, both of which were positive for cannabis and methamphetamine, although in the case of the methamphetamine at a reducing level. The father explained that the reading in these tests came about as a consequence of his drink being spiked. He explained that a person known to the mother by the name of [Ms F] had come to his house. He later learned she had spiked his [drink] with methamphetamine and that was the explanation for the reading.
118The father relied on a text message which became Exhibit 6 which purported to be from Ms F, in which she stated she had some left over crack/speed from a party and she knew he would say no if she offered it to him, so she had put the leftovers in his [drink]. In the text she stated she was under the impression he had already done the drug test for Court and as he had told her he was getting a hair test it would show up and she said she was sorry. The father said he tried to convince Ms F to come to Court but she refused.
119The father's explanation for the presence of methamphetamine being a consequence of his drink being spiked is not accepted. As explained below, Mr C said the levels of methamphetamine are not consistent with a drink being spiked and are consistent with high levels of methamphetamine being ingested. Mr C's evidence leads me to conclude that the father has created the text message and his account of these events is a fabrication.
120During the course of the trial the father arranged for a referral from his general practitioner to a drug and alcohol counsellor.

Hair tests and results

121The father has undertaken five hair tests during the course of these proceedings.
122The first test was undertaken by the father on 6 March 2019 and analysed by [Drug and Alcohol Testing Laboratory B]. Mr C accepted that the collection would have captured ingestion between the months of December 2018 and 6 March 2019. The test was positive for methamphetamine at a level above the maximum cut-off point. It was also positive for THC (cannabinoids).
123Mr C indicated that this was indicative of a person in the top 30 to 35% of detections which he described as the highest use and the top third of methamphetamine users.
124With respect to the second test the sample was collected from the father on 12 June 2019 and tested by [Drug and Alcohol Testing Laboratory C]. The test was positive for methamphetamine with a reading of 31.4 ng/10 mg and positive for cannabinoids/THC.
125It was put to Mr C that in early June 2019 the father's bottle of [alcohol] was spiked with methamphetamine and consumed by him over a few days. Mr C said he had consulted about this with the toxicologist who agreed with him that such an outcome was not likely and indeed virtually impossible. Mr C explained the cut off level of 5ng/10mg is set for regular, frequent ingestions of methamphetamine. The result of the June test was six times higher than regular use and could not have been brought about in the manner described by the father. Mr C said the discussion he had with the toxicologist was whether a person could survive those levels over such a short space of time.
126The June test related to the three month period from about 5 March to 5 June 2019. Mr C said that if the father did not use methamphetamine during that time, it would have returned a clear reading. There had to be some ingestion by the father during that period. The reading of 31.4ng/10mg was consistent with the top 40% of methamphetamine detections. It was not consistent with drink spiking, but with regular weekly use.
127With respect to the third test, the sample was collected on 3 July 2019 and was again tested by Drug and Alcohol Testing Laboratory C. The July test covered the period from about 26 March to 26 June 2019. The result was positive for methamphetamine with a reading of 15.2 ng/10 mg and it was positive for cannabinoids/THC. Mr C agreed there was an overlap of time of the testing. Having regard to the reduction of concentration it was put to him that it indicated a cessation of methamphetamine use. Mr C did not agree although he stated it was likely to indicate a significant reduction. It fell into a lower category of around 35 to 40% of detections, which is below the average of 50%.
128In the June test, the father tested positive to 55.2pg/10mg of cannabinoids, and returned a similar result in the July test. Mr C described the results as above average use and "a substantive amount of marijuana ingested". Mr C said the father fell within the top 40% of persons testing positive for marijuana.
129With respect to the fourth test the sample was collected on 15 October 2019 and again tested by Drug and Alcohol Testing Laboratory C. It was negative for methamphetamine and positive for cannabinoids/THC. The cannabinoids reading was 54.7pg/10mg which is within Mr C's description of above average and substantial use of marijuana. Mr C said with respect to methamphetamine, the result was indicative of maybe zero use or a significant reduction to the point that it was below that threshold level.
130In cross-examination by counsel for the father, after the results of various tests were put to Mr C, he confirmed that over the period of the tests there was likely to have been a significant reduction in the use of methamphetamine by the father, but he could not say a cessation.
131On 16 January 2020 the Court ordered that as soon as practicable the father undertake a further hair strand test, being the fifth test during the proceedings.
132The father undertook the test some 12 days later on 28 January 2020, again tested by Drug and Alcohol Testing Laboratory C. At the time of trial the results were not known. The results of the fifth test were filed on 12 February 2020. The parties were given an opportunity to make further submissions on 20 February 2020 in the light of this additional evidence.
133The father tested positive to methamphetamine and cannabinoids. The result was 6.29ng/10mg of methamphetamine. As explained by Mr C, the cut off level of 5ng/10mg is set for regular, frequent ingestions of methamphetamine. Therefore, the result of the January 2020 test is consistent with more than regular and frequent ingestion of methamphetamine. Counsel for the father submitted the results indicate a substantial difference in the usage from the start of 2019 to present.
134The fifth test returned a cannabinoids reading of 98.1pg/10mg. As set out at above, Mr C explained a result of 52pg/10mg would classify the father within the top 40% of cannabis users and would mean a substantial amount of marijuana is ingested. The fifth test returned a cannabinoids reading much greater than this. Counsel for the mother pointed out the father's marijuana intake has increased by "over 79% from the previous test results".
135From the above tests I conclude:
•Prior to March 2019 the father used a significant quantity of methamphetamine.
•By late 2019 the father's use of methamphetamine reduced significantly.
•The father consistently used and continues to use a significant quantity of marijuana.
•As at January 2020 the father continues to use methamphetamine and his marijuana use increased significantly.

