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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading DAMICO and DAMICO

Details

AGLC: DAMICO and DAMICO [2020] FCWA 53
Case: [2020] FCWA 53
Decision Date: 7 APRIL 2020

CaseChat Overview and Summary

In the Family Court, a dispute arose between the parents of two children, concerning allegations of family violence and drug use, which created an unacceptable risk to the children's safety, health, and wellbeing. The parents were required to undergo psychiatric assessments to determine the nature and extent of the risks posed by each parent. The matter was heard by Justice J.H.E. Bell, who was tasked with making interim orders to safeguard the children's welfare until the final hearing.

The court was required to determine whether there was sufficient evidence to conclude that the parents posed an unacceptable risk to the children due to their conduct, and whether interim orders should be made to protect the children. Specifically, the court needed to assess whether the allegations of family violence and drug use were substantiated, and whether the parents' conduct warranted the imposition of protective measures to ensure the children's safety, health, and wellbeing.

Justice Bell concluded that there was an unacceptable risk to the children's safety, health, and wellbeing due to the parents' conduct, which included allegations of family violence and drug use. The court found that the allegations were substantiated and that the parents' behaviour posed a significant risk to the children. Consequently, the court made interim orders, including a prohibition on the children's contact with both parents, and directed that the parents undergo psychiatric assessments. The court also ordered that the children be placed in the care of a relative until the final hearing.

The final orders included the prohibition on contact between the children and both parents, the requirement for psychiatric assessments, and the placement of the children with a relative. The court also directed that the parents attend a drug and alcohol assessment and treatment program, and that they participate in a family violence intervention program. The interim orders were designed to protect the children until the final hearing, at which point the court would make a determination as to the long-term care and protection of the children.

Orders