Deceased
Fiona Joy Warzywoda
Demographics
33y, female
Coroner
Coroner Audrey Jamieson
Date of death
2014-04-16
Finding date
2019-07-17
Cause of death
Stab wounds to the chest (tension hemopneumothorax resulting from stab wounds)
AI-generated summary
A 33-year-old woman was fatally stabbed by her separated de facto partner following a 18-year relationship marked by escalating family violence. Multiple agencies had contact with the victim in the weeks before her death but failed to identify and manage serious risk factors. Victoria Police did not properly investigate death threats or breaches of Family Violence Intervention Orders. Child Protection failed to conduct risk assessment or safety planning despite knowledge of threats to kill. A lawyer advised lodging a property caveat as a condition of legal aid, which the victim feared would anger her partner—exacerbating financial stress and his risk. Court security overheard the perpetrator say "I'm going to slice her" but did not report this to police. These missed intervention opportunities across Victoria Police, Child Protection, courts, and legal aid services highlight the importance of consistent family violence risk assessment, proper recording and escalation of threats, and coordination between agencies.
AI-generated summary — refer to original finding for legal purposes. Report an inaccuracy.
Specialties
Error types
IN THE CORONERS COURT Court Reference: COR 2014 1962
OF VICTORIA AT MELBOURNE FINDING INTO DEATH WITHOUT INQUEST Form 38 Rule 60(2) Section 67 of the Coroners Act 2008
Findings of: Audrey Jamieson, Coroner
Deceased: Fiona Joy Warzywoda
Date of birth: 2 September 1980
Date of death: 16 April 2014
Cause of death: I(a) Stab wounds to the chest
Place of death: Intersection of Devonshire Road and Hampshire Road,
Sunshine, Victoria, 3020 Catchwords: — Family Violence, Intimate Partner Homicide
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Pursuant to section 67(1) of the Coroners Act 2008, I make findings with respect to the following circumstances:
Fiona Joy Warzywoda was 33 years of age at the time of her death. She was separated from her long-term de facto partner, Craig McDermott, and was living with her brother
in Bendigo at the time of the fatal incident.
Ms Warzywoda formed a relationship with Mr McDermott in approximately January 1996, when Ms Warzywoda was 15 years old, and Mr McDermott was 19 years old.!
Their relationship continued for 18 years until they separated in February 2014.? There were four children from the relationship who were born between January 1999 and
January 2009.3 Mr McDermott also had a son from a previous relationship.’
The relationship between Ms Warzywoda and Mr McDermott was punctuated by infrequent periods of separation, often following family violence incidents perpetrated by Mr McDermott.> Witnesses that have provided statements in the course of the coronial investigation described a long history of family violence perpetrated by Mr McDermott against Ms Warzywoda, including frequent verbal arguments and incidents of verbal abuse by Mr McDermott towards Ms Warzywoda. Mr McDermott is also reported to have engaged in threatening and violent behaviour including incidents in which he kicked windows, punched holes in walls, smashed Ms Warzywoda’s property,
and assaulted her.®
In one significant family violence incident, Mr McDermott reportedly strangled and assaulted Ms Warzywoda in front of their children and then poured petrol throughout the house, threatening to burn it down. This incident occurred in March 2010 and resulted in a brief separation for approximately six months, until the couple reconciled in September
2010.7
' Coronial Brief, Appendix 17, 662.
2 Ibid.
3 Thid 662-663.
4 Coronial Brief, Statement of DM dated 16 April 2014, 94.
5 Coronial Brief, Appendix 17, 662-663.
6 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 78, Statement of Emma Van Berlo dated 23 April 2014, 105.
7 Coronial Brief, Appendix 17, 662-664.
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On 16 April 2014, Mr McDermott and Ms Warzywoda attended the Sunshine Magistrates’ Court in relation to Family Violence Intervention Order (FVIO) proceedings that involved applications against each other. When Ms Warzywoda arrived at Court, she told the registrar that she felt unsafe and they directed her to the Protective Services Officers (PSOs).’ The PSOs advised Ms Warzywoda to sit immediately outside of their office where they could keep an eye on her.? When Mr McDermott arrived at Court, he walked past Ms Warzywoda and allegedly threatened her.!° Ms Warzywoda reported this to registry staff, who advised her to tell the PSOs."!
A Victoria Police member, who was providing Court support in the family violence list at Sunshine Magistrates’ Court, was advised by the Court registry staff that Mr McDermott had threatened Ms Warzywoda at Court that morning.'? Although the police member spoke directly with Ms Warzywoda to discuss the reported threat, no
further action appears to have been taken by the police on this occasion.
directions hearing."
entrance to the lawyers’ office."
head, neck and upper chest and then fled the scene. This assault was witnessed by a
8 Coronial Brief, Statement of Karen Field dated 6 May 2014, 194.
9 Coronial Brief, Statement of Adam Van-Lieshout dated 16 April 2014, 217-219.
10 Above n 8, 195; Statement of Kim Robertson dated 24 April 2014, 214.
"! Above n 8, 195.
2 Above n 8, 195; Statement of LB dated 16 April 2014, 432.
3 Coronial Brief, Appendix 11; Audio recording of the intervention order hearing at the Sunshine Magistrates’ Court on 16 April 2014.