Text messages

136On 15 February 2019 the mother obtained an interim ADVO protecting herself and the children against the father which provided that he must not in relation to the mother and children assault or threaten them, stalk, harass or intimidate them, including through electronic communication, for example by text message. Specifically the ADVO provided that the father must not do anything to make them feel frightened or feel that he may harm them.
137After the mother terminated a telephone call in June 2019, she began to receive numerous text messages in Italian from the father. By 18 June 2019 she had received over 300 text messages in Italian in some of which the father made remarks of a threatening or sexual nature. The mother continued to receive hundreds of text messages and in all she received 2,000 text messages including some purporting to be from Child D and Child C.
138With Legal Aid funding a number of the text messages were translated. It was pointed out to the mother that only the negative text messages were translated and not those from the father pleading with her to return the children. She acknowledged this, but I accept her counsel's submission that the positive or pleading text messages do not negate the threatening ones.
139An example of a message purporting to be from either Child D or Child C is as follows:
You are going to burn in hell you fucking whore I only ask Dad that he does everything that you accuse him of to use my brother's so you can be a victim, what a whore.

140Examples of the worst messages from the father are as follows:
Die over there so your parents have to pay for the coffin, if it depended on me I would throw you in the river
You are going to burn in hell
Don't make me pay for more detectives to meet you, I am getting tired of it for $700 I found out where you were and for $1,300 I could find out more details
Every day that I don't get to see my kids is another day that I want to hear you moan like a whore. It is gonna hurt even if I spend my last days behind bars it is going to hurt, I am sure it is going to hurt.
If it is fear that you want, that's what you're going to get you should go and see [Dr G] to see what he can do about it
Why don't you kill yourself it would be easier for everyone if it is because of the funeral, don't worry we'll pay for it you are a rat from the sewage
Go fuck yourself you whore you know you are going to die soon pray pray pray
Yesterday I had a dream that we were making babies I don't know if this is a sign that I need to get serviced you don't even know what I am capable of doing to not see my family destroyed which is what you want
Now I am telling you to run but run fast because you are going to pay and I am not going to think about anything else how disgusting and your parents know everything

141The father described himself as devastated and it was a "bad decision" to send the text messages. He denied the mother was scared of him and he said he never said anything to make her afraid.
142The father described the reference to paying a detective as a joke. He repeated that he was devastated and tried to get a reaction from the mother. The father said he only sent the abusive messages after the mother ignored the good begging messages.
143Even making allowances for the father's distress and desperation at being separated from the children, his conduct with respect to those text messages was extreme. It is likely the mother's fear for her own safety increased, and with good reason.
144Dr T acknowledged this when he said the messages were capable of increasing the mother's fear and it would be problematic for her to reduce her fear in the context of receiving them. However, Dr T still considered the mother's fear to be disproportionate and said the messages and what the father says do not fully explain the mother's position.

The parties' current circumstances

145The mother said she is in good health. She has no intention of seeing a medical health practitioner in the future and stressed that she feels fine. She did not see any benefit in receiving counselling at this time. The mother has obtained accommodation in an undisclosed location. She is studying for a [Diploma in Interior Design]. She received a mental health referral but said she feels fine and does not have depression. The other explained she is turning her life around. She does not wish to be medicated, she wants to feel normal and look after the children.
146The mother remains fearful that the father will find her and try to kill or mutilate her. The mother said she is scared at night and lives in fear. She said she must do what is safest for her at this time.
147The father continues to reside at the family home with the older siblings. He has made arrangements for the children's schooling in Perth should they return. He proposes that Child D and Child C will assist in their care while he works. The father is committed to the children being returned and reunited with him and their siblings.

The children's current circumstances

148Inevitably the information regarding the children's present circumstances can only come from the mother and any independent source provided by her. The mother explained that the children are doing fine and this is consistent with their school reports. She has not obtained counselling for either of them as it was not suggested by the school that she should do so.
149The mother explained Child A likes to ride his bike and go to the beach. At school he is organised, he is good at maths and he likes his friends. He is not receiving any counselling but he is doing well at school and the school has no concerns. The mother referred to Child A's school report for the end of Semester 2 in 2019. The report discloses that there were only two days of absence in that semester. In academic terms the report is a very favourable one particularly in mathematics where Child A's achievement is outstanding. Child A always meets expectations with respect to the student development profile. The general comment in respect of Child A was as follows:
[Child A] has had an amazing semester, thriving in all academic and social areas. He is a responsible and engaged learner with remarkable work habits which contributes to his fantastic organisational skills and ability to get work done well. [Child A] has developed into a mature student with a positive mindset towards all aspects of school life. He has been a kind, caring and patient peer support leader, supporting his group members well. Wishing [Child A] all the very best in high school and his future endeavours.

150This is in contrast to the assessment of Child A by the Family Consultant in May 2019 and by Dr T in September/October 2019. I refer to Dr T's assessment of Child A further below.
151As to Child B, the mother said she enjoys her roller skates and going to the park. She enjoys singing, dancing, dressing up and her dolls and teddies. The mother also relied on Child B's Semester 2 report. Child B had three days absent in that semester. Her report was also in favourable terms with sound achievement in all areas. She almost always met expectations with respect to her student development profile. The general comment in her report was as follows:
[Child B] has settled into xx well and developed some positive friendships. She is a respectful and considerate class member who regularly seeks out information and takes an active role in her own learning. [Child B] applies herself consistently in all areas and is showing interest and enthusiasm for the topics covered. She is organised and her book work is always neatly presented.

152The mother has attempted to shield the children from the circumstances of these proceedings. Child A was able to read some of the papers, but it appeared the mother has not said anything inappropriate to him about the proceedings. She acknowledged the children miss their older siblings and their father.

THE LAW

153These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) ("the Act"). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects as set out in s 60B.
The objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

154In deciding whether to make a particular parenting order, s 60CA directs the Court to regard the best interests of the child as the paramount consideration. Section 60CC sets out those matters which the Court must consider in determining what is in the child's best interests.
155I must consider the primary and additional considerations. Section 60CC(2) sets out the primary considerations, which are the benefit to the child of having a meaningful relationship with both of the child's parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
156Section 60CC(2A) provides that in applying the above primary considerations the Court is to give greater weight to the need to protect the child from harm.

Parental responsibility

157Pursuant to s 61DA of the Act, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child.
158Equal shared parental responsibility imposes an obligation upon them to consult as to major long-term issues regarding the child and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are specifically defined in the Act at s 4 as issues about the care, welfare and development of a child of a long-term nature.

159The presumption that it is in the child's best interests for the parents to have equal shared parental responsibility for the child does not apply in circumstances where there is abuse or family violence. The meaning of family violence is set out at s 4AB(1) of the Act which provides:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to) -
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
...