14 DPP vy McDermott [2016] VSC 489, 13.
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large number of bystanders. Despite bystander assistance and intervention by
paramedics, Ms Warzywoda died at the scene as a result of her injuries.
Identification investigation
Upon reviewing the available evidence, Coroner Phillip Byrne completed a Form 8 Determination by Coroner of Identity of Deceased, concluding that the identity of the deceased was Fiona Warzywoda. Identity is not in dispute and requires no further
investigation.
Forensic pathology investigation
Dr Jacqueline Anita Lee, Forensic Pathologist at the Victorian Institute of Forensic Medicine (VIFM), performed an autopsy upon the body of Fiona Warzywoda, reviewed a post mortem computed tomography (CT) scan and referred to the Victoria Police
Report of Death, Form 83.
Dr Lee commented that the mechanism of death was tension hemopneumothorax as a consequence of stab wounds to the upper front of the left side of the chest.
Hemopneumothorax was the result of blood and air accumulating around the left lung
within the left chest cavity.
Dr Lee further commented that tension develops when the accumulating air cannot escape and as a consequence causes respiratory difficulties, cardiovascular collapse and
then death.
Toxicological analysis of post mortem blood samples did not detect the presence of
common drugs or poisons.
Dr Lee ascribed the medical cause of Warzywoda’s death to be stab wounds to the chest.
'S Thid.
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Police investigation
contact with Ms Warzywoda prior to her death.
In the course of the investigation, my Investigator learned that Ms Warzywoda had a history of family violence in her relationship with Mr McDermott. Victoria Police Law Enforcement Assistance Program (LEAP) records!’ indicate that Victoria Police attended three family violence incidents between Mr McDermott and Ms Warzywoda on 1 December 2000, 28 March 2010 and 16 February 2014.
On 17 August 2016, after an extensive criminal trial and proceedings in the Supreme Court of Victoria, Mr McDermott was found guilty of murder and was sentenced to 25
years imprisonment with a non-parole period of 20 years.
Family violence investigation
Deaths (VSRFVD).”
'6 A Coroner’s Investigator is a police officer nominated by the Chief Commissioner of Police or any other person nominated by the Coroner to assist the coroner with his/her investigation into a reportable death. The Coroner’s Investigator receives directions from a Coroner and carries out the role subject to those directions.
17 Information about LEAP records provided by Victoria Police. The Law Enforcement Assistance Program (LEAP) online database is fully relational and stores information about all crimes bought to the notice of police as well as family incidents and missing persons. It also includes details on locations and persons involved.
18 The Coroners Prevention Unit is a specialist service for Coroners established to strengthen their prevention role and provide them with professional assistance on issues pertaining to public health and safety.
'9 The VSRFVD provides assistance to Victorian Coroners to examine the circumstances in which family violence deaths occur. In addition the VSRFVD collects and analyses information on family violence-related deaths. Together this information assists with the identification of systemic prevention-focused recommendations aimed at reducing the incidence of family violence in the Victorian Community.
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21;
‘family violence’ in the FVPA, specifically in the form of physical abuse, emotional and
psychological abuse, threatening behaviour, and controlling behaviour.
An in-depth family violence investigation was conducted in this case and I requested materials from a number of key service providers that had contact with Ms Warzywoda,
Mr McDermott and their children prior to Ms Warzywoda’s death.
Proximate Family Violence Incidents
In the early hours on 16 February 2014, Mr McDermott allegedly became aggressive towards Ms Warzywoda after she refused to provide him with the keys to the family car because he was intoxicated. Mr McDermott subsequently damaged the car by kicking in the front panel and throwing a rock through one of the windows. The police were called, but Mr McDermott had left before they arrived. Police applied for a FVIO to protect Ms Warzywoda and their children from Mr McDermott.”°
Ms Warzywoda and Mr McDermott separated following this incident however, despite the separation, Mr McDermott continued to reside in the family home until 24 February
2014.7!
The following day, on 17 February 2014, Mr McDermott and Ms Warzywoda attended the Sunshine Magistrates’ Court in relation to the Victoria Police application for a FVIO.
Ms Warzywoda was granted a final FVIO with limited conditions protecting her and their four children. The conditions of this Order prevented Mr McDermott from committing family violence against Ms Warzywoda and their children but allowed him
to continue to reside in the family home.”*
On 23 February 2014, Ms Warzywoda’s neighbour reported that Mr McDermott had come to his home at approximately 7.00am and accused the neighbour and Ms Warzywoda of ‘setting him up’. Mr McDermott threw his phone and keys at the neighbour and then left. Following this incident, the neighbour contacted Ms Warzywoda out of concern for Mr McDermott’s behaviour and they both attended
Melton Police Station to file a missing person’s report.2?7 Mr McDermott was later
20 Thid.
21 Coronial Brief, Appendix 17, 658.
22 Coronial Brief, Appendix 17, 657; Coronial Brief, Appendix 9, 591-592.
23 Coronial Brief, Statement of Steve Unwin dated 10 May 2014, 121-122.
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located by police in Bacchus Marsh, after he had allegedly broken into a stranger’s house and stolen a number of items of personal property. He was taken to Sunshine
Hospital for a mental health assessment and was later released into police custody.”
The following day, on 24 February 2014, Mr McDermott moved out of the family home and went to live with his parents. At this time, Mr McDermott and Ms Warzywoda had an informal agreement that Mr McDermott would spend time with their children every
Wednesday for two to three hours after school.”