160The presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.

Unacceptable risk

161The test of "unacceptable risk" was expressed by the High Court in M v M (1988) 166 CLR 69 where at 78 the High Court stated:
… In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

162Although M and M (supra) and many other cases dealing with unacceptable risk are determined in the context of disputed allegations of sexual abuse, the unacceptable risk test applies also to other forms of risk including risks to children associated with family violence. (Stott and Holgar & Anor [2017] FamCAFC 152)
163Writing extra judicially, the Hon John Fogarty said in "Unacceptable risk – A return to basics" (2006) 20 Australian Journal of Family Law 249 at 261:
Unacceptable risk in the High Court's formulation [in M v M] requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is 'acceptable' when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child' …

164In Blinko and Blinko [2015] FamCAFC 146 the Full Court set out the principles to be applied in assessing risk and the requirement to consider conditions or safeguards which ameliorate that risk. The Full Court said at [83]:
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.

PRIMARY CONSIDERATIONS

the benefit to the child of having a meaningful relationship with both of the child's parents

165The children have a meaningful relationship with both of their parents. Those relationships are to their benefit subject to the need to protect them from harm. I am mindful that I must give greater weight to the need to protect the children from harm.

the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence

166The father asserted the children are at risk of harm in the care of the mother by reason of her mental health and in particular her genuinely but mistakenly held fear of him. In closing, the father's counsel submitted the father believes the mother genuinely holds a fear of him but there is not a reasonable basis for it and it is an irrational and disproportionate belief. The father's counsel submitted this distorts the mother's decision-making and perception, and exacerbates the depression suffered by the children, in particular, Child A. Counsel pointed to Dr T's description of the children's circumstances as unique and also Dr T being terrified of doing something harmful to the children at the interview. Counsel pointed to Dr T's evidence that at the interview it was physically painful for Child A to see his father and his older siblings. Counsel also submitted that the children are exposed to psychological and emotional harm from the manner in which the mother lives her life looking over her shoulder, concerned the father will be there.
167The father's position was broadly supported by Dr T. Dr T opined that the mother is chronically depressed and disengaged particularly with Child A. Dr T described the mother as a "chronically sad and depressed woman" who "has difficulties in meeting [Child A's] needs…but for the moment is meeting the needs of [Child B]". Dr T reported that the mother needs treatment for her depression and she requires a psychiatric consult in the first instance to assess if she is depressed and if so, the severity.
168The mother asserted the children are at an unacceptable risk of harm in the care of the father by being exposed to family violence specifically the father's intention to harm or kill her. She also asserted they are at risk of harm in his care by reason of his methamphetamine use.
169Dr T opined there is little likelihood that the father will expose the children to abuse or family violence, but he is likely to remain dismissive of and potentially verbally abusive to the mother were they to come into contact. Dr T described the relationship between the parties as an abusive one. He described the father as emotionally volatile. Dr T reported he had no means to suggest that the coercive threats alleged such as seeking to cause the mother to commit suicide by threatening to burn her face with acid are true although Dr T was not aware of the reference to this in the police report.
170Dr T reported that if the father had a significant methamphetamine addiction this would impact significantly upon his capacity to recognise and provide for the children's needs. He did not believe the father has such a methamphetamine addiction, although at the time of writing his report Dr T was not aware that the father had tested positive to methamphetamine in March 2019. At trial Dr T was told of the results of the June, July and October 2019 tests and he was of the view that the father's methamphetamine levels were reducing. Dr T was obviously not aware of the result of the January 2020 test which indicated continued use of methamphetamine and marijuana by the father.
171Dr T was of the view that the father can act protectively in the interests of the children. He further stated the mother had acted protectively, in her view, in the interests of the children, but in doing so has harmed them particularly, Child A. Dr T described Child A's separation from the father as "a terrible traumatic blow".
172Dr T reported that the mother is genuine in her fear of the father, but it is his belief that the fear is out of proportion to how he perceived the issues. Dr T believed that there is an element of the mother's fear, which is currently filtered through what he thought was an untreated depression. Dr T was of the view that there were ways in which the father's behaviour could be controlled and the mother did not need to hold that fear to the intensity that she does and that with treatment it would moderate. Dr T further stated that while there may well be some "good basis" for the mother's concern about the father, it is disproportionate and it causes her to make errors of judgment and indeed errors of perception as a result. He was of the view that it is treatable.
173Dr T reported that Child A in particular, has been quite damaged by the absence from his father, which he described as a form of psychological loss to the children. He said Child A in particular has experienced quite severe depression.
174I agree with Dr T's view that the mother's fear is genuine. I cannot however say if her fear is disproportionate to the issues. I take into account that the parties' relationship was an unhappy one for many years and it was one in which the father subjected the mother to verbal abuse and threats which could reasonably form the basis for the mother's fear. I accept the mother's evidence that the father threatened to throw acid upon her. She also said this to the police in February 2019, shortly before she left Perth.
175The father's text messages are vile and threatening and are likely to have reinforced the mother's fear. They were sent after the interim ADVO was obtained. I find it difficult to describe the mother's fear as disproportionate in these circumstances.
176Dr T's described the messages as terrible and awful. He said they show the father is an intemperate person capable of significant verbal abuse. He also said the messages were capable of increasing the mother's fear. She is already fearful of the father and it would be problematic for her to reduce her fear in the context of receiving these messages. Nevertheless Dr T considered the mother's perception of the situation to be disproportionate. He was of the view that she mixes genuine concerns with things that she elaborates in her mind. He stated that despite the fact that the father sent some horrible messages and said horrible things, that does not fully explain the mother's position.
177Dr T was asked if the father lacked awareness of his denigrating behaviour and he said that there was no doubt in his mind that once Child A and Child B were taken from him and he was refused contact with them, that he lost restraint. Dr T said:
He became absolutely suffused with anger and said some terrible things. But, to the best of my knowledge, he didn’t do – didn’t come over or attempt to find her or attempt to force her or kidnap the children or anything else like that. He said horrible things because I think is his nature. He says some pretty horrible things from time to time. In this case, lots of times but I don’t think that is the same as saying that he would be a person who would be physically harmful to her.

178I 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.
179In considering the mother's hypervigilance, I have not overlooked the actions of Child D and Child C which are likely to have contributed to it. Child D and Child C activated her location services on her iPhone account in February 2019. They accessed her email and Facebook accounts.
180In my view, there is a risk of minimising the mother's fear in these circumstances.
181I 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.
182Dr T said, correctly in my view, that the drug issue is important in terms of the impact it might have on the father's ability for consistency and behavioural and emotional control. It is not in doubt that the father used methamphetamine during these proceedings. He has denied that use. The last hair test dated 28 January 2020 was positive for methamphetamine notwithstanding the father's sworn evidence of the same date that he had not used any illicit drugs other than cannabis since his previous drug test.
183Dr T referred to chronic methamphetamine use as being a risk to children for a number of reasons as it included risks associated with criminal involvement, a persons' behaviour, failure to consider the needs of children and the potential for severe mood disturbance and experience of aggression.
184The father's continued methamphetamine use therefore poses a risk to the children by his behaviour and it compounds the risk he poses to the mother by way of increased aggression and lack of impulse control.
185The father, supported by Dr T urges me to make orders which provide for the children to live with the father in Perth relying heavily on the psychological harm to Child A from being separated from the father. To do so however, would be to place the children in the care of the father who has threatened their primary carer with violence and who denies an ongoing methamphetamine use.
186I 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.
187In the absence of a psychiatric report I am unable to make a finding as to whether the children are at risk of psychological harm in the care of the mother.
188The children are at an unacceptable risk of psychological harm in the care of the father if they are exposed to family violence perpetrated by the father upon the mother and by reason of his methamphetamine use. The children are not at risk of physical harm from being subjected to family violence perpetrated by the father, although it is difficult to predict what if any effect his methamphetamine use will have upon him and the way in which it will impact upon the children.
189The basis of my finding as to risk posed by the father is to be found in the facts of the case. The mother was subjected to family violence by the father during the marriage. The father threatened to harm the mother in text messages to the mother after the interim ADVO was granted. Contrary to his denials, the father continues to use methamphetamine.
190I 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.
191The risk the father poses the children must be balanced against other factors. The children have a close and loving relationship with the father. They love and miss him. They also love and miss their adult siblings. The children told Dr T they wanted to return to live with the father. The father has never physically harmed the children. He provided well for them emotionally in that they are closely bonded to him. They have and may continue to suffer loss and grief at the cessation of their relationship with him. The children's relationship with the father is likely to be of benefit to them provided he does not harm the mother and he addresses his substance abuse.
192In all the circumstances I conclude that with safeguards such as supervision, the risk posed by the father to the children can be ameliorated and managed such that it is not an unacceptable one. The ongoing need for these safeguards may depend on the psychiatric assessment of the father and the outcome of his drug and alcohol counselling.