On 12 March 2014, Mr McDermott took three of the younger children out to dinner with the agreement of Ms Warzywoda. However, following the dinner, Mr McDermott refused to return the children, despite repeated requests by Ms Warzywoda for him to do s0.26 Ms Warzywoda later stated in a family law affidavit that she had contacted Victoria Police in Melton and that they had advised her that, as there were no family law orders in place they were limited in what they could do. Police members conducted a welfare check at Mr McDermott’s brother’s home but that neither Mr McDermott nor the children were there.2” No follow up action was taken and the report of children being
taken by Mr McDermott was not recorded on LEAP.
Ms Warzywoda sought legal advice and on 18 March 2014, Ms Warzywoda made an application at the Sunshine Magistrates’ Court to vary the existing FVIO to prevent Mr McDermott from coming near the family home, herself, or their children. The FVIO matter was listed for a mention hearing on 26 March 2014.8 Ms Warzywoda was also advised by her lawyer that in order to qualify for a grant of financial assistance from Victoria Legal Aid, she would need to place a caveat on the property she owned jointly with Mr McDermott. Ms Warzywoda expressed concerns that this would further anger Mr McDermott but reluctantly agreed to the caveat in order to secure legal assistance to
pursue a recovery order for the safe return of her children.”
24 Coronial Brief, Statement of Steve Unwin dated 10 May 2014, 121-122; Records provided by Western Health relating to Craig McDermott.
25 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 81.
26 Coronial Brief, Appendix 17, 659.
27 Thid.
28 Coronial Brief, Appendix 10.
29 Coronial Brief, Statement of Bronwyn Alice Doyle dated 16 April 2014, 150-154.
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On 19 March 2014, Ms Warzywoda’s legal representative filed an application for a recovery order* in the Federal Circuit Court in Melbourne.*! The matter was listed for a
hearing on 24 March 2014.
On 21 March 2014, Ms Warzywoda returned home from work to find that someone had been inside and a number of items of jointly owned property, as well as the children’s clothing, had been removed. The locks to the house had been damaged and items had been placed in the sliding doors to prevent Ms Warzywoda from having access to the property. Ms Warzywoda believed that Mr McDermott was responsible and had breached the FVIO and subsequently made a statement about the incident to the police.
On 23 March 2014, police interviewed Mr McDermott and he was released on bail
pending a summons.”
On 24 March 2014, Mr McDermott and Ms Warzywoda attended the Federal Circuit Court in relation to Ms Warzywoda’s application for a recovery order. On this occasion, interim orders were made for the children be returned to Ms Warzywoda at Spm that day at the Sunshine Police Station. The interim orders also permitted Mr McDermott to spend time with the children for a few hours every Sunday and Wednesday. Mr McDermott complied with the orders and returned the children to Ms Warzywoda that
day.>*
After the children were returned, they told Ms Warzywoda that whilst they had been with Mr McDermott, he had told them that he was going to kill Ms Warzywoda with a pocket knife that he had shown them (the death threat).’°
On 26 March 2014, one of the children was visibly distressed at school and when her teacher spoke with her, the child disclosed the death threat that Mr McDermott had made. The teacher reported this to the school principal, who reported it to Child Protection at the Department of Health and Human Services (Child Protection). The
Child Protection worker advised the school principal to contact Victoria Police and Ms
30 This is an urgent order that the children be returned to the care of a parent.
3! Coronial Brief, Appendix 16.
32 Coronial Brief, Statement of Fiona Warzywoda dated 21 March 2014, 888-890; LEAP records provided by Victoria Police, 37
33 Coronial Brief, Appendix 18, 695.
#4 Tbid, 688.
35 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 82.
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Warzywoda, which she did.*° A police member at Melton Police station took the call from the children’s school and reviewed the threat reported with another senior constable at the station. Both officers formed the opinion that no offence had been committed and that there was no immediate risk to Ms Warzywoda’s safety, the death
threat report from the children’s school was also not recorded in LEAP.*”
On the same day, Mr McDermott and Ms Warzywoda attended the Sunshine Magistrates’ Court. The Magistrate granted an interim variation to Ms Warzywoda’s FVIO, which prevented Mr McDermott from going near.the family home, Ms Warzywoda or their children.** In response, Mr McDermott made his own application for a FVIO against Ms Warzywoda, alleging that she had been violent towards himself and the children.2? Mr McDermott was granted a limited interim FVIO against Ms Warzywoda, without the children included, and both matters were adjourned to 16 April 2014,
Whilst giving evidence at the FVIO hearing, Ms Warzywoda notified the Court of the death threat and said she believed that the school had reported the threat to the police."’ The Magistrate advised the police prosecutor to follow up this matter and see whether anything had been recorded on LEAP about the death threat reported by the school.” The following morning the police prosecutor emailed a police member at the Melton Police Station regarding the death threat, stating that it was not recorded on LEAP and
asking him to follow up ‘whether there was any report made to the police about this.’
A police member from Melton Police Station called Ms Warzywoda the following day on 27 March 2014.44 Ms Warzywoda advised the police member that she had an intervention order against Mr McDermott in place and disclosed the incident of property damage which had occurred on 21 March 2014. Ms Warzywoda also disclosed that the
children did not want to go to Mr McDermott’s house, but she was worried that if she
36 Coronial Brief, Statement of Liza Dearing dated 18 April 2014, 137-141; Statement of Michelle Costa dated 19 April 2014, 143-148; Child protection CRIS records provided the Department of Health and Human
Services.
37 Coronial Brief, Statement of TM dated 17 June 2014, 1164-1166.
38 Coronial Brief, Appendix 10, 593.
3° Coronial Brief, Appendix 22, 798.
4 Tbid 803.
41 Coronial Brief, Statement of Olivia Cameron dated 7 May 2014, 206.
® Tbid 207.
8 Tbid 208.
44 Coronial Brief, Statement of TM dated 17 June 2014, 1164-1166.
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did not send them this would be held against her in Family Court. Based on the conversation the police member made an assessment that Ms Warzywoda and Mr McDermott ‘did not have a violent history or an extensive family violence history 45 and noted that Ms Warzywoda ‘did not mention [Mr McDermott] ever being physically violent towards her.’*® The police member noted that they had no concerns for Ms
Warzywoda’s welfare based on the information provided in the conversation.*7
On 2 April 2014, as a result of Mr McDermott’s death threat, Ms Warzywoda made an urgent application to the Federal Circuit Court to suspend Mr McDermott’s time with the
children, and the matter was listed for 14 April 2014.8
On 14 April 2014, Mr McDermott and Ms Warzywoda both attended the Federal Circuit Court in Melbourne and were ordered to undertake an urgent Child Inclusive Conference
with a Family Consultant at the Court the following morning.”
On the morning of 15 April 2014, the Family Consultant spoke with Ms Warzywoda, Mr McDermott and the three oldest children individually. The Family Consultant noted that the children were fearful that Mr McDermott would kill their mother.*° As a result of these conversations, the Family Consultant recommended that Mr McDermott’s time
with the children be suspended.*!
The Court followed this recommendation and ordered that Mr McDermott’s time with the children be suspended pending a psychiatric assessment of both Mr McDermott and Ms Warzywoda.*? Mr McDermott became visibly upset about this outcome and had to be physically restrained by his brother in the waiting area of the Court. He was overheard by a security officer saying ‘I’m going to slice her’? as he left the Court premises. The security officer who heard the threat did not report the threat to Victoria
Police or speak with Ms Warzywoda.
45 Ibid.
46 Ibid.
47 Ibid.
48 Coronial Brief, Appendix 16.
49 Coronial Brief, Appendix 12.
50 Coronial Brief, Statement of Manuela Galvao dated 23 June 2014, 164-185.
5! Coronial Brief, Appendix 14.
» Thid.
53 Coronial Brief, Statement of Sharaf Mohammed dated 22 April 2014, 188.
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Al.
Following the hearing, Ms Warzywoda and her brother went straight to her lawyer’s office in Sunshine. While he was waiting outside, Mr Warzywoda saw Mr McDermott drive past the lawyer’s office approximately four times while Ms Warzywoda was
inside.**
Family Violence Risk Factors
In the course of their investigation, the CPU identified the presence of a number of risk factors known to increase the risk of fatal family violence between intimate partners.*° The CPU identified the presence of risk factors utilising the Family Violence Risk Assessment and Risk Management Framework also known as the Common Risk Assessment Framework (CRAF). Practitioners like child protection workers, Victoria Police members, mental health clinicians and medical professionals are recommended to consider the content in the CRAF as a best practice model for identifying risks and
responding consistently in services provided to family violence victims or perpetrators.
The CRAF contains a number of evidence-based risk factors which have been found to impact on the likelihood of family violence occurring and the severity of family violence that is likely to occur.°° These risk factors are divided into three categories: those which relate to the victim of family violence, those which relate to the perpetrator, and those
which relate to the relationship.
I confirm that the CRAF has recently been replaced by the Family Violence MultiAgency Risk Assessment and Management Framework (MARAM).*” The aim of the MARAM framework is to increase the safety and wellbeing of Victorians by ensuring all relevant services are contributing effectively to the identification, assessment and management of family violence risk. To achieve this, the MARAM has been established in law under the Family Violence Protection Act 2008 (Vic). This requires organisations
that are prescribed through regulations, as well as organisations providing funded
54 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 82-83.
55 These risk factors were identified using the Family Violence Risk Assessment and Risk Management Framework (also known as Common Risk Assessment Framework). This tool is used by service providers commonly assisting victims and perpetrators of family violence.
56 Department of Health and Human Services, Family Violence Risk Assessment and Risk Management Framework and Practice Guides 1-3 (2012), 2" Edition.
57 Family Safety Victoria, Family Violence Multi-Agency Risk Assessment and Management Framework (2018).
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services relevant to family violence risk assessment and management, to align their
policies, procedures and practice guidance to the new MARAM framework.
Warzywoda and her family.
network of family and friends.
physically assaulting a former partner.**
the fatal incident.
58 LEAP records provided by Victoria Police, 21-22. 7
59 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 82; DPP v McDermott [2016] VSC 489, 3-4, ; Coronial Brief, Appendix 17, 662; Appendix 31,921; LEAP records provided by Victoria Police, 32; DPP v McDermott [2016] VSC 489, 6; Child protection CRIS records provided the Department of Health and Human Services.