ADDITIONAL CONSIDERATIONS

any view expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

193Dr T reported that both Child A and Child B appear to be age appropriate in their development. He described the children's views as simple. Dr T reported the children wished to be reunited with their family and they wished that unification to occur in Perth. He reported the children like their father and their older siblings and have stronger attachments to their friends and school in Perth.
194Dr T was of the view the children had not been coached in their views and that they have formed their views independently out of a longing and love they have for their family.
195Dr T believed that considerable weight needs to be given particularly to Child A's views.
196I accept the children miss their father and their adult siblings and at the time of their interview with Dr T both wished to return to Perth. Although the evidence of the mother was that the children have settled in their new school and are doing well, there was no suggestion that their views in relation to their father and siblings had changed.

the nature of the relationship of the child with:

(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child)

197Both children have a close and loving relationship with the father. The mother's position is that both children have a close and loving relationship with her. I accept that is the case, certainly with respect to Child B. Dr T indicated that Child A had become somewhat disengaged and detached from the mother, which he considered was a product of Child A's current predicament. Undoubtedly the children have a close and loving relationship with their adult siblings, with Child C taking on the role of mother to them.
198The children have a good relationship with their maternal grandparents.

the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;

the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
199The mother has made decisions about major long-term decisions about Child A and Child B who live with her. She has maintained them. The father has not had an opportunity since separation to participate in making decisions or to spend time and communicate with the children.

the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

200The change in the children's circumstances, from living with both parents in Perth to living solely with the mother has had a devastating impact upon Child A, by reason of the separation from the father and adult siblings. To a lesser extent it has also affected Child B.
201The mother has been the children's primary carer since their birth and she remains so, however they are closely bonded to the father and therefore the separation from him has had a significant impact on the children and a detrimental effect upon Child B.
202In the event that the children were to return to Perth to live with the father they would be separated from their primary carer. The move would accord with Child A's wishes and Dr T's position is that it will have a beneficial effect upon him. What is not known however, is the impact of a separation on Child A from the mother. Child B is happy in the care of the mother, and although she misses the father a move from the mother's care would be a significant change for her. The company of the father and her adult siblings is unlikely to be enough to compensate for the loss of her primary carer. Consequently leaving aside the question of risk, placing the children in the care of the father is likely to be a good outcome for Child A psychologically, but not for Child B.
203As to the impact on the children of a significant change in their circumstances, much will depend upon the extent to which they are able to spend time and communicate with the other parent. Until both parties are assessed and treated if necessary, it is not known to the extent to which the children can enjoy a relationship with both of their parents in the long-term.
204The consequence of the orders sought by the mother, is that the children will not have an ongoing relationship with the father or their adult siblings, although she subsequently proposed that there be time spent and communication, both supervised. The children are likely to feel the loss of that relationship and grief at a cessation of their relationship with the father. Further, if the Court decides the children should live with the father, they will not have a relationship with the mother, similarly a loss which is likely to have a detrimental effect upon them, and particularly Child B.
205It is difficult to form a concluded view in this respect for the long‑term without further information including a psychiatric report in respect of both parties and a report in respect of the children after they have received counselling.

the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

206There is practical difficulty and expense having regard to the distance between the parties, the cost of travel and the cost of supervision.

the capacity of:

(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs
207Dr T reported that the critical issue remains the concerns raised about the father's alleged drug abuse and Dr T's belief the mother is suffering from a severe prolonged depressive episode.
208Dr T reported and I agree, that if the father has a significant methamphetamine addiction this would impact significantly on his capacity to recognise and provide for the children's needs. Dr T did not believe the father had such an addiction and said evidence to that effect was not available to him. Further, Dr T reported that there was no suggestion from the children that the father's behaviour had been erratic or marked by periods of intense activities or sleep deprived nature which would be expected of a person who had a consistent methamphetamine addiction.
209Contrary to Dr T's belief, evidence which has become available since the writing of his report, demonstrates that the father has used methamphetamines regularly and the levels were particularly high at the time of his first hair strand test. They subsequently reduced, but the last test also produced levels of methamphetamine which suggest the father has continued to use the substance. The mother's evidence was that the father's behaviour after use was marked by a period of intense activity or sleep deprived nature.
210The father has provided well for the children's emotional needs, except when he has denigrated the mother and exposed the children to arguments between them. On the other hand, both children are closely bonded to him. They love him and miss him and he loves and misses them.
211The mother's ability to provide for the children's needs, including their emotional needs has been compromised by her sadness, unhappiness and withdrawal from the family. Dr T described her as "a chronically sad and depressed woman, over a long period of time, who was withdrawn and isolated and has no friends, social outlets, direction in life or sense of pleasure or energy." This would impact on her ability to provide for the children's needs and she did say she was not able to be the parent she wanted to be. Nevertheless the children are reportedly (by the mother) happy at present and doing well academically. They remain closely bonded to both parents.
212In her oral evidence the mother was quite animated when speaking of the children's progress and she assured the Court that she now feels quite well, although she lives in fear.
213During their relationship the parties between them provided for the children's needs.

the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

214Dr T reported that Child A and Child B appear to be age appropriate in their development and there is no suggestion of any developmental concerns. He described Child B as quite a happy child, but described Child A as having been traumatised by the transfer from Perth to State A. In Dr T's view, Child A is experiencing a severe emotional reaction that is likely to lead to a significant depressive experience for him if the current situation continues.

if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right

215This consideration is not relevant.

the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

216I refer to my findings above which are reflective of the parties' attitudes to Child A and Child B and to the responsibilities of parenthood demonstrated by each.
217The mother's position is that she has acted responsibly in relation to the children by seeking to protect them from harm. Such is her belief that the father will harm her that she is unable to promote the relationship between the children and their father and between the children and their older siblings. I cannot say if in this respect the mother demonstrates a responsible attitude or whether her fear is, as Dr T's said, disproportionate to the circumstances. A psychiatric report will assist me in this respect.
218The father's denigration of the mother, both during the relationship and in the text messages is relevant to his attitude to the responsibilities of parenthood. To send 2,000 text messages some in breach of the ADVO, is indicative of his attitude to the mother.
219During the relationship the parties argued. The father did not behave respectfully towards the mother. Child D and Child C have little respect for the mother and it is of concern that the father's behaviour may potentially have the same effect on Child A and Child B.
220I accept that the father sincerely wants the four children to be together and he blames the mother for the current predicament. So strong are his feelings and his anger and impulsivity, I cannot be sure he would comply with Court orders.

any family violence involving the child or a member of the child's family

221I refer above to my findings in this respect. There has been family violence involving the parties to which Child A and Child B have been exposed. There is a risk they will continue to be exposed to family violence.

if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:

(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;

(v) any other relevant matter
222The mother has an interim ADVO protecting her and the children from the father. The hearing in respect of this order is listed to take place [in] April 2020 at City A Local Court in State A.

whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

223I am unable to make final orders. I require an assessment of the mental health of both parties to enable me to determine the future arrangements for the children.
224A further issue to be considered is whether the father should have an opportunity to demonstrate firstly, that he can cease using methamphetamine and the high levels of cannabis he is currently using, and secondly, that his anger and impulsivity directed towards the mother will abate such that she can feel safe and live without fear.

any other fact or circumstance that the court thinks is relevant

225The father has obtained a referral from his general practitioner to obtain drug and alcohol counselling. This is a positive move, he is to be commended for it. It remains to be seen whether he will benefit from that, but clearly that is an appropriate course of action.
226The mother has not had counselling, subject to the terms of the psychiatric assessment she may require assistance for her mental health.
227Both children should receive counselling and in particular Child A, about whom Dr T has the greatest of concern. The counselling should be reportable.
228I am concerned that with the passage of time, the children's separation from the father and their siblings becomes an extended one.