61 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 82; Appendix 33; DPP v McDermott
© Coronial Brief, Statement of Manuela Galvao dated 23 June 2014, 166, 176; DPP v McDermott [2016] VSC 489, 21.
63 Coronial Brief, Statement of Joshua Warzywoda dated 5 May 2014, 82-83; DPP v McDermott [2016] VSC 489, 7.
64 DPP v McDermott [2016] VSC 489, 1.
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With regards to the relationship specific risk factors, all three appear to have been present. There had been a recent separation and an escalation in the frequency and severity of the family violence, both of which also indicate an increased risk of Ms Warzywoda being killed or almost killed. Lastly, Mr McDermott had taken a leave of absence from his work® and his access to the proceeds from the sale of the family home had been impacted by the family law proceedings and Ms Warzywoda lodging a caveat over the property.
In light of the issues identified by the VSRFVD, I held a Directions Hearing into the death of Ms Warzywoda on 21 May 2019. Prior to the Directions Hearing, the interested parties were provided a copy of the coronial brief subject to non-publication conditions pursuant to section 115 of the Coroners Act 2008 (Vic). The parties were also informed that the following concerns had been identified during the course of the coronial
investigation:
a. Victoria Legal Aid — policies and procedures that governed the grant of legal aid assistance at the time of the fatal incident did not have an exception to the requirement to lodge a caveat in circumstances where lodging one may be
contrary to the safety of a family violence victim.
b. Victoria Police — the handling of family violence reported to Victoria Police on
12 March 2014 and the withholding of children by Mr McDermott.
c. Victoria Police — the handling of family violence reported to Victoria Police on
26 and 27 March 2014 regarding the death threat from Mr McDermott.
d. Victoria Police — the handling of family violence reported to Victoria Police on 16 April 2014 at Sunshine Magistrates Court regarding intimidating and threatening behaviour of Mr McDermott at Court.
§ Tbid.
6 Coronial Brief, Statement of Bronwyn Alice Doyle dated 16 April 2014, 150-154.
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52:
e. Child Protection — failure to assist Ms Warzywoda after Mr McDermott refused to return the youngest three children in March 2014, despite being aware of his history of family violence (particularly when using alcohol), and his recent involuntary admission to Sunshine Hospital during which he
admitted to recent drug and alcohol use.
£. Child Protection — the handling of a death threat to Ms Warzywoda reported to Child Protection on 26 March 2014. Child Protection relied solely on the school’s principal to notify Ms Warzywoda of the threat. They did not take any steps to contact Ms Warzywoda or the police themselves, and they also failed to conduct any follow up to ensure that appropriate steps had been taken to
protect both Ms Warzywoda and the children.
g. Child Protection - throughout their interactions with Ms Warzywoda, Child Protection placed the onus of taking protective steps entirely upon other professionals, such as the staff at the children’s school, and Ms Warzywoda.
They failed to undertake any safety planning or assessment of Ms
Warzywoda’s risk.
The Chief Commissioner of Victoria Police, Child Protection and Victoria Legal Aid were legally represented at the Directions Hearing. The Federal Court of Australia and No To Violence were not legally represented and did not attend. Family Violence Senior Solicitor, Nicholas Ngai, appeared to assist me during the Hearing. Mr Ngai read out a summary of the circumstances of Ms Warzywoda’s death and an outline of the concerns
identified during the course of the investigation.
During the Directions Hearing the representative for Victoria Legal Aid submitted that substantial reforms have been made since 2014 to the Means Test for applications for grants of legal aid assistance and that these reforms address the main concerns raised during my coronial investigation. Counsel further submitted that Victoria Legal Aid will continue to monitor the implementation of both their client training program and exemption procedures to ensure that they remain adequate for those who experience
family violence and apply for grants of legal aid assistance.
The representative for Child Protection submitted that there had been significant changes
to the way Child Protection operates in light of recommendations made by the Royal
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Commission into Family Violence (RCFV).® However, Child Protection conceded that the response from Child Protection services assisting Ms Warzywoda and her children at
the time were inadequate and that this created a missed opportunity for intervention.
The representative for Child Protection further submitted that if the events that occurred
in 2014 relating to Ms Warzywoda occurred today that:
a. Child Protection would now refer high risk threats to police in consultation
with a senior practitioner who would have specialist family violence
experience.
A referral to a Risk Assessment and Management Panel (RAMP)® would have taken place and this would have restricted the ability to close a high-risk case
without a decision being made by a Child Protection team manager.
Child Protection would further refer Ms Warzywoda to a Support and Safety Hub (the Orange Door)® and better supported Ms Warzywoda through new updated information sharing processes designed to share relevant critical risk
information with agencies, details of which are discussed below.
Finally, the representative for the Chief Commissioner of Victoria Police submitted that the concerns raised by my investigation were carefully considered by Family Violence
Command within the Victoria Police. The representative further submitted that:
a. the majority of concerns raised in my coronial investigation into Ms
Warzywoda’s death were canvassed by the coronial inquests into the deaths of Kelly Ann Thompson”, Joy Maree Rowley” and Luke Geoffrey Batty” and the RCFV.