CONCLUSIONS

229Having considered all of the evidence in the context of the primary and additional considerations I have come to the following conclusions.
230There has been family violence between the parties. The presumption that it is in the best interests of Child A and Child B that their parents have equal shared parental responsibility for them does not apply. In the circumstances it is clear that the parties could not consult as to major long-term issues regarding the children and make a genuine effort to come to a joint decision.
231The orders I intend to make will be interim orders. In the circumstances I consider it would not be appropriate for the presumption to be applied when making those orders.
232It is necessary for me to determine whether the risk of harm to the children in living or spending time with the mother or the father outweighs the benefits to them of spending that time.
233Dr T is of the view that the mother requires a psychiatric consult in the first instance to assess if she is depressed and if so, her severity. In the context of the father's drug and alcohol use, Dr T reported some objective determination of whether his use is hazardous should be considered.
234By reason of the concerns regarding the mother's mental health and the concerns regarding the father's behaviour and substance abuse, I am of the view that a further assessment of both parties mental health is necessary. An assessment by a suitably qualified psychiatrist may provide a basis for a long term decision in this matter. I consider it is necessary for there to be such an assessment with a view to determining whether either parent suffers from a diagnosable psychiatric condition, or any mental health condition that might impact on their parenting of the children.
235I consider an outcome which is in the best interests of the children pending further enquiry is that they continue to live with the mother and that they receive counselling from a suitably qualified counsellor. Such counselling should be reportable. I require a report following the psychiatric assessment of both parties. I also require ongoing information as to the father's drug and alcohol counselling, and he should submit to ongoing testing for use of illicit substances.
236In closing the mother's counsel proposed that the children spend supervised time with the father in a contact centre in State A during the school holidays and that they also have supervised telephone or video communication with him once a week. Having put forward this proposal I assume this is an arrangement which the mother considers she can cope with without it impacting detrimentally upon her parenting of the children.
237I consider at this time orders providing for the children to have supervised electronic communication with the father to be in their best interests. My view in this respect is consistent with that of Dr T and the Family Consultant. The children should also communicate with Child D and Child C. Such an arrangement should be implemented as soon as the appropriate safeguards can be put in place.
238My orders will require the ICL to be proactive and to forthwith nominate a psychiatrist upon which the parties should attend, and a counsellor for the children.
239The proceedings will be listed for hearing within a short time with a view to orders being made.

THE PROPOSED ORDERS

240Subject to hearing from counsel, the orders I propose to make are as follows:
Until further order:
1The children, [Child A] born [in] 2008 and [Child B] born [in] 2011 live with the mother, [Ms Damico].
2The children have supervised electronic communication with the father, [Mr Damico].
3The children participate in counselling provided by such counsellor as is recommended by the Independent Children's Lawyer.
4The costs of the counselling for the children shall be met equally by the parties.
5Within six weeks each party shall attend upon a psychiatrist to be nominated by the Independent Children's Lawyer, with a view to obtaining an assessment to include the following:
(a)whether either party has a diagnosable psychiatric condition or mental health condition;
(b)if so, the nature and extent of the condition and the impact this may have upon their capacity to parent the children and to co-parent them; and
(c)whether any, and if so what treatment is recommended.

6The Independent Children's Lawyer have permission to provide a copy of the report of the Single Expert Witness, [Dr T] dated 28 October 2019, these reasons for judgment and these orders to any psychiatrist or mental health professional working with the children, or either of the parties pursuant to these orders.
7The psychiatrist or mental health professional be permitted to request information directly from any other third party for the purpose of his or her assessment and if necessary inspect any subpoenaed material in these proceedings.
8Upon completion of the psychiatrist's assessment, he or she is requested to forward a copy of it to the Family Court of Western Australia and the Independent Children's Lawyer.
9Each party meet the costs associated with his or her psychiatric assessment.
10The matter be listed before Justice Duncanson in relation to monitoring the respective counselling/assessment and to further define these orders as may be necessary.
11All parties have permission to attend the further hearing by telephone.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
7 APRIL 2020