61 State of Victoria, Royal Commission into Family Violence, Final Report (2016), Volume II, Chapter 11.
68 A Risk Assessment and Management Panel (RAMP) is a formally convened meeting, held at a local level, of nine key agencies and organisations that contribute to the safety of women and children experiencing serious and imminent threat from family violence. Across Victoria there are 18 RAMPs that each meet once a month to share information and take action to keep women and children at the highest risk from family violence
safe. Women who are referred to a RAMP are identified as being at serious and imminent threat from family violence and require a comprehensive risk assessment and co-ordinated action plan to lessen or prevent the threat to her (and her children’s) life, health, safety or welfare. RAMPs are not a substitute for the existing
system but work to enhance the response to this high risk group.
6 The Orange Door is the entry point for Victorians to access child and family services, and family violence services, including services working with perpetrators of family violence.
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b. With respect to the verbal threat made by Mr McDermott to Ms Warzywoda at Sunshine Magistrates Court on 16 April 2014, it was submitted that comments like the one made by Mr McDermott are not uncommon and that it could be
considered an insulting comment and not a death threat.
I confirm that there were no further submissions from parties in attendance at the
Directions Hearing.
At the close of the Directions Hearing, I informed the parties that I did not anticipate the need to proceed to a full inquest as written and oral submissions had adequately
canvassed the concerns raised by my investigation.
Pursuant to section 67(3) of the Coroners Act 2008, I make the following comments
connected with the death:
The unexpected, unnatural and violent death of a person is a devastating event. While I note that Ms Warzywoda and Mr McDermott had separated, it is important to recognise that violence perpetrated by an intimate family member is particularly shocking, given
the family unit is expected to be a place of trust, safety and protection.
My investigation has highlighted a number of serious concerns regarding services that had engaged with Ms Warzywoda in the proximate period leading to her death. Whilst Ms Warzywoda had engaged with several service providers who were supporting her and her children, it appears that their records indicate a failure to make proper enquiries, adequately assess risks of family violence and share relevant information concerning
serious risk factors before closing their investigations or discontinuing support.
I note the following comments in addition to the concessions made by agencies during
the Directions Hearing held at Court on 21 May 2019:
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Victoria Legal Aid
McDermott.”
any proceeds of the sale.’”
existing risk factor in circumstances which were already high risk as noted above.
safety of a family violence victim.”
Lawyers.”7
® Coronial Brief, Statement of Bronwyn Alice Doyle dated 16 April 2014, 150.
% Coronial Brief, Statement of Manuela Galvao dated 23 June 2014, 167.
75 Coronial Brief, Statement of Bronwyn Alice Doyle dated 16 April 2014, 152.
76 Records provided by Victoria Legal Aid — 2014 policies for grants of legal aid assistance.
71 The means test guideline exemptions contained in Chapter 12 of the Victoria Legal Aid Handbook for Lawyers is available online at: https://handbook.vla.vic.gov.au/handbook/12-means-test/means-test-guideline-
exemptions
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Federal Courts of Australia
time with his children be suspended pending a psychiatric assessment. ’®
assaulted.
the threat involves an actual assault.
Department of Health and Human Services — Child Protection
three months prior to the fatal incident.®
and in the following commentary detailed below.
to information sharing processes and protocols had been implemented since
78 Coronial Brief, Appendix 11 — Federal Circuit Court of Australia CCTV footage for 15 April 2014
7 Coronial Brief, Statement of Sharaf Mohammed dated 22 April 2014, 186.
80 Tbid, 187.
81 Correspondence from Federal Court of Australia dated 16 January 2018.
82 Department of Health and Human Services, Statement of Angela Papoutsoglou, dated 24 February 2017, 1.
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5:
recommendations were made by the RCFV.® Child Protection has established new information sharing protocols with both the Children’s Court of Victoria and Magistrates Court of Victoria to request and receive information for assessing risk to a
child®* when:
a. an application has been made for a new or amended family violence order in either
Court;
b. an application is made for an order under the Family Law Act 1975 (Cth) in the
Magistrates Court; or
c. Child Protection is investigating a protective intervention report or has filed a
protection application under the Children, Youth and Family Act 2005 (Vic).
Child Protection confirm that on 27 September 2018, they became an information sharing entity under the Family Violence Information Sharing Scheme (FVISS). The FVISS is designed to enable safe information sharing between professionals in a timely manner to support effective assessment and management of family violence risk. Child Protection is also a prescribed information sharing entity under the Child Information Sharing Scheme which is intended to facilitate services working together to identify needs and risks to promote earlier and more effective intervention in services aimed at
protecting children.
Child Protection also confirmed in a statement from Chief Practitioner, Ms Tracy Beaton®, that if the same threat to kill was provided to child protection at present, practitioners would be required to follow the Threats to kill a child, parent, or carer practice procedure and advice. Whilst this procedure and advice was in place at the time of Child Protection’s engagement with Ms Warzywoda’s children, it only applied to a threat to kill a child.
Child Protection confirm that the current Threats to kill a child, parent, or carer practice
procedure and advice requires practitioners to:
a. consult their team manager and record this on the child’s file;
83 Department of Health and Human Services (Child Protection) written submissions dated 17 May 2019.
84 Supplementary statement of Beth Allen dated 14 May 2019, 6 85 Statement of Tracey Beaton dated 17 May 2019
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b. report the threat to police and record this on the child’s file;
c. consult the specialist family violence or senior child practitioner (family violence)
about a referral to a Risk Assessment and Management Panel; d. develop a safety plan;
e. place an alert regarding the death threat and who made the threat on the children’s files;
f a team manager must consider convening a case conference and planning an intervention — if this does not occur, a rationale must be recorded on the child’s
file; and
g. a team manager must decide whether enough safety exists to close the case
following a threat to kill.
practices since 2014:
a. family violence specific training Tilting our Practice which was delivered in response to recommendation 29 of the RCFV. This training is designed to assist and guide improved practice regarding family violence. There is a specific focus on perpetrator accountability and developing greater understanding of the complexities for victims of family violence and how this impacts the safety of
children.
b. practitioners are now required to access family violence history through the L17 portal and integrate this into their risk assessments. This may lead to a greater
understanding of family violence experienced by a parent and their children.
No To Violence (Men’s Referral Service)
Form L17 referral from Victoria Police in relation to Mr McDermott.®* On the form a
86 Victoria Police members who attend a family violence incident can make formal referrals to community agencies and/or reports to Child Protection by completing and forwarding a Victoria Police Risk Assessment and Risk Management Report (L17 referral.
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box was ticked which stated, ‘Police have not contacted the Respondent.’ In their statement to the Coroners Court, NTV/MRS indicated that when this box is ticked, the referral is deemed inappropriate for contact by NTV/MRS due to safety concerns.
NTV/MRS advise that there is a risk that the respondent may learn about the family violence report via NTV/MRS first, rather than via the police, which could lead to the perpetrator seeking out the family violence victim. Consequently, Mr McDermott was
never contacted by NTV/MRS as a result of this referral.®”
The assessment conducted by NTV/MRS, and their policy not to contact the respondent in such cases, is appropriate. However, given the importance of perpetrator accountability and ensuring perpetrators are engaged with the family violence system,
this was potentially a missed opportunity for intervention.
If NTV/MRS had a system for following up such referrals with Victoria Police at a later date, to ascertain whether contact had been subsequently made with the Respondent, they could have discovered that Mr McDermott had been interviewed by Police on 23 March 2014. As such, the referral could have been actioned by NTV/MRS after this
date.
Victoria Police
12 March 2014 family violence report to Police
Ms Warzywoda attended the Melton Police Station on 12 March 2014 after Mr McDermott refused to return the children to her. She further stated that the police advised her that they could not assist, as there were no family law orders in place, but they agreed to conduct a welfare check. Police attended Mr McDermott’s brother’s home, but neither Mr McDermott nor the children were present.** Victoria Police confirmed in their written submissions that a welfare check was therefore not conducted
on the children.*®?
87 Statement from No to Violence — Men’s Referral Service dated 6 February 2017.
88 Coronial Brief, Appendix 17, 659.
89 Written submissions prepared by Ronald Gipp, Counsel for Chief Commissioner of Police dated 16 May
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29s
There are no notes in the LEAP records provided by Victoria Police in relation to this incident and it does not appear that any further action was taken by the police on this occasion. Ms Warzywoda had an interim FVIO at the time that this incident occurred, which included the children. Although it was a limited FVIO which did not prevent Mr McDermott from going near the children, it did prevent him from committing family
violence against them and against Ms Warzywoda.
I note that Mr McDermott’s actions on this occasion may have constituted family
90 and caused Ms
violence, as it was emotionally and psychologically abusive, Warzywoda to fear for the safety and wellbeing of her children.*! In those circumstances it may have been appropriate for Victoria Police to have treated this report as a breach of
the FVIO.
I further note that that the current family violence risk assessment tool under the new MARAM stipulates that the withholding of children is an act of control that can form part of abusive behaviours affecting the adult victim and the child’s psychological,
developmental and emotional wellbeing.”
26 and 27 March 2014 family violence reports to police
I confirm that written submissions received on behalf of the Chief Commissioner of Police concede that the Code of Practice for the Investigation of Family Violence (Code of Practice)” required police members to complete a VP Form L17 risk assessment after receiving the report from the school principal and Ms Warzywoda,™ which would have recorded the family violence incident report in LEAP, and would have been reviewed by a supervisor to ensure appropriate action was taken. I note that the police member also failed to consider the incident as family violence perpetrated against the child, which was in breach of the FVIO in place at the time of their assessment of family violence risk on 26 and 27 March 2014. The definition of family violence as outlined in section 5(1)(b) of the Family Violence Prevention Act 2008 includes behaviour that
exposes a child to behaviour that threatens another family member.
9° Family Violence Protection Act 2008 (Vic) ss 5(1)(a)(i), 7.
9! Family Violence Protection Act 2008 (Vic) s 5(1)(a)(iv).
2 Family Safety Victoria, Family Violence Multi-Agency Risk Assessment and Management Framework (2018),
93 Victoria Police, Code of Practice for the Investigation of Family Violence (2010) 2"4 Edition.
4 Thid 17.
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The events of the 26 and 27 March 2014 evidence a significant possible missed opportunity for intervention. The alleged death threat was potentially a crime in contravention of Mr McDermott’s bail conditions as Mr McDermott was on bail at the time he made the death threat and a breach of the FVIO that was active at the time of the threat. °° The apparent failure to take any action against Mr McDermott in relation to the death threat was a potential breach of the Code of Practice which states that ‘police will respond to and take action on any family violence incident reported to them, regardless of who made the report and how it was made.’°® Had police members from the Melton Police Station made proper enquiries, including reviewing previous LEAP records, prior family violence incidents like the March 2010 incident would have been evidence of Mr
McDermott’s violent history and substantial historical family violence.
Threats made at Sunshine Magistrates Court on 16 April 2016
28,
On 16 April 2016 a Victoria Police member providing Court support in the family violence list at Sunshine Magistrates’ Court was advised by a registrar that Mr McDermott had said ‘you’re fucked’ to Ms Warzywoda at Court that morning.?” However, no further action appears to have been taken by this police member on this occasion, despite the threat being in breach of the FVIO held by Ms Warzywoda at the
time.
Although the police member spoke directly with Ms Warzywoda following the reported threat, he does not appear to have discussed the alleged threat with her or taken any
further action in response to it.
This appears to be a breach of the Code of Practice, even if ‘you're fucked’ is not a threat to kill, it is still a breach of the FVIO that is actionable as intimidation. As such, the Code of Practice required the police member to complete an L17 risk assessment after receiving the report”, which would have recorded the family violence incident report in LEAP and would have been reviewed by a supervisor to ensure appropriate action was
taken.
95 Offenders who are subject to bail conditions are required to comply with section 30B of the Bail Act 1977 (Vic) which requires offenders subject to bail not to commit indictable offences whilst on bail. The threat to kill Ms Warzywoda is an indictable offence pursuant to section 20 of the Crimes Act 1958 (Vic).
96 Victoria Police, Code of Practice for the Investigation of Family Violence (2010) 2™ Edition.
97 Coronial Brief, Statement of Karen Field dated 6 May 2014, 195; Statement of LB dated 16 April 2014, 432.
%8 Above n 96.
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Pursuant to section 72(2) of the Coroners Act 2008, I make the following recommendations:
il,
With the aim of improving public safety and preventing like deaths, J recommend that No To Violence/Men’s Referral Service and Victoria Police consider the implementation of a system to monitor L17 referrals for perpetrators of family violence who are referred to a men’s behavioural change program and have not been contacted by Victoria Police in relation to family violence incidents or family violence intervention orders. Such a system should ensure that once Victoria Police contact has been made with the alleged perpetrator, that No To Violence/Men’s Referral Service
can make contact to ensure perpetrator accountability; and
With the aim of improving public safety and preventing like deaths, I recommend that Victoria Police examine and develop a system for recording a telephone call to a police station by a party to a family violence incident, creating a record that is visible to members who subsequently check the parties on LEAP and updating the Victorian Police Code of Practice for the Investigation of Family Violence to set out the obligation to record telephone calls to police reporting family violence incidents on LEAP. I confirm that a similar recommendation was made in the coronial investigation into the death of Kelly Ann Thompson (COR 2014/0824) and Victoria Police have yet
to implement a system for recording such telephone calls to police.
With the aim of improving public safety and preventing like deaths, I recommend that Victoria Police ensure that the Victorian Police Code of Practice for the Investigation of Family Violence is updated to reflect that the withholding of children is an act of control that can form part of abusive behaviours affecting the adult victim and the child’s psychological, developmental and emotional wellbeing. Appropriate training should be resourced to ensure consistent approaches by Victoria Police members to investigating incidents of reports of children being withheld from a parent, especially in instances where a Family Violence Intervention Order protecting the parent and/or
children is in effect.
With the aim of improve public safety and preventing like deaths, I recommend that the Federal Court of Australia consider developing clear guidelines and policies for
security guards to ensure that threats of violence or of a serious nature are properly
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recorded and reported to appropriate authorities. Such policies should include reporting threats to Victoria Police where appropriate and a referral to the Family
Advocacy and Support Service (FASS).
The investigation has identified that Ms Warzywoda had been a victim of substantial family
violence and abuse over the course of her relationship with Mr McDermott.
The evidence available to me indicates that there were several lost opportunities for intervention in Ms Warzywoda’s death. I confirm that the adverse concerns discussed in this finding concerning agencies who had contact with Ms Warzywoda have been subsequently addressed internally by the agencies themselves, or by recommendations of the Royal
Commission into Family Violence. I make no further adverse findings.
I accept and adopt the medical cause of death ascribed by Dr Lee and I find the cause of Fiona Warzywoda’s death to be stab wounds to the chest, in circumstances where I find that
she was murdered by her former partner, Mr McDermott.
Pursuant to section 73(1A) of the Coroners Act 2008, I order that this finding be published
on the internet.
I direct that a copy of this finding be provided to the following parties for their information:
Mr Joshua Warzywoda
Detective Sergeant Leigh Alan Howse
Ms Louise Glanville, Managing Director, Victoria Legal Aid
Ms Colleen Carey, Principal Solicitor, Department of Health and Human Services
Ms Marcia Ann Neave AO, Commissioner, Royal Commission into Family Violence
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I direct that a copy of this finding be provided to the following parties for their action:
Mr Steve Fewster, Director Security and Marshal, Federal Court of Australia Ms Jacqui Watt, Chief Executive Officer of No To Violence
Mr Graham Ashton, Chief Commissioner of Victoria Police
Signature:
\
AUDREY JAMIESON CORONER Date: 17 July 2019
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